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C.P.C.

Que. 1. Write short Notes


i. Judgment Debtor - In Section 2(10) of C.P.C judgment debtor means any person against whom a decree
has been passed or an order capable of execution is passed. The term judgment debtor does not include
assignee of the judgment debtor. [ (1912)13 Ind. Cas. 659 (DB) Mad.]
A person who is a party to the suit but against whom no decree has been passed is not a judgment debtor.
[Janki Amma v. Meerayana, AIR 1954 Trav. Co. 223]
The term judgment debtor does not include legal representative of a deceased judgment debtor [Iaq v.
Ramji, AIR 1952 All 618]
A surety of a judgment debtor is not himself a judgment bebtor. [ Vijay Raj v. Lal Chand, AIR 1966 Raj 194]
However, when a decree is passed against a surety he is a judgment debtor within the meaning of this
Section. [Shivbasappa v. Marigowda, AIR 1934 BOM 252]
ii. Fact 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,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.
'Fact in issue' are those facts, which are alleged by one party and denied by other party in the pleading in a
civil case or alleged by the prosecution and denied by the accused in a criminal case.
Example - A is accused of murdering B. at trial, the following facts may be in issue.
That A caused B's Death. (It refers to the question, whether A has caused the death of B. If the answer is
'No', A is discharged/ acquitted. If the answer is 'Yes' the following questions will arise)
That A is intended to cause B's Death. (If A caused B's death, the next question arises is, whether A had
an intention to B's death or, not. If the intention (Mens Rea/Mental element) is present, it is murder or
culpable homicide and A is awarded serious punishment i.e. death or life imprisonment. Otherwise (if
intention/mens rea is absent) it amounts to an accident, which is a defense Under Section 80 I.P.C. If the
accident is by negligence, the punishment is up to two years imprisonment or fine or both)
That A had received grave and sudden provocation from B (It refer to the question, whether B
is instrumental/responsible for such a grave and sudden provocation by A, accuating to cause B's death.)
That at the time of committing the act, whether A was incapable of knowing the nature and extent of the
consequences (of his act) by reason of unsoundness or other (Even if A caused B's death intentionally, A
may plead the defence, on the ground that he was incapable of knowing the nature and extent of
consequence of the act he was doing, due to insanity under Section 84 I.P.C. , drunkenness under Section
85 and 86 I.P.C etc.)
In short, the questions, which give rise to a right or liability are called Fact in Issue. The fact in issue is also
known by its Latin name 'Factum Probandum' or that which is to be proved

