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Remedy against decree obtained through

fraud
Introduction
Civil court possesses jurisdiction to entertain
suits or set aside decree or order obtained
through fraud or misrepresentation.
Relevant provision
Section 12 (2)_ of the c p c
Object of the section 12 (2)
The object of this section is provides
summary procedure to seeks relief against the
judgment order or decree which Is obtained
through fraud. And misrepresentation
Ingredients of section 12 (2)
Following are its ingredients
1. Person affected such as
a. Judgment debtor
b. Successor
c. Or affected person
2. Challenge the validity of the decree /order
judgment.
3. Plea of fraud/misrepresentation lack of
jurisdiction or collision
The judgment debtor shall seeks remedy
1. Set aside decree or order judgment
2. Alternative remedy
a. Modify decree, order and judgment
which obtained by fraud or
misrepresentative
a. Rectify decree, order and judgment
which obtained by fraud or
misrepresentative
Besides above mentioned remedies the
following remedies are also available to
the aggrieved person
a. Appeal
b. Review
c. Revision
Ground for section 12 (2)
a. Fraud
b. Misrepresentation
c. Collision
Limitation
The limitation is 3 years
Exception
1. Not applicable to interim order
2. If the defendant does not object to the
territorial
jurisdiction
pecuniary
jurisdiction of the court
Than this section will not be applied
Bar to the separate the suit
Only application can be filed in the same
court which has passed the final judgment,
decree or order
Conclusion. To conclude, I can say that the
Civil court possesses jurisdiction to entertain
suits or set aside decree or order obtained
through fraud or misrepresentation

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Exparte decree and proceedings


Remedies against expate
And exparte decree is a decree that is passed in
absence any response from the defendant as per
order 9 rule 16
Exparte proceedings
Means proceeding which are carried on in the
absence of defendant
Essential of expate proceedings
1) Appearance of plaintiff
Note appearance may by virtue of plaintiff,
recognized agent, pleader
2) Failure on the part of defendant to appear
3) Due service of summons on the defendant
4) Sufficient time for appearance by defendant
5) Where issues have been framed
Setting aside exparte proceedings
1) Appearance of defendant
2) Appearance before decree
3) Assign good cause for non appearance
Exparte decree
Means a decree passed by a judge the
judicial proceeding in the absence of
defendant.
Essential of exparte decree
2) In furtherance of proceedings
3) Adducing (presenting) evidence by
plaintiff
4) Discretion of the court
Setting aside exparte decree
1) Application to the same court order 9
rule 13
Grounds
a) Summon not duly served
b) Sufficient cause for non- appearance
If application is rejected
Review petition sec 114 cpc
Appeal sec 96 cpc
Application under 12 (2) cpc fraud or no
jurisdiction
Revision petition under section 115
Invocation of inherent jurisdiction
Writ petition sec 151 cpc
On the grounds of natural justice

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Jurisdiction of the court


Introduction
Where there is right there is remedy the
competent court to hear all civil suit or nature
Section 9
Issue of law
Jurisdiction relates to the issue of law
Note : Civil court as courts of unlimited
Unless otherwise barred the courts have
jurisdiction and hear all civil suits
Ingredients of section 9
Courts
There must be a court established by the
provincial authority.
Civil courts
The court which fall under section are the
following courts
The court of district civil judge
The court of district additional judge
The court of civil judge
The above courts are classified as under/
Court of civil judge first class.
Court of civil judge second class
Court of civil judge third class
High court which exercising ordinary original
civil jurisdiction
The scope and power to exercise authority
Kinds of jurisdiction
Subject matter jurisdiction
Subject matter jurisdiction relates to the
nature of claim made and the competent court
to entertain it.
Territorial jurisdiction
If relates to the regarding immoveable
property. With local limits of it jurisdiction
Pecuniary jurisdiction
It relates to the valve of subject matter.
It classified as under
1) Civil judge first class unlimited
jurisdiction
2) Civil judge second class five lac
3) Civil judge third class one lac
4) Personal jurisdiction
It Is also a kind of territorial jurisdiction
In such jurisdiction suit against a person
residing within it local limits.
5) Appellate jurisdiction
Civil court have jurisdiction relating to civil
nature appeals.
6) Revisional jurisdiction
Civil court have also jurisdiction in revisional
Bars jurisdiction
Absolute bars
1. Res judicata
2. Res sub judice u/s 10
3. Res judicata is the
jurisdiction. U.s 11

