THE NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL

READING MATERIAL

CIVIL PROCEDURE CODE II

B.A., LL.B. (Hons.)

III Year

VIII TRIMESTER

OCTOBER- DECEMBER (2019-20)

Compiled by:

Nimisha Jha

Assistant Professor
 COURSE OUTLINE
UNIT I: PRE TRIAL

1. First Hearing (Order 14): Meaning, Object, Alternative Dispute Resolution, Issues,
Meaning, Framing of Issues, Object, Preliminary Issue, Importance of Issues, Court’s
power and duty as to issues, Material for framing Issues, Amendment of Issues, Omission
to frame issues, Disposal of Suit (Order 15).
2. Discovery, Inspection and Production of Documents (Order 11): Interrogatories,
Admissions (Order 12), Production, impounding and return of Documents (Order 13),
Affidavits (Order 19).
3. Interim Orders: Payment in Court (Order 24), Security of Costs (Order 25), Commissions
(Order 26), Arrest before judgment (Order 38), Attachment before judgment (Order 38),
Temporary Injunctions (Order 39), Interlocutory orders (Order 39), Receiver (Order 40).
4. Withdrawal and Compromise of Suits (Order 23)
5. Death, Marriage and Insolvency of Parties

UNIT II: TRIAL

1. Trial: Summoning and Attendance of Witnesses (Order 16), Attendance of Witnesses in

Prison (Order 16 A), Summons to Produce Documents (Section 30), Adjournments
(Order 17), Hearing of Suit (Order 18)
2. Judgment and Decree: Interest (Section 34), Costs (Section 35, 35A, 35B, Order 20A)

UNIT III: APPEAL

1. First Appeal: Meaning, Essentials, Right of Appeal, Suit and Appeal, Appeal and
Revision, Conversion of Appeal into Revision, Who cannot Appeal?, Appeal against ex
parte decree, Appeal against consent decree, Appeal against Preliminary Decree, Appeal
against Judgment, Appeal against dead person, Limitation, Form of Appeal, Forum of
Appeal, Condonation of Delay, Summary Dismissal, Abatement of Appeal, Admission of
Appeal, Doctrine of Merger, Procedure at hearing, Cross Objections, Powers of Appellate
Courts, Duties of Appellate Courts, Letters Patent Appeal, Appeal to Supreme Court
2. Second Appeal: Nature, scope, object, Second appeal and First appeal, Second Appeal
and Revision, Substantial question of law, No second Appeal in certain cases, No Letters
patent Appeal, Limitation, Form of Appeal, Power of High Court to decide Issue of Fact,
Procedure at Hearing, Pending Appeal.
 3. Appeals from Orders: Order and Decree, Appealable orders, Res judicata, Limitation,
Forum of Appeal, Procedure at Hearing, Letters Patent Appeal, Appeal to Supreme
Court.
4. Appeals by Indigent Persons: Who May Apply?, Inquiry, Power and duty of Court,
Payment of Court fees, Limitation, Letters Patent Appeal.
5. Appeals to Supreme Court: Conditions, Procedure at Hearing, Appeals under
Constitution.

UNIT IV: REFERENCE, REVIEW AND REVISION

1. Reference: Nature, Scope, Object, Reasonable Doubt, Who may apply?, Power and duty
of Referring Court, Power and Duty of High Court, Procedure at Hearing, Costs,
Reference and Appeal, Reference and Review, Reference and Revision.
2. Review: Meaning, Nature, Scope, Object, Review and Appeal, Review and Reference,
Review and Revision, Conditions, Who may Apply? Who may Review? No inherent
power to Review, Suo moto review, Procedure at hearing, Limitation, Review in Writ
Petitions, Review by Supreme Court.
3. Revision: Meaning, Nature, Scope, Object, Revision and Appeal, Revision and Second
Appeal, Revision and Reference, Revision and Review, Revision and Power of
Superintendence, Conversion of Revision into Appeal, Who may file? Conditions,
Alternative Remedy, Limitation, Doctrine of merger, Dismissal in limine.
4. Distinction between Appeal, Reference, Review and Revision.

UNIT V: EXECUTION

1. Meaning, Nature, Scope, Scheme of Execution

2. Courts which may Execute: Procedure in execution, Powers of the transferor court,
Powers of the transferee court, Powers of Executing Court.
3. Application of Execution, Stay of Execution
4. Mode of Execution: Delivery of Property, Attachment and Sale of Property, Arrest and
Detention, Appointment of Receiver, Partition, Cross decrees and Cross claims, Payment
of Money, Specific performance of Contract, Injunction, Restitution of Conjugal Rights,
Execution of Document, Endorsement of negotiable instrument, Attachment of rent,
Mesne profits, etc., Liability of Surety, Decree against Corporation and firm, Attachment
of Decree, Payment of coins or Currency notes.
5. Questions to be determined by the Executing Court, Adjudication of Claims.
6. Miscellaneous Topics
TEXT BOOKS

1. Mulla, D. F., & Kant, S. (2016). Key to Indian Practice: A Summary of the Code of Civil
Procedure (11th ed.) Gurgaon: LexisNexis.

2. Mulla, D. F., Prasad, B. M., & Mohan, M. (2016). Mulla: The Code of Civil Procedure (18th
ed.) Haryana: Lexis Nexis.

REFERENCE BOOKS

1. Sarkar, S. C., & Sarkar, P. C. (2017). Code of Civil Procedure: by S. C. Sarkar & P. C. Sarkar
(12th ed.) Gurgaon: LexisNexis.
 UNIT I
PRE TRIAL
1. First Hearing (Order 14): Meaning, Object, Alternative Dispute Resolution, Issues,
Meaning, Framing of Issues, Object, Preliminary Issue, Importance of Issues, Court’s
power and duty as to issues, Material for framing Issues, Amendment of Issues, Omission
to frame issues, Disposal of Suit (Order 15).
2. Discovery, Inspection and Production of Documents (Order 11): Interrogatories,
Admissions (Order 12), Production, impounding and return of Documents (Order 13),
Affidavits (Order 19).
3. Interim Orders: Payment in Court (Order 24), Security of Costs (Order 25), Commissions
(Order 26), Arrest before judgment (Order 38), Attachment before judgment (Order 38),
Temporary Injunctions (Order 39), Interlocutory orders (Order 39), Receiver (Order 40).
4. Withdrawal and Compromise of Suits (Order 23)
5. Death, Marriage and Insolvency of Parties.
 FIRST HEARING

After a suit is instituted with the plaint and a written statement is given by the defendant there
comes a stage called first hearing. But what does the first hearing comprise of? What exactly
happens when summons which were served to both parties appear to the court? All these are
important questions and it is equally important to understand its object and at the same time why
issues are so important.

Basically after the presentation of plaint by the plaintiff and filing of written statement by the
defendant, there arrives a stage called first hearing. Order 14 of the Code of Civil Procedure,
1908 deals with the first hearing. The word first hearing as such is no where defined in the Code,
but the literal meaning of the term is the day on which the court goes into the pleadings of parties
in order to understand their contentions. While Order 10 of the Code enjoins the court to
examine parties with a view to ascertain matters in controversy in the suit. It has been held by the
Supreme Court that First hearing is the day on which the court applies its mind to the case either
for framing issues or for taking evidence.1

The Order X Rule 1 provides that the court shall, at the first hearing of the suit, ascertain from
each party or his pleader whether he admits or denies such allegations or facts as are made in the
plaint or in the written statement, if any, of the opposite party. After recording admissions and
denials, the court shall direct the parties to the suit to settle out of court through conciliation,
arbitration, mediation or Lok Adalat. If there is no settlement, the case will again be referred to
the court. Rule 2 further provides that for oral examination of parties to the suit with a view to
elucidating matters in controversy in the suit. The court, thus, ascertain with precision the
propositions of law or fact on which the parties are at variance and on such questions issues are
required to be framed. The main purpose behind these rules is to understand and inform the
parties about their real dispute so that the area of conflict can be dealt with between the parties at
the same time, later on if any party come to realise about these issues, it would not be surprise to
them.

Therefore, on the first hearing, the main task of framing of issues is done. Issue means a point in
question or some important subject of discussion. Issues are points of contradictory averments
made by the parties and decide by the court. When one fact is asserted by the party and the same
is denied by other, that is oppositions, such per se facts, which will be called material
propositions will constitute issues. Order X Rule 1(2) and 1(3) provides that material
propositions are those propositions of law or fact which a plaintiff must allege in order to show a
right to sue or a defendant must allege in order to constitute his defence. Each material
proposition affirmed by one party and denied by the other shall form the subject-matter of a
distinct issue.

1
Arjun Khaimal Makhijani v. Jamnadas C. Tuliani (1989) 4 SCC 612
Basically the framing of issues requires some conditions and material which is inclusive of
mainly three things. Firstly, the allegations made on oath by the parties, or by any persons
present on their behalf, or statements made by the pleaders appearing for the parties. Secondly,
the allegations made in pleading or in answers to interrogatories and thirdly, documents
produced by the parties.2 Therefore their important has been realised appropriately in leading
judgement in State of Gujarat v. Jaipalsingh Jaswantsingh Engineers and Contractors 3 wherein it
was stated that “such framing of issues in the first instance would facilitate the applicant to lead
necessary evidence in support of the claim and the reliefs prayed pursuant thereto. In the second
instance, it will avail the opponent an opportunity to confront and contradict the particular
witness and thereafter to lead the evidence if he so desires to bring home the defence pleaded,
and in the third instance, enlighten the trail court to test and appreciate the same in proper
perspective to enable it to reach a just decision. It is hardly required to be told that issues are
backbone of a suit. They are also the lamp-post which enlightens the parties to the proceedings,
the trial court and even the appellate court- as to what is the controversy, what is evidence and
where the way to truth and justice lies.”

Therefore the framing of issues is the duty of the court since only the court can frame the issues
in a suit. They are decided by the Presiding Officer of the court that is the Judge. At the same
time, parties and their pleaders thereof must also assist the court in framing the issues wherever
required. While issues are supposed to be clear and specific, vague and evasive issues creates
irregularities in the administration of justice. Order X also provides that the court may examine
witnesses or inspect documents before framing issues, to amend the issues or to frame additional
issues or to strike out issues that may appear to the court to be wrongly framed.

But in circumstances wherein there is the omission of court to framing of issues, such is not
considered fatal to the suit. But in case, such omissions leads to affect the disposal of suits on
merits then the case must be remanded to the trail court for fresh trial. While on the other hand, it
was held that where the parties knew that certain point of proposition would have been an issue
and yet its disposition would not be fatal to the suit, such omission of court on framing issue is
acceptable provided it has caused no prejudice or substantial injustice. 4 Order 15 deals with
various situations where a suit can be disposed off on the first hearing itself. Therefore, issues are
extremely important for a proper proceeding of a suit and right decision of the case 5 and
omission thereto can be caused, bearing valid reasons and while if framed properly, all issue
must be normally decided at one and same time.6 This constitutes all we need to know about first
hearing.

2
Rule 1(5) and 3
3
(1994) 35 (1) Guj LR 258
4
Keval Krishan v. Dina Nath (1992) 2 SCC 51
5
Pandurang Laxman v. Kaluram Bahiru AIR 1956 Bom 254
6
Lufthansa General Airlines v Vij sales Corporation (1998) 8 SCC 623
 FRAMING OF ISSUES
When one party affirms and other party denies a material proposition of fact or law, then only
issues arise. If there is no specific denial, the question of framing issue does not, generally, arise.
Material propositions are those propositions of law or fact. The plaintiff must allege such
material propositions in order to show his right to sue. In the same way, defendant must allege as
to constitute his defence. Unless each material proposition is affirmed by the plaintiff and denied
by the defendant, a distinct issue will not form.

Material Propositions:

Basically, Material propositions can be understood in sense of two aspects. Those are
Proposition of fact and Proposition of law. Those propositions of fact or law which a plaintiff
must specifically allege in order to show a right to sue or a defendant must specifically allege in
order to constitute his defence in such suit. In Sri Nanjudchari vs. The Chairman , it was held
that '' It is mandatory on the part of the trial court to frame all necessary issues arising from
pleadings i.e., material preposition of fact and law of affirmed by the one party and denied by the
another.

When Does A '' Distinct Issue'' Form ?

To form a distinct issue, a material proposition must affirmed by one party and denied by other.
Unless each material proposition is affirmed by the plaintiff and denied by the defendant, a
distinct issue will not form.

At this juncture, it is not out of scope to see Rule 1 (3) of Order XIV of C.P.C, which reads as
infra:

'' Each material proposition affirmed by one party and denied by the other shall form the subject
of a distinct issue.''

Kinds Of Issues:

If defendant makes no defence, framing and recording issue by the Court does not arise. That
too, in such a case, a Court need not frame and record a issue inasmuch as the defendant makes
no defence at the first hearing of the suit. In Desi Kedri vs. Huzurabad Co-Operative Marketing
Society Ltd.,, it was held that ''Issues need not be framed when there is no dispute with regard to
material averments in the plaint.''

According to Rule 1( 4) of Order XIV of C.P.C, issues are of two kinds.

a) issues of fact,

b) issues of law.
How May an Issue of Fact Arise?

At this stage, I deem that it is not out of place to discuss about the word '' Fact'' which is defined
under section 3 of Indian Evidence Act,1872.

['' Fact''. " Fact" means and includes-- (1) any thing, state of things, or relation of things, capable
of being perceived by the senses; (2) any mental condition of which any person is conscious.

Illustrations

(a) That there are certain objects arranged in a certain order in a certain place, is a fact.

(b) That a man heard or saw something, is a fact.

(c) That a man said certain words, is a fact.

(d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently,
or uses a particular word in a particular sense, or is or was at a specified time conscious of a
particular sensation, is a fact.

(e) That a man has a certain reputation, is a fact." Relevant." One fact is said to be relevant to
another when the one is connected with the other in any of the ways referred to in the provisions
of this Act relating to the relevancy of facts." Facts in issue." The expression" facts in issue"
means and includes-- any fact from which, either by itself or in connection with other facts, the
existence, non- existence, nature or extent of any right, liability, or disability, asserted or denied
in any suit or proceeding, necessarily follows.

Explanation.-- Whenever, under the provisions of the law for the time being in force relating to
Civil Procedure, 1[ any Court records an issue of fact, the fact to be asserted or denied in the
answer to such issue is a fact in issue.

Illustrations A is accused of the murder of B. At his trial the following facts may be in issue:--
that A caused B' s death; that A intended to cause B' s death; that A had received grave and
sudden provocation from B; that A, at the time of doing the act which caused B' s death, was, by
reason of unsoundness of mind, incapable of knowing its nature.]

In view of above, it is apt to say that understanding the word ''fact'' under purview of Indian
Evidence Act is very important as to issues of fact.

When Shall A Court Frame And Record Issues?

Basically, at the first hearing of the suit the Court shall ascertain upon what material propositions
of fact or law the parties are at variance. Yet, here, three essential points are to be remembered.
Before framing and recording issues, firstly, the Court shall read the plaint and written statement.
Secondly, examination under rule 2 of Order X is mandatory, thirdly, the Court shall hear the
parties or their pleaders. At the outset, it is apt to see words in rule 1 (5) of Order XIV of C.P.C ''
after reading the plaint and the written statement and after examination under rule 2 of Order X
and after hearing the parties or their pleaders''. Thus, the Fundamental Functions of the Court , as
to before framing and recording issues , are:

1. reading the plaint and written statement;

2. examination under rule 2 of Order X of C.P.C; and

3. hearing the parties or their pleaders;

after these three essential functions, the Court, at the first hearing, shall ascertain upon what
material propositions of fact or law the parties are at variance, and shall thereupon proceed to
frame and record the issues on which the right decision of the case appears to depend.

In Maddaa Sai Lakshmi v. Medisetti Lakshmi Narasamma, in this case, it was held that ''Before
commencement of trial, suit be posted to a specific date for hearing both sides on the issues
already framed to see if they have been property framed or if any reframing of issues is needed
on the core issues in dispute. Trial be commenced only after such exercise.''

Can a Court go into question and decide any aspect without framing issues?

Despite issue is not framed, court has power to go into that question and decide that aspect of the
subject matter in case of sufficient evidence is adduced by both parties on pleadings . At this
juncture, it is appropriate to refer ruling in Mohd.Kareemuddn Khan vs. Syed Aza, where it was
observed that Defendant pleading perfection of title by adverse possession. Issue not framed.
However, evdience adduced by both sides on the disputed matter. Court is not barred to go into
that question and decide that aspect of the matter. In another case, Sunyabasi Pikra vs.
Paramanand Ranasingh, it was held that '' Both parries have laid evidence, both documentary
and oral touching that issue. Non-framing that particular issue is immaterial. ''

It is thus clear that if the there are pleadings and sufficient evidence is available on record, the
Court can go into that question, even if issue is not framed on that question, and decide that
aspect of the matter. However, in some of the cases, the matters will be remaded to the trial
courts for failure to frame issues. In Syed Mahmood vs. Dr.Manik Chandra 1998(3)
An.W.R.340, it was observed that issues were framed and therefore, the matter remitted back to
trial court no frame issues as indicated and give reasonable opportunity to the parties to lead
evidence etc.

Conclusion:

A fortiori, the present structure of Rule 2 of Order XIV of C.P.C was brought about by the Civil
Procedure Code (Amendment) Act, 1976.
Therefore, it is very important to have a look to the difference between the amended Rule 2 and
earlier Rule.2. Let me conclude this article with an observation that ''When one draws a
comparison between the earlier Rule 2 and the amended Rule 2, the comparison immediately
leads to a conclusion that whereas under the old Rule 2 it was mandatory for a Court to try the
issues of law in the first instance and to postpone the settlement of issues of fact until after
findings had been arrived at with respect to the issues of law, under the new, amended Rule 2, as
has been spelt out and clearly stipulated in Sub-rule (1) thereof, the legislature has mandated that
a Court shall pronounce judgment on all issues, both of law as well as facts, notwithstanding that
a case may be disposed of only on a preliminary issue. Under the new Rule 2 the only exception
is contained in Sub-rule (2) thereof which, in a manner of speaking relaxes the aforesaid
legislative mandate to a limited extent by conferring a discretion upon the Court that if it is of the
opinion that the case or any part thereof may be disposed of on a issue of law only, it may try
that issue first, in the process postponing the settlement of other issues until the issue of law has
been determined. This discretion even though conferred by the aforesaid legislative amendment
has however been circumscribed and limited, specifically and explicitly only to two situations
and these are that the issue or issues of law only upon which the case or any part of the case may
be disposed of must relate to either the jurisdiction of the Court or a bar to the suit created by any
law for the time being in force. By a combined reading of Sub-rule (1) and Sub-rule (2) of Rule 2
what therefore emerges is that, except in situations covered by Sub-rule (2) a Court must dispose
of a suit as a whole, try all issues of law and fact together and accordingly pronounce judgment
on all such issues even though the case may be disposed of on a preliminary issue. ''
 DISCOVERY AND INSPECTION
It is seen that after a suit is instituted by the presentation of a plaint by the plaintiff and written
statement by the defendant in a court, both parties require to know certain facts about each
other’s case. Not only the material facts of the opponent party but also the documents in his
possession or power which are relevant to issue in the suit can also be asked to produce since
such facts and documents maybe used to maintain the case or impeach or destroy the case. There
are therefore two kinds of facts in a case which are facto probanda, the ones’ which constitute a
party’s case and facto probantia, which form the evidence by proving such facts. Only facto
probanda facts are allowed to be known beforehand to the party.
Therefore it is clear from above submissions that discovery of document simply means to compel
the adversary party to disclose the facts and documents which it has in its possession or power. It
is thus a compulsory disclosure by a party to an action of facts or documents on which the other
side wishes to rely.7 When such information as to facts is required, the party may put up a series
of questions which are called interrogatories, whereas if such facts rely on certain documents, it
is called discovery of documents.
The rule as to inspection of discovery is provided in Order XI Rule 12-21 of the Code of Civil
Procedure 1908. Rule 12 enables a party without filing an affidavit to apply to the court for the
purpose of compelling his opponent to disclose the documents in possession or power, relating to
any matter in question in the suit.8 Such documents need not to be admissible in evidence unless
they throw light on the matter of controversy. Such an order of discovery is binding in nature and
therefore non compliance thereto would lead to penalties mentioned in Rule 21. The intent of
legislature behind such provisions is to avail the parties for the disclosure of all facts and
material documents on oath, having penalties attached to it in case of disregard. Secondly, the
provision puts an end to protracted enquiry as to the material documents actually in possession or
power of the opposite party.9
Since it is already mentioned that a discovery may be sought by filing an affidavit or otherwise
against a party to the suit but there are two conditions precedent for a discovery to be ordered by
the court that are, firstly that such discovery is necessary for fair disposal of suit and secondly,
such discovery in a way or other saves cost. A discovery cannot be made of privileged
documents and it will not be enough to state an objection in an affidavit as to such documents but
it must be stated that how they are privileged so as to enable the court to decide the claim.10
Therefore the doctrine of crown privilege based on public welfare requires justice to be done. It
is open to court to inspect the document for deciding the sustainability of the claim.
There are certain rules as to discovery which includes, any party to a suit may apply to the court
for an order of discovery on oath of the documents which are or were in the possession or power

7
Concise Oxford English Dictionary (2002)
8
M.L. Sethi v. R.P. Kapoor (1972) 2 SCC 427
9
Lajpat Rai v. Tej Bhan AIR 1957 Punj 14
10
National Assn. of Operative Plasters v. Smithies 1906 AC 434
relating to any matter in question in the suit and non compliance to production of documents may
draw an adverse inference on the opposite party.
The provisions regarding inspection of documents are divided in two categories by virtue of Rule
15 to 19 of order XI. First one deal with documents referred to in pleadings or affidavits of
parties, and second one deals with other documents in possession or power of the party but not
referred to in the pleadings of the parties. A party is entitled for inspection in regard to
documents of first class only. Since privileged documents are protected from production such as
public records, confidential communications and documents having exclusive evidence of
parties’ title. Etc, therefore at the risk of repetition the court may inspect the documents for the
purpose of deciding the validity of the claim of privileges.
A discovery wherein such rights to discovery depends upon the determination of any issue or
question in dispute, or for any other reason it is desirable that any issue or question in dispute in
a suit should be determined before deciding upon the right to discovery is called premature
discovery.11 The court is empowered to postpone a premature discovery or inspection. In such a
situation the first and foremost thing to be done by the court is to determine that issue or question
and later on deal with the discovery thereto. The main purpose behind this provision is to enable
the court to decide an issue in a suit, as distinguished from deciding the suit itself.12 But it is to
be kept in mind that this rule does not apply where discovery is necessary for determination of
such question or issue.
The effects of non compliance of inspection thereto, are mentioned under Order XI Rule 21. If a
party is plaintiff, his non compliance to answer interrogatories would thereby lead to the
dismissal of suit and in case, the same non compliance is done by the defendant then it would
lead to him being struck off and it would restore the position as such it had not been defended.
Dismissal on part of plaintiff for non compliance thereof would have effects wherein res judicata
applies and the same disentitles the plaintiff to file a fresh suit on same cause of action. 13
Therefore, provisions in regard to discovery and inspection are very crucial and cases wherein
non compliance is prevalent have adverse affects thereto.

11
Union of India v. Laxminarayan AIR 1953 Nag 281
12
SSC Examination Board v. Pratibha Ganpatrao AIR 1965 Bom 28
13
Rule 21(2)
 INTERROGATORIES
It is well known that when a civil suit is instituted in a court of appropriate jurisdiction by the
presentation of plaint, Summons are sent to defendant about the same along with the copy of a
plaint. After the written statement by defendant, and summons being sent to both parties for first
hearing, there comes the process of settlement of issues. Issues are basically set out by those
facts which are asserted by one party and denied by other. But there are some questions which
arise after settlement of issues based on some information which one party knows and other
might not. There comes the importance of interrogatories.
Therefore, that information as to facts or documents which is in possession of the adverse party
is requested to be produced provided if it is relevant to the issue in dispute. Such information
required may be based on the certain fact or otherwise certain document or documents. In case of
facts, a party is allowed to put a series of questions to his adversary and then such questions will
be examined by judge to consider them proper or improper. If found proper, the judge will
compel the other party to answer those questions, which are called interrogatories. In simple
words, it means to ask questions or make inquiry closely or thoroughly.
The intent of the legislature for availing the provisions of interrogatories is two-fold. The
primary objective is to narrow the points in issue by saving expenses and enabling a party to
obtain from his adversary all information as to material facts and secondary objective is to get his
admission on any matter in question in the suit which otherwise have to be proved by
evidence.14
So it is quite clear that any party to the suit may administer interrogatories against the opponent
that is, plaintiff against the defendant and vice versa. But it has also been observed that in
exceptional circumstances, even co-plaintiff may administer interrogatories against each other
and co-defendants as well.15 In a suit, an order of interrogatories was obtain against principal on
behalf of his agent since in substance and in reality, he was the party.16 In fat, such an order may
be made against the Government17 and in case if the party is minor or lunatic then such an order
shall be made to the guardian of such minor or lunatic or to his next friend whosoever.
Since interrogatories bearing a formal element in them being an order from the court shall be in
the prescribed form provided in Order XI Rule 4 and 9 provided in Form No. 1 and Form No. 2
of Appendix C with necessary variations and modifications as the circumstances may require.
And if non compliance thereto occurs in answering to these interrogatories, such person
administering the interrogatories may obtain an order from the court requiring him to answer by
affidavit or by oral examination as provided in Rule 11. Such an affidavit as provided under Rule
4, 9 should be in Form No. 3 of Appendix C. When made this way, such interrogatories shall be

14
P. Balan v. Central Bank of India AIR 2000 Ker 24
15
Anandrao v. Budra Malla ILR (1892) 16 Bom 384
16
Roop Chand v. Church Missionary AIR 1923 Lah 282
17
Mohd. Mehdi v Governor General in Council AIR 1948 Sind 100 (FB)
answered by affidavit to be filed within ten days after the service or within such period as the
court may allow.
But in cases where the content or intent behind the interrogatories are scandalous, mala fide or
immaterial such an objection can be raised by the party to whom such an order is made.18 They
can even be struck off by the court on the grounds that they are polix or unnecessary. Even
interrogatories seeking privileged information which means the ones which are themselves an
exclusive evidence of party’s own title or which provides for confidential communications
between a client and his legal advisor19 or which relates to the affairs of the state and confidential
official communications whose revelation would be injurious to public interest 20 , etc is
considered privileged information for which too an objection can be made.
There are certain conditions precedent as to administration of interrogatories that such shall be
made in writing with the leave of the court along with complying with any such condition or
limitation made by the court which the court shall decide within seven days. It has also been
observed that on in exceptional circumstances a party can deliver more than one set of
interrogatories to the same party. 21 In fact the non compliance to answer interrogatories has
adverse effect, in case of plaintiff the dismissal of the suit and in case of the defendant, his name
being struck off from the suit.
There is as such not any prescribed questions which may be allowed or not. But there is an
umbrella which provides that all those questions which either prove the case of person making
them or destroy the case of his adversary forms the interrogatories provided they form such
questions with any matter in issue. Such a right has been considered a valuable one and
deprivation of the same is not acceptable unless such questions involve which are of privileged
character as mentioned before. Even interrogatories which are in nature of cross examination are
not allowed.22
It is to be further kept in mind that in case of interrogatories it is an order which is made by the
court for granting or rejecting such prayer therefore the same is not appealable. The same is not
usually revised by the High Court too unless it is clearly wrong or illegal23 since at the risk of
repetition, it is the discretion of the court to allow or disallow the interrogatories.