iii. Mesne profit - The ‘Mesne Profits’ has the same meaning both under Section2(12) and Section 144 of the
Code. It means those profits which the person in wrongful possession of property actually received or
might with ordinary diligence have received therefore together with interest there on but shall not include
profits due to improvement by the person in wrongful possession.
In short, it means those profits which a person is entitled from which he has been kept out by the
defendants. [ D. Satyanarayana Murthy v. Bhavanna, AIR 1957 Andh Pra 766] Mesne Profits includes
interest, Salami, Rent when Sale is set aside.
The Rationale behind awarding a decree for Mesne profits is to compensate the person who has not only
been kept out of possession of the property but also deprived of enjoyment of his property even though
he was entitled to the possession of such property. Mesne profits can be awarded only in respect of
wrongful possession of immovable property and not in regard to such property which cannot be deemed
to be immovable property.
iv. Preliminary Decree - A preliminary decree is a decree which does not completely dispose of the suit and
further proceedings are still required in the matter. An adjudication which finally decides the rights of the
parties but does not completely dispose of the suit is a preliminary decree. [Venkata Reddy v. Pethi Reddy,
AIR 1963 SC 992]
It is only a stage in the working out the rights of the Parties which are finally adjudicated by the final
decree. Till then the suit continues. The code contemplates passing of preliminary decree in the following
cases –
a. Suits for possessions and mesne profits (Order 20, Rule 12)
b. Administrative suits (Order 20, Rule 13)
c. Suits for pre-emption (Order 20, Rule 14)
d. Dissolution of partnership (Order 20, Rule 15)
e. Accounts between principal and agent (Order 20, Rule 16)
f. Partition of Property and Separate possession therein (Order 20, Rule 18)
g. Foreclosure of mortgage (Order 34, Rule 2 and 3)
h. Sale of mortgaged property (Order 34, Rule 4 and 5)
i. Redemption of a mortgage. (Order 34, Rule 7 and 8)
List of Suits as referred to above in which preliminary decree may be passed is not exhaustive. Depending
upon the facts of the case, a preliminary decree may be passed in other situation also.
v. What are necessary and proper parties?
a. Necessary Party – A necessary Party is a party whose presence for the suit is absolutely essential and in
whose absence an effective decree cannot be passed. Two tests have been laid down by the full Bench
decision of the Allahabad High Court in [Banaras Bank Ltd. V. Bhagwan Das AIR 1997 All 18], for
determining the question as to who is a necessary party to a proceeding
1. There must be a right to some relief against such party in respect of the matter involved in the
proceedings in question, and
2. It should not be possible to pass an effection decree in absence of such a party.
The above view of the Allahabad High Court was approved by the Supreme Court of India in [Deputy
Commissioner, Hardoi, Incharge of Court of Wards v. Rama Krishna Narain, AIR 1953 SC 521]
b. Proper Party – A person is a proper party if his presence enables the Court to adjudicate upon the
question raised in a suit more effectually and completely. [United Provinces v. Atiqua Begum AIR 1941
FC 16]
In other words, a proper party is one whose presence in the suit is not necessary but whose presence
enables a court to decide the question involved in the proceeding more effectively and completely.
Thus for example where a suit is filed by landlord house owner against the tenant for recovery of the
possession of the House, sub-tenant is a proper party. Similarly, where partition suit is filed by sons
against father, grandsons are the proper party.
vi. Pleadings - Order VI, Rule I defines the term ‘pleading’. It means plaint or written statement. Plaint is
prepared by the plaintiff, while written statement is prepared by the defendant. As such we can say that
pleading means plaint for plaintiff and written statement for the defendant. According to P. C. Mogha –
Pleadings are statements in writing drawn up and filed by each party to a case, stating what his contention
will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in
answer.
The Supreme Court of India, baring its decision in Manphul Singh v. Surinder Singh AIR 1973 SC 2158 laid
down in brief the following objects of pleading –
1. To give each side intimation of the case of the other, so that it may be met.
2. To enable the courts to determine what is really at issue between parties; and
3. To prevent deviations from the course which litigation or particular causes must take.
4. To decide the rights of the parties in the trial.
vii. Set Off - Literal meaning of set-off is a claim set against another. It is also said as a counter claim or
counter balancing debt pleaded by the defendant in an action to recover the money due.
In other words, it is a reciprocal acquittal of debts between two persons. Defendant pleading the set-off is
in the position of a plaintiff with regard to the amount claimed by him by way of set off. Conditions for the
applicability of the rule – The defendant may set up a claim of set-off if the following conditions are
satisfied.
1. The suit must be are for the recovery for the money.
2. The sum of money must be ascertained or definite
3. Such sum must be legally recoverable
4. It must be recoverable by the defendant or by all the defendants if more than one.
5. It must be recoverable from the plaintiff or from all the plaintiffs, if more than one.
6. It must not exceed the pecuniary jurisdiction of the Court in which the suit is filed; and
7. Both the parties, must fill, in the defendant’s claim of set-off, the same character as they fill in the
plaintiff’s suit.
viii. Counterclaim - Order 8, Rule 6-A to 6-G, which were added y Civil Procedure Code (Amendement) Act,
1976 deal with provisions relating to counter-claim by the dependant. A counter claim is a cross action by
defendant against plaintiff and secures to defendant the full relief with a separate action at law, provided
that –
1. Such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.
2. Such counter-claim shall have the same effect as a cross-suit so as to enable the court to pronounce a
final judgment in the same suit, both on the original claim and on the counter-claim.
3. The plaintiff shall be at liberty to file written statement in answer to the counter-claim of the
defendant within such period as may be fixed by the Court
4. The counter-claim shall be treated as a plaint and government by the rules applicable to plaints.
5. The effect of preferring a counter-claim is that to its extent the defendant becomes a plaintiff and the
plaintiff becomes a defendant.
ix. Period of limitation - The Limitation Act, 1963 Section 2 (j) defines - “period of limitation” means the
period of limitation prescribed for any suit, appeal or application by the Schedule, and “prescribed period”
means the period of limitation computed in accordance with the provisions of this Act;

Que. 2. Explain the nature of civil suit.