absolute

bar

Execution decree under section 48


1.
Relinquished/ whole or part of claim
2.
Wholly are partly dismissed
3.
Plaintiff insolvency
Conditional bars
1.
Public policy
2.
Political questions
Special acts
1.
Criminal matters
2.
Revenue matters
3.
Military courts
4.
Family matters
5.
Special tribunals
Conclusion
To conclude, I can said that civil courts have
jurisdiction to entertain all the civil, nature
except those in respect of which their jurisdiction
is expressly or impliedly barred.

PRINCIPLE OF RES SUBJUDICE


INTRODUCTION
In order to stop parties from multiple litigation in the
same suits The court confine parties using the
principle of res subjudice it prevents conflicting
judgments
Meaning of res subjudice
By it is meant that if a suit is pending before the court
subsequent suit regarding. Some subject matter shall
be stayed.
Provision in the provision in the court under section
10
Object of the res subjudice
Its object is to prevent concurrent jurisdiction at the
same time from entertaining the litigation of same
court.
Scope
It relates to the civil court
The rule of res subjudice is applicable on civil suits
Conditions for subjudice
1. Matter in both suits must be the same.
The entire matter must be directly and indirectly be
the same
2. Same parties
The parties in the subsequent suit must be the same.
3. Same title
The title must also be the same in both suits
4. Jurisdiction of the both suits
It is all also essential of that courts must have the
same jurisdiction to grant relief in both suits
5. Pendency of previous suit
The previous suit must be pending to attract section
10
That the previous suit must not have been decided
6. Application for section 10
At any stage but should be submitted in the court of
first instance.
7. Foreign
The section suit does not apply where a suit is pending
foreign court.
But the local court may restrain
8. Wavier of res subjudice
The parties by their act allow the court to proceed
with trial of subsequent suits the decree passed will
thus valid.
9. Conclusion
To conclude I can say that the principle maintained in
section 10 Of the code of civil procedure 1908. Is to
meet the ends of justice so to avoid the multiplicity

Principle of Res judicata


Introduction
The doctrine of res judicata is of great
importance in order to avoid multiplicity of suits
and to uphold the conclusiveness or sanctity of a
final judgment the court precludes subsequent
suits having same subject matter.
Relevant provision
Section 11 c p c
Meaning
If a matter has already been adjudicated upon any
court, it may not be re-opened by the original
parties
Significance
The significance can be reflected in the
following: Maxim
No man shall be vexed twice or the same case
Following are its objects
1. To prevent multiplicity of suits
2. To give finality and conclusiveness
3. To save the time of court
Conditions of res judicata
Matter in issue
The matter in issue shall pertain only and only to
issue in the suit
Directly and substantially in issue
Suit must be directly and substantially in issue
Subject matter
The subject matter must also pertain to the suit.
Constructive res judicata
By constructive res judicata is mean any matter
which might and ought to have been made a
ground in former suit shall not be raised in the
subsequent suit
Principle of constructive res judicata
The principle is that if both the parties have had
an opportunity to raise an issue which they may
and ought to in former suit shall be deemed to
waived
Bar to res judicata
If the decree is obtained by fraud.
Were passed by the court having no
jurisdiction
Effect of none raising the plea of constructive
res judicata
`Will be deemed to waived of
CONCLUSION
To conclude, I can be stated that the doctrine of res
judicata on general rule of that a man shall not be vexed
twice for the same cause of action