18
Order XI Rule 6
19
Section 126 and 129 of the Indian Evidence Act.
20
State of Punjab v. Sodhi Sukhdev Singh AIR 1961 SC 493
21
Union Bank of London v. Manby (1879) 13 ChD 239
22
Raj Narain v. Indira Gandhi (1972) 3 SCC 850
23
Shyamal Kumar v. Godavari Devi AIR 1977 NOC 120
 ADMISSIONS
The Admissions in the Civil Law are spread over many of rules as envisaged in the Code. The
Code describes the admissions in three categories :-
1. Actual admissions, oral or by documents;
2. the express or implied admissions from the pleadings or by non traverse by agreement
3. By agreement or by notice.
The admissions need not be proved unless the court otherwise is of the opinion or requires the
same to be proved. Order VIII Rule 5 of the Code in this regard reads as under :-
“5. Specific denial :-
(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or
stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as
against a person under disability: Provided that the Court may in its discretion require any fact so
admitted to be proved otherwise than by such admission.
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce
judgment on the basis of the facts contained in the plaint, except as against a person under a
disability, but the Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court
shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced denial of the admissions, then the court will take such
facts as pleaded in the plaint to be admitted.
However, the court has been left with the discretion to require the facts to be proved even if these
are admitted or if the party does not deny such facts.
However, it has been made clear under sub-section (4) that if the court pronounces judgment
over admitted facts, then the court would pass a decree.
Elements of admissions:
The admissions are not conclusive. They can be gratuitous or erroneous. The admissions can be
withdrawn or explained away. The inference regarding admission could be concluded after
considering the pleadings in entirety. Admissions could be proved to be wrong. Oral admissions
prevail over the record of rights, or documentary evidence. Admissions of the co-defendant
cannot be allowed to be used as against the other defendants.
The admissions made at any time can be proved to be collusive or fraudulent. Judgment on
admissions: Besides a judgment which could be passed under Order 8 Rule 5 CPC, Order XII
Rule 6 and Order XV Rule 1 also relate to the judgment on admissions. Rule 6 of Order XII
reads as under :-
“6. Judgment on admissions –
(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally
or in writing, the Court may at any stage of the suit, either on the application of any party or of
its own motion and without waiting for the determination of any other question between the
parties, make such order or give such judgment as it may think fit, having regard to such
admissions.
(2) Whenever a judgment is pronounced under sub- rule (1), a decree shall be drawn up in
accordance with the judgment and the decree shall bear the date on which the judgment was
pronounced.”
Rule 1 of Order XV reads as under :-
“1. Parties not at issue – Where at the first hearing of a suit it appears that the parties are not at
issue on any question of law or of fact, the Court may at once pronounce the judgment.”
Order XII Rule 6 of the Code Relief under Order XII Rule 6 is discretionary in nature. It also
confers the court with wide discretion to decree the suit and it is not bound to pass decree in a
proper and reasonable case and can call for the evidence before passing the decree. Where the
averments made in the written statement gave rise to the trivial issues, the judgment on
admission under Order XII Rule 6 CPC cannot be passed.
In case R.K. Markan vs. Rajiv Kumar Markan, 2003 AIHC 632 (633) Delhi, wherein it was
observed as under :- “For passing a decree on the basis of admission of the defendants in the
pleadings, law is well settled that the admission has to be unequivocal and unqualified and the
admission in the written statement should also be taken as a whole and not in part....”
Order XIV Rule 6 & 7 and Order XXIII Rule 3 of the Code Order XIV Rules 6 & 7 and Order
XXIII Rule 3 of the Code deal with the admissions by agreement, which are reproduced as under
:- “6. Questions of fact or law may be agreement be stated in the form of issues - Where the
parties to a suit are agreed as to the question of fact or of law to be decided between them, they
may state the same in the form of an issue, and enter into an agreement in writing that, upon the
finding of the court in the affirmative or the negative of such issue,--
(a) a sum of money specified in the agreement or to be ascertained by the court, or in such
manner as the court may direct, shall be paid by one of the parties to the other of them, or that
one of them be declared entitled to some right or subject to some liability specified in the
agreement;
(b) some property specified in the agreement and in dispute in the suit shall be delivered by one
of the parties to the other of them, or as that other may direct; or
(c) one or more of the parties shall do or abstain from doing some particular act specified in the
agreement and relating to the matter in dispute.
Court, if satisfied that agreement was executed in good faith, may pronounce judgment - Where
the court is satisfied, after making such inquiry as it deems proper,--
(a) that the agreement was duly executed by the parties,
(b) that they have a substantial interest in the decision of such question as aforesaid, and
(c) that the same is fit to be tried and decided, it shall proceed to record and try the issue and
state its finding or decision thereon in the same manner as if the issue had been framed by the
court, and shall, upon the finding or decision on such issue, pronounce judgment according to the
terms of the agreement; and, upon the judgment so pronounced, a decree shall follow.
From bare reading of Rule 1 of Order XV of the Code, it transpires that the lis could be
adjudicated only when the parties are not at issue. The intention of the legislature in introduction
of the order XV Rule 1 was not to pass a decree but to decide the suit in the manner as prescribed
under the law when the parties are not at issue. Had there been any intention of the legislature to
decree the suit in case parties are not at issue, then there was no requirement to introduce Order
XII Rule 6 or Order VIII Rule 5 of the Code.
The existence of the dispute is the sine qua for the trial. When the court finds the parties prima
facie at issue, in that event, the court was to hold enquiry after framing issues, otherwise, it is not
open to the court to hold trial. Cause of action which is the main element of trial pre-supposes,
denial or threat to the rights of the parties claiming such right. Discretion of the court to award
judgment on admissions:
Admissions before the same are relied upon, it should be clear, unequivocal, categorical and
should not be vague and conditional. However, there is discretion of the court to exercise power
to pass a decree on the basis -5- of such admissions. Similar view was taken by the Apex Court
in its latest judgment delivered in case Himani Alloys Ltd. vs. Tata Steel Ltd. 2011 (3) Civil
Court Cases 721, wherein it was observed as under :
“10. It is true that a judgment can be given on an “admission” contained in the minutes of a
meeting. But the admission should be categorical. It should be a conscious and deliberate act of
the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling
provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of
the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a
judgment on admission is a judgment without trial which permanently denies any remedy to the
defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous
and unconditional, the discretion of the Court should not be exercised to deny the valuable right
of a defendant to contest the claim. In short the discretion should be used only when there is a
clear “admission” which can be acted upon.
(See also Uttam Singh Duggal & Co. Ltd. vs. United Bank of India [2000 (7) SCC 120], Karam
Kapahi vs. Lal Chand Public Charitable Trust [2010 (4) SCC 753] and Jeevan Diesels and
Electricals Ltd. vs. Jasbir Singh Chadha [2010 (6) SCC 601].
There is no such admission in this case.” Actually, the discretion to pass the decree has its roots
in the locus classicus judgment delivered by the Apex Court in case Nagubai Ammal and others
vs. B. Shama Road and others AIR 1956 SC 593 wherein it was observed that merely because of
written admission was made in a different context, such admission may not become relevant if
the party making it has a reasonable explanation of that. The Apex Court in Naghubai Ammal's
case (supra), further observed as under :-
“18. An admission is not conclusive as to the truth of the matter stated therein. It is only a piece
of evidence, the weight to be attached to which must depend on the circumstances under which it
is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made
has not acted upon it is his detriment, when it might become conclusive by way of estoppel. In
the present case, there is no question of estoppel, as the title of Dr. Nanjunda Rao arose under a
purchase which was long prior to the admission made in 1932 and in the subsequent years.
It is argued for the appellants that these admissions at the least shifted the burden on the plaintiff
of proving that the proceedings were not collusive, and that as he gave no evidence worth the
name that these statements were made under a mistake or for a purpose and were, in fact, not
true, full effect must be given to them. Reliance was placed on the well known observations of
Boran Parke in Slatterie v. Pooley (1840) 6 M and W 664 (669) (C) that “what a party himself
admits to be true may reasonably be presumed to be so”, and on the decision in 34 Ind App 27
(B), where this statement of the law was adopted. No exception can be taken to this proposition.
But before it can be invoked, it must be shown that there is a clear and unambiguous statement
by the opponent, such as will be conclusive unless explained. It has been already pointed out that
the tenor of the statements made by Abdul Huq, his legal representatives and the plaintiff was to
suggest that the proceedings in O. S. No.100 of 1919-20 were fraudulent and not collusive in
character. Those statements would not, in our opinion, be sufficient, without more, to sustain a
finding that the proceedings were collusive.”
It was also observed in case Razia Begum v. Sahebzadi Anwar Begum, 1958 SC 886 that order 12
Rule 6 should be read along with proviso to Rule 5 of Order 8 CPC. In this case it was observed
that the court is not bound to grant declaration prayed for on the mere admission of the claim by
the defendant, if the court has reason to insist upon a clear proof apart from admissions. The
result of a declaratory decree confers status not only on the parties but for generations to come
and so it cannot be granted on a rule of admission and, therefore, insisted upon adducing
evidence independent of the admission. The Apex Court in Razia Begum's case (supra), further
observed as under :-
“9. It is also clear on the words of the Statute, quoted above, that the grant of a declaration such
as is contemplated by S. 42, is entirely in the discretion of the court. At this stage, it is
convenient to deal with the other contention raised on behalf of the appellant, namely, that in
view of the unequivocal admission of the plaintiff's claim by the Prince, in his written statement,
and repeated as aforesaid in his counter to the application for intervention by the respondents 1
and 2, no serious controversy now survives. It is suggested that the declarations sought in this
case, would be granted as a matter of course. In this connection, our attention was called to the
provisions of R.6 of O. 12 of the Code of Civil Procedure, which lays down that, upon such
admissions as have been made by the Prince in this case, the Court would give judgment for the
plaintiff. These provisions have got to be read along with R. 5 of O. 8 of the Code ....”
As a matter of fact, Section 44 also refers to word “collusion” In a decree passed by way of fraud
or collusion could be challenged before the civil court and the admission could imply collusion
between the plaintiff and the defendant which could prevent the court to pass a decree that is
why the Apex Court in Razia Begum's case (supra) discouraged to pass the decree which affects
not only the parties, but the generations to come. However, the provisions of Order XII Rule 6,
Order VIII Rule 5 and 10 of the Code are meant for commercial transactions and not otherwise
where the claim is based on such documents which need proof. It is also settled that normally
admissions on the Will, gift, sale or co-parcenary can be proved to be erroneous and cannot be
treated as proved on the basis of such admissions.
Similarly, if the property is alleged to be co-parcenary, the admissions in this regard is not
sufficient to treat it as co-parcenary as the question of co-parcenary is a matter of fact to be
proved on evidence. However, when the case is regarding commercial transactions, admission in
a notice, minutes of meetings, resolutions passed by the Board of Directors, -8- pleadings or
other admission of signatures, then such admissions could be accepted and made the basis of the
decree Similar view was taken by the Apex Court in case Uttam Singh Dugal and Co. Ltd. vs.
United Bank of India 2000 (4) R.C.R. (Civil) 89 wherein it was observed as under :-
“10. As to the object of the Order XII Rule 6, we need not say anything more than what the
legislature itself has said when the said provision came to be amended. In the objects and reasons
set out while amending the said rule, it is stated that where a claim is admitted, the court has
jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The
object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the
relief to which according to the admission of the defendant, the plaintiff is entitled. We should
not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain
speedy judgment. Where other party has made a plain admission entitling the former to succeed,
it should apply and also wherever there is a clear admission of facts in the face of which, it is
impossible for the party making such admission to succeed.”
The object of the provisions of Order XII Rule 6 of the Code were also interpreted in the
judgment delivered in case M/s Puran Chand Packaging Industrial Pvt. Ltd. vs. Smt. Sona Devi
and another, 2009 (2) C.C.C. 39. This judgment also indicates that:
(a) the admissions before being placed reliance must be made by the defendant or party to the
proceedings;
(b) it should be unequivocally made in unambiguous manner; and
(c) it should not be conditional one or on a different context.
The documents containing admissions should be read as a whole and the court is not to take out
one or two sentences so as to treat it as admission. Admissions made by a party in its own favour
has no value. The Apex Court in Sona Devi's case (supra), made the following observations :-
A perusal of the aforesaid provision would show that before a decree on the basis of admission in
the pleadings can be passed, the admission must be made by the defendant or a party to the
proceedings in an unequivocal, unambiguous manner. In other words the admission should not
be vague or equivocal. Converse of it would mean that if there is an admission made by a party
which is conditional wherein certain objections which go to the root of the matter have been
raised then it could not be treated as an admission.
Reliance in this regard can be placed in State Bank of India Vs. M/s Midland Industries and
Others AIR 1988 Delhi 153. Though this is a judgment of the learned Single Judge of this Court
but as this judgment lays down the correct proposition of law we have no hesitation in approving
the same. Another point which has to be borne in mind while passing a judgment on the basis of
an admission is that the document is to be read as a whole and the Court is not to take out one or
two sentences so as to treat it as an admission. Moreover passing of a judgment on this basis by
the Court is a matter of discretion and not a matter of course.
Reliance in this regard is placed on Maniisha Commercial Ltd. Vs. N.R.Dongrre and Anr. AIR
2000 Delhi 176. Though the party can press for judgment on admissions as a matter of legal right
on an admission made by the party. However, provisions of Order XII Rule 6 as well as Order
VIII Rule 5 of the Code, are enabling provisions conferring the court discretionary power to pass
a decree over the same or call the parties for evidence to prove the fact or claim as raised by the
plaintiff.
The Apex Court discussed the Order XII Rules 1 & 6 and Order 8 Rule 5 of the Code in detail in
the judgment delivered in case Karam Kapahi & others vs. M/s Lal Chand Public Charitable &
Another, (2010) 4 SCC 753 and laid down the following guidelines :-
1. While comparing Order 12 Rule 6, it is made out that the order 12 Rule 1 is limited to
admission by 'pleading or otherwise in writing', but Order 12 Rule 6 is wider enough to include
all the pleadings or otherwise by documents. Similar observations were made in Uttam Singh's
case (supra).
2. Any answers to the interrogatories are also covered under this rule.
3. Admissions would have to be read along with first proviso to Order 8 Rule 5 (1) of the Code
and the court may call upon the parties relying on such admissions to prove its case
independently.
4. Where it is commercial transaction, like dispute with regard to rent, admission of non payment
of rent, judgment can be rendered on admissions by the court.
5. The provisions of Order XII Rule 6 of the Code is enabling, discretionary and permissible and
it is neither mandatory or it is preemptory since the word “may” has been used.
Order XIV Rule 6 Rule 6 of Order XIV of the Code deals with the issue where the parties are in
agreement on some issues of fact or law. If the parties agree and limit the question of fact or law
to be decided between them, they may state the same in the form of issues and enter into an
agreement in writing that, upon findings of the court, negative or affirmative, on such issues, the
court would ascertain the right of the parties.
Some property specified in the agreement and in dispute in the suit shall be delivered by one of
the parties to the other of them or as that other may direct; or one or more of the parties shall do
or abstain from doing some particular act specified in the agreement and relating to the matter in
dispute. Order XIV Rule 7: Rule 7 of Order XIV of the Code indicates that when the court is
satisfied:-
a) that the agreement was duly executed by the parties;
b) that the parties have a substantial interest in the decision of such question as aforesaid; and
c) If the court finds that such agreement is fit to be tried and decided, Then the court shall
proceed to record and try the issue and state its findings or decision thereon and thereafter decide
the case according to the terms of the agreement. Order XXIII Rule 3 of the Code reads as under
:- “3. Compromise of suit - Where it is proved to the satisfaction of the court that a suit has been
adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the
parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the
subject-matter of the suit, the court shall order such agreement, compromise or satisfaction to be
recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the
suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same
as the subject matter of the suit: Provided that where it is alleged by one party and denied by the
other than an adjustment or satisfaction has been arrived at, the court shall decide the question;
but no adjournment shall be granted for the purpose of deciding the question, unless the court,
for reasons to be recorded, thinks fit to grant such adjournment.”
Scope of the Rule:
As a general rule, any matter which can be decided by a court can also be settled by a
compromise. The scheme of this rule is to avoid multiplicity of litigation and permit parties to
amicably come to a settlement which is lawful, is in writing and is a voluntary act on the part of
the parties. The court can be instrumental in having an agreed compromise effected and finality
attached to the same. This rule gives a mandate to the record, to record a lawful adjustment or
compromise and pass a decree in terms of such adjustment or compromise. It is a provision for
making a decree on any lawful agreement or compromise between the parties during the
pendency of the suit by which the claim is satisfied or adjusted. The agreement, compromise or
satisfaction may relate to the whole of the suit or a part of the suit or may also include matters
beyond the subject-matter of the suit.
However, it clearly envisages that a decree being passed in respect of a part of the subject-matter
on a compromise. Remedy where compromise is alleged to have been entered into between the
parties as a result of fraud or under influence. Rule 3-A of Order XXIII of the Code refers to
such suit. Rule 3-A of Order XXIII of the Code reads as under :-
“Rule 3-A: No suit shall lie to set aside a decree on the ground that the compromise on which the
decree is based was not lawful.”
Where the agreement or the compromise itself is fraudulent, it should be deemed to be void
within the meaning of the explanation to proviso to Rule 3 and as such not lawful. As such, no
separate suit for setting aside the compromise decree was maintainable. However, application
could be moved in the said case that the decree was the result of fraudulent compromise. If the
suit was filed, then the plaint could be directed as an application for setting aside the compromise
decree.
Similar observations were made in case Brajesh Kumar Awasthi vs. State of M.P. AIR 2007 M.P.
139, Surendra Ojha v. Panpati Kaur, AIR 2008 Pat. 128. A decree passed on admission/consent
would be covered by Order XII Rule 6 CPC and not by Order XXIII Rule 3 of the Code.
Therefore, a suit to set aside such decree would be maintainable and in that case provisions of
Order XXIII Rule 3-A of the Code, would not be attracted.
Similar observations were made in Rajinder v. Randhir AIR 2010 P&H 117. In a suit where the
compromise was entered into by a guardian, where no guardian had been appointed by the court,
it was held that the uncle of the defendant was not competent to enter into compromise, as such,
compromise entered into by such uncle is not binding on the defendants.
A suit challenging the said compromise was maintainable as it was observed in case Santosh
Kumar v. Hachchu, AIR 2011 MP 21. It is also fundamental that no agreement or compromise
could be entered in a representative suit without leave of the court. Difference between fraud and
collusion There is a fundamental distinction between a proceedings which is collusive and one
which is fraudulent, “Collusion in judicial proceedings is a secret arrangement between two
persons that the one should institute a suit against the other in order to obtain the decision of a
judicial tribunal for some sinister purpose.” (Wharton's Law Lexicon, 14th Edn. p.212).
In such a proceeding, the claim put forward is fictitious the contest over it is unreal and the
decree passed therein is a mere mask having the similitude of a judicial determination and worn
by the parties with the object of confounding third parties. But when a proceedings is alleged to
be fraudulent, what is meant is that the claim made there is untrue, but that the claimant had
managed, to obtain the verdict of the court in his favour and against his opponent by practicing
fraud on the Court. Such a proceeding is started with a view to injure the opponent, and there can
no question of its having been initiated as the result of an understanding between the parties.
While is collusive proceedings the combat in a mere sham, in a fraudulent suit it is real and
earnest. These observations were made by the Apex Court in Nagubai Ammal's case (supra).
 INTERIM ORDERS
Basically, the meaning of interim is something which is temporary or for the time being. While
the term order has been defined under Section 2(14) of the Code of Civil Procedure, 1908 which
means the formal expression of any decision of a civil court which is not a decree. Therefore,
interlocutory or interim orders may be defined as those orders which are passed by the court
during pendency of the suits. Interlocutory order is another word for interim orders.
Such interim or interlocutory orders are of temporary nature. These temporary orders are
required because it was felt by legislature that sometimes a court is required to grant such relief
or pass such order as may be necessary to be passed. Then court can pass these temporary or
interim orders on the pillars of justice and equity. At the same time, any abuse of process thereof,
during the pendency of a proceeding is also mitigated. The rights of parties are protected in the
interval between the commencement of the proceeding and final adjudication.
The court may pass interim orders in form of commissions and letter of requests which are also
called incidental proceedings, arrest and attachment before judgment, temporary injunctions,
interim sale of movable property, detention, preservation, inspection of suit property, putting a
party in immediate possession of land or tenure, deposit of money in court, appointment of
Receiver, deposit of claim amount by defendant and security for costs.
Issuance of commissions is an incidental proceeding which may be exercised by the court either
on application of the party or on its own motion. Commissions may be issued by the court for the
purposes ranging from examining any person, or to make a local investigation, to examine or
adjust accounts, to make a partition, to hold a scientific, technical, or expert investigation, to
conduct sale of property which is subject to speedy and natural decay and which is the custody of
the court pending the determination of suit and lastly to perform ministerial act. It is to be kept in
mind that no other purpose may be spell-out form the interpretation of this act, thus, it is
restrictive in nature.
Wherein the court is satisfied that the defendant is going to do any such act which includes
absconding, delaying the suit, avoiding any process of suit, etc, or likely to make any attempt to
defeat the execution of decree, then the plaintiff may make an application for the arrest of
defendant. The court may pass an interim order for his arrest at any time even before the service
of summons or after the institution of suit, or before the pronouncement of judgment and passing
of decree. While the court may order attachment before judgment to check any attempt of the
defendant to defeat the realization of decree likely to be passed against him so that his property
may be attached before the service of summons, institution of suit or before judgment and
decree.
A court may also pass an interlocutory order of injunction which means a prohibition or
restriction which is temporary, resisting a party to suit from doing certain acts or is directed to do
certain acts. It is done so, because the subject matter of suit must be protected until the judgment
is passed. Therefore, an order of temporary injunction maintains a status quo at the time of
institution of suit in respect of disputed property s as to avoid any change in its position till the
final adjudication.
An order to sale of movable property may also be made by court, though being called interim but
having permanent effects. Such property must be subject matter of the suit or must have been
attached before judgment in such suit. Any party to the suit may apply for this order by
presentation of an application against another. In fact, any party to suit may make apply to the
court for detention, preservation or inspection of any property, whereby the court may make such
orders relating to property which is the subject matter of the suit.
A court may also make an interim decree in case where a party owes something to adverse such
as land revenue to government or rent due to the proprietor, etc, and hence can put the party who
has an immediate interest in such land or tenure, etc by passing an order of putting the party in
immediate possession of that land or tenure. If any party to the suit admits that he holds such
money or other thing as a trustee for another party, the court may make an interim order of
depositing such money in the court.
Another case of interim order involves an appointment of receiver for the purpose of protection
of property in dispute. Basically receiver is an impartial person who is appointed for the
purposing of preserving the suit property until the suit is finally disposed. It is to be kept in mind
that being a representative of a court, a receiver is empowered to collect and receive all the rents
and profits of the property during the pendency of proceedings.
Another interlocutory order has an effect, if complied duly, of disposing the suit. Such is the
deposit of claim amount by the defendant. If the defendant after giving notice, deposits in court,
such sum of money as he considers a satisfaction of full claim, such shall have two effects.
Firstly, if the plaintiff claims that it is not the full amount, a suit for balance amount may be
instituted or otherwise if the court is satisfied, it is a full claim, the court shall order plaintiff to
pay the costs. Secondly, if the plaintiff accepts the amount deposited by the defendant satisfies is
claim, the court shall pronounce a judgment accordingly followed by a decree.
Lastly, an interim order may also be passed by the court for the purpose to protect the interests of
the defendant. Such orders of security for costs are passed where there is a likelihood whereby a
defendant is going to be deprived of the costs even when he succeeds in the suit, thereby, the
court may direct the plaintiff to give security for payment of costs to the defendant.
 INTERLOCUTORY ORDERS
Interlocutory orders are orders passed by a court during the pendency of a suit. They relate to
matters of procedure as they arise during the trial of the suit or in the course of execution
proceedings. They are passed to assist the parties in the prosecution of their case, or for the
purpose of protecting the subject matter of the suit or for ensuring the determination of the merits
of the case. They only settle intervening matters relating to the cause. Such orders are made to
secure some end and purpose necessary and essential to the progress of the case and generally
collateral to the issues to be settled by the court in the final judgment. They, however, do not
determine the substantive rights of the parties in respect to subject matter of the suit. These
orders are also of different natures, such as:-
Interim Sale: Interim sale of any movable property may be ordered, if it is subject to natural
decay, such as vegetable, etc.
Detention, Preservation, Inspection, etc. of subject matter of the suit.
Rules 6 to 10 of Order 39 provide for making certain interlocutory orders.
The court has power to order sale of any movable property, which is the subject-matter of the
suit or attached before judgment in such suit, which is subject to speedy and natural decay or for
any just and sufficient cause desirable to be sold at once. It can also order for detention,
preservation or inspection of any property which is the subject-matter of such suit, or as to which
any question may arise therein. And for that purpose it can authorise any person to enter upon or
into any land or building in the possession of any other party to such suit or authorise any
samples to be taken or observation to be made or experiment to be tried for the purpose of
obtaining full information.
However, before making such orders the court shall give notice to the opposite party except
where it appears that the object of making such orders would be defeated by the delay. Where the
suit land is liable to payment of revenue to government or a tenure liable to sale and the party in
possession of such land or tenure neglects to pay revenue or rent, any other party to the suit
claiming an interest in such land or tenure may, on payment of the revenue or rent due, be put in
immediate possession of the property. The court may award in the decree the amount so paid
with interest thereon against the defaulter. Where the subject-matter of a suit is money or some
other thing capable of delivery and a party to a suit admits that he holds such money or thing as a
trustee for another party or that it belongs or is due to that party, the court may order it to be
deposited in court or delivered to that party with or without security.
Rule 6 Power to Order interim sale:-The court may, on the application of any party to a suit,
Order the sale, by any person named in such order, and in such manner and on such terms as it
thinks fit, of any movable property, being the subject matter of such suit, or attached before
judgment in such suit, which is subject to speedy and natural decay, or which for any other just
and sufficient cause it may be desirable to have sold at once. Order 39, Rule 6, C. P. C., enables
the Court, on an application of any party to a suit, to appoint a person to sell moveable properties
which is subject to decay and which is the subject-matter of the suit. The provision of CPC for
sale by way of interlocutory order of any property which is the subject matter of the suit or
attached before judgment, is permissible only when they are subject of speedy and natural decay
and otherwise, when for any just and sufficient cause the court, the court finds it desirable to
send them at once. The power given to the court under Order 39, Rule 6 alone is available before
adjudication and decree which may be executed in accordance with the provisions of Order 21.
The inherent power of the Court under Section 151 is not available at all.24
Rule 7 Detention, preservation, inspection, etc., of subject matter of suit.-
(1) The court may, on the application of any party to a suit and on such terms as it thinks fit,—
(a) make an Order for the detention, preservation or inspection of any property which is the
subject matter of such suit, or as to which any question may arise therein;
(b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land or
building in the possession of any other party to such suit; and
(c) for all or any of the purposes aforesaid authorise any samples to be taker, or any observation
to be made or experiment to be tried, which may seem necessary or expedient for the purpose of
obtaining full information or evidence.
(2) The provisions as to execution of process shall apply, mutatis mutandis, to persons authorized
to enter under this rule.
Order 39, Rule 7 inter alia provides that the Court on the application of any party to a suit has the
power to authorise any person to enter upon any property which is the subject-matter of the suit
and in the possession of the other party and pass such feasible orders as are necessary for the
detention, preservation or inspection of any property which is the subject-matter of such suit, or
as to which any question may arise therein. The court cannot appoint a commissioner under this
rule, to enter on the lands of a stranger to the suit and prepare an inventory of property which is
not the subject matter of the suit.25
Account books and documents which are not the subject matter of the suit and are purely
evidentiary in character are not ‘property which is subject matter of the suit’, and no order for
their search can be made under this rule.26
Provision for inspection in r 7 has been enacted mostly for the purpose of keeping on record the
existing condition of the property so that if the same is subjected later on to any change,
deterioration or mischief by any of the parties or by any other agency or reason, that can be
known by the Court if and when required.27 Order 39, r 7 of the CPC empowers the Court to
make an order for detention, preservation and inspection of any property which is the subject
matter of the suit or as to which any question may arise in the suit. The plea that power under r 7
can be exercised only in respect of the subject matter of the suit is not correct. Thus, where in a
suit for injunction, prima facie finding of possession was recorded in favour of the plaintiff, he
24
Mohammad Hussain Sulaiman v. State Bank of India, (1994) 1 MLJ 340
25
Narsimharao Raghavachar v. Sengodi Mudaliar 1955 ILR Mys. 244
26
Ram Swarup v. Mst. Kesar 1958 ILR Raj 304
27
Rajbi Kaur v. S. Chokesiri & Co. (1989) 1 SCC 19 (DB)
shall be deemed to be in possession of all movables in the suit property. The defendant cannot
plead that his belongings are lying in the suit property and seek order of the Court for
preservation of those belongings.28 In the Institution of Engineers (India) v. Bishnu Pada Bag,29
a division bench held that a commission cannot be appointed for the purpose of collecting
evidence in a suit and O 39, r 7 cannot be taken recourse to for such purpose. Ascertaining the
conditions of the demised premises by local inspection falls within the purview of O. 39, r. 7 and
not under O. 26, r 9.30 However, a fixation of rent and ascertainment of the quantum of goods
which have become damaged fall outside the purview of O. 39, r 7 as well as, O.26, r 9. Rule 8
Application for such orders to be after notice :-
(1) An application by the plaintiff for an order under rule 6 or rule 7 may be made at any time
after institution of the suit.
(2) An application by the defendant for a like order may be made at any time after appearance.
(3) Before making an order under rule 6 or rule 7 on an application made for the purpose, the
court shall, except where it appears that the object of making such order would be defeated by
the delay, direct notice thereof to be given to the opposite party.
Any order that a Court can pass under Order 39, Rule 7 is generally governed by Order 39, Rule
8, which appears to be a supplement to the earlier rule. However, before making such orders the
court shall give notice to the opposite party except where it appears that the object of making
such orders would be defeated by the delay. Order 39, Rule 7 enables a litigant to apply for the
appointment of a Commissioner or for such other interlocutory orders in case the subject-matter
of the suit has to be preserved and inspected and for the due safeguarding of his vested rights.
Order 39, Rule 8 on the other hand is supplementary to Order 39, Rule 7 in that it enables the
plaintiff or the defendant to the action to ask for the appointment of a Commissioner or for an
interlocutory order even after the institution of the suit.
But once the suit has been instituted, Order 39, Rule 8 prescribes that such an order has to be
made generally after notice. The permissive form of the power given to Courts in Order 39, Rule
8 (1) and (2), C. P. C. is significant. It is made optional because the Legislature wanted to clothe
Courts with jurisdiction, but it expects that it should not be lightly used and abused. There may
be compelling circumstances which prompt the Court in a given case to use the power without
notice to the other side. This can be done as justice should not only be done but seem to be done
and in cases where the right is coupled with a duty.
Rule 9 When party may be put in immediate possession of land the subject matter of suit:-
Where land paying revenue to government, or a tenure liable to sale, is the subject matter of a
suit, of the party in possession of such land or tenure neglects to pay the government revenue, or
the rent due to the proprietor of the tenure, as the case may be, and such land or tenure is
consequently ordered to be sold, any other party to the suit claiming to have an interest in such