Answer. Suit of Civil Nature – In the case of Jiban Krishan v. S.T. Authority AIR 1969 Cal 607(FB) Calcutta High Court
held that the word ‘civil’ simply means pertaining to private rights and remedies of a citizen. The word civil according
to the dictionary means “relating to the citizen as an individual; civil rights.” In law it is understood as an antonyms of
criminal.
The word ‘nature’ has been defined as “the fundamental qualities of a person or thing; identity or essential character;
sort; kind; character.”
According to Explanation I - attached to section 9 of the code. A suit in which the right to property or to an office is
contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions
as to religious rites or ceremonies.
Thus this explanation to section 9 involves two things –
i. A suit for right to property or an office is a suit of civil nature, and
ii. It does not cease to be one merely because the said right depends entirely upon the decision of a question
as to religions rights or ceremonies
In view of above discussion it can be said that a suit in which the principal question or the only question to be
determined relates to civil right and its enforcement the suit is of civil nature. On the other hand, if the principal or
the only question in the suit is a question relating to caste or religious rites or ceremonies, the suit is not of a civil
nature because it does not deal with the rights of citizen. They are the matter relating to caste or religious rites or
ceremonies is not the principal question to be determined in the suit but a subsidiary or incidental one, the principal
question in the suit is one relating to a civil right, a right to an office or right to property and such question (principal
one) cannot be decided without deciding the question relating to cast or religious rites or ceremonies, in such a case
the court can decide the question relating to caste or religious rites or ceremonies in order to adjudicate upon the
principal question.
The Supreme Court of India was faced with a proposition mentioned just above in Dt. Council of URMC v. Salvador N.
Mathias (1968)2 SCC 31. In the case Supreme Court considered whether a suit claiming a right of worship is of a civil
nature and the nature of enquiry that a Court shall make in such a suit. The court laid down the following proposition.
i. Under section 9, the court will enquire into disputes of civil nature.
ii. A right to worship is a right of a civil nature and a suit for the vindication of such a right would be
maintainable.
iii. The scope of enquiry in such a suit is limited to those aspects only that have a direct bearing on the
question of right of worship and the court may examine the doctrines faith, rituals and practices for the
purpose of ascertaining whether they interface with the right of worship of the aggrieved parties, but the
Court cannot consider the soundness or property of any religious doctrine, faith or ritual.
Instances of suit of Civil Nature –
i. Suit by a Govt. Servant for arrears of salary for the period he was actually in office.
ii. A suit to establish a right of worship
iii. Suit relating to taking out religious procession
iv. Suits relating to right to property
v. A suit in which right to burial is involved
vi. A suit for dissolution of marriage, a suit for dissolution of Hindu marriage.
vii. A suit for hereditary office of a family priest.
viii. A suit involving declaration of right to run customary bull Race and for injunction
ix. A suit to recover Agriculture Income Tax from assessee.
Instances of suits not of civil nature –
i. A suit involving right to privacy, since right to privacy is not recognized by law, a suit would not lie.
ii. Suits involving principally caste questions
iii. A suit involving the question of ritual
iv. Suit involving merely dignity or honor.
v. A suit for recovery of voluntary offering.
vi. A suit for declaration that punishment by Education Authorities on Student as void.
vii. A suit for rendition of accounts between promisor or promise or between two contracting parties.
In Raja Ram Kumar Bhargawa V. Union of India AIR 1988 SC 752 the question was whether a suit for interest on the
income tax and excess profits tax refunded was maintainable, the Supreme Court of India did not decide the question
of maintainability of the suit, because the respondents agreed to pay the interest on express profit tax. However, the
Supreme Court restated two general propositions-
i. Whenever a right, not pre-existing in common law is created by a statute and that statute provided the
machinery for the enforcement of the right, then the civil court’s jurisdiction would be barred by necessary
implication even in the absence of an exclusionary provision; and
ii. If a right pre-existing in common law is recognized by a statute and a new statutory remedy for its
enforcement is also provide by statute, without expressly excluding the Civil Court’s jurisdiction, then both
the common law and statutory remedies are available.

Que. 3. What are the various modes of Service of summon.


Answer. Summons - A summons is a legal document that is issued by a Court on a person involved in a legal
proceeding. When a legal action is taken against a person or when any person is required to appear in the court as a
witness in a court proceedings, to call upon such person and ensure his presence on the given date of the
proceedings, summons is served. If the summons is not duly served then no action can be taken against the
defendant. If defendant fails to attend court after receiving summons, he will be ex-parte by the Court.
Service of Summons - Section 27 and Order V of the Code of Civil Procedure, 1908 deal with ‘Service of Summons’ on
the defendant/Respondent. Order 16 deals with summoning and attendance of witnesses. Order V of CPC contains
Rules 1 to 30. These provisions deal with issue and service of summons. Under the Code of Civil Procedure, 1908,
there are different modes of effecting service of summons on defendant. It is needless to say that non-service of
summons and notices in civil suit proceedings is a great hurdle for speedy disposal of a civil suit. There are several
reasons for non-service of summons to defendant in time. Furnishing correct address of the defendant in the plaint
would be helpful to avoid delay in service of summons. Recently, the Courts have expanded the scope of service of
summons through information technology. We often across with the situations that in many civil cases, defendant
takes plea that summons was not duly served on him. Similarly, in general, courts often use the method of substitute
of service of summons by way of paper publication.
Various Modes of Service of Summons –
1. Personal or Direct Service - Rules 10 to 16 and 18 deal with personal or direct service of summons upon the
defendant. This is an ordinary made of service of summons. Here the following principle; must be
remembered:
i. Where it is practicable, the summons must be served to the defendant in person or to his authorized agent
(rule 12).
ii. Where there are more defendants that one, service of the summons shall be made on each defendant
(rule 11).
iii. Where the defendant is absent from his residence at the time of service of summons may be served on
any adult male member of the defendant’s family residing with him (rule 15).
In all above cases, service of summons should be made by delivering or tendering a copy thereof.
2. Service by Affixation - Rule 17 specifies this method. When the defendant or his agent refuses to accept
personal service of summons, this method is to be used when the defendant or his agent refuses to accept
personal service, the serving officer shall affix a copy of the summons to on the outer door or some other
conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally
works for gain.
Mere temporary absence of a defendant from his residence or place of business does not justify service by
affixation. Leading Case: – Shamsunnahar Vs. Salahudding, 4 M L R (A D) 405
3. Service by Post - Rule 19B specifies that the court shall, in addition to, and simultaneously with, the issue of
summons for personal service, also direct the summons for personal service, also direct the summons to be
serve, by registered post with acknowledgement due addressed to the defendant or his agent at the place
where the defendant or his agent actually and voluntarily resides or carriers or business. Leading Case: –
Gyanammal Vs. Abdul Hussain
4. Substituted Service - The Provision for substituted service is provided for in Rule 20 or order 5 of the C P C.
Rule 20 specifies that in two situations the method of substituted service may be restore to:
i. When there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding
service, or
ii. When for any other reason summons cannot be served in the ordinary way.
5. Service in Special Cases - Apart from the above four types of modes of service of summons rules 21 to 30 to
deal with another mode of service which deal with service outside the Jurisdiction of the courts etc.
6. Summons/Notices through E-mail:- The Hon’ble Supreme Court of India, in Central Electricity Regulatory
Commission Vs. National Hydroelectric Power Corporation Ltd., (2010) 10 SCC 280], permitted the service of
Notice by email along with the ordinary mode of serving notice.
7. Summons though Whatsapp - In Tata Sons Limited & Ors vs. John Does, CS(COMM) 1601/2016, His Lordship
Justice Rajiv Sahai of the Hon’ble Delhi High Court permitted the right to serve summons to the defendant via
Whatsapp texts as well as by emails to a defendant. In a recent case, Justice Surabhi Sharma Vats of the Delhi
High Court allowed a woman to serve the summons to her estranged husband who was living in Australia via
Whatsapp. Moreover, the court considered “double-tick” as valid delivery of summons.
In conclusion, it can be said that Summons has play an important role in that code of Civil Procedure, 1908.

