LAWACADEMY

Theories of Punishment Punishment in law serves multiple purposes, and the rationale behind these punishments can be understood through different theories of punishment. These theories form the foundation for justifying punishment and help in shaping laws and sentencing policies. Here’s a detailed explanation of each theory with examples: 1. Deterrent Theory The deterrent theory focuses on preventing crime by imposing severe punishments to create fear among people. The idea is that potential offenders will refrain from committing crimes if they fear punishment. Example : The death penalty or long-term imprisonment for serious offenses like murder or terrorism acts as a deterrent for those considering committing such crimes. 2. Retributive Theory This theory is based on the principle of "an eye for an eye" or giving the offender what they deserve. It focuses on vengeance or moral satisfaction, ensuring the punishment is proportionate to the crime committed. The goal is not to ...

"When once the period of limitation begins to run subsequent, disability has no affect." The phrase "When once the period of limitation begins to run subsequent, disability has no effect" refers to the principle in the Limitation Act, 1963, which governs the time limits within which legal actions must be initiated. This principle is crucial in ensuring that claims are made within a reasonable time frame, promoting legal certainty and fairness. Under the Limitation Act, 1963, the period of limitation is the time within which a party must file a lawsuit. Once this period begins, it continues to run regardless of any subsequent disability or incapacity that may affect the claimant. Disability, in this context, refers to conditions such as minority, insanity, or idiocy. Section 6 of the Limitation Act, 1963, provides that if a person entitled to institute a suit or make an application is, at the time from which the prescribed period is to be reckoned, a minor, insane, o...

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...