28
Meghraj Gayatri Devi v. Jetling Rajeshwar, AIR 2001 AP 489
29
AIR 1978 Cal 296
30
Allahbad Bank v. Surendra Nath AIR 1997 Cal 89 (DB)
land or tenure may, upon payment of the revenue or rent due previously to the sale (and with or
without security at the discretion of the court), be put in immediate possession of the land or
tenure; and the Court in its decree may award against the defaulter the amount so paid, with
interest thereon at such rate as the court thinks fit, or may charge the amount so paid, with
interest thereon at such rate as the court orders, in any adjustment of accounts which may be
directed in the decree passed in the suit. Where the suit land is liable to payment of revenue to
government and the party in possession of such land neglects to pay revenue, any other party to
the suit claiming an interest in such land may, on payment of the revenue, be put in immediate
possession of the property. The court may award in the decrees the amount so paid with interest
thereon against the defaulter. Rule 10 Deposit of money, etc., in court:-
Where the subject matter of a suit is money or some other thing capable of delivery and any
party thereto admits that he holds such money or other things as a trustee for another party, or
that it belongs or is due to another party, the court may Order the same to be deposited in court
or delivered to such last named party, with or without security, subject to the further direction of
the court. Where a party to a suit admits that he holds money as a trustee for another party, the
court may order him to deposit such amount in court. The provisions of this rule are attracted
when the subject matter of the suit is money or something capable of delivery. The requirement
is that it should be admitted by a party that the money or the thing which is the subject matter of
the suit is held by it as a trustee for another party or it belongs to or is due to another party.
Unless these two conditions are satisfied, no order in terms of O. 39, r. 10 can be passed.31
Interim orders are necessary to deal with and protect rights of the parties in the interval between
commencement of the proceedings and final adjudication. They enable the court to grant such
relief or to pass such order as may be necessary, just or equitable. They also prevent any abuse of
process during the pendency of proceedings. Hence interim or interlocutory proceedings play a
crucial role in conduct of litigation between parties. . Courts are constituted for the purpose of
doing justice and must be deemed to possess all such powers as may be necessary to do the right
and undo the wrong in the course of administration of justice. Interim order is passed on the basis
of prima facie findings, which are tentative. Such order is passed as a temporary arrangement to
preserve the status quo till the matter is decided finally, to ensure that the matter does not
become either infructuous or a fait accompli before the final hearing. The Court would grant
such an interim relief only if satisfied that withholding of it would prick the conscience of the
court and do violence to the sense of justice, resulting in injustice being perpetuated throughout
the hearing, and at the end the court would not be able to vindicate the cause of justice.

31
Lalbiakthaugi v. H Duma AIR 1995 Gau 12
 COMPROMISE AND WITHDRAWAL OF SUIT
The Supreme Court in Bakshi Dev Raj Vs. Sudhir Kumar has examined the Role of Counsels and
their power to make concessions in Court to withdraw or compromise claims / proceedings on
behalf of their respective Clients. The Court, in the present judgment, has also examined the
provisions of Order XXIII of the Code of Civil Procedure with regard to compromise of suit, and
discussed the power of advocates / pleaders to act on behalf of their clients in such situations.
The relevant paragraphs from the judgment are reproduced hereunder;
Compromise of Suit
8. Order XXIII of CPC deals with "Withdrawal and Adjustment of Suits". Rule 3 of Order XXIII
speaks about "compromise of suit" which reads as under:
"3. Compromise of suit.- Where it is proved to the satisfaction of the Court that a suit has been
adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the
parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the
subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be
recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the
suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same
as the subject matter of the suit: Provided that where it is alleged by one party and denied by the
other that an adjustment or satisfaction has been arrived at, the Court shall decide the question;
but no adjournment shall be granted for the purpose of deciding the question, unless the Court,
for reasons to be recorded, thinks fit to grant such adjournment. Explanation--An agreement or
compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not
be deemed to be lawful within the meaning of this rule."
9. The very same rule was considered by this Court in Gurpreet Singh vs. Chatur Bhuj Goel,
(1988) 1 SCC 270. In that case, the respondent therein Chatur Bhuj Goel, a practising advocate at
Chandigarh first lodged a criminal complaint against Colonel Sukhdev Singh, father of the
appellant, under Section 420 of the Indian Penal Code 1860 (hereinafter referred to as "the IPC"),
after he had served the respondent with a notice dated 11.07.1979 forfeiting the amount of
Rs.40,000/- paid by him by way of earnest money, alleging that he was in breach of the contract
dated 04.06.1979 entered into between Colonel Sukhdev Singh, acting as guardian of the
appellant, then a minor, and the respondent, for the sale of residential house No. 1577, Sector-18-
D, Chandigarh for a consideration of Rs,2,85,000/-. In terms of the agreement, the respondent
was to pay a further sum of Rs.1,35,000/- to the appellant's father - Colonel Sukhdev Singh by
10.07.1979 when the said agreement of sale was to be registered and vacant possession of the
house delivered to him, and the balance amount of Rs.1,10,000/- on or before 31.01.1980 when
the deed of conveyance was to be executed. The dispute between the parties was that according
to Colonel Sukhdev Singh, there was failure on the part of the respondent to pay the amount of
Rs.1,35,000/- and get the agreement registered, while the respondent alleged that he had already
purchased a bank draft in the name of the appellant for Rs.1,35,000/- on 07.07.1979 but the
appellant's father did not turn up to receive the same. Although the Additional Chief Judicial
Magistrate by order dated 31.10.1979 dismissed the complaint holding that the dispute was of a
civil nature and no process could issue on the complaint, the learned Single Judge, by his order
dated 11.02.1980 set aside the order of the learned Additional Chief Judicial Magistrate holding
that the facts brought out clearly warranted an inference of dishonest intention on the part of
Colonel Sukhdev Singh and accordingly directed him to proceed with the trial according to law.
Aggrieved Colonel Sukhdev Singh came up in appeal to this Court by way of special leave.
While construing Order XXIII Rule 3 of CPC, this Court concluded thus:
"10. Under Rule 3 as it now stands, when a claim in suit has been adjusted wholly or in part by
any lawful agreement or compromise, the compromise must be in writing and signed by the
parties and there must be a completed agreement between them. To constitute an adjustment, the
agreement or compromise must itself be capable of being embodied in a decree. When the parties
enter into a compromise during the hearing of a suit or appeal, there is no reason why the
requirement that the compromise should be reduced in writing in the form of an instrument
signed by the parties should be dispensed with. The court must therefore insist upon the parties
to reduce the terms into writing."
It is clear from this decision that during the course of hearing, namely, suit or appeal, when the
parties enter into a compromise, the same should be reduced in writing in the form of
an instrument and signed by the parties. The substance of the said decision is that the Court must
insist upon the parties to reduce the terms into writing.
10. In Pushpa Devi Bhagat (dead) through LR. Sadhna Rai (Smt.) vs. Rajinder Singh and Others,
(2006) 5 SCC 566, the term `instrument' used in above-referred Gurpreet Singh's case (supra)
refers to a writing a formal nature, this Court explained that when the hearing of letters patent
appeal commenced before the High Court, the parties took time to explore the possibility of
settlement and when the hearing was resumed, the appellant's father made an offer for settlement
which was endorsed by the counsel for the appellant also. The respondent was also present there
and made a statement accepting the offer. The said offer and acceptance were not treated as final
as the appeal was not disposed of by recording those terms. On the other hand, the said proposals
were recorded and the matter was adjourned for payment in terms of the offer. When the matter
was taken up on the next date of hearing, the respondent stated that he is not agreeable. The High
Court directed that the appeal would now be heard on merits as the respondent was not prepared
to abide by the proposed compromise. The said order was challenged before this Court by the
appellant by contending that the matter was settled by a lawful compromise by recording the
statement by appellant's counsel and the respondent's counsel and the respondent could not resile
from such compromise and, therefore, the High Court ought to have disposed of the appeal in
terms of the compromise. It is in this factual background, the question was considered with
reference to Gurpreet Singh's case (supra). This was explained in Pushpadevi's case (supra) that
the distinguishing feature in that case was that though the submissions made were recorded but
that were not signed by the parties or their counsel, nor did the Court treat the submissions as a
compromise. In Pushpadevi's case (supra), the Court not only recorded the terms of settlement
but thereafter directed that the statements of the counsel be recorded. The statement of the
counsel were also recorded on oath read over and accepted by the counsel to be correct and then
signed by both counsel. In view of the same, in Pushpadevi's case (supra), it was concluded that
there was a valid compromise in writing signed by the parties (represented counsel).
11. In the earlier part of our order, we have already recorded that during the course of hearing of
second appeal, both counsel agreed that without addressing the questions of law so formulated,
the matter can be settled by modifying the decree impugned in appeal by incorporating the area
of land under Survey No. 110/65 with the boundary between the lands thereunder and Survey
No.109/65 belonging to the other side being the Sheesham and Shreen trees currently existing on
the spot.

Role of the counsel

12. Now, we have to consider the role of the counsel reporting to the Court about the settlement
arrived at. We have already noted that in terms of Order XXIII Rule 3 of CPC, agreement or
compromise is to be in writing and signed by the parties. The impact of the above provision and
the role of the counsel has been elaborately dealt with by this Court in Byram Pestonji Gariwala
vs. Union Bank of India and Others, (1992) 1 SCC 31 and observed that courts in India have
consistently recognized the traditional role of lawyers and the extent and nature of implied
authority to act on behalf of their clients. Mr. Ranjit Kumar, has drawn our attention to the copy
of Vakalatnama (Annexure-R3) and the contents therein. The terms appended in Vakalatnama
enable the counsel to perform several acts on behalf of his client including withdraw or
compromise suit or matter pending before the Court. The various clauses in the Vakalatnama
undoubtedly gives power to the counsel to act with utmost interest which includes to enter into a
compromise or settlement. The following observations and conclusions in paras 37, 38 and 39
are relevant:
"37. We may, however, hasten to add that it will be prudent for counsel not to act on implied
authority except when warranted by the exigency of circumstances demanding immediate
adjustment of suit by agreement or compromise and the signature of the party cannot be obtained
without undue delay. In these days of easier and quicker communication, such contingency may
seldom arise. A wise and careful counsel will no doubt arm himself in advance with the
necessary authority expressed in writing to meet all such contingencies in order that neither his
authority nor integrity is ever doubted. This essential precaution will safeguard the personal
reputation of counsel as well as uphold the prestige and dignity of the legal profession.
38. Considering the traditionally recognised role of counsel in the common law system, and the
evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely,
attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to
writing signed by the parties, and allowing the compromise decree to comprehend even matters
falling outside the subject matter of the suit, but relating to the parties, the legislature cannot, in
the absence of express words to such effect, be presumed to have disallowed the parties to enter
into a compromise by counsel in their cause or by their duly authorised agents. Any such
presumption would be inconsistent with the legislative object of attaining quick reduction of
arrears in court by elimination of uncertainties and enlargement of the scope of compromise.
39. To insist upon the party himself personally signing the agreement or compromise would
often cause undue delay, loss and inconvenience, especially in the case of non- resident persons.
It has always been universally understood that a party can always act by his duly authorised
representative. If a power-of-attorney holder can enter into an agreement or compromise on
behalf of his principal, so can counsel, possessed of the requisite authorisation by vakalatnama,
act on behalf of his client. Not to recognise such capacity is not only to cause much
inconvenience and loss to the parties personally, but also to delay the progress of proceedings in
court. If the legislature had intended to make such a fundamental change, even at the risk of
delay, inconvenience and needless expenditure, it would have expressly so stated."
13. In Jineshwardas (D) by LRs and Others vs. Jagrani (Smt) and Another, (2003) 11 SCC 372,
this Court, by approving the decision taken in Byram Pestonji's case (supra), held that a
judgment or decree passed as a result of consensus arrived at before Court, cannot always be said
to be one passed on compromise or settlement and adjustment. It may, at times, be also a
judgment on admission.
14. In Jagtar Singh vs. Pargat Singh and Others, (1996) 11 SCC 586, it was held that counsel for
the appellant has power to make a statement on instructions from the party to withdraw the
appeal. In that case, respondent No.1 therein, elder brother of the petitioner filed a suit for
declaration against the petitioner and three brothers that the decree dated 04.05.1990 was null
and void which was decreed by subordinate Judge, Hoshiarpur on 29.09.1993. The petitioner
therein filed an appeal in the Court of Additional Distruct Judge, Hoshiarpur. The counsel made
a statement on 15.09.1995 that the petitioner did not intend to proceed with the appeal. On the
basis thereof, the appeal was dismissed as withdrawn. The petitioner challenged the order of the
appellate court in the revision. The High Court confirmed the same which necessitated filing of
SLP before this Court. Learned counsel for the petitioner contended that the petitioner had not
authorized the counsel to withdraw the appeal. It was further contended that the court after
admitting the appeal has no power to dismiss the same as withdrawn except to decide the matter
on merits considering the legality of the reasoning of the trial Court and the conclusions either
agreeing or disagreeing with it. Rejecting the said contention, the Court held as under:
"3. The learned counsel for the petitioner has contended that the petitioner had not authorised the
counsel to withdraw the appeal. The Court after admitting the appeal has no power to dismiss the
same as withdrawn except to decide the matter on merits considering the legality of the
reasoning of the trial court and the conclusions either agreeing or disagreeing with it. We find no
force in the contention. Order III Rule 4 CPC empowers the counsel to continue on record until
the proceedings in the suit are duly terminated. The counsel, therefore, has power to make a
statement on instructions from the party to withdraw the appeal. The question then is whether the
court is required to pass a reasoned order on merits against the decree appealed from the decision
of the Court of the Subordinate Judge? Order 23 Rules 1(1) and (4) give power to the party to
abandon the claim filed in the suit wholly or in part. By operation of Section 107(2) of the CPC,
it equally applies to the appeal and the appellate court has co-extensive power to permit the
appellant to give up his appeal against the respondent either as a whole or part of the relief. As a
consequence, though the appeal was admitted under Order 41 Rule 9, necessarily the Court has
the power to dismiss the appeal as withdrawn without going into the merits of the matter and
deciding it under Rule 11 thereof.
4. Accordingly, we hold that the action taken by the counsel is consistent with the power he had
under Order III Rule 4 CPC. If really the counsel has not acted in the interest of the party or
against the instructions of the party, the necessary remedy is elsewhere and the procedure
adopted by the court below is consistent with the provisions of CPC. We do not find any
illegality in the order passed by the Additional District Judge as confirmed by the High Court in
the revision."
15. The analysis of the above decisions make it clear that the counsel who was duly authorized
by a party to appear by executing Vakalatnama and in terms of Order III Rule 4, empowers the
counsel to continue on record until the proceedings in the suit are duly terminated. The counsel,
therefore, has power to make a statement on instructions from the party to withdraw the appeal.
In such circumstance, the counsel making a statement on instructions either for withdrawal of
appeal or for modification of the decree is well within his competence and if really the counsel
has not acted in the interest of the party or against the instructions of the party, the necessary
remedy is elsewhere. Though learned counsel for the appellant vehemently submitted that the
statement of the counsel before the High Court during the course of hearing of Second Appeal
No. 19 of 2005 was not based on any instructions, there is no such material to substantiate the
same. No doubt, Mr. Garg has placed reliance on the fact that the first appellant was bedridden
and hospitalized, hence, he could not send any instruction. According to him, the statement made
before the Court that too giving of certain rights cannot be sustained and beyond the power of the
counsel. It is true that at the relevant time, namely, when the counsel made a statement during the
course of hearing of second appeal one of the parties was ill and hospitalized. However, it is not
in dispute that his son who was also a party before the High Court was very much available.
Even otherwise, it is not in dispute that till filing of the review petition, the appellants did not
question the conduct of their counsel in making such statement in the course of hearing of second
appeal by writing a letter or by sending notice disputing the stand taken by their counsel. In the
absence of such recourse or material in the light of the provisions of the CPC as discussed and
interpreted by this Court, it cannot be construed that the counsel is debarred from making any
statement on behalf of the parties. No doubt, as pointed out in Byram Pestonji (supra), in order to
safeguard the present reputation of the counsel and to uphold the prestige and dignity of legal
profession, it is always desirable to get instructions in writing.
 DEATH, MARRIAGE AND INSOLVENCY OF PARTIES
Generally when a civil suit is instituted, it goes as it meant to be with two opposite parties and it
comes to an end with the judgment followed by the decree of the court but what happens if
contingencies of suit such as death, marriage or insolvency of parties occur? It obviously leads to
one major consequence that is the pendency of the suit since it has somehow been struck
between the step which is institution and passing of judgment.
Such a situation calls for something which solves the problem of pendency of the suit and same
can be dealt with by the creation, assignment or devolution of the interests of the parties. Though
the procedure of creation, assignment and devolution of interests is exhaustive under Order XXII
of the Code of Civil Procedure, 1908, the same shall be considered to meet the ends of justice.32
In the case of death of the party in the suit the first and foremost question which is considered as
the test for creation of any interest thereof is the survival of right to sue. It should not be gone
with the death of the party. If it exists, the suit will be continued and otherwise the matter will
have no legs to stand. These provisions have been provided under Rule 1-6, 9 and 10-A of Order
XXII of the Code. There are few circumstances of death of parties which have the consequences
taken by the court thereby.
The first one deals with the case where there are co-plaintiff or co-defendants and the right to
suit has survived. Where one of the several plaintiffs die and the right to sue survives in favour
of the surviving plaintiff or plaintiffs alone or where one of the several defendants die and the
right to sue survives against the surviving defendant or defendants alone in such a case the court
shall record such fact and proceed with the suit.
On the contrary where the right to sue does not survive where one of the several plaintiff dies
and the right to sue does not survive to the surviving plaintiff or plaintiffs alone or even where
the sole surviving plaintiff dies and the right to sue survives in such case, on an application being
made by legal representatives, the court shall make the legal representatives of the deceased
party a party and proceed with the suit. While if no such application is made within the
prescribed period, the suit shall abate so far as the deceased plaintiff is concerned. In such
circumstances, if an application is made by the defendant, the court shall award him the costs
which he may have incurred in defending the suit from estate of the deceased plaintiff.
Similarly, in a case where one of the several defendant dies and the right to sue does not survive
against surviving defendant or defendants alone or where a sole surviving defendant dies and the
right to due survives, in such a case on an application being made by the legal representatives,
the court shall make the legal representative of the deceased defendant a party and proceed with
the suit. If no such application is made within prescribed period, the suit shall abate against the
deceased defendant. But it is also discretion of the court to exempt a plaintiff from substituting
the legal representatives’ of a non-contesting or pro-forma defendant and pronounce the
judgement notwithstanding the death of such defendant. In a case where plaintiff had no

32
Sardar Amarjeet Singh v. Pramod Gupta AIR 2003 SC 2588
knowledge or was ignorant of the death of the defendant and as a consequence of it could not
make an application for the substitution of legal representative of such defendant within the
prescribed period and the suit is abated, the plaintiff can thereby may make an application for
such abatement within the prescribed period and in considering the said application , the court
shall have due regard to the fact of such ignorance of the plaintiff since the court has to
determine the interests of a deceased person also with due care and caution.
In a situation where either party dies between the conclusion of hearing and the pronouncement
of judgement, it is the most confusing and tough contingency solution of which has been
provided under Rule 6 of Order XXII. In such a situation the suit shall not abate, regardless of
the survival of the right to sue and cause of action. But in a situation where a suit is instituted
against the person who is already deceased, it will be null and void, and have no legal effect. In
fact, a decree passed against a dead man is a nullity. 33
The marriage of a party has no substantial effect on the suit but in case a decree is executed
against a female who is married, it shall be made executed against her only. While it has been
provided under Rule 7 of Order XXII that a decree in favour of or against a wife, where the
husband is legally entitled to the subject-matter of the decree or is liable for the debt of his wife
may, with the permission of the court , be executed by or against him.
Lastly, in case of insolvency of parties there are two different effects in case of plaintiff and
defendant, respectively. A plaintiff’s insolvency has no effects of suit to abate since his assignee
or receiver may continue the suit for their own benefit of creditors but in case they decline to
continue it, the defendant may make an application for the dismissal of suit on insolvency of
plaintiff. However, insolvency of defendant can cause either the stay of suits or the court may
even proceed with the suit. But is to be kept in mind that such insolvency has been occurred after
the institution of the suit to the party otherwise, it will take the form of a suit by the pauper
which will have different aspects and effects altogether.

33
Amba Bai v. Gopal AIR 2001 SC 2003
 UNIT II

TRIAL
1. Trial: Summoning and Attendance of Witnesses (Order 16), Attendance of Witnesses in
Prison (Order 16 A), Summons to Produce Documents (Section 30), Adjournments
(Order 17), Hearing of Suit (Order 18)
2. Judgment and Decree: Interest (Section 34), Costs (Section 35, 35A, 35B, Order 20A)
 ADJOURNMENTS

Court may grant time and adjourn hearing:

(1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties
or to any of them, and may from time to time adjourn the hearing of the suit for reason to be
recorded in writing:

Provided that no such adjournment shall be granted more than three times to a party during
hearing of the suit.] (Order XVII, Rule 1).

Costs of adjournment:

In every such case the Court shall fix a day for the further hearing of the suit, and [shall make
such orders as to costs occasioned by the adjournment or such higher costs as the Court deems
fit]:

Provided that,

(a) When the hearing of the suit has commenced, it shall be continued from day-to-day until all
the witnesses in attendance have been examined, unless the Court finds that, for the exceptional
reasons to be recorded by it, the adjournment of the hearing beyond the following day is
necessary,

(b) No adjournment shall be granted at the request of a party, except where the circumstances are
beyond the control of the party,

(c) The fact that the pleader of a party is engaged in another Court, shall not be a ground for
adjournment.

(d) where the illness of a pleader or his inability to conduct the case for any reason, other than his
being engaged in another Court, is put forward as a ground for adjournment, the Court shall not
grant the adjournment unless it is satisfied that the party applying for adjournment could not
have engaged another pleader in time,

(e) where a witness is present in Court but a party or his pleader is not present or the party or his
pleader, though present in Court, is not ready to examine or cross-examine the witness, the Court
may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit
dispensing with the examination-in-chief or cross-examination of the witness, as the case may
be, by the party or his pleader not present or not ready as aforesaid.] (Order XVII, Rule 2).

Permissibility of reopening of matter at belated stage:

Where there was grant of permission to plaintiff to adduce rebuttal evidence after closure of
evidence, of defendants. But by inadvertence matter was straightway posted for arguments. No
opportunity was afforded to plaintiff by Court to adduce evidence. Though several adjournments
had been granted to plaintiff in suit, that will not forbid Court in allowing his application for
adducing further evidence at belated stage. Held, that bar imposed by proviso to Rule 1 of Order
XVIII will not apply.

Recovery suit by Bank—Validity of ex parte award on default by lawyer to appear:

In the instant case it was held that mere sending of telegram and informing of his sickness
without following proper adjournment procedure or mere filing of restoration application would
not prohibit Recovery Officer from proceeding with recovery. Defaulting party could not be
allowed to take benefit of its own default. It was further held that in case of retrial of suit on
merit, defaulting party should be made to deposit at least 25% decretal amount and cost of
litigation even if there was good defence.

Adjournment:

The case was adjourned for next day for cross-examination of plaintiff. During the night the
counsel had fallen ill and adjournment was sought by the defendant. The court did not allow the
adjournment and ordered forfeiture of right to cross-examine. Engaging a new counsel to
proceed with trial would be fraught with graverisk and be unrealistic.

The party had no time to make alternative arrangements. Unless there is time for the new counsel
to be engaged for application for his mind to pleadings, issues framed, the evidence already on
record, it would be difficult to proceed with the cross-examination on the spur of the moment.

The court should have adjourned the case for the next day to enable the defendant to have
another counsel engaged and given instructions to the new counsel to proceed with the cross-
examination in the light of the pleadings and the issues framed in that behalf. The court
committed grave error of law by its order to forfeit the right of the defendant to cross-examine
the plaintiff. The trial court was directed to allow cross-examine the defendant by fixing date for
the same.

Procedure if parties fail to appear on day fixed:

Where on the adjourned date the parties or any of them fail to appear, the court may proceed to
dispose of the suit in one of the modes mentioned in Order IX dealing with consequence of non-
appearance of parties; discussed earlier or make such order as it thinks fit. (Order XVII, Rule 2).

The Explanation added to Rule 2 provides that where the evidence or a substantial portion of the
evidence of any party has already been recorded and such party fails to appear on any day to
which the hearing of the suit is adjourned, the court may, in its discretion, proceed with the case
as if such party were present.
Where the defendant’s husband who was acting as her pairokar and her counsel, duly authorised
to appear, act and plead on her behalf were both present in court on the date of hearing and the
counsel reported “no instructions”, which means that he refused to appear for the defendant-
appellant, the defendant could not be said to be present in court. The decree was technically
passed ex parte.

The defendant appellant did not make any application subsequently showing sufficient cause for
his non-appearance. The decree could not therefore be set aside on any of the grounds on which a
decree could be set aside under Order IX, Rule 13, C.P.C. in case it was deemed to be an ex parte
decree passed under Order IX, Rule 13, C.P.C. read with Rule 2 of Order XVII of the Code of
Civil Procedure.

Court may proceed notwithstanding either party fails to produce evidence, etc:

Where any party to a suit to whom time has been granted fails to produce his evidence, or to
cause the attendance of his witnesses, or to perform any other act necessary to the further
progress of the suit for which time has been allowed, the court may notwithstanding such
default,—(a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties
are, or any of them is absent, proceed under Rule 2 above. (Order XVII, Rule 3). To apply the
procedure under Order XVII, Rule 3, C.P.C. there should be presence of both the elements, viz.,
(1) the adjournment must have been at the instance of a party, and (2) there must be materials on
the record for the court to proceed to decide the suit.

