LAWACADEMY

Suits by indigent persons Order 33 provides for filing of suits by indigent persons. Persons who are too poor and cannot afford court fees are allowed under certain conditions to file suit without paying court fees. Courts fee is calculated under the Court Fees Act and it is paid at the time of presentation of plaint. The object behind this provision is to protect the bona fide claims of indigent persons so that they may not be precluded from exercising legal remedies owing to strained economic conditions. Meaning of indigent person: Explanation I appended to Order 33 Rule 1 provides that a person is an 'indigent person' if: (i) He is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or (ii) Where no such fees is prescribed, when he is not entitled to property worth Rs. 1,000. In both the cases, the property exempted from attachment in execution of a decree and subject matter of the suit should be excluded. [Explanatio...

  Suits by or against minors or persons of unsound mind

Attachment before judgment Order 38 Rules 5 to 13 of the Code provide for attachment before judgment. Object : Supreme Court in Sardar Govindrao v. Devi Sahai, (1982) 1 SCC 237 laid down that the primary object of attachment before judgment is to give assurance to the plaintiff that the decree if made would be satisfied. It is also made to prevent an attempt on the part of the defendant to defeat the realization to decree that may be passed against him. Any court except the court of small causes can order such attachment [Rule 13]. However, any agricultural produce in possession of an agriculturist cannot be ordered to be attached before judgment. [Rule 12] Grounds for attachment before judgment [Rule 5]: The court may order attachment before judgment if it is satisfied that: (a) The defendant is about to dispose of the whole or any part of his property, or remove the same from the local limits of the jurisdiction of the court, and (b) He does so with the intent to obstruct or delay th...

Arrest before judgment Order 38, Rule 1 to 4 provides for arrest before judgment and procedure to be adopted. As a general rule of procedure the creditor has to first obtain a decree from the court and then if the decree is not satisfied, the creditor can resort to execution proceedings to get fruits of the decree. Modes of arrest and attachment of judgment debtor are provided in cases of execution of decree. However, in certain situations creditor can sort arrest of judgment debtor before actual passing of judgment/decree. Object : The object is to enable the plaintiff to realize the fruits of decree if decree is eventually passed in his favour and to prevent the defendant to defeat the execution of such decree. [Raman Tech and Process Engg. Co. Ltd. v. Solanki Traders, (2008) 2 SCC 302] Grounds for arrest before judgment [Rule 1]: Order 38 Rule 1 empowers the court to issue a warrant to arrest against the defendant at any stage of the suit on following grounds: (a) That the defendant...

Temporary Injunctions Meaning : The term 'injunction' is not defined in the Code. It is a remedy in the form of an order of the court addressed to a particular person either prohibiting him from doing or continuing to do a particular act (prohibitory injunction) or orders him to carry out a certain act (mandatory injunction). Object : Primary object of granting interim injunction is the preservation of property in dispute til the rights of the parties are completely adjudicated. Types of Injunctions From the point of view of nature injunctions are of injunctions are two types:- (a) Prohibitory injunction : They prevent or prohibit the person from doing a particular act, (b) Mandatory injunction: They compel or order the person to do some positive act. From the point of view of duration injunctions are of two types:- (a) Permanent Injunction [Section 38, Specific Relief Act, 1963 ] : Permanent or perpetual injunction restrains a party forever from doing the specified act and i...

  Interlocutory order Rule 6 to 10 of Order 39 mention certain interlocutory orders that can be made by the court. The term 'interlocutory order' is not defined in the Code. It means an order passed by a court during pendency of a suit or in course of execution proceedings which do not determine the substantive rights of the parties in respect of subject-matter of the suit but relates to the protection of the subject-matter of the suit or for ensuring determination of merits of the case. For eg.: (i) Ordering sale of perishable property in certain cases [Rule 6] (ii) Order for detention, preservation or inspection of any property forming subject-matter of suit [Rule 7]. (iii) Order authorizing any person to enter into any land or buildings and take samples or try experiments [Rule 8]. (iv) Order to deposit the money held by a person as a trustee, in court [Rule 10], etc.

Inherent Powers of the Court Courts are established to do justice between the parties; therefore, they must possess all necessary powers for prevention of abuse of process and to secure ends of justice. Inherent powers are powers which may be exercised by the court to do full and complete justice between the parties. They are complimentary and in addition to the power, expressly conferred by the Code so that such powers come to secure the court in unforeseen cases which could not be contemplated by Legislature. In Manohar Lal Chopra v. Seth Hiralal, AIR 1962 SC 527, Supreme Court held that the inherent power has not been conferred upon the court, it is a power inherent in the court by virtue of being a court and its duty to do justice between the parties. Thus, this power is necessary in the interest of justice. Scheme : Sections 148 to 153A of the Code provide for inherent powers of the court. Where Section 151 preserves the inherent powers of the court, Section 148, 149, 152, 153 and...