Difference between sub judice and res judicata


Introduction
It very important to make distinction between
section 10 and 11
Difference between these two principles
As to relevant provision
Res sub judice section 10
Res judicata section 11
1. As to meaning
Res sub judice a subsequent suit shall not be filed
where a former suit is pending.
Res sub judicata a subsequent suit shall not be filed by
same party, having same title and subject matter
2. As to object
In case of res sub judice the courts are prevented to
entertain concurrent litigation suit.
In case of res judicata, the object is to bar filing of a
subsequent suit
3. As to scope
Res sub judice is limited concept
Res judicata is sider concept and applies both to suit
and issue/
4. As to kind
in res subjudice there is no concept of constructive
sub judice
There is constructive judicial along with
5. As to plea
Res sub judice during the pendency of suit
Res judicata before framing of issues
6. As to defense
Res subjudice defense not given in written statement
Res judicata can be given in written statement
7. As to bar
Res sub judice bar the trial but not the institution of
suit.
Res judicata bars the adjudication of and also the
institution
8. As to original court
In res subjudice application has to made to the
original court
Whereas it is not so in res judicata
Conclusion
To conclude, I can say that there are many point of
distinction between the res subjudice and res judicata
but the difference between this two doctrines are that,
the former stays the proceeding of subsequent suit till
the previous on is and decided.
And res judicata bars the adjudication of subsequent
suit which had already been decided in the former
suit.

Return of plaint order 7 rule 10


The plaint is returned if it is not filed In
proper court due to lack of jurisdiction
Note rule 10 is of mandatory in nature
because the court has no option but to return
the plaint, if it is not filed before proper
forum.
When return of plaint is ordered
Can be ordered at any stage including appeal
stage
Grounds for return of plaint
1) Lack of jurisdiction
2) Lack of pecuniary jurisdiction
3) Lack of subject matter jurisdiction
4) Partial jurisdiction partial not
5) Cause of action has not accrued
Note where the court having no jurisdiction
gives its verdicts (decision) is (corom non
judice) is not binding on any one
Procedure of return of plaint
The judge shall mention following
particulars/grounds
1) Date of presentation of suit/plaint
2) Date of return of plaint
3) Name of party presenting it
4) The reason of returning
Remedies available where court returns,
the plaint
1) New suit in proper court
2) Amend the same plaint and institutes in
the proper court
3) Challenge orders through appeal
Appeal
Yes
Revision
barred

rejection of plaint order 7 rule 11


when the plaint is dismissed due to same
(technical fault)
and not on the merit of the case is called
rejection of plaint
1) does not disclose cause of action
if the plaintiff fails to specify cause of action
in the plaint, it shall be rejected at once
however, the court may ask the plaintiff to
provide a better statement or amend it or
rather than rejecting the plaint
2) under valuation of the suit
when the suit is under valued the court
will not reject the plaint rather will ask in
plaintiff to correct the valuation of the suit
and if plaintiff fails, the suit shall be
rejected
1) plaint written on paper in sufficiently
stamped
where the suit is properly valued but the plaint
is not written on sufficiently stamped paper,
the suit shall be deemed rejected
1) plaint barred by law
where the suit is barred by law, such suit be

deemed rejected

when plaint is rejected


The plaint be rejected at preliminary stage where
the plaintiff has not led the evidence.
Procedure of rejection of plaint
1) judge shall record an order to that effect
order 7 rule 13
2) judge shall record the reasons

Modes of rejecting plaint


a) on the application of the defendants
b) suo moto by the court
appeal
yes the rejecting plaint is appealable
revision
no