Right of party to prove its case by leading evidence:

Such right could not be taken away by Court save otherwise in case of failure to produce
evidence and such failure was required to be recorded in the order leading to closure of evidence.
It was only then that the Court could proceed to decide suit after doing away with evidence of
party. Held, that Court by no stretch of imagination could decide suit straightway discarding
evidence of party though Courts enjoy such power under C.P.C. Rule 6, Order XII where claim
was admitted.

Rule 2 of Order XVII does not apply where no day has been fixed for the hearing, but applies
where the hearing of a suit has been adjourned and on the adjourned date the parties or any of
them fail to appear.

Rule 3 of Order XVTI applies only to cases where the parties are present and have not satisfied
the court as to the existence of any adequate reason for their not having done what they were
directed to do.

Rules 2 and 3 are mutually exclusive and where the pleader pleads no instructions and the party
is not prepared to go on rule 2 and not rule 3 applies. Rule 3 means that the court has discretion
to decide the case on the adjourned date or not, but if it does decide the suit, it will be a decision
on the merits and appearance on behalf of the defendant would be assumed, whether he was in
fact present or not and the decree cannot be regarded as ex parte. Only an appeal and no revision
lies against an order under Order XVII, Rule 3.

Where on an adjourned date, a case is decided in the absence of the defendant and the order is
described as an ex parte one, it cannot be said that merely because the court gave some reasons
for its decision, it becomes a decision on merits so as to take the case out of the provisions of
Order IX.

No Instructions to counsel—Proper Procedure:

Where on the refusal of an application for adjournment the plaintiff’s pleader reports “No
instructions” and the plaintiff though present during the defendant’s argument asks for time to
engage another pleader which is refused, the trial judge should, in such circumstances, pass an
order dismissing the suit for default under Rule 2 and not purport to pass a decree based on a
finding on the merits against the plaintiff under Rule 3.

Different remedies against Order XVII, Rules 2 and 3:

The remedies in the case of the orders under Rule 2 and Rule 3, are different. If a suit is
dismissed under Order XVII, Rule 2, read with Order IX, Rule 8 (i.e., where the defendant
appears and the plaintiff does not appear), the remedy is by application under Order IX, Rule 9,
i.e., the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action but
he may apply for restoration of the suit. But if suit is dismissed under Order XVII, Rule 3, the
remedy is by way of an appeal.

Remedy in case of default under Rules 2 and 3 of Order XVII:

Where there is default under both the rules, i.e., the party having got an adjournment not only
fails to perform the act for which adjournment was given but also fails to appear on the
adjourned date, Rule 2 should be applied; but if there are materials to justify a decision on
‘merits’, Rule 3 should be resorted to.

If the suit came to be disposed of on account of the non-appearance of the plaintiff on a hearing
day but it was not at the instance of the plaintiff that the suit was adjourned for the day it came to
be disposed of, the court can proceed only under Order XVII, Rule 2 in one of the modes
prescribed by Order IX, presumably in the manner prescribed by Order IX, Rule 8. An
application under Order IX, Rule 9 by the plaintiff would be maintainable in such a case.

Rama Rao v. Shantibai:

The construction of Order XVII, Rule 2 should be such that where it is permissible to treat an
order as falling within the ambit of Rule 2, it must be taken as being outside the ambit of Rule 3
for the obvious reason that Rule 3 is a more stringent provision requiring a strict construction.
The plain and unambiguous language of the two provisions, the deliberate departure made in the
phraseology of the two rules; the undisputed need to construe Rule 3 strictly; the consequences
which necessarily follow as a result of the construction made and the heading of the two rules,
are factors which lead without any hesitation to the conclusion that Rule 2 applies to all cases of
default in appearance of all or any of the parties with the result that Rule 3 does not apply to any
of those cases.

This conclusion also enables the defaulting party to have the order made under Order IX, C.P.C.
set aside in the manner provided for that purpose in the Code by showing that there was valid
reason for default in appearance on the date fixed.

The expression ‘such other order as it thinks fit’ used in Rule 2 permits disposal of the suit and
not a decision thereof on merits contemplated by Rule 3, in a mode other than that provided in
Order IX, e.g., by an order of adjournment.

It follows that Rule 3 presupposes the presence of all parties and then the failure of the party at
whose instance and for whose benefit the hearing was adjourned on the previous date, to perform
the act necessary to the further progress of the suit. It is only to this class of cases that Rule 3
applies and it has no application to cases falling within the ambit of Rule 2.

Whenever such a question arises, it has first to be seen whether Rule 3 applies to the facts of a
case, since on Rule 2 being attracted, the operation of Rule 3 would be automatically excluded. It
is only when there is no default in appearance of all or any of the parties that the question of
applying Rule 3 would arise to the facts of a case, provided the requirements laid down in Rule 3
are fulfilled.

If, when a suit is called on for hearing, a party’s counsel appears and seeks adjournment but
when adjournment is refused he retires saying that he has no instructions, it will be no
appearance of the party and Rule 2 of Order XVII alone would be attracted.

However, in such a case the defaulting party must show ‘sufficient cause’ for non-appearance as
well as for not fully instructing the counsel. If the Counsel had sought adjournment because he
was instructed by his client to ask for an adjournment only, and not to proceed with the trial if
adjournment be refused, or if the counsel feels a necessity to seek adjournment so that he may
prepare himself and, on his own seeks adjournment, it will be no appearance of the party and
Rule 2 of Order XVII, C.RC., alone would be attracted.

If, when a case is called on for hearing, the counsel appears (without making any request for
adjournment) merely to inform the court that he has no instructions and, therefore, would not
appear, it will be no appearance of the party and Rule 2 of Order XVII, C.P.C. alone would be
attracted.
Application for setting aside dismissal of suit:

An application under Order IX, C.P.C. will lie for setting aside the dismissal of a suit in the
following circumstances and Order XVII, Rule 2 would alone be attracted: (a) where the plaintiff
had not been asked to do something and he did not appear when the case was called on for
hearing, or (b) where the plaintiff was asked to do something which he did not do, nor did he
appear when the case was called on for hearing.

Application for setting aside ex parte order:

In the following situations, the defendant can apply under Order IX, Rule 13, C.P.C. for setting
aside an ex parte decree and Order XVII, Rule 2 would alone be attracted : (a) when the
defendant had not been asked to do something and he did not appear and the court decided the
suit on the basis of the existing material, without or after taking any further evidence on record;
(b) when the defendant had been asked to do something which he did not do, nor appeared when
the case was called on for hearing and the court decided the suit on the existing material without
taking any further evidence for the plaintiff; (c) when he had been asked to do something which
he did not appear when the case was called on for hearing and, therefore, on the same day, the
Court took on record ex parte evidence produced by the plaintiff; and (d) when he had been
asked to do something which he did not do, nor appeared when the case was called on for
hearing and the trial court adjourned the hearing for recording plaintiff’s evidence ex parte and
on the next date after recording plaintiff’s ex parte evidence, passed an ex parte decree against
him.

Consequence of non-appearance on adjourned date of hearing and remedy:

A case in which the defendant obtains an adjournment on the date of final hearing of the suit and
fails to appear on the adjourned date is covered by Rule 2 of Order XVII, and an application
under Order IX, Rule 13 will lie even if the court proposes to act under Rule 3. Rule 3 applies
when a party is present, or is deemed to be present, and has defaulted in doing the acts mentioned
in Rule 3.

Where the Court on non-appearance of the defendant even if expressly proceeded to decide the
case under Order XVII, Rule 3 instead of deciding it ex parte under Order XVII, Rule 2, the
defendant was not precluded from moving an application under Order IX, Rule 13, for setting
aside such decree.

When the defendant obtains adjournment of the suit but fails to appear on the adjourned date, the
matter is governed by Order XVII, Rule 2 and not by Order XVII, Rule 3. Consequently, if the
court wants to dispose of the suit, it should dispose it of in accordance with the provisions of
Order IX that is ex parte, but should not decide it on merits.
Appeal against ex parte decree—when on merits and when grounds of non-appearance-
circumstances:

In an appeal against ex parte decree the appellant can only be heard on the merits of the case.
The appellate court cannot go into the question as to why the appellant had not appeared on the
date of final hearing before the trial court. This is the scope of an application under Order IX,
Rule 13, C.P.C.

When the defendant is absent no proceedings under Rule 3 of Order XVII can be taken. When
any of the parties fails to appear on an adjourned hearing of the suit the court can proceed either
under Order IX or to adjourn the suit but where substantial portion of evidence of a party has
already been recorded and such party fails to appear on the adjourned date then only the court
can proceed to decide the suit on merits even under Rule 2 of Order XVII.

Where in a case neither any evidence had been recorded either on behalf of the plaintiff or on
behalf of the defendant by the date on which ex parte decree was passed nor the defendant was
physically present in court on the date on which the decree was passed, application of Order
XVII, Rule 3 was clearly excluded and the only course open to the court was to proceed under
Order XVII, Rule 2. Therefore, the court would be deemed to have acted illegally when it
proceeded to decide the suit on merits under Rule 3 after rejecting the defendant’s application for
adjournment.

The court, hearing an appeal against an ex parte decree passed under Order XVII, Rule 3, can go
into the grounds of non-appearance of the defaulting party unless it be barred from doing so
either under the doctrine of res judicata or under other positive rule of law. The court can also
consider whether the defendant was prevented by any sufficient cause in

Provisions regarding examination of party not mandatory:

A close reading of the provision of Rule 3-A indicates that the insistence of examination of a
party as a first witness is not an inviolable rule and the rule itself provides an exception. May be
that the Court has to be assign reasons for giving such permission. In the instant case there is a
breach of Rule 3-A, but at the time of examination of the plaintiff as PW 2, the defendant has not
objected and the evidence has been recorded.

Thereby in the context of facts, it should be construed that there has been an implied permission
granted by the Court. The provisions of Order XVTII, Rule 3-A are not mandatory and does not
necessarily visit with the consequences rendering such evidence a nullity. [Order XVII, Rule 3-
A]

Judgment

The judgment forms the concluding part of the civil suit and it determines the rights and
liabilities of the parties. Basically judgment is followed by a decree which is its operating part.
Historically, there was the distinction between judgment and decree. Common Law adheres to
the judgment while the Equity Court of Law deals with the decree. But later on Judicature Act
was passed in U.K. which merged the distinction between judgment and decree. In U.S. also,
distinction between judgment and decree has lost its relevance but in India, the distinction
between judgment and decree has still maintain its position from the initiation of the old Code of
Civil Procedure, 1859. The present Code of Civil Procedure, 1908 also recognizes this
distinction.

In this legal world, judgment given by any court followed by its decree play an important role to
define the scope and limitations of any individual. Apart from the statutory rules and regulations,
one also has to adhere to the decision given by the court to keep oneself away from the clutches
of the court room drama.

Daily various judgments are pronounced and decree following it took place in the courts of our
country. Various civil cases are also being disposed off each working day. These judgments are
important as they act as precedents for future declarations, so it is very necessary that they stick
to the judicial reasoning without bringing their own discretionary power blindly. After so many
judgments and backing it up with the decree also, certain issues do arises which tends to confuse
us. Civil Procedure Code, 1908 has been drafted very nicely but then also certain loopholes are
there providing leeway for the creeping of unnecessary elements. As no law seems to perfect for
us but then also effort should be made to take them somewhere close to the shell of perfect ness.

Decree is the operating part of the judgment and it has to be in harmony with the judgment.
Section 33 of the Civil Procedure Code, 1908 says decree is followed by the judgment. Under the
Civil Procedure Code, 1908 (hereinafter referred as C.P.C.) judgment and decree has been
defined in the section 2 of the C.P.C. and provisions related to it are given in the Order 20 of this
Act. Certain specific issues arise while dealing with this Order such as the time frame for the
pronouncement of the judgment; power to amend the decree; reasons for each decision etc.

Pronouncement of Judgment- The D’ Day

Crystallizing judge’s intention into a formal shape in an open court leads the judgment to its final
destination. Rule 1 of Order 20 deals with the pronouncement of judgment. It talks of specific
time frame for the declaration of the judgment in the open court. But there was no time limit
prescribed for the pronouncement of judgment prior to the amendment in 1976 which led to a
persistent demand all over India for the imposition of a reasonable time frame for the declaration
of judgment after the hearing of the case gets over . In this regard, observation of the Supreme
Court in R.C. Sharma v. Union of India is worth noting;

The Civil Procedure Code does not provide a time limit for the period between the hearing of
arguments and the delivery of a judgment. Nevertheless, we think that an unreasonable delay
between hearing of arguments and delivery of a judgment, unless explained by exceptional or
extraordinary circumstances, is highly undesirable even when written arguments are submitted. It
is not unlikely that some points which the litigant considers important may have escaped notice.
But, what is more important is the litigants must have complete confidence in the results of
litigation. This confidence tends to be shaken if there is excessive delay between hearing of
arguments and delivery of judgments. Justice, as we have often observed, must not only be done
but must manifestly appear to be done.

Accordingly amendment was introduced providing a time limit for the declaration of the
judgment. If it is not possible to pronounce the judgment at once, it should be declared within
thirty days from the day of conclusion of the hearing and in case some extreme situation arises
then the provision is also there to extend this declaration of pronouncement till the sixtieth day
from the conclusion of hearing. Thus judge have a discretionary power for the pronouncement of
judgment for these sixty days but after that declaration becomes mandatory on the part of the
judge.

But what happens if the judgment is not pronounced within sixty days also. Supreme Court has
strongly deprecated the action of the High Court in the case of Anil Rai v. State of Bihar, where
the judgment was pronounced after two years. Remarks of the honourable court in this case are
just next to the truth and are worth noting down:

# The Constitution did not provide anything when High Court judges do not pronounce
judgments after lapse of several months presumably because the architects of the Constitution
believed that no High Court judge would cause long and distressing delays. Such expectation of
the makers of the Constitution remained faultless during the early period of the post Constitution
years. But unfortunately, the later years have shown slackness on the part of a few judges of the
superior Courts in India with the result that the records remain consigned to hibernation. Judges
themselves normally forget the details of the facts and niceties of the legal points advanced.
Sometimes the interval is so long that the judges forget even the fact that such a case is pending
with them expecting judicial verdict.

# This confidence tends to be shaken if there is excessive delay between hearing of arguments
and delivery of judgments. A long delay in delivering the judgment gives rise to unnecessary
speculation in the minds of parties to a case.

# Excessive delay is not only against the provisions of law but in fact infringes the right of
personal liberty guaranteed by Article 21 of the Constitution of India. Any procedure or course
of action which does not ensure a reasonable quick adjudication has been termed to be unjust.

# Justice should not only be done but should also appear to have been done. Similarly whereas
justice delayed is justice denied, justice withheld is even worst than that.

# In a country like ours where people consider the judges only second to God, efforts be made to
strengthen that belief of the common man. Delay in disposal of the cases facilitates the people to
raise eye-brows, some time genuinely which, if not checked, may shake the confidence of the
people in the judicial system.

Thus declaration of judgment within reasonable time is highly inevitable. In order to raise the
standard of the court in this regard certain guidelines has also been given in the Anil Rai’s case.
These guidelines are given below:

# The Chief Justices of the High Courts may issue appropriate directions to the Registry that in a
case where the judgment is reserved and is pronounced later, the judgment and date of
pronouncing it be separately mentioned by the Court officer concerned.

# The Chief Justices of the High Courts should direct the Court Officers/Readers of the various
Benches in the High Courts to furnish every month the list of cases in the matters where the
judgments reserved are not pronounced within the period of that month.

# On noticing that after conclusion of the arguments the judgment is not pronounced within a
period of two months, the concerned Chief Justice shall draw the attention of the Bench
concerned to the pending matter.

# Where a judgment is not pronounced within three months, from the date of reserving it, any of
the parties in the case is permitted to file an application in the High Court with prayer for early
judgment. Such application, as and when filed, shall be listed before the Bench concerned within
two days excluding the intervening holidays.

# If the judgment, for any reason, is not pronounced within a period of six months, any of the
parties of the said list shall be entitled to move an application before the Chief Justice of the
High Court with a prayer to withdraw the said case and to make it over to any other bench for
fresh arguments. It is open to the Chief Justice to grant the said prayer or to pass any other order
as he deems fit in the circumstances.

Alteration in Judgment

Before the pronouncement of judgment, every right is with the judge to change his mind but the
dilemma arises in the situation when judgment has been declared in the open court and after that
something strikes to the judge which prompts him to alter the judgment; so the question arises
will the changed mind frame should be given prevalence over the old decision or old should be
preserved from the new one? Rule 3 of Order 20 of C.P.C. provides that a judgment once signed
cannot be amended or altered afterwards except to correct clerical or arithmetical mistakes or
errors due to accidental slips or omissions as mentioned in section 152 of the C.P.C. or on
review.
According to Allahabad High Court in Sangam Lal v. Rent Control and Eviction Officer, a
judgment dictated in an open court can be changed, even completely, before it is signed provided
notice is given to all parties concerned and they are heard before the change is made. Reasoning
given for this judgment was that they do not want to construe the rules too technically as they are
indeed rules to further the ends of justice; so they should not be viewed too narrowly. This view
of the Allahabad High Court was also accepted by the Delhi High Court in the case of Ram
Ralaya v. The Official Receiver. But the Gujarat High Court disagreed with this view and was of
the opinion that once a judgment has been pronounced or delivered in an open court, though
formal corrections may be made before the judge signs it, the core of it cannot be altered or
changed so as to modify the order or amend or even set it at naught . Basically judgment is the
final decision of the court intimated to the parties and to the world at the large in an open court.
This declaration is the intention of the mindset of the court after going through the tedious
process of the wholesome hearing. This intention of the court is the final operative decision of
the court which constitutes the decision.
Regarding this, the Gujarat High Court in the case of Ishwarbhai mentions some worthwhile
remarks. It says that, as soon as the judgment is delivered, that becomes the operative
pronouncement of the Court. The law then provides for the manner in which it is to be
authenticated and made certain. The rules regarding this differ but they do not form the essence
of the matter and if there is any irregularity in carrying them out it is curable. Thus, if a judgment
happens not to be signed and is inadvertently consequent on acted on and executed, the
proceedings consequent on it would be valid because the judgment, if it can be shown to have
been validly delivered, would stand good despite defects in the mode of this subsequent
authentication.

The court can do some formal corrections but the core of it cannot be altered or changed so as to
modify the order or amend or even set at naught the same. That can be done only by the Court in
appeal or in revision. Even with the consent or agreement of the parties also, a judgment cannot
be altered or amended.

Reasoning for Decision

Before starting anything, it is very necessary to lay down the ground; before judging also
something, it is quite crucial to have full facts before it and then take out the relevant portions to
make a concise statement of the case. Thus, a judgment should inaugurate with the facts of the
case in brief. Rule 4(2) of Order 20 of C.P.C. states that apart from the judgment of Small Cause
Courts, judgments of all other Courts shall contain a concise statement of the case; the points for
determination; the decision thereon; and the reasons for such decision.
Thus after laying down the facts, facts in issue should be settled by bringing out the claims which
are disputed between both the parties; thus issues should be framed. Framing of issues should be
done via Rule 1 of Order 14 of C.P.C.

Now after issues are framed, points for determination come into picture and for determining
those points, need for extra force is required. It is not possible to cruise through the disputed
facts in the absence of any peaceful land. In order to satisfactorily reach on a judicial
determination of a disputed claim where substantial questions of law or fact arise, it has to be
supported by the most cogent reasons; a mere order deciding the matter in dispute without any
reasoning is no judgment at all Power of reasoning is needed to back up the decision on each
issue given by the court under Rule 5 of Order 20 of this Code.

Rule 2 of Order 14 of C.P.C. provides judgment to be given on all the issues that has arisen in
the given case. Rule 1 of the same Order provides for framing of issues with the object of
keeping the various points arising for decision separate and distinct and to avoid the confusion
later on.

As per Rule 5 of Order 20 of C.P.C. court has to state its decision with reasons on each issue
separately unless the finding upon any one or more of the issues is sufficient for the decision of
the suit. But Rule 2 of Order 14 of C.P.C. requires that a court should decide on all issues even if
the case can be decided by settling few issues only except where a pure question of law relating
to jurisdiction or bar to suit is involved. Further with the addition of an explanation to Rule 22 of
Order 41 of C.P.C. which empowers a respondent in appeal to file cross objection in respect of
findings against him in a decree notwithstanding that by reason of the decision of the court on
any other finding which is sufficient for the decision of the suit the decree is wholly or in part in
favour of the respondent, the intention of the legislature is clear that the court will now have to
decide and state its findings on all the issues even if it considers that finding for one or only few
issues is sufficient for the disposal of the case. Thus in order to have a harmonious construction
of all these rules, it would be judicial to amend the Rule 5 of Order 20 of C.P.C. by omission of
the words unless the finding upon any one or more of the issues is sufficient for the decision of
the suit at the end . Moreover, principle of res-judicata operates after the determination of the
case; so in case if judgment is not given by deciding all the issues then problem can erupt in
future whether the rule of res-judicata will operate or not for that particular issue.

There is ambiguity whether recording of reasons for each issue is one of the principle of natural
justice or not but it is inevitable for providing safeguard against possible injustice and
arbitrariness and provides protection to the person adversely affected.

The court must decide all the issues of fact, which arise between the parties as if the appellate
Court takes a different view; the parties are saved from further harassment. Court has to refer in
its judgment all the submissions made before it and have to deal with it even if the court is of the
opinion that there is no substance in any of the submission; in those extreme situations the Court
may just refer to the same and say that there is no substance.

In the absence of discussion in detail of the evidence by the parties, it cannot be said that its
judgment is no judgment in the eyes of law. All the court has to do is to frame proper issues and
to keep in mind all the points involved in the case and has discussed all those points, though in
brief; thus giving full respect to the judgment.

Problem arises where there is absolutely no evidence on the record and the plaintiff is wholly
unable to proceed with the case; in that situation an order simply dismissing the suit without a
finding on every issue is not bad. It would be a sheer formality to write a judgment on each issue
in these scenarios.

Comparison Between Judgment and Decree

Judgment is defined in section 2(9) of the C.P.C. which says judgment is the statement given by
the Judge on the grounds of a decree or order. Judgment refers to what the judge writes regarding
all the issues in the matter and the decision on each of the issues. Hence every judgment consists
of facts, evidence, findings etc. and the conclusion of the court.

The term decree is defined in section 2(2) of the C.P.C. which reads as follows:

decree means 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.

Decree is the conclusion reached by the judge after hearing both parties on merits and expressing
the same in writing. Basically decree is the subset in the set of judgment.

The decree forms the last part of the judgment and is extracted from the entire judgment by the
decree clerk who contains the basic details and the result of the case. The date of the decree is the
date of judgment for the purpose of execution though it can be signed anytime later even by a
successor judge though it should be given within 15 days. Even a set-off/ counter claim is in the
same decree.

Judgments by way of an amendment in 1976 must contain the exact decree and words like
“decree what is prayed for” cannot be used. Thus every judgment contains the decree, amongst
other things and the decree is usually the last portion of the judgment and the decree
independently is without reasoning.
There is no need of a statement in a decree though it is necessary in a judgment. Likewise, it is
not necessary that there should be a formal expression of the order in the judgment, though it is
desirable to do so. A judgment is a stage prior to the passing of a decree or an order, and after the
pronouncement of the judgment, way for the decree has to be left wide open.

Decree has to be in line with the judgment and it should present the correct interpretation of the
judgment. But in case, scenario arises where there appears to be a conflict between the judgment
and the decree, then the decree must be reasonably construed and if on such construction both of
them able to remain together, then adhere to that decree. But if it gets difficult for the decree to
stay together with the judgment, then it must be amended under section 151 of the C.P.C. and if
there is any clerical mistakes in the decree, then section 152 of the C.P.C. will take out the decree
safe from the clutch of being declared nullity.
 DECREE

In order to reap the fruits of the litigation successfully decided in favour of the litigant, it is
necessary that due execution of decree passed in favour of the Decree Holder be made. Civil
Procedure Code is a unique work in that context as on one hand it provides procedure to obtain a
decree and on the other, the way and means to execute the decree. The procedure in detail
about execution of the decree is provided under Order 21 of the Code. In practice,
attachment and sale are the most common. Decree is an anchor sheet enabling a successful
litigant to exercise and ultimately to execute the obligation created in his favour by the decree.
Litigation ends when the decree is satisfied in the spirit of terms. In Ghan Shyam Das V.
Anant Kumar Sinha AIR 1991 SC 2251 the Hon’ble Supreme Court observed that the
provisions of the Code as regards execution are of superior judicial quality than what is
generally available under the other statutes and the Judge, being entrusted
exclusively with administration of justice, is expected to do better.

What is a “decree”?

"Decree " means 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”. 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:

TYPES OF DECREE

1. Preliminary :- Where an adjudication decides the rights of the parties with regard to all or any
of the matters in controversy in the suit but does not completely dispose of the suit, it is a
preliminary decree. It is passed when the court needs to adjudicate upon some matters before
proceeding to adjudicate upon the rest. In Shankar vs Chandrakant SCC 1995, SC stated that a
preliminary decree is one which declares the rights and liabilities of the parties leaving the actual
result to be worked out in further proceedings. CPC provides for passing a
preliminary decrees in several suits such as - suit for possession and mesne profits,
administration suit, suits for pre-emption, dissolution of partnership, suits relating to
mortgage. In Narayanan vs Laxmi Narayan AIR 1953, it was held that the list given in CPC is
not exhaustive and a court may pass a preliminary decree in cases not expressly provided for in
the code.

2. Final :- When the decree disposes of the suit completely, so far as the court passing it is
concerned, it is a final decree. A final decree settles all the issues and controversies in the suit.

3. Party preliminary and partly final -:- When a decree resolves some issues but leaves the rest
open for further decision, such a decree is partly final and party preliminary. For example, in a
suit for possession of immovable property with mesne profits, where the court decrees
possession of the property and directs an enquiry into the mesne profits, the former part of the
decree is final but the latter part is preliminary.

4. Deemed Decree:- The word "deemed" usually implies a fiction whereby a thing is
assumed to be something that it is ordinarily not. In this case, an adjudication that does not fulfill
the requisites of S. 2 (2) cannot be said to be a decree. However, certain orders and
determinations are deemed to be decrees under the code. For example, rejection of a plaint and
the determination of questions under S. 144 (Restitution) are deemed decrees.
 AWARD OF COST
According to Black’s Law Dictionary “costs is a pecuniary allowance made to the successful
party for his expenses in prosecuting or defending a suit or a distinct proceeding with a suit”.
Cost are an allowance to the party for expenses incurring in prosecuting or defending a suit, an
incident to the judgment. In England the term is also used to designate the charges which an
attorney or solicitor is entitled to make and recover from his client, as his remuneration for
professional services, such a legal advice, attendances, drafting, conducting legal proceedings
etc.

Section 35:

Section 35 of the Code of Civil Procedure contains the provision as to costs. The cost of an
incident to all suits are in the discretion of the Court and the court shall have full power to
determine by order out of what property and what extent such costs are to be paid. All necessary
direction for these purposes will be given by the court. Where the Court directs the costs are not
to follow the events the court shall give it in writing.

Section 35-A:

Section 35-A deals with compensatory costs in respect of false and vexatious claims and
defence. If in any suit or proceedings, any party objects to the claim or defence on the ground
that the claim or defence on any part of it , as against the objector , is false or vexatious and if
thereafter as against the objector, such claim or defence is disallowed, abandoned or withdrawn
in whole or in part , the Court if it thinks fit may , after recording its reasons for so holding make
an order for payment to the objector by the party by whom such claim or defence was put
forward , of costs by way of compensation. No court can make any such order for payment of an
amount exceeding three thousand rupees or exceeding the limits of the pecuniary jurisdiction,
whichever amount is less. The amount of any compensation awarded under this section in
respect of false claim or defence has to be taken into account in any subsequent suit for damages
or compensation of such claim or defence.

Section 35-B:

Section 35-B was amended in the Code of Civil Procedure by amendment act of 1976. It
provides for costs for causing delay. Where separate defenses have been raised by the defendant
or group of defendants payment of such costs shall be a condition precedent to the further
prosecution of the defense by such defendants as have been ordered by Court to pay such costs.