  Alternative Dispute Resolution Section 89 and Order X Rule 1A to IC of the Code lays down the provision for settlement of disputes through alternative modes. This was added in the Code by way of Amendment in 1999 on the recommendation of Malimath Committee with the object to help the litigants to settle their dispute outside the court instead of going through elaborates process of the court trial. Formation of settlement: Section 89 provides that where it appears to the court that there exists elements of settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties for their observations of the parties, the court may reformulate the terms of possible settlement and refer the same for resolution by way of any of the modes provided therein. Modes of settlement of dispute: Section 89 provides for the following modes of settlement of dispute...

  Commissions Sections 75-78 and Order 26 of the Code deals with the issue of Commissions. The power of court to issue commissions is discretionary which can be exercised by the court either suo motu or on the application of the parties [Order 26 Rule 2]. Purposes for which Commissions may be issued:  To examine witness [Section 75(a), Rules 1-8] To make local investigation [Section 75(b), Rules 9 and 10] To examine or adjust accounts [Section 75(c), Rules 11 and 12] To make partition [Section 75(d), Rules 13] To hold scientific, technical or expert investigation [Section 75(e), Rules 10A] To sell property [Section 75(f), Rules 10-C] To perform ministerial act [Section 75(g), Rules 10-B] Section 75 provides following purposes for which a court may issue commissions: 1. To examine witness [Section 75(a), Rules 1-8] : The Commission may be issued to examine a witness in case of his inability to attend the court on grounds of sickness or infirmity or in case where he resides beyo...

Caveat The term 'caveat' is not defined in the Code. Section 148-A of the Code provides for lodging of caveat. The term is derived from Latin which means 'beware'. It may be defined as a caution or a warning to the court not to take any action or grant any relief to the applicant without notice being given to the party lodging the caveat and interested in objecting to such relief. The person filing a caveat is called 'caveator'. Section 148-A was inserted by the Amendment Act of 1976. It provides that where an application is expected to be made, or has been made, in a suit or proceedings instituted, or about to be instituted, in a court, any person claiming a right to appear before the court on the hearing of such application may lodge a caveat in respect of it. Object : The object of lodging caveat is two-fold:- 1. Safeguard the interest of a person against an order that may be passed on an application field by the party in a suit or proceeding instituted or ab...

Revision Section 115 of the Code empower High Court to entertain a revision in any case decided by subordinate court to prevent the latter from acting arbitrarily, capriciously and illegally or irregularly in the exercise of their jurisdiction. Revision means to 're-look again', 'go through carefully'. It is an act of revising with a view to correct the errors. Who may file revision: A person aggrieved by an order passed by a court subordinate of High Court may file a revision against the order. A High Court may even sou motu exercise revisional jurisdiction under Section 115. Conditions and grounds: Section 115 lays down following conditions which must be satisfied before revisional jurisdiction is exercised by High Court: (1) The case must have been decided. (2) The court deciding the case must be subordinate of to High Court. (3) The order should not be appealable. (4) The subordinate court must have: (a) Exercised jurisdiction not vested in it by law, or (b) Failed ...

  Review Section 114 and Order 47 of the Code lays down the provision for review. In legal sense, review means the judicial re-examination of the case by the same court Section 114 of the Code gives substantive right of review certain case and Order 47 provides the procedure for it. It is an exception to the general rule that once judgement is signed and pronounced by the court, it becomes fanctus officio it., cases to have control over the matter. Grounds : Section 114 and Order 47 of the Code lay down following grounds on which review may be preferred by the aggrieved part: 1. In case where appeal is allowed against a decree or order but no appeal has been preferred by the aggrieved party. 2. In case where no appeal lies against a decree or order. 3. In case of judgment on a reference from a Court of Small Causes. 4. In case of discovery of new and important matter or evidence which, after the exercise of due diligence was not within this knowledge or could not be produced by hi...

  Reference Section 113 read with Order 46 of Code deals with power of subordinate courts to refer a case to the High Court for its opinion. Object : The object of such reference is to obtain opinion of High Court on question of law in order to avoid commission of any error which could not be remedied later on. Grounds of reference: Section 113 and Order 46 Rule 1 lay down following grounds or circumstances when reference can be made to the High Court: 1. Where the court is satisfied that the case pending before it involves a question as to the validity of any Act, Ordinance or Regulation and, (i) Such question is necessary to be determined for disposal of the case, and (ii) The court is of the view that such Act, Ordinance or Regulation or any of its provision is ultra vires, and (iii) There is no such determination of its validity by High Court or Supreme Court. [Proviso to Section 113] . 2. Where the subordinate court entertains a reasonable doubt as to any question of law or u...