Que. 4. Explain the term. Inherent powers of the court. When can such powers are used by the Court.
Answer. Inherent power of the court - The word “Inherent” is very wide in itself. It means existing and inseparable
from something, a permanent attribute or quality, an essential element, something intrinsic, or essential, vested in or
attached to a person or office as a right of privilege. Hence, inherent powers are such powers which are inalienable
from courts and may be exercised by a court to do full and complete justice between the parties before it.
There are many sections in the CPC that provides for the same i.e. Section 148, 148-A, 149, 150, 151, 152, 153 and
153-A of CPC.
Principle: In the cases where the C.P.C does not deal with, the Court will exercise its inherent power to do justice. If
there are specific provisions of the C.P.C dealing with the specific issue and they expressly or by basic implication,
then the inherent powers of the Court cannot be invoked as inherent powers itself means those which are not
specified in C.P.C.
The section confers on the judges to make such orders that may be necessary to make justice achievable. The Power
can be invoked to support the provisions of the code but not to override or evade other express provisions as C.P.C. is
the basic law which governs the functioning of the courts.
When Can An Inherent Power Be Exercised - Under S. 151 there are two major principles the court must take into
consideration while exercising its inherent powers. The first being that the powers are to be exercised only for the
ends of justice and second, it should be to prevent abuse of process of the court. Such power must not be exercised
when prohibited or excluded by the Code or other statutes and in situations when there exist specific provisions in
the Code applicable to the litigation at hand.
Power To Be Exercised Only For The Ends Of Justice - Courts have inherent power to pass interim orders for ends of
justice or to prevent failure of justice. It has been observed by the Supreme Court that the interests of justice are the
prime consideration in granting or not granting prayers in a petition under S.151 and no rule or procedure can curtail
that power of the court. Where the order of the is in the interest of justice, the higher court can refuse to interfere
under S.115, even if the court below has no jurisdiction to pass such an order. The interference in revision is
discretionary and should be used only in interest of justice and not in a case where it is not. Illustrating example of
this principle can be found in the judgment of the Patna High Court. It held that the fact that the dismissal could be
reviewed or revised under O 47, should not come in the way of exercising power under this section. Likewise,
interference on the grounds of safeguarding the rights of the minor as envisaged by S.31 of the Guardians and Wards
Act 1890 was held necessary. The court can also interfere, in the interest of justice, with an order especially an ex
parte order, which has been issued through its mistake, even suo motu. As in the case of any other case even in such
situation the court cannot grant a relief under inherent jurisdiction, if the same relief can be granted by another
court, under an express provision of the Code.
Power To Prevent Abuse of Process of The Court - According to Mulla the words ‘abuse of process of courts’, is
defined as follows:
Abuse of process of court, is the malicious and improper use of some regular legal proceedings to obtain an unfair
advantage over an opponent. Nothing short of obvious fraud on the part of a debtor would render him liable to have
his petition for insolvency dismissed on the grounds of ‘abuse of process of court. The term is generally used in
connection with action for using some process of court maliciously to the injury of another person.
The High Court has inherent power under S.151, under Letters patent, and under Art 215 of the Constitution to
prevent abuse of its process. For an instance, it is an abuse of the process of the court when the facts germane to the
issue are either not disclosed to the court or are not stated in the true sense of it. Inaccurate facts must be of such
nature so as to enable the plaintiff to obtain the relief which he would not have got had he disclosed the correct facts.
Inaccuracies which did not have such a result would not be sufficient to dismiss the cause.
Where a decree of the first appellate court has become final, by its not having been interfered with in the second
appeal, an application for stay of its execution cannot be granted on the ground, either of abuse of process of court or
in the interest of justice, merely because a review application against such a decree is pending.
Limitations - It can be clearly seen that the inherent powers of the court are extensively wide and residuary in nature.
Though, one cannot rule out the fact that the same inherent powers can be exercised ex debito justitae only in the
absence of express provisions in the code. The restrictions on the inherent powers are not there because they are
controlled by the provisions of the Code, but because of the fact that it shall be presumed that the procedure
provided by the legislature is dictated by ends of justice.
Conclusion - Section 151 CPC is not a substantive provision. Sections 148-153A bestow the courts with very wide and
extensive powers to minimize litigation, avoid multiplicity of proceedings and render full and complete justice
between the parties before them. Sec 151 saves inherent power of the court, which is supposed to be exercised ex
debito justitae, i.e., in the interest of the justice. These powers are not conferred upon the court. In the end, one has
to look up to the judgment of J. Subbarao who made a very poignant observation in the case of Ram Chand P Sons
Sugar Mills Ltd. V. Kanhayalal Bhargava.
“Whatever limitations are imposed by the construction of the provisions of Section 151 of the Code, they do not
control the undoubted power of this court conferred under section 151 of the Code to make a suitable order to
prevent the abuse of the process of the court.”