The cost ordered to be paid under sub-section (1) shall not, if paid, be included in the costs
awarded in the decree passed in the suit, but if such costs are not paid, a separate order shall be
drawn up indicating the amount of such costs and the names and addresses of the persons by
whom such costs are payable and the order so drawn up shall be executable against such persons.
General Rule: It is a general rule to award costs is at the discretion of the court. Normally, in
civil proceedings “costs shall follow the event”.

Kinds of costs:

The code provides for the following kinds of costs:

1) General costs-Section 35;

2) Miscellaneous costs-Order 20-A;

3)Compensatory costs for false and vexatious claim or defences-Section 35-A;

4) Costs for causing delay-Section 35-B.

(1) General costs: Section 35:

The object of section 35 is to awarding costs to a litigant is to secure to him the expenses
incurred by him in the litigation. It neither enables the successful party to make any profit out of
it nor punishes the opposite party. The general rule relating to cost is that cost should follow the
event, i.e. a successful party must get the costs and the losing party should pay the other side.

Principles:

The primary rules in respect of award of general cost are as under:

a) Costs are at the discretion of the court. The said discretion must be exercised on sound legal
principles and not by caprice, chance or humour. No hard and fast rules can be laid down and the
discretion must be exercised considering the facts and circumstances of each case.

b) Normally, costs to follow the event and the successful party are entitled to costs unless there
are good grounds for depriving him of that right. To put it differently the loser pays costs to the
winner. However it does not always depend on who wins and losses in the end. Even a
successful party may be deprived of costs if he is guilty of misconduct or there are other reasons
to do so. Sub-section (2) of section 35 expressly provides that when the court orders that cost
should not follow the event, it must record reasons for doing so.

(2) Miscellaneous costs: Order 20-A:

Order 20-A makes specific provisions with regard to the power of the court to award costs in
respect of certain expenses incurred in giving notices, typing charges, inspecting of records,
obtaining copies and producing witnesses.
(3) Compensatory costs: Section 35-A:

The object of Section 35-A is to provide for compensatory costs. This section is an exception to
the general rule on which Section 35 is based, that the “costs are only in indemnity, and never
more than indemnity”. This section intended to deal with those cases in which Section 35 does
not afford sufficient compensation in the opinion of the court. Under this provision, if the court is
satisfied that the litigation was inspired by vexatious motive and was altogether groundless, it
can take deterrent action. This section only applies to the suit and not to the appeals or to the
revisions.

The following conditions must exist before this section can be applied:

a) the claim or defence must be false or vexatious;

b) objections must have been taken by the other party that the claim or defence was false to the
knowledge of the party raising it ; and

c) such claim must have been disallowed or withdrawn in whole or in part.

Maximum amount:

The maximum amount that can be awarded by the court is Rs 3000. But the person against whom
an order has been passed is not exempt from any criminal liability. In a subsequent suit for
damages or compensation for false claim or defense, the court will take into account the amount
of compensation awarded to the plaintiff under this section.

Other Liability:

A person against whom a order of costs is made is not exempted from any other liability in
respect of false claim or defense made by him.

Appeal:

An order awarding compensatory costs is appealable. But no appeal lies against an order refusing
to award compensatory costs. Since such an order can be termed as “case decided”, a revision
lies.

(4) Costs for causing delay: Section 35-B:

Section 35-B is added by the Amendment Act of 1976. It is inserted to put a check upon the
delaying tactics of litigating parties. It empowers the court to impose compensatory costs on
parties who are responsible for causing delay at any stage of the litigation. Such costs would be
irrespective of the ultimate outcome of the litigation. the payment of cost has been a condition
precedent for further prosecution of the suit, if the party concerned is a plaintiff and the defence ,
if he is a defendant.
The provisions of this Section are mandatory in nature and therefore the court should not allow
prosecution of suit or defence, in the event of partly failing to pay costs as directed by the court.
If a party is unable to pay costs due to circumstances beyond his control , such as strike of
advocates or staff , declaration of the last day for payment of costs as holiday, etc. the court can
extend the time.

Very recently in Ashok Kumar v. Ram Kumar , the Supreme Court observed that the present
system of levying meagre costs in civil matters is wholly unsatisfactory and does not act as a
deterrent to luxury litigation . More realistic approach relating to costs is the need of the hour.
 UNIT III

APPEAL
1. First Appeal: Meaning, Essentials, Right of Appeal, Suit and Appeal, Appeal and
Revision, Conversion of Appeal into Revision, Who cannot Appeal?, Appeal against ex
parte decree, Appeal against consent decree, Appeal against Preliminary Decree, Appeal
against Judgment, Appeal against dead person, Limitation, Form of Appeal, Forum of
Appeal, Condonation of Delay, Summary Dismissal, Abatement of Appeal, Admission of
Appeal, Doctrine of Merger, Procedure at hearing, Cross Objections, Powers of Appellate
Courts, Duties of Appellate Courts, Letters Patent Appeal, Appeal to Supreme Court
2. Second Appeal: Nature, scope, object, Second appeal and First appeal, Second Appeal
and Revision, Substantial question of law, No second Appeal in certain cases, No Letters
patent Appeal, Limitation, Form of Appeal, Power of High Court to decide Issue of Fact,
Procedure at Hearing, Pending Appeal.
3. Appeals from Orders: Order and Decree, Appealable orders, Res judicata, Limitation,
Forum of Appeal, Procedure at Hearing, Letters Patent Appeal, Appeal to Supreme
Court.
4. Appeals by Indigent Persons: Who May Apply?, Inquiry, Power and duty of Court,
Payment of Court fees, Limitation, Letters Patent Appeal.
5. Appeals to Supreme Court: Conditions, Procedure at Hearing, Appeals under
Constitution.
 DOCTRINE OF MERGER

The Bench comprising Justice Thomas, Justice Mohapatra and Justice R.C. Lahoti have
explained the Doctrine of Merger. The Bench speaking through Justice Lahoti has examined the
various judicial pronouncements on the doctrine and has formulated the various
principles regarding the same. The Bench has also examined the effect of the dismissal of an
SLP, in limine, and whether the same precludes the rights of a party to agitate an issue in
subsequent proceedings. While dealing with the same the Court has held as under;

The Doctrine of Merger :

The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily
recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of
justice delivery system. On more occasions than one this Court had an opportunity of dealing
with the doctrine of merger. It would be advisable to trace and set out the judicial opinion of this
Court as it has progressed through the times.

In Commissioner of Income-tax, Bombay Vs. M/s Amritlal Bhogilal and Co. AIR 1958 SC 868
this Court held:

There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the
decision of the appellate authority is the operative decision in law. If the appellate authority
modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that
is effective and can be enforced. In law the position would be just the same even if the appellate
decision merely confirms the decision of the tribunal. As a result of the confirmation or
affirmance of the decision of the tribunal by the appellate authority the original decision merges
in the appellate decision and it is the appellate decision alone which subsists and is operative and
capable of enforcement.

However, in the facts and circumstances of the case this Court refused to apply the doctrine of
merger. There, an order of registration of a firm was made by the Income-tax Officer. The firm
was then assessed as a registered firm. The order of assessment of the assessee was subjected to
appeal before the Appellate Commissioner. Later on the order passed by the Income-tax Officer
in respect of registration of the firm was sought to be revised by the Commissioner of Income-
tax. Question arose whether the Commissioner of Income-tax could have exercised the power of
revision. This Court held that though the order of assessment made by the ITO was appealed
against before the Appellate Commissioner, the order of registration was not appeallable at all
and therefore the order granting registration of the firm cannot be said to have been merged in
the appellate order of the Appellate Commissioner. While doing so this Court analysed several
provisions of the Income-tax Act so as to determine the nature and scope of relevant appellate
and revisional powers and held if the subject matter of the two proceedings is not identical, there
can be no merger. In State of Madras Vs. Madurai Mills Co.Ltd. AIR 1967 SC 681 this Court
held that the doctrine of merger is not a doctrine of rigid and universal application and it cannot
be said that wherever there are two orders, one by the inferior authority and the other by a
superior authority, passed in an appeal or revision there is a fusion or merger of two orders
irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal
or revision contemplated by the particular statute. The application of the doctrine depends on the
nature of the appellate or revisional order in each case and the scope of the statutory provisions
conferring the appellate or revisional jurisdiction.

In M/s Gojer Brothers Pvt. Ltd. Vs. Shri Ratanlal AIR 1974 SC 1380 this Court made it clear that
so far as merger is concerned on principle there is no distinction between an order of reversal or
modification or an order of confirmation passed by the appellate authority; in all the three cases
the order passed by the lower authority shall merge in the order passed by the appellate authority
whatsoever be its decision whether of reversal or modification or only confirmation. Their
Lordships referred to an earlier decision of this court in U.J.S. Chopra Vs. State of Bombay AIR
1955 SC 633 wherein it was held.

A judgment pronounced by a High Court in exercise of its appellate or revisional jurisdiction

after issue of a notice and a full hearing in the presence of both the parties would replace the
judgment of the lower court, thus constituting the judgment of the High Court the only final
judgment to be executed in accordance with law by the courts below.

In S.S. Rathor Vs. State of Madhya Pradesh AIR 1990 SC 10 a larger Bench of this Court (Seven-
Judges) having reviewed the available decisions of the Supreme Court on the doctrine of merger,
held that the distinction made between courts and tribunals as regards the applicability of
doctrine of merger is without any legal justification; where a statutory remedy was provided
against an adverse order in a service dispute and that remedy was availed, the limitation for filing
a suit challenging the adverse order would commence not from the date of the original adverse
order but on the date when the order of the higher authority disposing of the statutory remedy
was passed. Support was taken from doctrine of merger by referring to C.I.T. Vs. Amritlal
Bhogilal & Co. (supra) and several other decisions of this Court.

The logic underlying the doctrine of merger is that there cannot be more than one decree or
operative orders governing the same subject-matter at a given point of time. When a decree or
order passed by inferior court, tribunal or authority was subjected to a remedy available under
the law before a superior forum then, though the decree or order under challenge continues to be
effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has
disposed of the lis before it either way - whether the decree or order under appeal is set aside or
modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority
which is the final, binding and operative decree or order wherein merges the decree or order
passed by the court, tribunal or the authority below. However, the doctrine is not of universal or
unlimited application. The nature of jurisdiction exercised by the superior forum and the content
or subject-matter of challenge laid or which could have been laid shall have to be kept in view.
Stage of SLP and post-leave stage The appellate jurisdiction exercised by the Supreme Court is
conferred by Articles 132 to 136 of the Constitution. Articles 132, 133 and 134 provide when an
appeal thereunder would lie and when not. Article 136 of the Constitution is a special jurisdiction
conferred on the Supreme Court which is sweeping in its nature. It is a residuary power in the
sense that it confers an appellate jurisdiction on the Supreme Court subject to the special leave
being granted in such matters as may not be covered by the preceding articles. It is an overriding
provision conferring a special jurisdiction providing for invoking of the appellate jurisdiction of
Supreme Court not fettered by the sweep of preceding articles. Article 136 opens with a non-
obstante clause and conveys a message that even in the field covered by the preceding articles,
jurisdiction conferred by Article 136 is available to be exercised in an appropriate case. It is an
untrammeled reservoir of power incapable of being confined to definitional bounds; the
discretion conferred on the Supreme Court being subjected to only one limitation, that is, the
wisdom and good sense or sense of justice of the Judges. No right of appeal is conferred upon
any party; only a discretion is vested in Supreme Court to interfere by granting leave to an
applicant to enter in its appellate jurisdiction not open otherwise and as of right.

The exercise of jurisdiction conferred on this Court by Article 136 of the Constitution consists of
two steps :

(i) granting special leave to appeal; and

(ii) hearing the appeal.

This distinction is clearly demonstrated by the provisions of Order XVI of the Supreme Court
Rules framed in exercise of the power conferred by Article 145 of the Constitution. Under Rule
4, the petition seeking special leave to appeal filed before the Supreme Court under Article 136
of the Constitution shall be in form No.28. No separate application for interim relief need be
filed, which can be incorporated in the petition itself. If notice is ordered on the special leave
petition, the petitioner should take steps to serve the notice on the respondent. The petition shall
be accompanied by a certified copy of the judgment or order appealed from and an affidavit in
support of the statement of facts contained in the petition. Under Rule 10 the petition for grant of
special leave shall be put up for hearing ex-parte unless there be a caveat. The court if it thinks
fit, may direct issue of notice to the respondent and adjourn the hearing of the petition. Under
Rule 13, the respondent to whom a notice in special leave petition is issued or who had filed a
caveat, shall be entitled to oppose the grant of leave or interim orders without filing any written
objections. He shall also be at liberty to file his objections only by setting out the grounds in
opposition to the questions of law or grounds set out in the S.L.P.. On hearing the Court may
refuse the leave and dismiss the petition for seeking special leave to appeal either ex-parte or
after issuing notice to the opposite party. Under Rule 11, on the grant of special leave, the
petition for special leave shall, subject to the payment of additional court fee, if any, be treated as
the petition of appeal and it shall be registered and numbered as such. The appeal shall then be
set down for hearing in accordance with the procedure laid down thereafter. Thus, a petition
seeking grant of special leave to appeal and the appeal itself, though both dealt with by Article
136 of the Constitution, are two clearly distinct stages. In our opinion, the legal position which
emerges is as under:-

1. While hearing the petition for special leave to appeal, the Court is called upon to see whether
the petitioner should be granted such leave or not. While hearing such petition, the Court is not
exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant
or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to
enter the appellate arena of Supreme Court. Whether he enters or not would depend on the fate of
his petition for special leave;

2. If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by

the Court that a case for invoking appellate jurisdiction of the Court was not made out;

3. If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for
entry in appellate arena is opened. The petitioner is in and the respondent may also be JJ called
upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the
court may dismiss the appeal without noticing the respondent.

4. In spite of a petition for special leave to appeal having been filed, the judgment, decree or
order against which leave to appeal has been sought for, continues to be final, effective and
binding as between the parties. Once leave to appeal has been granted, the finality of the
judgment, decree or order appealed against is put in jeopardy though it continues to be binding
and effective between the parties unless it is a nullity or unless the Court may pass a specific
order staying or suspending the operation or execution of the judgment, decree or order under
challenge.

Dismissal at stage of special leave - without reasons - no res judicata, no merger

Having so analysed and defined the two stages of the jurisdiction conferred by Article 136, now
we proceed to deal with a number of decisions cited at the Bar during the course of hearing and
dealing with the legal tenor of an order of Supreme Court dismissing a special leave petition. In
Workmen of Cochin Port Trust Vs. Board of Trustees of the Cochin Port Trust and Another 1978
(3) SCC 119, a Three-Judges Bench of this Court has held that dismissal of special leave petition
by the Supreme Court by a non-speaking order of dismissal where no reasons were given does
not constitute res judicata. All that can be said to have been decided by the Court is that it was
not a fit case where special leave should be granted. That may be due to various reasons. During
the course of the judgement, their Lordships have observed that dismissal of a special leave
petition under Article 136 against the order of a Tribunal did not necessarily bar the
entertainment of a writ petition under Article 226 against the order of the Tribunal. The decision
of Madras High Court in The Management of W. India Match Co. Ltd. Vs. Industrial Tribunal,
AIR 1958 Mad 398, 403 was cited before their Lordships. The High Court had taken the view
that the right to apply for leave to appeal to Supreme Court under Article 136, if it could be
called a right at all, cannot be equated to a right to appeal and that a High Court could not refuse
to entertain an application under Article 226 of the Constitution on the ground that the aggrieved
party could move Supreme Court under Article 136 of the Constitution. Their Lordships
observed that such a broad statement of law is not quite accurate, although substantially it is
correct.

In Indian Oil Corporation Ltd. Vs. State of Bihar and Ors. - AIR 1986 SC 1780 there was a
labour dispute adjudicated upon by an award made by the Labour Court. The employer moved
the Supreme Court by filing special leave petition against the award which was dismissed by a
non-speaking order in the following terms:-

The special leave petition is dismissed. Thereafter the employer approached the High Court by
preferring a petition under Article 226 of the Constitution seeking quashing of the award of the
Labour Court. On behalf of the employee the principal contention raised was that in view of the
order of the Supreme Court dismissing the special leave petition preferred against the award of
the Labour Court it was not legally open to the employer to approach the High Court under
Article 226 of the Constitution challenging the very same award. The plea prevailed with the
High Court forming an opinion that the doctrine of election was applicable and the employer
having chosen the remedy of approaching a superior court and having failed therein he could not
thereafter resort to the alternative remedy of approaching the High Court. This decision of the
High Court was put in issue before the Supreme Court. This Court held that the view taken by
the High Court was not right and that the High Court should have gone into the merits of the writ
petition. Referring to two earlier decisions of this Court, it was further held :-

The effect of a non-speaking order of dismissal of a special leave petition, without anything more
indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be
that this Court had decided only that it was not a fit case where special leave should be granted.
This conclusion may have been reached by this Court due to several reasons. When the order
passed by this Court was not a speaking one, it is not correct to assume that this Court had
necessarily decided implicitly all the questions in relation to the merits of the award, which was
under challenge before this Court in the special leave petition. A writ proceeding is a wholly
different and distinct proceeding. Questions which can be said to have been decided by this
Court expressly, implicity or even constructively while dismissing the special leave petition
cannot, of course, be re- opened in a subsequent writ proceeding before the High Court. But
neither on the principle of res judicata nor on any principle of public policy analogous thereto,
would the order of this Court dismissing the special leave petition operate to bar the trial of
identical issues in a separate proceeding namely, the writ proceeding before the High Court
merely on the basis of an uncertain assumption that the issues must have been decided by this
Court at least by implication. It is not correct or safe to extend the principle of res judicata or
constructive res judicata to such an extent so as to found it on mere guesswork.
It is not the policy of this Court to entertain special leave petitions and grant leave under Article
136 of the Constitution save in those cases where some substantial question of law of general or
public importance is involved or there is manifest injustice resulting from the impugned order or
judgment. The dismissal of a special leave petition in limine by a non-speaking order does not
therefore justify any inference that by necessary implication the contentions raised in the special
leave petition on the merits of the case have been rejected by this Court. It may also be observed
that having regard to the very heavy backlog of work in this Court and the necessity to restrict
the intake of fresh cases by strictly following the criteria aforementioned, it has very often been
the practice of this Court to grant special leave in cases where the party cannot claim effective
relief by approaching the concerned High Court under Article 226 of the Constitution. In such
cases also the special leave petitions are quite often dismissed only by passing a non-speaking
order especially in view of the rulings already given by this Court in the two decisions afore-
cited, that such dismissal of the special leave petition will not preclude the party from moving
the High Court for seeking relief under Article 226 of the Constitution. In such cases it would
work extreme hardship and injustice if the High Court were to close its doors to the petitioner
and refuse him relief under Article 226 of the Constitution on the sole ground of dismissal of the
special leave petition.

In our opinion what has been stated by this Court applies also to a case where a special leave
petition having been dismissed by a non- speaking order the applicant approaches the High Court
by moving a petition for review. May be that the Supreme Court was not inclined to exercise its
discretionary jurisdiction under Article 136 probably because it felt that it was open to the
applicant to move the High Court itself. As nothing has been said specifically in the order
dismissing the special leave petition one is left merely guessing. We do not think it would be just
to deprive the aggrieved person of the statutory right of seeking relief in review jurisdiction of
the High Court if a case for relief in that jurisdiction could be made out merely because a special
leave petition under Article 136 of the Constitution had already stood rejected by the Supreme
Court by a non-speaking order.

In M/s. Rup Diamonds and others Vs. Union of India and others AIR 1989 SC 674, the law
declared by this Court is that it cannot be said that the mere rejection of special leave petition
could, by itself, be construed as the imprimatur of this Court on the correctness of the decision
sought to be appealed against.

In Wilson Vs. Colchester Justices 1985 (2) All England Law Reports 97, the House of Lords
stated;

There are a multitude of reasons why, in a particular case, leave to appeal may be refused by an
Appeal Committee. I shall not attempt to embark on an exhaustive list for it would be impossible
to do so. One reason may be that the particular case raises no question of general principle but
turns on its own facts. Another may be that the facts of the particular case are not suitable as a
foundation for determining some question of general principle. . Conversely the fact that leave to
appeal is given is not of itself an indication that the judgments below are thought to be wrong. It
may well be that leave is given in order that the relevant law may be authoritatively restated in
clearer terms.

In Supreme Court Employees Welfare Association Vs. Union of India and Another 1989 (4) SCC
187, and Yogendra Narayan Chowdhury and Others Vs. Union of India and Others 1996 (7)
SCC 1, both decisions by Two-Judges Benches, this Court has held that a non-speaking order of
dismissal of a special leave petition cannot lead to assumption that it had necessarily decided by
implication the correctness of the decision under challenge.

We may refer to a recent decision, by Two-Judges Bench, of this Court in V.M. Salgaocar &
Bros. Pvt. Ltd. Vs. Commissioner of Income Tax 2000 (3) Scale 240, holding that when a special
leave petition is dismissed, this Court does not comment on the correctness or otherwise of the
order from which leave to appeal is sought. What the Court means is that it does not consider it
to be a fit case for exercising its jurisdiction under Article 136 of the Constitution. That certainly
could not be so when appeal is dismissed though by a non- speaking order. Here the doctrine of
merger applies. In that case the Supreme Court upholds the decision of the High Court or of the
Tribunal. This doctrine of merger does not apply in the case of dismissal of special leave petition
under Article 136. When appeal is dismissed, order of the High Court is merged with that of the
Supreme Court. We find ourselves in entire agreement with the law so stated. We are clear in our
mind that anorder dismissing a special leave petition, more so when it is by a non-speaking
order, does not result in merger of the order impugned into the order of the Supreme Court.

A few decisions which apparently take a view to the contrary may now be noticed. In Sree
Narayana Dharmasanghom Trust Vs. Swami Prakasananda and Others 1997 (6) SCC 78, it was
held that a revisional order of the High Court against which a petition for special leave to appeal
was dismissed in limine could not have been reviewed by the High Court subsequent to dismissal
of S.L.P. by Supreme Court. This decision proceeds on the premises, as stated in para 6 of the
order, that It is settled law that even the dismissal of special leave petition in limine operates as a
final order between the parties. In our opinion, the order is final in the sense that once a special
leave petition is dismissed, whether by a speaking or non- speaking order or whether in limine or
on contest, second special leave petition would not lie. However, this statement cannot be
stretched and applied to hold that such an order attracts applicability of doctrine of merger and
excludes the jurisdiction of the Court or authority passing the order to review the same.

In State of Maharashtra and Anr. Vs. Prabhakar Bhikaji Ingle 1996 (3) SCC 463, the view taken
by a Two-Judges Bench of this Court is that the dismissal of special leave petition without a
speaking order does not constitute res judicata but the order dealt with in S.L.P., disposed of by
a non-speaking order cannot be subjected to review by the Tribunal. In our opinion the law has
been too broadly stated through the said observation. Learned Judges have been guided by the
consideration of judicial discipline which, as we would shortly deal with, is a principle of great
relevance and may be attracted in an appropriate case. But we find it difficult to subscribe to the
view, as expressed in this decision, that dismissal of SLP without a speaking order amounts to
confirmation by Supreme Court of the order against which leave was sought for and the order
had stood merged in the order of Supreme Court.

Dismissal of SLP by speaking or reasoned order - no merger but Rule of discipline and Article
141 attracted. The efficacy of an order disposing of a special leave petition under Article 136 of
the Constitution came up for the consideration of Constitution Bench in Penu Balakrishna Iyer
and Ors. Vs. Ariya M. Ramaswami Iyer and Ors. - AIR 1965 SC 165 in the context of revocation
of a special leave once granted. This Court held that in a given case if the respondent brings to
the notice of the Supreme Court facts which would justify the Court in revoking the leave earlier
granted by it, the Supreme Court would in the interest of justice not hesitate to adopt that course.
It was therefore held that no general rules could be laid down governing the exercise of wide
powers conferred on this Court under Article 136; whether the jurisdiction of this Court under
Article 136 should be exercised or not and if used, on what terms and conditions, is a matter
depending on the facts of each case. If at the stage when special leave is granted the respondent-
caveator appears and resists the grant of special leave and the ground urged in support of
resisting the grant of special leave is rejected on merits resulting in grant of special leave then it
would not be open to the respondent to raise the same point over again at the time of the final
hearing of the appeal. However, if the respondent/caveator does not appear, or having appeared,
does not raise a point, or even if he raised a point and the Court does not decide it before grant of
special leave, the same point can be raised at the time of final hearing. There would be no
technical bar of res judicata. The Constitution Bench thus makes it clear that the order disposing
of a special leave petition has finality of a limited nature extending only to the points expressly
decided by it.

The underlying logic attaching efficacy to an order of the Supreme Court dismissing S.L.P. after
hearing counsel for the parties is discernible from a recent Three-Judges Bench decision of this
Court in Abbai Maligai Partnership Firm & Anr. Vs. K. Santhakumaran & Ors. 1998 (7) SCC
386. In the matter of eviction proceeding initiated before the Rent Controller, the order passed
therein was subjected to appeal and then revision before the High Court. Special leave petitions
were preferred before the Supreme Court where the respondents were present on caveat. Both the
sides were heard through the senior advocates representing them. The special leave petitions
were dismissed. The High Court thereafter entertained review petitions which were highly
belated and having condoned the delay reversed the orders made earlier in civil revision
petitions. The orders in review were challenged by filing appeals under leave granted on special
leave petitions. This Court observed that what was done by the learned single Judge was
subversive of judicial discipline. The facts and circumstances of the case persuaded this Court to
form an opinion that the tenants were indulging in vexatious litigations, abusing the process of
the Court by approaching the High Court and the very entertainment of review petitions (after
condoning a long delay of 221 days) and then reversing the earlier orders was an affront to the
order of this Court. However the learned judges deciding the case have nowhere in the course of
their judgment relied on doctrine of merger for taking the view they have done. A careful reading
of this decision brings out the correct statement of law and fortifies us in taking the view as
under.

A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a
speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-
speaking order, i.e. it does not assign reasons for dismissing the special leave petition, it would
neither attract the doctrine of merger so as to stand substituted in place of the order put in issue
before it nor would it be a declaration of law by the Supreme Court under Article 141 of the
Constitution for there is no law which has been declared. If the order of dismissal be supported
by reasons then also the doctrine of merger would not be attracted because the jurisdiction
exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to
grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by
the Court would attract applicability of Article 141 of the Constitution if there is a law declared
by the Supreme Court which obviously would be binding on all the courts and tribunals in India
and certainly the parties thereto. The statement contained in the order other than on points of law
would be binding on the parties and the court or tribunal, whose order was under challenge on
the principle of judicial discipline, this Court being the apex court of the country. No court or
tribunal or parties would have the liberty of taking or canvassing any view contrary to the one
expressed by this Court. The order of Supreme Court would mean that it has declared the law
and in that light the case was considered not fit for grant of leave. The declaration of law will be
governed by Article 141 but still, the case not being one where leave was granted, the doctrine of
merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes
briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet
would dismiss the special leave petition. The reasons given are intended for purposes of Article
141. This is so done because in the event of merely dismissing the special leave petition, it is
likely that an argument could be advanced in the High Court that the Supreme Court has to be
understood as not to have differed in law with the High Court.

Incidentally we may notice two other decisions of this Court which though not directly in point,
the law laid down wherein would be of some assistance to us. In Shankar Ramchandra
Abhyankar Vs. Krishnaji Dattatraya Bapat AIR 1970 SC 1, this Court vide para 7 has
emphasized three pre conditions attracting applicability of doctrine of merger.

They are:

i) the jurisdiction exercised should be appellate or revisional jurisdiction;

ii) the jurisdiction should have been exercised after issue of notice; and,

iii) after a full hearing in presence of both the parties.

Then the appellate or revisional order would replace the judgment of the lower court and
constitute the only final judgment.