Non joinder and misjoinder


Parties to a civil suit are most important
Put all parties are not necessary for the
suit to adjudicated upon
Necessary parties
Are those which whom relief is claimed
Non necessary parties
are those who may be party to the suit,
but from whom no relief is claimed
In the absence of necessary parties,
the court may dismiss the suit, as it shall
not be able to pass effective decree
But a suit can never be dismissed due to
absence of non necessary parties
Relevant provision
Order 1 rule 9, 10, 13, Cpc
Mis-joinder of parties
Mis joinder of a party means a joinder of
a party who ought not to have been joined
either as plaintiff/ defendant it refers to
impleading an unnecessary party
Non joinder of parties
Non joinder of refers to a situation when a
party who ought to have been joined as a
party and is not impleaded in case of non
joinder of necessary party, the may
dismissed,
but not in case of misjoinder
For the purpose of non- joinder parties are
classified as necessary and proper party
Necessary party
A party in whose absence no effective
decree can be passed
Proper party
In contrast, joinder of proper party is
needed only for the convenience of court
in deciding the dispute
Effect of non joinder of necessary party
Non joinder of parties is not fatal to a suit.
The non joinder of necessary party may
lead to where the suit can but does not
have to be dismissed.
Effect of non joinder of proper party
Failure to implead proper party is never
fatal to a suit, the court will decide the
suit as far right of parties are concerned
Remedies for non joinder and misjoinder
Order 1 rule 10, allows the for remedies,
as
A) wrong plaintiff
if suit has been instituted in the name
of wrong plaintiffs, the court may
allow the substitution/ addition
Bona fide ones
Conditions
I.
bona fide mistake
II.
the addition / substitution is necessary
for deterring the real matter

B) court to add/ strike out


the court may order to add necessary
party or order to strike out un necessary
party
Modes of substitution / adding or striking out a
party
1) by the court on its own motion
2) upon application by party
Objection as to misjoinder or non joinder
The question is to be reside at the earliest possibility.
Where issues are settled or before each settlement
must be taken in first hearing
amendment in pleading
the plaint shall be amended where a party is added
/substitute or struck out
appeal
no appeal shall lie against order 1 rule 10
revision
can be lied
writ petition
can also be lied

Appeal
An appeal is a complaint made to the superior court
against the decree of a subordinate court there are two
Relevant provision section 96, 97, 98, 99 CPC
kinds of appeal
First appeal (appeal from original decree)
First appeal lies against the decree of the court of
original jurisdiction
Second appeal (appeal from the appellate decree)
Under section 100, 101, 102, 103, of CPC
Second appeal lies against the decree of sub ordinate
court. It lies to the high court
Properties of fist appeal
First appeal on both facts and law
i)
forum of appeal
first appeal lies to district court, but if the
valve of the suit is above two lacs, it shall
lie to the high court
ii)
person who appeal
a) parties to the suit
b) adversely affected by decree
c) legal representative of a party
d) a person represent by a party
e) a benamidar on behalf of real owner
f) transferee of the interests of party
g) a guardian on behalf of minor.
iii)
Appeal against preliminary decree
section 97
If a preliminary decree is passed by a
court, the aggrieved party shall raise
appeal against it within specified period,
otherwise barred.
iv)
Decision in appeal
The appeal shall be decided by majority
of the judges, and if no such majority on
point of law, the may refer it (point) to
other judge (referee)
v)
No appeal on ground of misjoinder
No appeal shall lies on the grounds of
misjoinder of the parties
SECOND APPEAL
Second appeal lies only on fact of law
Properties of second appeal
Following are its properties
I)
Forum of appeal
Second appeal shall lie only to the
high court.
Grounds for second appeal
a) Decision contrary to law
Where decision is not based on evidence
Court acts with out jurisdiction
b) Decision contrary to usage having force
of law
c) Substantial error /defect in procedure
II)
Where second appeal is barred
No second appeal shall lie in
1. Suit of nature cognizable by court
of small cause.
2. Suit where valve does not exceed
2,50,000
III)
No plea in second appeal