Que. 5. What is Res-Subjudice and Res judicata? Explain


Answer. Res-Subjudice - Subjudice in Latin means ‘under judgment’. It denotes that a matter or case is being
considered by court or judge. When two or more cases are filed between the same parties on the same subject
matter, the competent court has power to stay proceedings. However, the doctrine of res sub judice means stay of
suit. The Civil Procedure Code provides rules for the civil court in respect of the doctrine of res sub judice. This rule
applies to trial of a suit not the institution thereof.
The doctrine of res sub judice aims to prevent courts of concurrent jurisdiction from simultaneously entertaining and
adjudicating upon two parallel litigations with respect to the same cause of action, same subject matter and same
relief claimed.
Section 10 of the Civil Procedure Code, 1908 embodies the doctrine in these words:-
“No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue
in a previously instituted suit between the same parties, where such suit is pending in the same or any other Court in
India having jurisdiction to grant the relief claimed.
Explanation: The pendency of a suit in a Foreign Court doesn’t preclude the Courts in India from, trying a suit founded
on the same cause of action.”
Thus it provides that, civil court should not proceed with the trial of any suit in which the matter in issue is directly
and substantially in issue in a previously instituted suit between the same parties and the court before which the
previously instituted suit is pending is competent to grant the relief sought (Indian Bank v. Maharashtra State Cop.
Marketing Federation Ltd., AIR 1998 SC 1952).
The Object of the section is to protect a person from a multiplicity of proceedings and to avoid a conflict of decisions.
It also protects the litigant people from unnecessary harassment (SPA Annamalay Chetty v. BA Thornlill, AIR 1931 PC
263).
Conditions to be complied with before the application of the principle:
1. There must be two suits one previously instituted and the other subsequently instituted.
2. The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit.
3. Both the suits must be between the same parties or their representatives.
4. The previously instituted suit must be pending in the same court in which the subsequent suit is brought or in
any other court in Bangladesh or in any court beyond the limits of Bangladesh established or continued by the
Government or before the Supreme Court.
5. The Court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the
subsequent suit.
6. Such parties must be litigating under the same title in both the suits.
If these conditions are fulfilled, the subsequent suit must be stayed by the court where it is pending. It must be
remembered that the institution of the subsequent suit is not ‘barred’ but its ‘trial’ only. The final decision of the
former suit shall operate as res judicata in the subsequent suit.
This Doctrine cannot be applied when the point at issues are distinct and different (Alimallah v. Sheikh, 43 DL RLL 3),
or even where there are some issues in common and others are different issues (Abdur v. Asrafun, 37 DLR 271). It is
also not applicable between the suits where although the parties are same, the issues are not the same (Manzar v.
Rema, 33 DRL 49).
Res Judicata - The principle of the Res Judicata simply means that if a competent authority has already adjudicated
upon an issue, the same parties which were party to the former suit, cannot file another second or third suit, asking
the court to adjudicate upon the issue, which is similar to the issue already adjudicated upon in the former suit. The
court then disallows the filing of the second matter. This principle facilitates ‘judicial efficiency’, and curbs the filing of
‘frivolous and repetitive suits’, on the same matter.
The Principle of ‘Res Judicata’ is embodied under Section 11 of the Civil Procedure Code, 1908 (Besides this, Section
300 of Code of Criminal Procedure, 1973 and Sections 40-43 of Indian Evidence Act) in Indian Law. The Provision of
the Civil Procedure Code, 1908 follows:-
“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 Court competent to try such subsequent suit or the suit in which such issue
has been subsequently raised, and has been heard and finally decided by such Court”.
In State of Karnataka v. All India Manufacturers Organisation P Ors., AIR 2006 SC 1846, the Apex Court held that
doctrine also applies in a case of PIL (Public Interest Litigation), provided the earlier case was a genuine and a bona
fide litigation as the judgment in the earlier case would be a judgment in rem.
In Mohanlal Goenka v. Benoy Krishna Mukherjee P Ors., AIR 1953 SC 65, the Supreme Court held that even an
‘erroneous decision’ on a question of law attracts the doctrine of res judicata between the parties to it. The
correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res
judicata.
The conditions to be complied with before the application of the principle are:-
I. The matter directly and substantially in issue in the subsequent suit must be the same matter which was
directly and subsequently in issue, either actually or constructively, in the former suit.
II. ii. The former suit must have been a suit between the same parties or between parties under whom they or
any of them claim. Res judicata not only affects the parties to the suit but his privies, i.e., persons claiming
under them.
III. The parties must have litigated under the same title in the former suit. The expression “same title” means in
the same capacity.
IV. The court which decided the former suit must have been a court competent to try the subsequent suit or the
suit in which such issue is subsequently raised (This condition is done away by insertion of Explanation VIII in
s.11).
V. The matter should be heard and finally decided. If an opinion is expressed on issues not material to the
decision, then res judicata will not apply. (Matter be heard on merits and dismissal on grounds of procedural
infirmities will not attract the application of ‘res judicata’).
There are certain exceptions when the principle cannot be applied:-
a. If the decree has been obtained by practicing misrepresentation or fraud on the court, or where the
proceedings had been taken all together under a special statute.
b. Not every finding in the earlier judgment would operate as a res judicata. Only an issue, which is
‘directly’ and ‘substantially’ decided in the earlier suit, would operate as res judicata.
c. Where the decision has not been given on merit, it would not operate, in case, the appeal of the
judgment and decree of the court below is pending in the appellate court, as then the judgment of the
court below cannot be held to be final, and the findings recorded therein would not operate as res
judicata.
d. When the judgment is non-speaking. (Union of India v. Pramod Gupta (Dead) by LRs P Ors., (2005) 12
SCC 1).
e. Where the matter has not been decided on merit earlier, the doctrine of res judicata is not applicable
(State of Uttar Pradesh P Anr. v. Jagdish Sharan Agrawal P Ors., (2009) 1 SCC 689).
f. It does not apply to criminal cases, where the entire proceedings have been initiated illegally and
without jurisdiction. Fatima Bibi Ahmed Patel v. State of Gujarat (2008) 6 SCC 789.
g. When a matter involves a pure question of law (Raju Ramsing Vasave v. Mahesh Deorao
Bhivapurkar, (2008) 9 SCC 54).
h. In cases of Dismissal in limine or dismissal on default, the principle of res judicata does not apply.
The distinction between “Res Subjudice” and “Res Judicata”.
Res Subjudice is discussed in s.10, CPC; while Res Judicata is discussed in s. 11, CPC.
Res Subjudice applies to the proceedings pending in the court, i.e., matters pending judicial inquiry; while Res
Judicata applies to matters already adjudicated upon.
Res Subjudice stays the latter suit instituted in the court which has the same matter directly and substantially in issue
in the previous suit; while Res Judicata bars the trial of a suit in which the matter is directly and substantially in issue
has already been adjudicated upon in a previous suit.
In the case of Res Subjudice, the previously instituted suit must be pending in the same court in which the subsequent
suit was brought or in a different court having jurisdiction to grant the relief claimed; while in Res Judicata, No such
requirement is needed.