In Sushil Kumar Sen Vs. State of Bihar AIR 1975 SC 1185 the doctrine of merger usually
applicable to orders passed in exercise of appellate or revisional jurisdiction was held to be
applicable also to orders passed in exercise of review jurisdiction. This Court held that the effect
of allowing an application for review of a decree is to vacate a decree passed. The decree that is
subsequently passed on review whether it modifies, reverses or confirms the decree originally
passed, is a new decree superseding the original one. The distinction is clear. Entertaining an
application for review does not vacate the decree sought to be reviewed. It is only when the
application for review has been allowed that the decree under review is vacated. Thereafter the
matter is heard afresh and the decree passed therein, whatever be the nature of the new decree,
would be a decree superseding the earlier one. The principle or logic flowing from the above-
said decisions can usefully be utilised for resolving the issue at hand. Mere pendency of an
application seeking leave to appeal does not put in jeopardy the finality of the decree or order
sought to be subjected to exercise of appellate jurisdiction by the Supreme Court. It is only if the
application is allowed and leave to appeal granted then the finality of the decree or order under
challenge is jeopardised as the pendency of appeal reopens the issues decided and this court is
then scrutinising the correctness of the decision in exercise of its appellate jurisdiction.

In Gopalbandhu Biswal Vs. Krishna Chandra Mohanty & Ors. 1998 (4) SCC 447 there are
observations vide para 8 and at a few other places that rejection of a special leave petition against
the order of administrative tribunal makes the order of the Tribunal final and binding and the
party cannot thereafter go back to the Tribunal to apply for review. However, paras 12 & 13 of
the judgment go to show that

(i) the applications for review before the Tribunal were not within the principle laid down under
Order 47 Rule 1 of the C.P.C.,

(ii) did not comply with the relevant rules contained in Central Administrative Tribunal
(Procedure) Rules, 1987,

(iii) the review applicants were not in the category of persons aggrieved, and

(iv) the review petitions were filed beyond the period of limitation prescribed and the delay was
not explained. Thus the case proceeds on the peculiar facts of its own.

In Junior Telecom Officers Forum & Ors. Vs. Union of India & Ors. 1993 Supp.(4) SCC 693
also the view taken by a Two- Judges Bench of this Court is that the dismissal of the SLP,
though in limine, was on merits and the Court had declined to interfere with the impugned
judgment of the High Court except to a limited extent as noticed therein whereafter the Tribunal
could not have reopened the matter. The order passed earlier by the Supreme Court is quoted in
para 5 of the report. It clearly states that on SLP itself the Court heard counsel of both the sides.
While dismissing the special leave petition on merits, this Court had to some extent interfere
with the order of the High Court which was put in issue before the Supreme Court. It is clear that
the Supreme Court had exercised appellate jurisdiction vested in it under Article 136 of the
Constitution and heard both the sides though the leave was not formally granted and the special
leave petition was not formally converted into an appeal. Hence this decision rests on the special
facts of that case.

In Supreme Court Employees Welfare Associations case (supra), this Court held:-

When Supreme Court gives reasons while dismissing a special leave petition under Article 136
the decision becomes one which attracts Article 141. But when no reason is given and the special
leave petition is summarily dismissed, the Court does not lay down any law under Article 141.
The effect of a non-speaking order of dismissal of a special leave petition without anything more
indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be
that the Supreme Court had decided only that it was not a fit case where special leave petition
should be granted.

Leave granted - dismissal without reasons - merger results It may be that in spite of having
granted leave to appeal, the Court may dismiss the appeal on such grounds as may have provided
foundation for refusing the grant at the earlier stage. But that will be a dismissal of appeal. The
decision of this Court would result in superseding the decision under appeal attracting doctrine of
merger. But if the same reasons had prevailed with this Court for refusing leave to appeal, the
order would not have been an appellate order but only an order refusing to grant leave to appeal.

Doctrine of Merger and Review:-

This question directly arises in the case before us.

The doctrine of merger and the right of review are concepts which are closely inter-linked. If the
judgment of the High Court has come up to this Court by way of a special leave, and special
leave is granted and the appeal is disposed of with or without reasons, by affirmance or
otherwise, the judgment of the High Court merges with that of this Court. In that event, it is not
permissible to move the High Court by review because the judgment of the High Court has
merged with the judgment of this Court. But where the special leave petition is dismissed - there
being no merger, the aggrieved party is not deprived of any statutory right of review, if it was
available and he can pursue it. It may be that the review court may interfere, or it may not
interfere depending upon the law and principles applicable to interference in the review. But the
High Court, if it exercises a power of review or deals with a review application on merits - in a
case where the High Courts order had not merged with an order passed by this Court after grant
of special leave - the High Court could not, in law, be said to be wrong in exercising statutory
jurisdiction or power vested in it.
It will be useful to refer to Order 47 Rule 1 of the Code of Civil Procedure 1908. It reads as
follows :

R.1. Application for review of judgment.

(1) Any person considering himself aggrieved, -

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been
preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on reference from a Court of Small Causes, and who, from the discovery of new
and important matter or evidence which, after the exercise of due diligence, was not within his
knowledge or could not be produced by him at the time when the decree was passed or order
made, or on account of some mistake or error apparent on the face of the record, or for any other
sufficient reason, desires to obtain a review of the decree passed or order made against him, may
apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment
notwithstanding the pendency of an appeal by some other party except where the ground of such
appeal is common to the applicant and the appellant, or when, being respondent, he can present
to the Appellate Court the case on which he applies for the review.

[Explanation. - The fact that the decision on a question of law on which the judgment of the
Court is based has been reversed or modified by the subsequent decision of a superior Court in
any other case, shall not be a ground for the review of such judgment.]

For our purpose it is clause (a) sub-rule (1) which is relevant. It contemplates a situation where
an appeal is allowed but no appeal has been preferred. The Rule came up for consideration of
this Court in Thungabhadra Industries Ltd. Vs. The Govt. of A.P. (AIR 1964 SC 1372) in the
context of Article 136 of the Constitution of India. The applicant had filed an application for
review of the order of the High Court refusing to grant a certificate under Article 133 of the
Constitution. The applicant also filed an application for special leave to appeal in respect of the
same matter under Article 136 along with an application for condonation of delay. The Supreme
Court refused to condone the delay and rejected the application under Article 136. When the
application for review came up for consideration before the High Court, it was dismissed on the
ground that the special leave petition had been dismissed by the Supreme Court. This Court held
that the crucial date for determining whether or not the terms of Order 47 Rule 1(1) CPC are
satisfied is the date when the application for review is filed. If on that date no appeal has been
filed it is competent for the Court hearing the petition for review to dispose of the application on
the merits notwithstanding the pendency of the appeal, subject only to this, that if before the
application for review is finally decided the appeal itself has been disposed of, the jurisdiction of
the Court hearing the review petition would come to an end. On the date when the application for
review was filed the applicant had not filed an appeal to this Court and therefore there was no bar
to the petition for review being entertained.

Let us assume that the review is filed first and the delay in the SLP is condoned and the special
leave petition is ultimately granted and the appeal is pending in this Court. The position then,
under Order 47 Rule 1 CPC is that still the review can be disposed of by the High Court. If the
review of a decree is granted before the disposal of the appeal against the decree, the decree
appealed against will cease to exist and the appeal would be rendered incompetent. An appeal
cannot be preferred against a decree after a review against the decree has been granted. This is
because the decree reviewed gets merged in the decree passed on review and the appeal to the
superior court preferred against the earlier decree - the one before review - becomes infructuous.

The Review can be filed even after SLP is dismissed is clear from the language of Order 47 Rule
1 (a). Thus the words no appeal has been preferred in Order 47 Rule 1(a) would also mean a
situation where special leave is not granted. Till then there is no appeal in the eye of law before
the superior court. Therefore, the review can be preferred in the High Court before special leave
is granted, but not after it is granted. The reason is obvious. Once special leave is granted the
jurisdiction to consider the validity of the High Courts order vests in the Supreme Court and the
High Court cannot entertain a review thereafter, unless such a review application was preferred
in the High Court before special leave was granted. Conclusions :-

We have catalogued and dealt with all the available decisions of this Court brought to our notice
on the point at issue. It is clear that as amongst the several two-Judges Bench decisions there is a
conflict of opinion and needs to be set at rest. The source of power conferring binding efficacy
on decisions of this Court is not uniform in all such decisions.

Reference is found having been made to

(i) Article 141 of the Constitution,

(ii) doctrine of merger,

(iii) res-judicata, and

(iv) Rule of discipline flowing from this Court being the highest court of the land.

A petition seeking grant of special leave to appeal may be rejected for several reasons. For
example, it may be rejected

(i) as barred by time, or

(ii) being a defective presentation,

(iii) the petitioner having no locus standi to file the petition,

(iv) the conduct of the petitioner disentitling him to any indulgence by the Court,

(iv) the question raised by the petitioner for consideration by this Court being not fit for
consideration or deserving being dealt with by the apex court of the country and so on. The
expression often employed by this Court while disposing of such petitions are - heard and
dismissed, dismissed, dismissed as barred by time and so on.

May be that at the admission stage itself the opposite party appears on caveat or on notice and
offers contest to the maintainability of the petition. The Court may apply its mind to the merit
worthiness of the petitioners prayer seeking leave to file an appeal and having formed an opinion
may say dismissed on merits. Such an order may be passed even ex-parte, that is, in the absence
of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking
order where no reasons have been assigned and no law has been declared by the Supreme Court.
The dismissal is not of the appeal but of the special leave petition. Even if the merits have been
gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of
merger nor Article 141 of the Constitution is attracted to such an order.

Grounds entitling exercise of review jurisdiction conferred by Order 47 Rule 1 of the C.P.C. or
any other statutory provision or allowing review of an order passed in exercise of writ or
supervisory jurisdiction of the High Court (where also the principles underlying or emerging
from Order 47 Rule 1 of the C.P.C. act as guidelines) are not necessarily the same on which this
court exercises discretion to grant or not to grant special leave to appeal while disposing of a
petition for the purpose. Mere rejection of special leave petition does not take away the
jurisdiction of the court, tribunal or forum whose order forms the subject matter of petition for
special leave to review its own order if grounds for exercise of review jurisdiction are shown to
exist. Where the order rejecting an SLP is a speaking order, that is, where reasons have been
assigned by this Court for rejecting the petition for special leave and are stated in the order still
the order remains the one rejecting prayer for the grant of leave to appeal. The petitioner has
been turned away at the threshold without having been allowed to enter in the appellate
jurisdiction of this Court. Here also the doctrine of merger would not apply. But the law stated or
declared by this Court in its order shall attract applicability of Article 141 of the Constitution.
The reasons assigned by this Court in its order expressing its adjudication (expressly or by
necessary implication) on point of fact or law shall take away the jurisdiction of any other court,
tribunal or authority to express any opinion in conflict with or in departure from the view taken
by this Court because permitting to do so would be subversive of judicial discipline and an
affront to the order of this Court. However this would be so not by reference to the doctrine of
merger.

Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction
of this Court have been let open. The order impugned before the Supreme Court becomes an
order appealed against. Any order passed thereafter would be an appellate order and would
attract the applicability of doctrine of merger. It would not make a difference whether the order
is one of reversal or of modification or of dismissal affirming the order appealed against. It
would also not make any difference if the order is a speaking or non- speaking one. Whenever
this Court has felt inclined to apply its mind to the merits of the order put in issue before it
though it may be inclined to affirm the same, it is customary with this Court to grant leave to
appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave)
though at times the orders granting leave to appeal and dismissing the appeal are contained in the
same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of
appellate jurisdiction and therein the merits of the order impugned having been subjected to
judicial scrutiny of this Court.

To merge means to sink or disappear in something else; to become absorbed or extinguished; to

be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser
importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an
absorption or swallowing up so as to involve a loss of identity and individuality

We may look at the issue from another angle. The Supreme Court cannot and does not reverse or
modify the decree or order appealed against while deciding a petition for special leave to appeal.
What is impugned before the Supreme Court can be reversed or modified only after granting
leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the
Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also
be affirmed at the SLP stage.

To sum up our conclusions are:-

(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any
other authority before superior forum and such superior forum modifies, reverses or affirms the
decision put in issue before it, the decision by the subordinate forum merges in the decision by
the superior forum and it is the latter which subsists, remains operative and is capable of
enforcement in the eye of law.

(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First
stage is upto the disposal of prayer for special leave to file an appeal. The second stage
commences if and when the leave to appeal is granted and special leave petition is converted into
an appeal.

(iii) Doctrine of merger is not a doctrine of universal or unlimite application. It will depend on
the nature of jurisdiction exercised by the superior forum and the content or subject-matter of
challenge laid or capable of being laid shall be determinative of the applicability of merger. The
superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue
before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or
affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction
and not while exercising the discretionary jurisdiction disposing of petition for special leave to
appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be a non- speaking order or a speaking one. In
either case it does not attract the doctrine of merger. An order refusing special leave to appeal
does not stand substituted in place of the order under challenge. All that it means is that the
Court was not inclined to exercise its discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the
grant of leave, then the order has two implications. Firstly, the statement of law contained in the
order is a declaration of law by the Supreme Court within the meaning of Article 141 of the
Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the
findings recorded by the Supreme Court which would bind the parties thereto and also the court,
tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the
Supreme Court being the apex court of the country. But, this does not amount to saying that the
order of the court, tribunal or authority below has stood merged in the order of the Supreme
Court rejecting special leave petition or that the order of the Supreme Court is the only order
binding as res judicata in subsequent proceedings between the parties.

(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been
invoked the order passed in appeal would attract the doctrine of merger; the order may be of
reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seeking leave to appeal having been
converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a
revew petition is lost thereafter as provided by sub-rule (1) of Rule (1) of Order 47 of the C.P.C.
 SECOND APPEAL
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.

Second Appeal:

The second appeal has been defined under Section 100 of Code of Civil Procedure which reads
as:

“100. Second appeal:

(1)Save as otherwise expressly provided in the body of this Code or by any other law for the time
being in force, an appeal shall lie to the High Court from every decree passed in appeal by any
Court subordinate to the High Court, if the High Court is satisfied that the case involves a
substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3)In an appeal under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it
shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this subsection shall be deemed to take away or abridge the power of
the Court to hear, for reasons to be recorded, the appeal on any other substantial question of
law, not formulated by it, if it is satisfied that the case involves such question.”

The procedural right of the second appeal is conferred by this section on either of the parties to a
civil suit who has been adversely affected by the decree passed by a civil court. The second
appeal lies to the High Court only if the court is satisfied that it involves a substantial question of
law.

The right to appeal or second appeal for that matter is an instrument of the statute. Thus, such
right doesn’t come under the principles of natural justice and one can’t approach the court if the
same has not been provided by the statue. The Supreme Court in Anant Mills Co. Ltd. v. State of
Gujarat have iterated that the “right of appeal is a creature of statute and there is no reason why
the legislature, while granting the right, cannot impose conditions for the exercise of such right
so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering
the right almost illusory”.

On what grounds does a Second Appeal lie?

Section 101 reads as “Second appeal on no other grounds— No second appeal shall lie except
on the ground mentioned in section 100.” therefore, it specifically bars the second appeal on any
other ground mentioned in Section 100. The grounds on which a Second Appeal shall lie are:

(i) that the appeal should involve a substantial question of law that may either be presented by
the party in a memorandum of appeal or the court may itself formulate such question;

(ii) that the second appeal may be brought forth where the decree was passed ex parte;

Substantial Question of Law:

A Second Appeal can only be entertained if it involves a substantial question of law. The
expression is not defined in the Code, however, the Supreme Court in Sir Chunilal V. Mehta
And Sons, Ltd. vs The Century Spinning And Manufacturing Co., Ltd. laid down that “The
proper test for determining whether a question of law raised in the case is substantial would, in
our opinion, be whether it is of general public importance or whether it directly and
substantially affects the rights of the parties and if so whether it is either an open question in the
sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or
is not free from difficulty or call for discussion of alternative views.”

To be a ‘substantial’ question of law, the same should be debatable, not have been previously
determined by the lower courts and should not be an applicable precedent in any form. Whether
the question of law is ‘substantial’ or not is to be decided by the High Court and that may depend
upon the facts and circumstances of each case. The proviso to Section 100(5) gives the court the
power to hear questions which were not formulated by it but they form a part of the substantial
question of law if the court is satisfied that case involves such a question. In Mahindra &
Mahindra Ltd. v. Union of India & Anr, the court observed that “Under the proviso, the Court
should be ‘satisfied’ that the case involves a substantial question of law and not a mere question
of law. The reason for permitting the substantial question of law to be raised should be recorded
by the Court.”

Question of fact:

The general rule is that the High Court shall only entertain matters involving a substantial
question of law but Section 103 serves a supplementary to this.
Section 103 states: “Power of High Court to determine issues of fact— In any second appeal, the
High Court may, if the evidence on the record is sufficient, determine any issue necessary for the
disposal of the appeal,—

(a) which has not been determined by the lower Appellate Court or both by the Court of the first
instance and the lower Appellate Court, or

(b) which has been wrongly determined by such Court or Courts reason of a decision on such
question of law as is referred to in section 100.”

The particular section talks of two situations when a question of fact can be dealt with by the
court in a second appeal. Firstly, when a necessary issue has not been determined by either the
Lower Court or the Court of the first instance. Secondly, when the necessary issue has been
wrongly determined by the Courts on the substantial question of law which can properly be the
subject matter of the second appeal under Section 100.

In Jadu Gopal Chakravarty v. Pannalal Bhowmick & Ors the question came up before the court
that whether the compromise decree was obtained by fraud. The court held that though it is
purely a question of fact none of the lower courts has dealt with the question whether the decree
was obtained by committing a fraud on the Court and hence, this court can look into the question
of fact by exercising its power under Section 103. Further in Haryana State Electronics
Development Corporation Ltd. & Ors. v. Seema Sharma & Ors dealt with the question that
whether the promotion is applicable only on the basis of seniority or it should conform to merit-
cum-seniority. The Supreme Court observed that such a question was not dealt by either of the
lower courts and hence, remanded the matter back to the High Court to re-hear the second appeal
and decide the aforementioned questioned. The Court further said that “Under Section 103 of the
Civil Procedure Code, the High Court in the second appeal can decide this issue since it is
necessary for the disposal of the appeal and has not been decided by the courts below. Relevant
materials on this issue are also on record. After deciding that question the High Court will
decide whether respondent(s) claim for promotion has been wrongfully denied.”

Further, the court clarified in Ramji Bhagala v. Krishnarao Krirao Bagra that an appellate court
cannot partly admit and partly reject a second appeal under Section 100 and Section 101. It
should either admit it wholly or reject it wholly.

Mixed question of fact and law:

While discussing the true scope of observations under Section 100 the Supreme Court in Shri
Meenakshi Mills v. C.I.T. pointed out that there lies a difference between the pure question of
fact and a mixed question of fact and law, and observations aforesaid have a reference to the
latter and not the former.
In Gopal Singh v. Ujagar Singh, the question was whether a property is ancestral or not, or
whether, when a raiyat purchased the interest of the proprietor, there is a merger of two interests,
is a mixed one of fact and law. Though ordinarily, a second appeal does not lie on the finding of
fact, when there is a legal conclusion that is necessary to be drawn from the finding of fact, a
second appeal will lie on the ground that the legal conclusion was erroneous.

Concurrent finding of the facts:

Generally, the concurrent finding of the fact by the lower court is not disturbed by the High
Court by the virtue of the application of the same set of principles in the determination by two
different lower courts. However, the power of the High Court in this regard will be subject to the
grounds laid down in Section 100 and Section 103.

No Second Appeal in certain cases:

The scope of application of a second appeal has been made limited by Section 102 to the cases
wherein the subject matter of the original suit should exceed three thousand rupees.

Section 102 reads as “No second appeal in certain suits – No second appeal shall lie in any suit
of the nature cognizable by Courts of Small Causes when the amount or value of the subject-
matter of the original suit does not exceed three thousand rupees.”

Moreover, no appellate court has the jurisdiction to entertain a second appeal on an erroneous
finding of the fact, however gross or inexcusable the error may seem to be.

However, there is no absolute prohibition on the appellate court to entertain a second appeal on a
question of fact. The court in Jagdish Singh v. Natthu Singh laid down that if the court is
satisfied that the finding of fact by the lower court was vitiated due to non-consideration of
relevant evidence or consideration of an evidence which had no ulterior impact on the findings
i.e. the finding of the fact had been rendered perverse, then the the appellate court has to
jurisdiction to deliberate upon the findings of the facts.

Desirable limitations on the scope of Second Appeal:

Having regard to all the relevant aspects of the right of second appeal in appropriate cases we
may come to a conclusion that the said right is confined to the cases wherein:

(i) a question of law is involved; and,

(ii) the question of law so involved is substantial.

The mere fact that a question of fact has been wrongly determined should not be criteria for
entertaining a second appeal. The justification of a second appeal should rest solely on the
criteria as laid down in Section 100.
Furthermore, the mere fact that finding of the fact is supposed to be perverse of manifestly unjust
will not be sufficient. The court in Bharatha Matha & Anr. v. R. Vijaya Renganathan &
Ors laid down that the judgement rendered should suffer from additional infirmity of non-
application of mind.

Conclusion:

The right to appeal arises as soon as the judgement is pronounced by a competent court. It is not
essential that such right is given only to the party on whom an adverse decision is pronounced
but is applicable to both parties equally. Thus, the right to appeal is vested on the parties as soon
as the proceedings begin and arises when a judgement is pronounced.

It can be summarised that the law can at most extent be applicable to cases involving a
substantial question of law and it becomes the responsibility of the appellate court to formulate
such a question after referring to the memorandum of appeal submitted by the appellant.
 UNIT IV

REFERENCE, REVIEW And REVISION

1. Reference: Nature, Scope, Object, Reasonable Doubt, Who may apply?, Power and duty
of Referring Court, Power and Duty of High Court, Procedure at Hearing, Costs,
Reference and Appeal, Reference and Review, Reference and Revision.
2. Review: Meaning, Nature, Scope, Object, Review and Appeal, Review and Reference,
Review and Revision, Conditions, Who may Apply? Who may Review? No inherent
power to Review, Suo moto review, Procedure at hearing, Limitation, Review in Writ
Petitions, Review by Supreme Court.
3. Revision: Meaning, Nature, Scope, Object, Revision and Appeal, Revision and Second
Appeal, Revision and Reference, Revision and Review, Revision and Power of
Superintendence, Conversion of Revision into Appeal, Who may file? Conditions,
Alternative Remedy, Limitation, Doctrine of merger, Dismissal in limine.
4. Distinction between Appeal, Reference, Review and Revision.
 REFERENCE, REVIEW AND REVISION

In India, there are three tiers Judiciary i.e. District Courts, High Courts and hon’ble Supreme
Court of India. The appeal, review and revision lies in all the three Courts depending on which
Court’s Order is being challenged. Therefore it is necessary to know the nature and scope of all
these three words and also how they are different from each other. It is imperative to know the
scope of all these to exercise the power of reviewability against the impugned order of the
respective Court.

1. Reference

A. Nature and Scope

Section 113 of the Civil Procedure Code empowers a subordinate court to state a case and refer
the same for the opinion of the High Court. Such an opinion can be sought when the code itself
feels some doubt about a question of Law. The word ‘Court’ wherever it occurs in the code
means a Court of civil Judicature. The reference can only be made by a Court but not by a
persona designate.

A reference can only be made by a Court when there is a reasonable doubt about a question of
Law or only when it is of opinion that Act is ultra vires. Unnecessary observations made by the
High Court while disposing of the reference having no legal effect must be treated to have been
rendered infructuous and superfluous but such power of reference is discretionary.

B. Object and reference under the proviso.

The object for the provision of reference is to enable subordinate courts to obtain in non-
appealable cases the opinion of the High Court in the absence of a question of law and thereby
avoid the commission of an error which could be remedied later on. When all the following
conditions are satisfied the Court is bound to make a reference to the High Court under this
proviso under setting out its opinion and the release for it.

(i) A question as to validity of any Act, ordinance or Regulation or any provision therein arises in
a case before the court.

(ii) The Court is of the opinion that the same is invalid or inoperative

(iii) The same has not till then been declared invalid by the High Court to which the Court is
subordinate or by the Supreme Court, and

(iv) The determination of the validity thereof is necessary for the disposal of the case.
No reference is warranted under Section 113 of the code where nothing involved regarding the
issue of any Act/Ordinance/Regulation. This provision also ensures the validity of a legislative
provision (Act, Ordinance or Regulation) should be interpreted and decided by the highest Court
of the State and there wouldn’t remain any chance of misinterpretation.

The right of reference, however, is subject to the conditions prescribed by the order 46 Rule 1
and unless they are fulfilled, the High court cannot entertain a reference form a subordinate
Court. The rule requires the following conditions to be satisfied to enable a subordinate Court to
make a reference:

(i) There must be a pending suit or appeal in which the decree is not subject to appeal in which
the decree is not subject to appeal or a pending proceeding in execution of such decree;

(ii) A question of law or usage having the force of law must arise in the course of such suit,
appeal or proceeding ; and

(iii) The court trying a suit or appeal or executing the decree must entertain doubt on such
question.

The question as to the validity of any provision of any Act (here a definition in an Act)on the
ground that it offends Art 14 of the Constitution comes within the proviso to S.113 through the
question, however ,is also a question as to the interpretation of the constitution, for the validity of
the provision is challenged on the ground that it contravenes an Article of Constitution. Matters
within the proviso include the matter of testing the constitutional validity of Any Act, regulation,
Ordinance.

Section 113 of the Code and Art 226 of the Constitution.

The working of S. 113 is to check the validity of an Act or a provision in it while Article 228 of
the Constitution is to interpretation of the Constitution. The question of the validity of the
provision of Act also includes the interpretation of the Constitution when validity is challenged
on the grounds that it contravenes an article of the Constitution. The ambit of S. 113 of the Code
is much wider than the Article 226 as it only working is confined to the substantial questions of
the law to the interpretation of the Constitution and nothing else while in S.113 it is possible to
consider the question of constitutional invalidity or constitutional inoperativeness of an Act,
ordinance or regulations.
2. Revision

A. Meaning

Section 115 of the Code of Civil Procedure empowers A High Court to entertain a revision in
any case decided by a subordinate Court in certain circumstances. This jurisdiction is known as
revisional jurisdiction of the High court .Revision meaning the action of revising, especially
critically or careful examination or perusal with a view to correcting or improving.

B. Nature and Scope

In Major S.S Khanna v. Brig F.J Dillon, the Court stated “The section consists of two parts, the
first prescribes the conditions in which the jurisdiction of the High Court arises, i.e. there is a
case decided by a subordinate Court in which no appeal lies to the High Court, the second sets
out the circumstances in which no appeal lies to the High court, the second out the circumstances
in which the Jurisdiction may be exercised.’’

For the effective exercise of the High court’s superintending and visitorial powers over
subordinate courts, this revisional jurisdiction has been conferred by the High Court under S.115;
the powers given are clearly limited to the keeping of subordinate courts within the bound of
their jurisdiction. It is a part of general appellate jurisdiction of the High court though the
jurisdiction is strictly restricted by the terms of S.115 investing it. Though revisional Jurisdiction
is only a part of appellate jurisdiction, it cannot be equated with full that of a full fledged appeal.

Section 115 authorizes the High Court to satisfy on three matters:

(i) That the order of the subordinate court is within jurisdiction.

(ii) That the case is one in which the court ought to exercises its jurisdiction;

(iii) that in exercising jurisdiction the court has not acted illegally, that is, in breach of some
provision of the law, or with material irregularity, that is, by committing some error of procedure
in the course of the trial which is material in that it may have affected the ultimate decision.

In Pandurang Ramchandra Manddlik v. Maruti ramchandra Ghatge, it was held that

“..But an erroneous decision on a question of law reached by the subordinate court which has no
relation to questions of jurisdiction of that court, cannot be corrected by the High court under S.
115.”

C. Object and Application

Any illegality ,irregularity or impropriety coming to the notice of High court has the jurisdiction
to the High Court to examine the records relating to the “any order’’ and/or proceedings is
capable of being corrected by the High Court by passing such appropriate order or direction as
the law requires and the justice demands but only limitation on the scope of the High Court’s
jurisdiction is that the order or proceeding sought to be scrutinized by the subordinate court
.Revisional Jurisdiction doesn’t allow High Court to interfere and correct errors of facts or of
law. When the order is within the Jurisdiction of the subordinate Court, even if the order is right
or wrong or in accordance with the law or not, unless it has exercised its jurisdiction illegally or
with material irregularity the high Court has no jurisdiction to interfere. The high Court will not
interfere in revision until it comes to the conclusion that the impugned order has occasioned a
failure of justice or has caused an irreparable injury to the party against when it is made. The
revisional power under Section 115 of the Code is clearly is the nature of a power to issue a writ
of certiorari. Its ambit is not as large as certiorari as revisional Jurisdiction can only be exercised
in the failure of Jurisdictional error but not in any other manner.