Appeal Meaning:  Generally it means the judicial examination of the decision by higher court of the decision of an interior court. It is a proceeding initiated by an aggrieved party in the superior court against the decision of a subordinate court. Right of appeal: It is a settled law that the right to appeal is not an inherent right. It is a right created by a statute. Supreme Court in Anant Mills Co. Ltd. v. State of Gujarat, (1975) 2 SCC 175 held that there is no right to appeal unless it is provided by the statute.  Material date of right to appeal: The right to appeal accrues on the date of suit. In other words it is a right which is governed by the law prevailing on the date of institution of suit and not on the date of decision Garikapti Veerya v. N. Subbiah Chaudhary, AIR 1957 SC 540 . Thus, if on the date of institution of suit the right of appeal was provided by the statute it will be available to the aggrieved party after the decree/order is passed even though sub...

  Representative Suit Order 1 Rule 8 of the Code deals with the representative suit which enables filing of a single suit on behalf of other persons interested in subject-matter of the suit. Thus, it is a rule of convenience enacted to avoid multiplicity of proceedings. General rule of litigation is that all persons interested in a suit must be joined as parties to it. Order 1 Rule 8 provide an exception to this general rule. Representative suit is a suit filed by or against one or more persons on behalf of themselves and others having the same interest in the suit. The concept of representative suit states that when there are number of persons similarly interested in a suit, one or more of them can, with the permission of the court or upon a discretion from the court, sue or be sued on behalf of themselves. Object : Object of this provision is to save time and expense, avoid multiplicity of suits and prevent harassment of parties. It is merely an enabling provision. It does not co...

Parties to Suits- Order 1 Order 1 of the Code deals with the parties to the suit. "Parties' is one of the essentials of the suit. It also deals with the joinder, mis-joinder, non-joinder of parties, addition,  deletion of parties and also representative suit.

  Transfer of Suits Sections 22 to 25 enact the law as regards transfer and withdrawal of suits and appeals from one court to another court. Section 22 read with Section 23 enables the defendant to apply for transfer of a suit while Section 24 empowers High Court and District Court and 25 empowers Supreme Court to transfer any suit or appeal either upon application made by the party or suo motu. Transfer of suits Who may apply (Section 22)- Defendant  To what court application lies (Section 23) General power of transfer (Section 24) -District Court & High Court Power of Supreme Court to transfer (Section 25) Who may apply: Section 22 provides that the defendant may apply to the court for transfer of suit to another court in case a suit may be instituted in any one of two or more courts. Before transfer is ordered under Section 22, following conditions must be satisfied: (i) The application must be made at earliest possible opportunity either at or before settlement of iss...

  Place of Suing The expression 'place of suing' simply means venue for trial and it has nothing to do with the competency of the court to try any case. Section 15 to 20 of the Code regulate the forum for the institution of suits. General rule as to pecuniary jurisdiction: Section 15 provides that every suit shall be instituted in the court of lowest grade competent to try it. The object is to prevent over burdening of higher courts and afford convenience to the parties and witnesses. Section 15 refers to the pecuniary jurisdiction of the court and it is the plaintiff's valuation that determines the jurisdiction of the court.  It must be noted here that if the court finds the plaint to be undervalued and after being given time plaintiff fails to correct the valuation then the plaint will be liable to be rejected under Order 7 Rule 11(b). Court must have pecuniary jurisdiction at the time of filing of the suit. Subsequent change in valuation of the suit does not affect the j...

Foreign Judgment  According to Section 2(6) 'foreign judgment' means judgment of foreign court and according to Section 2(5) 'foreign court' means a court situated outside India and not established or continued by the authority of the Central Government. Object : The object behind this provision is to give respect to the judgment of competent foreign court and a legal obligation arises to satisfy the claim. In private international law, certain rules are regarded as common to civilized nations. This recognition is accorded on the rules of justice, equity and good conscience.  Binding nature of foreign judgment : Section 13 provides that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom or any of them claim litigating under the same title [Section 13]. Supreme Court in Lalji Raja and Sons v. Hansraj Nathuram, (1971) 1 SCC 721 held that rule laid down in Section 13 is a substant...

Res Judicata Section 11 of the Code incorporates the doctrine of res judicata. It is also called rule of conclusiveness. 'Res' means dispute or subject matter and 'Judicata' means decided. Thus, res judicata means matter adjudicated. It means that once the matter is finally decided by the court no one can reopen it in a subsequent litigation. Under Roman law it is known as ex captio res judicata which signifies previous or former judgment. Supreme Court in Satyadhyan Ghosal v. Deorijin Debi, AIR 1960 SC 94 1 held that principle of res judicata is based on the need of giving finality to judicial decisions. Primarily it applies between past litigation and future litigation. Section 11 provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim litigating under the same title, in a co...