Que. 6. The Law of limitation does not extinguish the right. It merely bars the remedy. Discuss.
Answer. Extracts from the judgment in the case of Bombay Dyeing and Mfg Co. Ltd. v. State of Bombay AIR 1958 SC
328 :
Section 27 of the Limitation Act provides that when the period limited to a person for instituting a suit for possession
of any property has expired, his right to such property is extinguished. And the authorities have held-and rightly, that
when the property is incapable of possession, as for example, a debt, the section has no application, and lapse of time
does not extinguish the right of a person thereto.
Under Section 25(3) of the Contract Act, a barred debt is good consideration for a fresh promise to pay the amount.
When a debtor makes a payment without any direction as to how it is to be appropriated, the creditor has the right to
appropriate it towards a barred debt. It has also been held that a creditor is entitled to recover the debt from the
surety, even though a suit on it is barred against the principal debtor. And when a creditor has a lien over goods by
way of security for a loan, he can enforce the lien for obtaining satisfaction of the debt, even though an action
thereon would be time-barred.
In American Jurisprudence, Vol. 34, page 314, the law is thus stated:
'A majority of the courts adhere to the view that a statute of limitations as distinguished from a statute which
prescribes conditions precedent to a right of action, does not go to the substance of a right, but only to the remedy. It
does not extinguish the debt or preclude its enforcement, unless the debtor chooses to avail himself of the defence
and specially pleads it. An indebtedness does not lose its character as such merely because it is barred, it still affords
sufficient consideration to support a promise to pay, and gives a creditor an insurable interest.'
In Corpus Juris Secundum, Vol. 53, page 922, we have the following statement of the law: 'The general rule, at least
with respect to debts or money demands, is that a statute of limitation bars, or runs against, the remedy and does not
discharge the debt or extinguish or impair the right, obligation or cause of action. '
The position then is that under the law a debt subsists notwithstanding that its recovery is barred by limitation.
The modes in which an obligation under a contract becomes discharged are well defined, and the bar of limitation is
not one of them. The following passages in Anson's Law of Contract, 19th edition, page 383, are directly in point:
'At Common Law, lapse of time does not affect contractual rights. Such a right is of a permanent and indestructible
character, unless either from the nature of the contract, or from its terms, it be limited in point of duration. But
though the right possesses this permanent character, the remedies arising from its violation are withdrawn after a
certain lapse of time; interest reipublicae ut si finis litium. The remedies are barred, though the right is not
extinguished."
"And if the law requires that a debtor should get a discharge before he can be compelled to pay, that requirement is
not satisfied if he is merely told that in the normal course he is not likely to be exposed to action by the creditor."
The Bombay High Court in the case of J.K. Chemicals Ltd. v. CIT [1966] 62 ITR 34, again considered the question. The
assesse-company, which kept its accounts on the mercantile system, debited the accounts as and when it incurred
any liability on account of wages, salary or bonus due to its employees even though the amounts were not disbursed
in cash to the employees, and obtained deduction of the amounts so debited in the respective years in computing its
total income. Certain portion of the wages, salary and bonus, so debited, was in fact not drawn by the employees. On
June 30, 1957, a sum of Rs. 5,929 which had remained undrawn but had been allowed to be deducted during the
accounting years 1945 to 1953 was credited to the profit and loss account of the said year. The Department included
this amount in the total income of the accounting year on the ground that the trading liability in respect of which
deduction had been allowed had ceased to exist, and under section 10(2A), the amount in question should be
deemed to be income.
The Bombay High Court held that, in order that an amount may be deemed to be income under section 10(2A), there
must be a remission or cessation of the liability in respect of that amount. The mere fact that more than three years
had elapsed since the accrual of the liability and that the debts had become unenforceable against the assessee under
the general law does not constitute cessation of the trading liability within the meaning of section 10(2A). A mere
entry of credit in the accounts in respect of the amount would also not bring about a remission or cessation of the
liability. Section 10(2A) was not, therefore, applicable and the amount was not liable to be assessed as income of the
accounting year in which the credit entry was made.