Section 115 of the Code and Art 227 of the Constitution.

A revision under section 115 and Superintendence under Article 227 are two separate and
distinct proceeding. One can’t be overindulging with the other.

S.115 and Art 227are distinguished with the each other in the following way:-

1) Revisional power is only judicial while Article 227 which empowers Superintendence is both
Judicial as well as administrative.

2) Revisional power is statutory and it can be taken away by legislation but the power of
superintendence is constitutional and cannot be curtailed or taken away by the statue.

3) Revisional power has less peripheral application as compared to Article 227 as S.115 are
restricted and cannot be exercised in all the conditions.
3. Review

A. Meaning

Review means to reconsider, to look again or to re examine. In legal sense, it is a judicial re-
examination of the case by the same court and by the same Judge.

B. Nature and Scope

According to the general principle of law, once the judgment is passed the court becomes functus
officio. A power of review should not be confused with the appellate powers which enables an
appellate court to enable all errors committed by the subordinate Court. Greater care, seriousness
and restrain should be given in review application as would not be fair to court to deal with the
same case with the same party over again and again and it would increase the backlog of the case
over the court.

A right of review is both substantive as well as procedural. As a substantive right, it has to be

conferred by law, either expressly or by necessary implications. There can be no inherent right of
review. As a procedural provision, every Court or tribunal can correct an inadvertent error which
has crept in the order due to procedural defect or mathematical or clerical error or by
misrepresentation or fraud of a party to the proceeding, which can be corrected asex debito
justitae. If a review is not maintainable I, it cannot be allowed by describing such application as
an ‘’clarification’’ or ‘’modification’’

C. Object and Application

A person aggrieved by a decree or order may apply for review of a Judgment. A person
aggrieved has been understood to mean who has a genuine grievance because an order has been
made which prejudicially affects his interests.But the concept, purpose and provisions ‘’person
aggrieved’’ varies according to the context, purpose and provisions of the statue.A person who is
neither a party to the proceedings nor a decree or order binds him, cannot apply for review as the
decree or order does not adversely or prejudicially affect him. The remedy of review, which is a
reconsideration of the Judgment by the same Court and by the same Judge, has been borrowed
from the Court of equity. This remedy has a remarkable resemblance to the writ of error.
Rectification of an order stems from the fundamental principle that justice is above all. It is
exercised to remove error and not to disturb finality.

D. Circumstances for Reviews

1) No Right of appeal is allowed

Where no right of appeal is allowed to an aggrieved party, he can file a review application. When
an appeal is dismissed on the ground that it was incompetent or was time –barred, the provisions
of review would get attracted.
2) Right of appeal lies but not availed.

A review petition is also maintainable in cases where appeal is provided but no such appeal is
preferred by the aggrieved party. An application for review can be presented so long as no appeal
is preferred against the order. However when appeal is already pending in the Court, no review
petition can be entertained. But if the review petition is filed first and subsequently appeal is
filed, the jurisdiction of the court to deal with the review application is not affected. If review is
granted before the disposal of the appeal, the decree or order ceases to exist and the appeal will
not remain. If appeal is decided on the merits before an application of review is heard, such
petition becomes infructuous and is liable to be dismissed.

E. Grounds for review

(i) Discovery of new and important matter or evidence.

A review is permissible on the grounds of discovery by the applicant of some new and important
matter or evidence which, after exercise of due diligence, was not within his knowledge or could
not be produced by him at the time when the decree is passed. The underlying object of this
provision is neither to enable the Court to write a second Judgment nor to give a second innings
to the party who has lost the case because of his negligence or indifference. Therefore, a party
seeking a review must show that there was no remiss on his part in adducing all possible
evidence at the trial.

The new evidence must be such as presumably to be believed, and if believed to be conclusive.
In other words, such evidence must be:-

(a) Relevant

(b) Or of such character that if it had been given it might possibly have altered the judgment.

(ii) Mistake or error

What is an error apparent on the face of the record cannot be defined precisely or exhaustively,
and it should be determined on the facts of the each case. Such error may be one of fact or of the
law.No error can be said to be apparent on the face of the record if it is not self-evident and
requires an examination or argument to establish it.

In the case of Thungabhandra Industries ltd v. Govt of A.P, the Supreme Court rightly observed:

“…….where without any elaborate argument one could point to the error and say here is a
substantial point of law which stares one in the face, and there could reasonably be no two
opinions entertained about it, a clear case of apparent on the face of the record would be made
out.”
(iii) Other sufficient reason.

The other sufficient reason has not been defined in the Code. There are the reasons which has
been observed in the number of cases are following;-

(a) Where the statement of the judge is not correct.

(b) The decree or order has been passed under a misapprehension of the true state of
circumstances.

(c) Where a party had no notice or fair opportunity to produce his evidence.

(d) Where a Court has failed to consider a material issue, fact or evidence.

(e) Misconception by the court of a concession made by the advocate.

(f) The court has omitted to notice or consider material statutory provisions.

(g) Ground which goes to the root of the matter and affects inherent jurisdiction of the Court.

(h) manifest wrong has been done and it is necessary to pass an order to do full and effective
justice.
 UNIT V

EXECUTION
1. Meaning, Nature, Scope, Scheme of Execution
2. Courts which may Execute: Procedure in execution, Powers of the transferor court,
Powers of the transferee court, Powers of Executing Court.
3. Application of Execution, Stay of Execution
4. Mode of Execution: Delivery of Property, Attachment and Sale of Property, Arrest and
Detention, Appointment of Receiver, Partition, Cross decrees and Cross claims, Payment
of Money, Specific performance of Contract, Injunction, Restitution of Conjugal Rights,
Execution of Document, Endorsement of negotiable instrument, Attachment of rent,
Mesne profits, etc., Liability of Surety, Decree against Corporation and firm, Attachment
of Decree, Payment of coins or Currency notes.
5. Questions to be determined by the Executing Court, Adjudication of Claims.
 EXECUTION

Execution is the last stage of any civil litigation. There are three stages in litigation:

1. Institution of litigation.

2. Adjudication of litigation.

3. Implementation of litigation.

Implementation of litigation is also known as execution. A decree will come into existence
where the civil litigation has been instituted with the presentment of the plaint. The decree means
operation or conclusiveness of judgment. Implementation of a decree will be done only when
parties have filed an application in that regard. A decree or order will be executed by the court as
facilitative and not an obligation. If a party is not approaching the court, then the court has no
obligation to implement it suo motu. A decree will be executed by the court which has passed the
judgment. In exceptional circumstances, the judgment will be implemented by another court
which is having competency in that regard.

Execution is the medium by which a decree-holder compels the judgment-debtor to carry out the
mandate of the decree or order as the case may be. It enables the decree-holder to recover the
fruits of the judgment. The execution is complete when the judgment-creditor or decree-holder
gets money or other thing awarded to him by judgment, decree or order.

Chapter 1: Execution In General

Execution: Meaning

The term “execution” has not been defined in the code. The expression “execution” means
enforcement or implementation or giving an effect to the order or judgment passed by the court
of justice. Simply “execution” means the process for enforcing or giving effect to the judgment
of the court. Execution is the enforcement of decrees and orders by the process of the court, so as
to enable the decree-holder to realize the fruits of the decree. The execution is complete when the
judgment-creditor or decree-holder gets money or other thing awarded to him by the judgment,
decree or order.

Illustration:

A files a suit against B for Rs 10,000 and obtains a decree against him. Here A is the decree-
holder. B is the judgment-debtor, and the amount of Rs 10,000 is the judgment- debt or the
decretal amount. Since the decree is passed against B, he is bound to pay Rs 10,000 to A.
Suppose in spite of the decree, B refuses to pay the decretal amount to A, and A can recover the
said amount from B by executing the decree through judicial process. The principle governing
the execution of decree and orders are dealt with in Sections 36 to 74 (substantive law)
and Order 21 of the code( procedural law).

Supreme Court in Ghanshyam Das v. Anant Kumar Sinha dealing with provision of the code
relating to execution of decree and orders, stated, “ so far as the question of executability of a
decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for
dealing with it in all aspects. The numerous rules of Order 21 of the code take care of different
situations providing effective remedies not only to judgment-debtors and decree-holders but also
to claimant objectors, as the case may be. In an exceptional case, where provisions are rendered
incapable of giving relief to an aggrieved party inadequate measures and appropriate time, the
answer is a regular suit in the civil court.

Chapter 2: Principles With Regard To Execution Of Decree And Order

 Provision of CPC relating to execution of decree and order shall be made applicable to
both Appeal and Sue.

 A decree may be executed by the court which passed the judgment and decree or by some
other court which is having competency to implement the judgment passed by such other
court.

 The court which passed the decree may send it for execution to other court either on
application of the applicant (decree-holder) or by the court itself.

 A court may order for execution of decree on the application of decree on the application
of decree holder

(a) by delivery of any property which was in possession of judgment-debtor and decree
has been specifically passed concerning such property

(b) by attachment and sale of the property of the judgement-debtor

(c) by arrest and detention (civil imprisonment)

(d) by appointing a receiver

(e) in such other manner which depends upon nature of relief granted by the court.

 Upon the application of decree-holder, the court may issue “percept” to any other court
which is competent in that regard.

 All questions arising between the parties to the suit in the decree shall be determined by
the court while executing the decree and not by a separate suit.
  Where a decree is passed against a party as the “legal representative” of a deceased
person and decree is for payment of money out of the property of deceased person, it may
be executed by attachment and sale of any such property.

 A judgment-debtor may be arrested at any time and on any date shall required to be
brought before the court which has passed the decree and his detention may be in civil
prison of the district where decree shall have to be executed.

 Where immovable property has been sold by the court in execution of a decree such sell
shall be absolute. The property shall be deemed to be invested in the favour of purchaser,
and the purchaser shall be deemed as a party to litigation.

 The court to which decree is sent for execution shall require certifying to the court which
has passed decree stating the manner in which decree has been implementing concerning
the fact of such execution.

Chapter 3. Procedure In Execution:

Section 51 to 54 talks about the procedure in execution or mode for execution

Section 51: this section gives the power to the court to enforce the decree in general. This
section defines the jurisdiction and power of the court to enforce execution. Application for
execution of the decree under this section may be either oral (Order 21 Rule 10) or written
(Order 21, Rule 11). Party has to choose the mode of implementation of the decree. The court
may execute decree as per the choice prayed by the decree-holder or as the court may think fit.

Mode of executing decree under section 51:

(a). By delivery of any property specifically decreed. Property may be movable or immovable
(b). By attachment and sale of the property or by sale without attachment of the property. Under
clause (B) of Section 51, it is within the power of the court to attach the property if it is situated
within its jurisdiction.

(c). Court can execute decree by mode of arrest and detention. no execution of decree by arrest
or detention of judgment-debtor unless reasonable opportunity is given in the form of show cause
notice as for why he should not be imprisoned.

(d). It can be executed by appointing a receiver. Within the purview of this section, it is
permissible to appoint decree-holder himself as the receiver of the judgment-debtors land.

(e). Clause (e) is the residuary clause and comes into play only when the decree cannot be
executed in any of the modes prescribed under clause (a) to (d).

Section 52: Enforcement of decree against Legal representative

Section 52 deals with a case where the decree is passed against the legal representative of the
judgment-debtor.

Section 52 (1) empowers a creditor to execute his decree against the property of deceased in the
hands of legal representative so long as it remains in his hand. For application of this clause, the
decree should have passed against the party as the legal representative of the deceased person,
and it should be for the payment of money out of the property of the deceased.

Section 52 (2) empowers a creditor to execute his decree against the legal representative
personally if he fails to accounts for the properties received by him from deceased person.

Exception to section 52: Court can implement the decree against the personal property of the
legal representative provided if he is avoiding, neglecting or evading to make the payment from
the property of deceased. Where he has mis-utilized the property of the deceased and where the
legal representative has alienated the property of the deceased person.

Section 53: Liability of ancestral property

No legal representative should be held personally accountable where the suit has been filed
against a joint Hindu family unless he has received some property of a joint Hindu family.

Under pious obligation, if has received the property of joint Hindu family then will be held
liable. Where the decree has been passed against Karta, no execution be made against the son
under pious obligation if the decree is passed after partition. Event after partition a son can be
held liable if the suit was pending before partition.

The son will be held accountable if after the death of Karta the decree has been executed and
son has distributed the property of Karta among themselves. The member of the joint Hindu
family will be held liable if Karta has taken debt for moral purpose or family purpose.

The nature of suits determines how decree should be implemented.

Illustration: a promissory note has been executed by the father for the purpose of borrowing
money. After the death of the father, the creditor instituted proceeding against son.

Where suit is filed basing on promissory note first it will be seen that whether suit is
maintainable or not- if it is filed within three years then the suit will be maintainable. General
rule is that son will be held liable if they have received ancestral property.

Where the son is not having knowledge about the execution of the promissory note, in such case
will not be held liable even though has received the ancestral property.

Section 54: Partition of estate or separation of share

Section 54 comes into play when a decree has been passed for partition, or for the separate
possession of a share of an undivided state paying revenue to the government, that is the partition
of the state or share will be made by the collector. However if the collector refuses to make the
partition of the revenue paying property, the civil court can do so. To attract the provision of this
section it is not necessary that the plaintiff should ask for the division of government revenue.

Section 54 deals with a case where though the civil court has the power to pass a decree yet it is
not competent to execute the same. Under this section, the execution of decree shall be made by
collector.

Chapter 4: Process For Execution

Order 21 rule 24 and 25 talks about the process for execution.

Rule 24: process for execution

The court has inherent power to defer the issue of process as envisaged under Rule 24 and can
give time to judgment-debtor in appropriate cases.

Rule 24 prescribes the procedure in case of execution of decree. In these matters, the court
exercises judicial discretion, which cannot be interfered with by the district judge by issuing
administrative order.

According to 24(3), execution must be completed by the date specified on the process for the
purpose- Warrants for delivery of possession, therefore, ceased to be executable after the expiry
of the date appearing on the warrant.

After the process of execution is issued, Rule 17 of Order 21 cannot be invoked for amendment
of execution application. If the amendment seeks to change the nature of execution, the power
under Section 151 and 153, also cannot be invoked.

Execution proceeding on the death of the decree-holder:-

Possession certificate under Section 214 of Indian Succession Act 1925, will not be necessary
for the continuation of proceeding by his legal Heirs, even if legal Heirs are not brought on
record, the execution proceeding will not abate.

Delivery of possession to the decree-holder without notice to Judgement-debtor is not proper:

Application by judgment-debtor for re-delivery of the possession on the ground that he had no
notice of the execution proceedings, dismissed by the trial court, however, allowed by the High
Court in revision, held, re-delivery of possession to the judgment-debtor was not proper,
however, compensation of Rs, 2,000 was awarded to the judgment-debtor.

Execution of decree
Notice under Order 21 Rule 21 is necessary only when the decree holder files an execution of
decree for the first time against the legal representative of the deceased.

Rule 25: Endorsement on the process

The officer who entrusted with the execution of the process shall endorse upon the same date and
the manner in which it was executed and also endorsed upon in the reason of delay and in case
the process was not executed, will also state reasons thereof. However, a person cannot be re-
arrested on the ground of absence of endorsement.

Chapter 5: Mode Of Execution.

The code lays down various mode of execution. After the decree-holder files an application for
execution of decree, the executing court can enforce execution.

A decree may be enforced by delivery of any property specified in the decree, by attachment and
sale or by sale without attachment of the property, or by arrest and detention, or by appointing a
receiver, or by effecting partition, or any such manner which the nature of relief requires.

Arrest and Detention

One of the modes of executing a decree is arrest and detention of the judgment-debtor in civil
imprisonment. Where the decree is for payment of money, it can be executed by arrest and
detention of the judgment-debtor.

A judgment-debtor may be arrested at any time on any day in the execution of a decree. After
this arrest, he must be brought before the court as soon as practicable. For the purpose of making
arrest, no dwelling house may be entered after sunset or before sunrise. Further, no outer door of
a dwelling house may be broken open unless such dwelling house is in the occupancy of the
judgment-debtor and he refuses or prevents access thereto.

No order of detention of the judgment-debtor shall be made where the decretal amount does not
exceed Rs.2000. Where the judgment-debtor pays the decretal amount and costs of arrest to the
officer, he should be released once. Women, judicial officers, the parties, their pleaders, member
of legislative bodies, a judgment-debtor where the decretal amount does not exceed Rs 2,000,
this person cannot be arrested and detained in civil imprisonment.

A decree for money cannot be executed by arrest and detention where the judgment-debtor is a
woman, or a minor, or a legal representative of a deceased judgment-debtor.

Attachment of Property

A decree may also be executed on the application of the decree-holder by attachment and sale the
only sale without attachment of property. The code recognizes the right of the decree-holder to
attach the property of the judgment debtor in execution proceeding and lays down the procedure
to effect attachment. Sections 60 to 64 and Rules 41 to 57 of Order 21 deals with the subject of
attachment of property. The code enumerates properties which are liable to be attached and sold
in execution of a decree. It also specifies properties which are not liable to be attached or sold. It
also prescribes the procedure where the same property is attached in execution of decrees by
more than one court. The code also declares that a private alienation of property after attachment
is void.

Section 60(1) declares what properties are liable to attachment and sale in execution of a decree,
and what properties are exempt there from. All saleable property (movable or immovable)
belonging to the judgment-debtor or over which or the portion of which he has a disposing power
which he may exercise for his own benefit may be attached and sold in execution of a decree
against him.

Section 61 deals where the judgment-debtor is an agriculturalist. It states that judgment-debtor is

an agriculturalist. Any agriculturalist produce is subject matter of agriculturalist. The quantum of
attachment of agricultural product depends upon the quantum of decretal amount.

Section 63 where two different courts have attached the same property through different decree,
then it will be looked, that which court is superior. The value of the property will determine
whether further attachment can be done or not.

Percept

Section 46– “precept” means a command, an order, a writ or a warrant. A percept is an order or
direction given by court which passed the decree to a court which would be competent to execute
the decree to attach any property belonging to the judgment-debtor.

Section 46 provides that court which passed a decree may, upon an application by the decree-
holder, issue a percept to that court within whose jurisdiction the property of the judgment-
debtor is lying to attach any property specified in the percept.

A percept seeks to prevent alienation of property of the judgment-debtor not located within the
jurisdiction of the court which passed the decree so that interest of the decree-holder is
safeguarded and protected.

It is the interim attachment of the property which lies outside the jurisdiction of the court which
has passed the order. To protect the interest of the decree holder on his application will issue
percept to the court in whose jurisdiction property is situated to attach the property of the
judgment-debtor. The interim order for attachment is valid for the period of only 2 months.

Garnishee Order

It is the proceeding by which the decree-holder seeks to reach money or property of the
judgment-debtor in the hands of a third party (debtor of judgment-debtor).
Suppose A owes Rs 1000 to B and B owes Rs 1000 to c. By a garnishee order, the court may
require A not to pay money owed by him to B, but instead to pay C, since B owes the said
amount to C, who has obtained the order.

“Garnishee order” is an order passed by a court ordering a garnishee not to pay money to the
judgment-debtor because the latter is indebted to the garnisher.

Sale of the Property

A decree may be executed by attachment and sale or sale without attachment of any
property. Section 65 to 73 and Rules 64 to 94 of Order 21 deals with the subject relating to the
sale of movable and immovable property.

 Power of court: Rule 64-65

Rule 64: a court may sell the property, which he has taken into custody under an
attachment under Order 60.
Rule 65: appointment of officer by the court who will be charged to sell the property.
Officer will be the representative of the court and will sell the property for execution of
decree.

 Proclamation of sale: Rule 66-67

It is a kind of order or declaration. It operates as a public notice regarding the sale. It’s
said that people can participate in auction and sale. The proclamation can be in writing or
by customary mode.

Contents of the proclamation:-

1. Time and place of sale

2. Property to be sold

3. Revenue, if any, assessed upon the property;

4. Encumbrance, if any, to which property is liable;

5. Amount to be recovered;

6. Details relating to property, such as title deed, length etc.

 Time of sale: Rule 68

No sale without the consent in writing of the judgment-debtor can take place before
fifteen days in case of immovable property and before 7 days in case of movable property
from the date of proclamation in the courthouse. A sell can be conducted immediately if
the property is of perishable nature.
  Adjournment of sale: Rule 69
If the judgment-debtor after the issue of proclamation and before sell has paid the amount
or has partly promised to pay on the given date before completion of public order, if there
is any justified reason, in those circumstances, court has discretionary power to postpone
the sell. If it has been postponed for a period of 30 days, the fresh proclamation has to be
issued and again the process of Rule 67, 68 and 69 will follow.
Sell cannot be postponed where judgment-debtor dies before the date of sell or after the
issue of proclamation, or on the date of the auction.

 Restriction to bid: Rule 72-73

A decree-holder cannot, without the express permission of the court, purchase the
property sold in execution of his own decree.
A mortgagee of immovable property cannot, without the leave of the court, purchase the
property sold in execution of the decree on the mortgage.
Any officer or other person having any duty to perform in connection with the execution
sale cannot either directly or indirectly, acquire or any attempt to acquire any interest in
the property sold in execution.

 Sale of movable property: Rule 78-78

It relates to the sale of agricultural produce and growing crops. Rule 76 covers negotiable
instruments and shares. Sale of movable property should be held by public auction. A
sale of the movable property will not be said aside on the ground of irregularity in
publishing or conducting the sale (Rule 78).

 Sale of immovable property: Rule 82-94

Rule 83 enables the executing court to postpone sale to enable the judgment-debtor to
raise decretal dues by private alienation.

 Payment of purchase money by auction-purchaser: Rule 84-85.

Rule 86 talks about cases of default by auction-purchaser in making requisite payment
and resale of the property. Rule 89-91 and 93 deals with setting aside sale and effect
thereof. Rules 92-94 provide confirmation of sale and issuance of sale-
certificate. Section 65 declares the effect of sale.

Chapter 6: Conclusion

From the above discussion, it clearly appears that execution is the enforcement of decrees and
orders by the process of court, so as to enable the decree-holder to realize the fruits of the decree.
The execution is complete when the judgment-creditor or decree-holder gets money or other
thing awarded to him by the judgment, decree or order.
Order 21 of the code contain elaborate and exhaustive provision for execution of decrees and
order, take care of the different type of situation and provide effective remedies not only to the
decree-holder and judgment-debtors but also to the objectors and third parties.

A decree can be executed by various modes which include delivery of possession, arrest, and
detention of the judgment-debtor, attachment of the property, by sale, by appointment of
receiver, partition, cross-decrees, and cross-claims, payment of money etc.

On exceptional situation, where provisions are rendered ineffective or incapable of giving relief
to an aggrieved party, he can file suit in civil court.
 EXECUTION
Order 21 of the Code of Civil Procedure deals with the solemn act of execution of the decrees
passed by the Courts from grassroots to the top. Ultimately, after the judgment attains finality or
where there is no stay in the execution by any Appellate or Revisional Court, it is the Court of
original jurisdiction which performs this sacred act of implementation of the execution. It has
been often seen that in view of less number of units prescribed for execution of the decree, the
executions are not give that much time and importance as required and desired. It is only the
execution, which reveals and signifies the importance of the decrees to be passed and the
pedestal of the Court and sanctity of the document. As such, the decrees are required to be
executed with force, so that the Decree Holder having a document containing declaration of his
rights may not feel cheated or helpless having earned no fruits of the lis got settled by him from
the Court even after spending decades altogether. This Order can be divided into six parts. If the
Courts deal the executions while considering the applications/objections topic wise, it would be
easy for them to adjudicate the matter easily.

The main classification is as under:-

(1) Applications for execution and the process to be applied.

(2) Stay of executions.

(3) Mode of executions.

(4) Sale of immovable property and movable property.

(5) Adjudication of the claims and objections.

(6) Resistance and delivery of possession.

Order 21 Rule 1 CPC : Method of adjustment in money decree –

Order 21 Rule 1 of the CPC provides for the modes of paying the money decree. First of all, the
Court should appropriate the amount towards interest, then towards the costs and thereafter,
towards the principal, unless, of course, the deposit is indicated to be towards specified heads by
the judgment debtor while making the deposit and intimating the decree holder of his intention.
This Order also provides mode for executing the decrees and implementation of even decrees of
specific performance, permanent injunction, restitution of conjugal rights and possession etc. 2

The Hon'ble Supreme Court in case Gurpreet Singh Vs. Union of India, 2008 (2) RCR (Civil)
207, has observed as under:- . Thus, in cases of execution of money decrees or award decrees, or
rather, decrees other than mortgage decrees, interest ceases to run on the amount deposited, to
the extent of the deposit. It is true that if the amount falls short, the decree holder may be entitled
to apply the rule of appropriation by appropriating the amount first towards the interest, then
towards the costs and then towards the principal amount due under the decree. But the fact
remains that to the extent of the deposit, no further interest is payable thereon to the decree
holder and there is no question of the decree holder claiming a re-appropriation when it is found
that more amounts are due to him and the same is also deposited by the judgment debtor. In other
words, the scheme does not contemplate a reopening of the satisfaction to the extent it has
occurred by the deposit. No further interest would run on the sum appropriated towards the
principal. .

As an illustration, we can take the following situation. Suppose, a decree is passed for a sum of
Rs.5,000/- by the trial court along with interest and costs and the judgment debtor deposits the
same and gives notice to the decree holder either by approaching the executing court under Order
XXI Rule 2 of the Code or by making the deposit in the execution taken out by the decree-holder
under Order XXI Rule 1 of the Code. The decree holder is not satisfied with the decree of the
trial court. He goes up in appeal and the appellate court enhances the decree amount to
Rs.10,000/- with interest and costs. The rule in terms of Order XXI Rule 1, as it now stands, in
the background of Order XXIV would clearly be, that the further obligation of the judgment
debtor is only to deposit the additional amount of Rs. 5,000/- decreed by the appellate court with
interest thereon from the date the interest is held due and the costs of the appeal. The decree
holder would not be entitled to say that he can get further interest even on the sum of Rs.5,000/-
decreed by the trial court and deposited by the judgment debtor even before the enhancement of
the amount by the appellate court or that he can re-open the transaction and make a
reappropriation of interest first on Rs.10,000/-, costs and then the principal and claim interest on
the whole of the balance sum again.

Certainly, at both stages, if there is short-fall in deposit, the decree holder may be entitled to
apply the deposit first towards interest, 3 then towards costs and the balance towards the
principal. But that is different from saying that in spite of his deposit of the amounts decreed by
the trial court, the judgment debtor would still be liable for interest on the whole of the principal
amount in case the appellate court enhances the same and awards interest on the enhanced
amount. This position regarding execution of money decrees has now become clear in the light
of the amendments to Order XXI Rule 1 by Act 104 of 1976. The argument that what is awarded
by the appellate court is the amount that should have been awarded by the trial court and so
looked at, until the entire principal is paid, the decree holder would be entitled to interest on the
amount awarded by the appellate court and therefore he can seek to make a re-appropriation by
first crediting the amount deposited by the judgment debtor pursuant to the decree of the trial
court towards the cost in both the courts, towards the interest due on the entire amount and only
thereafter towards the principal, is not justified on the scheme of Order XXI Rule 1 understood
in the context of Order XXIV Rules 1 to 4 of the Code.

The principle appears to be that if a part of the principal has been paid along with interest due
thereon, as on the date of issuance of notice of deposit, interest on that part of the principal sum
will cease to run thereafter. In other words, there is no obligation on the judgment debtor to pay
interest on that part of the principal which he has already paid or deposited.” Order 21 Rule 42
CPC Attachment before judgment in execution:- Order 21 Rule 42 CPC deals with the
attachment before the Court holds an inquiry as to rent or mesne profits or any other matter, the
property of the judgment debtor could be attached, before the amount due is ascertained in the
terms of Order 38 Rule 5 CPC. Order 21 Rule 29 CPC: whether the decree of other Court could
be stayed.

The scope of applicability of Order 21 Rule 29 CPC;- Rule 29 refers to cases where the
execution of the decree held by the Decree Holder could be stayed.