AMENDEMT IN PLEADING ORDER 6 Rule 16


Introduction
Full power of amendment must be enjoyed and should
be liberally exercised by the courts. Whenever it is
necessary to make amendment in the pleadings. Court
should grant leave to it.
Relevant provisions Order 6 Rule 16, 17, & 18
Section 153 of CPC
Essential of amendment
1. Leave of the court
Amendment is possible with court, permission
2. Discretion of court
Court has discretion to allow/ disallow
3. Application by party
The party must forward application of
amendment[note in Rule 17]
4. At any stage of proceedings
A suit can be amended at any stage of
proceeding
Leave to amend, when refused
The leave to amend will be refused when
a) Amendment not necessary to determine the
real controversy.
b) Where the whole suit is disputed
c) Made at later stage
d) Not made at good faith
Who may apply
Under Rule 16 the opponent party or the court suo
moto
Under Rule 17 any self pleading can be amended
Refusal under order 6 Rule 16 by the court
The court will reject the proposed amendment suo
moto in
a) Unnecessary matter
b) Scandalous against someone
c) Embarrassing
d) Delay
e) Prejudice
Under rule 18 failure to amend after order of
the court,
After the order of leave to amendment has been
granted, it shall be amended with 114 days
Note
1.
Amendment for consequential relief can
sought
2. Amendment for conversion of relief can also
be sought
Appeal
No appeal lie against the order of amendment
Revision
Revision lies against the acceptance/ refusal of
such order

LIMITATION ACT 1908


Limitation Act legal disability
Relevant provision
Section 6 to 8 limitation Act
The want/ lack of qualification to sue due to minority,
lunacy or idiocy.
Legal disability extends the period of limitation till the
attainment of legal capacity.
Legal disability exception to the general rule
The general states that every suit/ application be filed
within prescribed period.
But in case of legal disability the time will not run
from the accrual of the cause of action.
Grounds for legal disability.
Law recognizes the following three grounds
1. Minority.
A person who has not attained the age of
eighteen years is a minor.
He shall institute the suit after (18 years+ 3
years. Section 8)
2. Insanity
A person who lacks understandings is an
insane, temporary loss of memory does not
fall under this section.
3. Idiocy.
An idiot is a person having no rational to see
the things as thing as they are
There are two kinds of disabilities/
successive disabilities section 6 (2)
Where there are two disabilities or successive
ones, the limitation period will start when
both disabilities comes to end.
Continuation disability, up to death section
6 (3).
Where disabilities continuous till the death of
a person, his legal representatives shall
institute the suit within three years after his
death (under section 8)
Disability of one of several plaintiffs
section (7)
Where a several person have right to sue and
one of them becomes disabled to be
represented properly, the proceeding shall
delayed during the course of that disability,
but where other can (protect the disabled
(discharge), the time shall cease
Limitation on extension of limitation
period section 8
Once legal disability has come to an end, the
suit shall be instituted within 3 years and no
further extension shall be allowed.

Review section 114 CPC order 47


Introduction
The aim of the review is to enable the court to correct
errors in decisions pronounced by them.
Relevant provision
Section 114 cpc order 47
Application of review
By aggrieved person
Note sue moto review is not allowed
Authority to hear review
1. Any judge of high court when a decree/order has
been passed by high court
2. Same judge of the court other than high court.
Grounds circumstances for review
1. Where right of appeal is allowed but aggrieved
person prefers review.
Note review not allowed when appeal preferred
2. Where no right of appeal is allowed
3. Discovery of new and important matter or error
Exp:1. Judgment delivered with out notice
2. Failure to apply law
3. Failure to apply law of limitation
Order of rejection non- appealable
An appeal will lie against granting of review application
and not against rejection
Limitation period of review
The limitation period of review is 90 days
Exception in section, 161 162 of limitation Act
REVISION Section 115
Introduction
A revision is re- examination or careful reading over, for
correction or improvement
Relevant provision
Section 115
Cross reference 199 and 203 of the constitution.
Mode of revision
1. By application of aggrieved party
2. Suo motu by the court
Authorities so empowered
1. High court
2. District court
3. Additional district court
Condition for revision
1. Cases decided
2. Case decided by subordinate court
3. In which on appeal lies
Grounds for revisions
1. Illegal assumption of jurisdiction
2. Non- exercise of jurisdiction
3. Illegal/ irregular exercise of jurisdiction
Limitation period for review
Limitation for the decision of high court is 90 days
And other court 20 days