Que. 7. What are the main components of a plaint? On which grounds a plaint may be rejected. Explain.
Answer. A plaint is a legal document which contains the written statement of the plaintiff’s claim. A plaint is the first
step towards the initiation of a suit. In fact, in the very plaint, the content of the civil suit is laid out.
Although it hasn’t been defined in the CPC, it is a comprehensive document, a pleading of the plaintiff, which outlines
the essentials of a suit, and sets the legal wheels up and running.
Main components of a plaint - Pleading refers to plaint and written statement. In plaint, plaintiff should allege facts
about his cause of action. In fact, plaint consists of some contents, and it is mandatory that such contents should be
present in plaint. Order 7 Rule 1 of CPC lays down that a plaint must contain the following particulars;-
a) Plaint should contain name of that court in which suit is brought.
b) Plaint should contain name, description and residence of plaintiff.
c) Plaint should contain name, description and residence of defendant, so far as they can be ascertained.
d) When plaintiff or defendant is minor or person of unsound mind, plaint should contain a statement to that
effect.
e) Plaint should contain those facts, which have constituted cause of action. In addition to this, it should also be
described in plaint when cause of action has arisen.
f) Plaint should contain those facts, which show the court has jurisdiction.
g) Plaint should contain that relief, which plaintiff claims.
h) When plaintiff has allowed set off or has relinquished a portion of his claim, plaint should contain that
amount, which has been so allowed or so relinquished and
i) Plaint should contain statement of value of subject-matter of suit not only for purpose of jurisdiction, but also
for purpose of court-fees, so far as the case admits.
In some specific cases, in addition to the above, the plaint should contain the following specific particulars also:-
1. In money suits - If the suit is for recovery of money, the plaint should contain the exact amount claimed. If the
suit is for mesne profit, or for an amount which will be due on taking accounts, or a debt the value whereof
cannot be estimated with reasonable diligence, the approximate amount may be stated instead of the exact
amount.
2. Where the subject-matter of the suit is immovable property - If the suit is for immovable property, the plaint
should contain a proper description sufficient to identify such property along with boundaries, survey
numbers, etc., wherever possible.
3. When plaintiff sues as representative – where the plaintiff sues in a representative character the plaint shall
show not only that he has an actual existing interest in the subject-matter, but that he has taken the steps (if
any) necessary to enable him to institute a suit concerning it.
4. Defendant’s interest and liability to be shown – the plaint shall show that the defendant is or claims to be
interested in subject-matter, and that he is liable to be called upon to answer the plaintiff’s demand.
5. Grounds of exemption from limitation law – where the suit is instituted after the expiration of the period
prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is
claimed.
6. Relief to be specifically stated – Every plaint shall state specifically the relief which the plaintiff claims either
simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be
given as the court may think just to the same extent as if it had been asked for. And the same rule shall apply
to any relief claimed by the defendant in his written statement.
Rejection of a plaint – Order VII, Rule 11 of CPC enacts that a plaint shall be rejected in six classes of cases mentioned
in clauses (a) to (f). The rule does not envisage the dismissal of the suit, but only rejection of the plaint. The plaint
shall be rejected in the following cases –
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the
valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped,
and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be
fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law :
(e) Where it is not filed in duplicate (Ins. By Act 46 of 1999, section 17)
(f) Where the plaintiff fails to comply with provisions of Rule 9 (Subs. By Act 22 of 2002, Section 8)
Rejection of plaint in part is not justified (Roop Lal Sathi v. Nachhattar Singh, AIR 1982 SC 1559). The concept of partial
rejection is inapplicable to the provisions of Order VII, Rule 11, it would have its limited application in regard to the
provisions of Order VI, Rule 16 of the Code. It must be rejected as a whole. The circumstances mentioned in Clauses
(a) to (f) are not exhaustive. A plaint may be rejected on other grounds as well.