For the applicability of Order 21 Rule 29 CPC, two conditions are to be fulfilled;

(1) a proceeding in execution of the decree of that Court started at the instance of the decree
holder against the judgment- 4 debtor and

(2) a suit at the instance of the same judgment-debtor against the holder of the decree of that
Court.

Transferee Court has no power to stay the execution of the decree pending in its Court because
the decree is not passed by that Court. Subsequent sale in spite of stay order held valid.

While elaborating Order 21 Rule 29 of the Civil Procedure code, the Hon'ble Supreme Court in
Shaukat Hussain @ Ali Akram and others Vs. Smt. Bhuneshwari Devi (dead) by L.Rs. & others,
1973 AIR (SC) 528, has observed as under:- 4. Mr. Chagla appearing on behalf of the appellants
prefaced his arguments by stating that the property attached in execution was a very valuable
property worth more than Rs. 20,000/- and had been sold for a paltry sum due under the decree
and this circumstance itself was sufficient to show that the sale was liable to be set aside. That
contention is clearly not open on the materials on record. A judgment-debtor can ask for setting
aside a sale in execution of a decree under section 47 C.P.C. and, in special circumstances which
attract the provisions of Order XXI rule 90 he may also apply to the court to set aside the sale on
the ground of material irregularity or fraud in publishing or conducting the sale provided he
further proves to the satisfaction of the court that he has sustained substantial injury by reason of
the irregularity or fraud. The application made to the executing court in the present case by the
judgment-debtors was not one under Order XXI rule 90 C.P.C. That is conceded by Mr. 16-
L172Sup.CI/72 1026 Chagla. Had it been the case that on account of fraud or material
irregularity in conducting the sale, the sale required to be set aside, evidence would have been
led on the point and there would have been a clear finding as to the substantial injury. The
judgments of all the three courts proceed entirely on the basis that the application was one under
section 47 C.P.C. and not under Order XXI Rule 90 C.P.C. They do not deal with the question
of- material irregularity or fraud in the conduct of the sale, nor do they deal with the injury
caused to the judgment- 5 debtors. The only question which was agitated before the courts was
whether the sale was illegal in view of the fact that the execution proceedings had taken place
during the existence of a stay issued by a competent court. It was also common ground that the
stay issued by the Munsif was an Order passed under Order XXI Rule 29 C.P.C. The first two
courts held that the stay was in existence when the execution proceedings ended in the sale while
the High Court held that factually it was so because the sale took place on 6-8-1963, the stay, if
any, having ceased to operate after 5-8-1963. The High Court further pointed out that the stay
under Order XXI Rule 29 issued by the court of the Munsif Gaya was null and void as it was
passed by a court without competence and, therefore, in law there was no legal stay of execution
and the sale which took place in due course after attachment and proclamation of sale, was a
valid one. The scope of Rules 26 to 29 of Order 21 CPC:- “6. Order 21, Civil Procedure Code
deals generally with the execution of decree and orders. That order is divided into several topics,
each topic containing a number of rules. The first four topics cover rules 1 to 25 and the fifth
topic, namely, stay of execution comprises 4 rules, namely, Rules 26 to 29. A perusal of these
rules will show that the first three rules i.e. Rules 26 to 28 deal with the powers and duties of a
Court to which a decree has been sent for execution. Under Rule 26, that Court can stay the
execution of the decree transferred to it for execution for a reasonable time to enable the
judgment-debtor to apply to the Court by which the decree was passed or to any Court having
appellate jurisdiction over the former for an order to stay execution or for any other order
relating to the decree or execution which might have been made by the Court of first instance or
the appellate Court. It will be seen, therefore, that under Rule 26 the transferee Court has a
limited power to stay execution before it. Moreover, under sub rule (2) if any property is seized
by it in the course of execution, it may even order the restitution of the property pending the
result of the application made by the judgment-debtor to the Court of the first instance or to the
appellate Court. Rule 27 says that any such restitution made under sub-rule (2) of Rule 26 will
not prevent the property of the 6 judgment-debtor from being retaken in execution of the decree
sent for execution. Rule 28 provides that any order of the Court by which the decree was passed,
in relation to the execution of such decree, shall be binding upon the Court to which the decree
was sent for execution. And then we have Rule 29 which deals with a different situation. The
rule is as follows: “Where a suit is pending in any Court against the holder of a decree of such
Court, on the part of the person against whom the decree was passed the Court may, on such
terms as to security or otherwise, as it thinks fit stay execution of the decree until the pending
suit has been decided.” It is obvious from a mere perusal of the rule that there should be
simultaneously two proceedings in one Court. One is the proceeding in execution at the instance
of the decree-holder against the judgment-debtor and the other a suit at the instance of the
judgmentdebtor against the decree holder. That is a condition under which the Court in which the
suit is pending may stay the execution before it, if that was the only condition, Mr. Chagla would
be right in his contention, because admittedly there was a proceeding in execution by the decree-
holder against the judgment-debtor in the Court of Munsif 1st Gaya and there was also a suit at
the instance of the judgment-debtor against the decree-holder in that Court. But there is a snag in
that rule. It is not enough that there is a suit pending by the judgment-debtor, it is further
necessary that the suit must be against the holder of a decree of such Court. The words “such
Court” are important “Such Court” means in the context of that rule the Court in which the suit is
pending. In other words, the suit must be one not only pending in that Court but also one against
the holder of a decree of that Court. That appears to be the plain meaning of the rule.”

Order 21 Rule 35 (3) and Rule 97 CPC These two Rule provides a right to the Decree Holder to
complain against a person, who creates resistance in the execution of the decree. Order 21 Rule
41 CPC- Arrest and detention:- In case of money decree, as per Order 21 Rule 41 CPC, where
the decree cannot be executed otherwise by way of attachment or sale of the property, the Court
could make an order for the attendance and examination 7 of such Judgment Debtor, or officer or
any other person and for the production of any books or documents. If the decree remained
unsatisfied for 30 days or otherwise the Judgment Debtor disobeys the decree, the Court may
direct the person disobeying the order to be detained in the civil prison for a term not exceeding
three months.

Section 47 of CPC All the questions relating to execution, discharge and satisfaction of the
decree are to be decided by the Executing Court and even the decision of the complicated
questions is also not prohibited. Section 47 of the Civil Procedure Code provides for disposal of
all the questions arising between the parties to the suit, in which the decree was passed, or their
representatives, and relating to the execution, discharge or satisfaction of the decree, shall be
determined by the Court executing the decree and not by a separate suit. Even the Code bars the
powers to decide as the person raising objection is a Judgment Debtor or his representative and
such question would also relate to execution, discharge or satisfaction of a decree.

In case Jugal kishore Saraf Vs. M/s Raw Cotton Co. Ltd., 1955 AIR (SC) 376, the Hon'ble Apex
Court has observed as under:- “There could be no -objection to decide questions involving
investigation of complicated facts or difficult questions of law in execution proceedings, as
section 47 of the Code of Civil Procedure authorises the Court executing the decree to decide all
questions arising therein and relating to execution of the decree and subs-s- (2) further authorises
the executing Court to treat a proceeding under the section as a suit thus obviating the necessity
of filing a separate suit for the determination of the same.

The line of decisions of the High Court of Bombay beginning with 11 Bom 506 and ending with
AIR 1946 Bom 272 importing the equitable principle above enunciated therefore appears to me
to be more in consonance with law and equity than the strict and narrow 'interpretation put on the
words "where a decree............... is transferred by assignment in writing" by the High Courts of
Madras and Calcutta in the decisions above noted.”

Order 21 Rule 16 CPC:- The assignment and transfer of the decree made, when assignment is
complete. It was observed by the Hon'ble Supreme Court in Jugalkishore's case (supra), as
under:- 8 “54. Is there any warrant for importing this equitable principle while construing the
statutory 'Provision enacted in Order 21, rule 16 of the Code of Civil Procedure?

The Code of Civil Procedure does not prescribe any mode in which an assignment in writing has
got to be executed in order to effectuate a transfer of a decree. The only other statutory provision
in regard to assignments in writing is to be found in Chapter VIII of the Transfer of Property Act
which relates to transfers of actionable claims and an actionable claim has been defined in
section 3 of the Act as "a claim to any debt................ or to any beneficial interest in movable
property not in the possession, either actual or constructive, of the claimant, which the Civil
Courts recognize as affording grounds for relief...................”

A judgment debt or decree is not an actionable claim for no action is necessary to realise it. It has
already been the subject of an action and is secured by the decree. A decree to be passed in future
also does not come as such within the definition of an actionable claim and an assignment or
transfer thereof need not be effected in the manner prescribed by section 130 of the Transfer of
Property Act.

If therefore the assignment or transfer of a decree to be passed in the future does not require to be
effectuated in the manner prescribed in the statute there would be no objection to the 1415
operation of the equitable principle above enunciated and the contract to assign evidenced by the
assignment in writing becoming a complete equitable assignment of the decree when passed. The
assignment in writing of the decree to be passed would thus result in a contract to assign which
contract to assign would become a complete equitable assignment on the decree being Passed
and would fulfill the requirements of Order XXI, rule 16 in so far as the assignment or the
transfer of -the decree would in that event be effectuated by an assignment in writing which
became a complete equitable assignment of the decree when passed.

There is nothing in the provisions of the Civil Procedure Code or any other law which prevents
the operation of this equitable principle and in working out the rights and liabilities of the
transferee of a decree on the one hand and the decree-holder and the judgment debtor on the
other, there is no warrant for reading the words "where a decree....................... is transferred by
assignment in writing" in the strict and narrow sense,, in which they have been read by the High
Court of Madras in 17 Mad LJ 391 and the High Court of Calcutta in AIR 1924 Cal 661 and AIR
1932 Cal 439. It is significant to observe that the High Court of Calcutta in AIR 1939 Cal 715
applied this equitable principle and held that the plaintiff in whose favour the defendant had
executed a mortgage bond assigning by way of security the decree that would be passed in a suit
instituted by him against a third party for recovery of money due on unpaid bills for work done
was entitled to a declaration that he was the assignee of the decree passed in favour of the
defendants and was as such entitled to realise the decretal debt either amicably or by execution.

If the plaintiff was thus declared to be the assignee of the decree subsequently passed in favour
of the defendant and entitled to realise the decretal amount by execution could apply for
execution of the decree and avail himself of the provisions of Order 21, Rule 16 as the assignee
of the decree-which was passed subsequent to the date of the assignment in writing in his
favour.” Order 21 Rule 99 CPC Rule 99 of Order 21 provides an objector, other than the
Judgment Debtor, to raise objection claiming any right in the property from which he is directed
to be dispossessed.
Rule 99 of Order 21 reads as under:- “99. Dispossession by decree holder or purchaser

(1) Where any person other than the judgment debtor is dispossessed of immovable property by
the holder of a decree for the possession of such property or, where such property has been sold
in execution of a decree, by the purchaser thereof, he may make an application to the court
complaining of such dispossession.

(2) Where any such application is made, the court shall proceed to adjudicate upon the
application in accordance with the provisions herein contained.”

The other question to be noticed is that normally the Courts frame the issues while deciding the
lis between the parties, but the law does not provide that in each case, the issues are required to
be framed. Where the objections raised by the third party are superfluous, then the Court can
refuse to entertain the same and such objections could summarily be tried. 10 Where objections
have some merits, then the Court could decide those objections after seeking reply and evidence
of the parties.

Rules 105 and 106 of Order 21 CPC, govern the procedure for adjudication of the objection:-
These Rules read as under:-

“105. Hearing of application

(1) The court, before which an application under any of the foregoing rules of this Order is
pending, may fix a day for the hearing of the application.

(2) Where on the day fixed or on any other day to which the hearing may be adjourned the
applicant does not appear when the case is called on for hearing, the court may make an Order
that the application be dismissed.

(3) Where the applicant appears and the opposite party to whom the notice has been issued by
the court does not appear, the court may hear the application ex parte and pass such Order as it
thinks fit.

Explanation : An application referred to in sub-rule (1) includes a claim or objection made under
rule 58.

Setting aside orders passed ex parte, etc.

(1) The applicant, against whom an Order is made under subrule (2) of rule 105 or the opposite
party against whom an Order is passed ex parte under sub-rule (3) of that rule or under sub-rule
(1) of rule 23, may apply to the court to set aside the order, and if he satisfies the court that there
was sufficient cause for his non-appearance when the application was called on for hearing, the
court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall
appoint a day for the further hearing of the application.
(2) No Order shall be made on an application under sub-rule (1) unless notice of the application
has been served on the other party.

(3) An application under sub-rule (1) shall be made within thirty days from the date of the order,
or where, in the case of an ex parte order, the notice was not duly served, within thirty days from
the date when the applicant had knowledge of the order.”

Restoration of the objections:-Rule 106 of this Order indicates that if the objector fails to appear,
then the application could be dismissed and on showing the sufficient cause, the Court could
restore the said objection petition and decide the same on merits.

Order 21 Rule 92 (2):- The conditions when the sale could be set aside after auction. Order 21
Rule 92 (2) provides that if the deposit is made within 30 days from the date of sale and an
application is filed, then the Court would have no discretion but to set aside the sale and if the
amount is not deposited within 30 days, but within 60 days, then it will be within the discretion
of the Court, whether or not to grant the application. However, the application could be filed
within 60 days.

Rule 92 (2) of Order 21 CPC reads as under:-

“(2) Where such application is made and allowed, and where, in the case of an application under
rule 89, the deposit required by that rule is made within sixty days from the date of sale, or in
cases where the amount deposited under rule 89 is found to be deficient owing to any clerical or
arithmetical mistake on the part of the depositor and such deficiency has been made good within
such time as may be fixed by the court, the court shall make an Order setting aside the sale:
PROVIDED that no Order shall be made unless notice of the application has been given to all
persons affected thereby:”

Order 21 Rule 89 CPC Primary condition precedent to set aside the sale of a mortgaged property
is to pay the mortgage money in addition to depositing of 5 percent of the purchase money in the
Court. While elaborating Rule 89 of Order 21 CPC, the Hon'ble Supreme Court in case
Tribhovandas Purshottamdas Thakkar Vs. Ratilal Motilal Patel and others, 1968 AIR (SC) 372,
has held as under:-

It was urged, however, that the mortgagee having agreed to, abandon the execution proceeding
and to wait for six months for receiving payment of the mortgage dues from the trustees,
abandonment of the execution proceeding was in law equivalent to, payment to the decree holder
of the amount specified in the proclamation of sale for the recovery of which the sale was
ordered. This in 12 our Judgment is a futile argument. By abandoning the execution proceeding
the claim of the creditor is not extinguished: he is entitled to commence fresh proceedings for
sale of the property. Rule 89 of Order 21 is intended to confer a right upon the judgment- debtor,
even after the property is sold, to satisfy the claim of the decree-holder and to compensate the
auction purchaser by paying him 5% of the purchase-money. The provision, is not intended to
defeat the claim of the auction purchaser, unless the decree is simultaneously satisfied. When the
judgment creditor agrees to extend the time for payment of the amount for a specified period and
in the meanwhile agrees to receive interest accruing due on the amount of the decree, the
condition requiring the judgment debtor to deposit in Court for payment to the decree holder the
amount specified in the proclamation of sale for the recovery of which the sale was ordered.
cannot be deemed to be complied with. 6. Our attention was invited to several decisions in which
it was held, that if the judgment-debtor instead of depositing in Court the amount specified in the
proclamation of sale for recovery of which the property is sold, satisfies the claim of the decree-
holder under the decree, the requirements of Order 21 Rule 89 are complied with: Subbayya v.
Venkata Subba Reddi, AIR 1935 Mad 1050; Muthuvenkatapathy Reddy v. Kuppu Reddi, AIR
1940 Mad 427; ILR (1940) Mad 699 (FB); Laxmansing Baliramsing v. Laxminarayan Deosthan
Kapshi, ILR (1947) Nag 802; Rabindra Nath V. Harendra Kumar, AIR 1956 Cal 462;
M.H.Shivaji Rao V. Niranjanaiah, AIR 1962 Mys 36.

These cases proceed upon interpretation of the expression 'less any amount which may since the
date of such proclamation of sale, have been received" occurring in clause (b) of Rule 89. It is
unnecessary to venture an opinion whether these cases were correctly decided. It is sufficient to
observe that an order setting aside a court sale, in execution of a mortgage decree cannot be
obtained, under 13 Order 21 Rule 89 of the Code of Civil Procedure by merely depositing 5 % of
the purchase- money for payment to the auction purchaser and persuading the decree-holder to
abandon the execution proceedings.”

The essentials for setting aside the sale have also been elaborately discussed by the Hob'ble Apex
Court in case Dadi Jagannadham Vs. Jammulu Ramulu, 2001(4) RCR (Civil) 267, wherein it has
been held as under:-

“18. Having given our careful consideration to the question, we are of the opinion that there is no
anomaly and that there are no different periods of limitation for making deposits and/or filing an
application for setting aside the sale. It is by virtue of Order 21 Rule 89 CPC that an application
for setting aside a sale and a deposit can be made. Order 21 Rule 89 CPC does not prescribe any
period within which the application is to be made or deposit is to be made. All that Order 21
Rule 92 (2) provides is that if the deposit is made within 30 days from the date of sale and an
application is filed then the Court would have no discretion but to set aside the sale. That does
not mean that if the deposit is made after 30 days the Court could not entertain the application. If
the deposit is made beyond the period of 30 days, but within the period 60 days, then it will be
within the discretion of the Court whether or not to grant the application. Thus an application can
be made within the period prescribed under Article 127, Limitation Act. As an application can be
made within 60 days and, as stated above, no period for making a deposit is prescribed under
Order 21 Rule 91 (2) the deposit can also be made within 60 days. In our view, therefore, the
view expressed in P.K. Unni's case that Order 21 Rule 92(2) CPC prescribes a period of
limitation for making a deposit is not correct.”
Other conditions where sale could be set aside Order 21 Rule 90 CPC- deals with the situations
when the sale could be set aside:- Mere to establish irregularity or fraud is not sufficient to set
aside the sale. The applicant must establish that material irregularity or fraud has resulted in
substantial injury to the applicant. There is no specific 14 provision under Order 21 Rule 67 CPC
that sale must be advertised in the local newspaper. Therefore, irregularity cannot be given
weight in the absence of any such order made by the Court.

The Hon'ble Apex Court in case Saheb Khan Vs. Mohd. Yusufuddin and others, 2006 AIC (SC)
1871, has further observed as under:-

“13. Therefore, before the sale can be set aside merely establishing a material irregularity or
fraud will not do. The applicant must go further and establish to the satisfaction of the Court that
the material irregularity or fraud has resulted in substantial injury to the applicant. Conversely
even if the applicant has suffered substantial injury by reason of the sale, this would not be
sufficient to set the sale aside unless substantial injury has been occasioned by a material
irregularity or fraud in publishing or conducting the sale. A charge of fraud or material
irregularity under Order 21 Rule 90 must be specifically made with sufficient particulars. Bald
allegations would not do. The facts must be established which could reasonably sustain such a
charge. In the case before us, no such particulars have been given by the respondent of the
alleged collusion between the other respondents and the auction purchaser. There is also no
material irregularity in publishing or conducting the sale. There was sufficient compliance with
the orders of Order 21 Rule 67(1) read with Order 21 Rule 54(2). No doubt, the Trial Court has
said that the sale should be given wide publicity but that does not necessarily mean by
publication in the newspapers. Theprovisions of Order 21 Rule 67 clearly provide if the sale is
tobe advertised in the local newspaper, there must be specific directionof Court to that effect. In
the absence of such direction, the proclamation of sale has to be made under Order 21 Rule 67(1)
“as nearly as may be in the manner prescribed by Rule 54, Sub-rule (2).”

Rule 54 sub-rule (2) provides for the method of publication of notice and reads as follows:

“(2). The order shall be proclaimed at some place on or adjacent to such property by beat of
drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of
the property and then upon a conspicuous part of the Court-house, and also where the property is
land paying revenue to the Government, in the office of the Collector of the district in which the
land is situated (and, 15 where the property is land situate in a village, also in the office of the
Gram Panchayat, if any, having jurisdiction over that village).”

Order 21 Rule 58 CPC- Attachment of mortgaged property:- Attachment before judgment-

Suit under Order 21 Rule 58 CPC to release the property from attachment. If the property is
under attachment in another money suit and the mortgagee is not in actual or constructive
possession of the property on that date, then the objection by such objector under Order 21 Rule
58 CPC to such attachment is not maintainable.
While further elaborating Order 21 Rule 58 CPC, the Hon'ble Supreme Court in case Kabidi
Venku Sah Vs. Sayed Abdul Hai and another, 1984 AIR (SC) 117, has observed as under:-

“7. The matter is quite simple but has unfortunately dragged on for nearly 15 years on account of
a wrong and ill advised step taken by the appellant. The learned Principal Civil Judge erred in
observing that what was attached before judgment on 24.09.1964 is not the equity of redemption
alone but the entire property. He has rightly held that in the claim petition the question of the
mortgage of 1948, the mortgage decree, the Court auction sale and delivery of possession of the
property to the appellant pursuant to that sale cannot be contended to be collusive and observed
that the first respondent could, if at all, challenge them only in a separate suit. That being so,
undoubtedly the mortgage of 1948 in favour of the appellant was there and what remained with
the mortgagor was only the equity of redemption until it was brought to an end by the sale in
execution of the mortgage decree confirmed by the court on 28.08.1968. Therefore, there could
be no doubt whatsoever that on 24.09.1964 when the property was attached before judgment
long after the mortgage dated 31.07.1948 and two years, before the suit and the mortgage was
filed in 1966, the mortgagor had the equity of redemption and that what could have been
attached in law on 24.09.1964 was the equity of redemption alone and not the entire interest in
the property. There should have been no difficulty for the learned Judge of the High Court
holding that the appellant could not have been in possession of the property, actual or
constructive, for he was only a simple mortgagee who had nothing to do with possession and he
got delivery of the property through the court as a decree holder – court auction purchaser on
28.04.1968 as noticed by the learned Judge in his judgment. The appellant had no doubt an
interest in the property as mortgagee, but he could not have been in 16 possession of the property
as he was only a simple mortgagee. The appellant was a secured creditor as he had a mortgage in
his favour, and any attachment effected after the date of the mortgage and during its subsistence
can be only subject to that mortgage. He had no interest in the equity of redemption on the date
of the attachment and could not therefore have had any objection to that right of the mortgagor
being attached by the first respondent. Therefore, he was not a person who could in law file any
claim petition under Order 21 Rule 58 objecting to the attachment of the equity of redemption.
We may notice here what Order 21 Rule 58(1) says and it is this: “Where any claims preferred
to, or any objection is made to the attachment of, any property attached in execution of a decree
on the ground that such property is not liable to such attachment, the court shall proceed to
adjudicate upon the claim or objection in accordance with the provisions herein contained.” 8.
The attaching creditor can bring the property to sale only subject to the mortgage so long as it is
subsisting. That is to say he could bring only the mortgagor's equity of redemption to sale if it
had not already been extinguished by its sale in execution of any decree obtained on that
mortgage. But, if the equity of redemption has already been sold after the date of the attachment
the attaching, decree holder could proceed only against the balance, if any, of the sale price left
after satisfying the mortgagee decree-holder's claim under the decree. The mortgagee's right is
thus not affected, at all. Therefore, it is we had observed earlier that the appellant had taken a
wrong and ill advised step in coming forward with the claim petiton which has resulted in the
matter dragging on for over 14 years from 15.01.1969. The appellant could not object to the
attachment of the equity of redemption. The appeal fails and is dismissed, but under the
circumstances of the case without costs.”

Order 21 Rule 35 (2) CPC:- Attachment of share of coparcenary property and limitation to
take possession of such property.

Decree against father and four sons. Execution against Joint Family property- Auction purchaser
purchased at the auction sale was the share of four sons' with joint family property. Sons' original
share was 4/5th reduced to 2/3rd on the date of auction sale, after the birth of another son- 1/6th
share also allotted in partition suit to auction purchaser, but he was entitled only to four sons'
share that is 2/3rd share in the property. Alienation by coparceners of undivided interest –
Alienee is not entitled to possession of interest purchased by him till a partition has made that
being so, it is arguable that the coparceners can never be in adverse possession of the properties
as against him as possession can be adverse against a person only when he is entitled to
possession.

In case M.V.S. Manikayala Rao Vs. M. Narasimhaswami and others, 1966 AIR (SC) 470, the
Hon'ble Supreme Court has held as under:-

“5. As earlier stated the High Court held that Article 144 applied. The application of this article
seems to us to present great difficulties to some of which we like to refer. That article deals with
a suit for possession of immovable property or any interest therein not otherwise specially
provided for and prescribes a period of twelve years commencing from the date when the
possession of the defendant becomes adverse to the plaintiff. This article obviously contemplates
a suit for possession of property where the defendant might be in adverse possession of it as
against the plaintiff. Now, it is well settled that the purchaser of a coparcener's undivided interest
in joint family property is not entitled to possession of what he has purchased. His only right is to
sue for partition of the property and ask for allotment to him of that which on partition might be
found to fall to the share of the coparcener whose share he had purchased. His right to possession
“would date from the period when a specific allotment was made in his favour”:

Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh, 1954 SCR 177 at P.188. It would,
therefore, appear that Sivayya was not entitled to possession till a partition had been made. That
being so, it is arguable that the defendants in the suit could never have been in adverse
possession of the properties as against him as possession could be adverse against a person only
when he was entitled to possession.

Support for this view may be found in some of the observations in the Madras Full Bench case of
Vyapuri v. Sonamma Boi Ammani, ILR 39 Mad 811. In the case in hand the learned Judges of the
High Court thought that the applicability of Article 144 to a suit like thepresent one was
supported by the decision of the Judicial Committee in Sudarsan Das v. Ram Kirpal Das, 77 Ind
App 42. We feel considerable doubt that the case furnishes any assistance. It held that Article 144
extends the conception of adverse possession to include an interest in immovable property as
well as the property itself. In that case, a purchaser of an undivided share in a property which
was 18 not coparcenary property, had obtained possession of that share and he was held to have
acquired title to it by adverse possession. That was not a case of a person who was not entitled to
possession. We are not now concerned with adverse possession of an interest in property.

Order 21 Rule 35 (3) CPC :- Extent of force to be used to take possession:

This Rule provides that even if the possession of some premises is not delivered, then the Court,
after giving reasonable warning and facility to any woman not appearing in public according to
the customs of the country to withdraw, remove or open any lock or bolt or break any door or do
any other act necessary for putting the Decree-Holder in possession.

Order 21 Rule 17, Order 34 Rule 4, Rules 14 and 15:- Recovery of maintenance by sale of
the property over which charge was created

Execution for maintenance after the charge has been created by the Court on many lots of the
properties. Even if the purchase of one lot is found to be made by the decree-holder prior to the
execution, then the recovery of maintenance could be effected from the other properties over
which, the charge has been created.

In case Janapareddy Latchan Naidu Vs. Janapareddy Sanyasamma, 1963 AIR (SC) 1556, the
Hon'ble Apex Court has observed as under:- “6. The argument involves a fallacy because it
assumes that a charge created by a decree on a number of properties disappears when the charge-
holder in execution of the charge decree purchases one lot of properties. An executory charge-
decree for maintenance becomes executable again and again as future sums become due. The
executability of the decree keeps the charge alive on the remaining properties originally charged
till the future amount cease. In other words the charge subsists as long as the decree subsists. By
the execution the charge is not transferred in its entirety to the properties purchased by the
charge-holder. Nor is the charge divided between those properties and those which still remain
with the judgment debtor. The whole of the charge continues over all the properties jointly and
severally. Nor is any priority established between the properties purchased by the charge-holder
and those that remain. It is not permissible to seek an analogy from the case of a mortgage. A
charge is different from a mortgage. A mortgage is a transfer of an interest in property while a
charge is merely a right to receive payment out of some specified property. The former is
described a jus in rem and the latter as only a jus ad rem. In the case of a simple mortgage there
is a personal liability express or implied but in the case of charge there is not such personal
liability and the decree, if it seeks to charge the judgment debtor personally, has to do so in
addition to the charge. This being the distinction it appears to us that the appellant's contention
that the consequences of a mortgagee acquiring a share of the mortgagor in a portion of the
mortgaged property obtain in the case of a charge is ill founded. The charge can be enforced
against all the properties or severally.”