Que. 8. Discuss various powers of Appellate Courts.


Answer. Section 107 deals with the powers of the Appellate court. The power given to an Appellate court under
Section 107 is only a part of its jurisdiction. it confers powers on the appellate judge not only to dispose of the appeal
on merits but also to pass any incidental or interlocutory orders deemed necessary in the circumstances of the case to
maintain the status quo or to preserve the subject matter of the appeal till the disposal of the appeal.
Powers of Appellate Court.
S.107 (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
S. 107 (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be
the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits
instituted therein.
1. Power to finally determination of the appeal: Section 107 (1) a – Dealing with its power and foremost power of
deciding a case finally, it is a general rule under section 107(1) (a) of the Code that evidence on record is sufficient
for the appellate court to pronounce the judgement and it is also held that a case should be disposed of on the
evidence on record and should not be remanded on fresh evidence, except in rare cases.
Reference may also be made to the Supreme Court judgment in Siddhu Venkappa v. Smt. Rangu S. Devidaga
AIR 1976 SC 2506. In this case the Supreme Court observed that the decision of a case cannot be based on
grounds outside the plea of the parties and that it is a case pleaded which has to be found.
2. Power to Remand: Section 107 (1) b – The power to remand is dealt with under section 107(b) which states in
general that the appellate court can send back such case to the lower court to retry or reopen such case. But
there must be some conditions precedent to be met with so that such a remand can be made. Firstly, the suit
must have been disposed of by the trial court that means a lower court on a preliminary point. Secondly, the
decree under appeal must have been reversed and thirdly, any other reason must exist, which has been
widened its horizon by virtue of rule XXIII which says that the appellate court can remand a case even when
lower court has disposed off the case otherwise than on a preliminary point and wherein the remand is
considered of paramount importance for serving the interests of justice.
3. Power to frame issues: Section 107(1) c – The third power, that is the power to frame issues and refer them
to trial is considered very important in the cases where the lower court has done abstinence in performing its
functions of framing any issue or trying any issue or determining any question of fact which is essential to be
determined for the suit to be disposed off on merits. In all these situations the appellate court has the power
to frame issues for the lower court and may even while referring these for trail, fix any time limit as well.
4. Power to take additional evidence: Section 107 (1) d – Fourthly, it is the power of an appellate court to take
additional evidence. Otherwise, what we call it a general rule is that the appellate court has to decide such
appeal on the evidence given by parties at the lower courts. But this exception as provided under Section
107(1) (d) has three conditions which are to be fulfilled by the parties producing such additional evidence in
the appellate court which are, firstly, that the person’s seeking such an admission of additional evidence
should be able to establish the reason as to why he could not produce it at first instance. Other condition is
that the party affected by the admission of additional evidence should have an opportunity to rebut such
additional evidence. Thirdly, the additional evidence must be relevant for determination of the issue. (N.
Kamalam V. Ayyasamy (2001) 7 SCC 503)

Que. 9. What is meant by the Review of Judgment? What are the grounds on which one may apply for review of
Judgment?
Answer. Review of Judgment – Section 114 deals with substantive provisions of review while Order 47 embodies the
procedure therefore. Review means the process under which a court in certain circumstances can reconsider its own
judgment. It is a judicial re-examination of the case by the same Court and by the same judge. Generally the court
which rendered the earlier decision or disposed of the matter earlier should, if available, must review its earlier
decision in as much as he is the best suited to remove any error apparent on the face of its own order.
Section 114. (Review) - Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
A judgment is open to review inter alia, there is a mistake apparent on the face of the record under Rule 47 Rule 1
Civil Procedure Code,1908. A review of a judgment is a serious step and reluctant resort to it is proper only where a
glaring omission or patent mistake or like grave error had crept in earlier by judicial fallibility. A review is required to
be confirmed to the grounds mentioned under Order 47 Rule 1 of CPC therein. A review petition has a limited
purpose and cannot be allowed to be “an appeal in disguise”. An error which is not self-evident and has to be
detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the
Court to exercise its power of review under Order 47, Rule 1 C.P.C. Review literally and even judicially means re-
examination or reconsideration.
Grounds for review:- Review can be filed, if there is
i. Discovery of new Evidence - Discovery of New and Important matter or evidence, which, after the exercise of
due diligence was not within the knowledge of the person seeking review or could not be produced by him at
any time when the decree was passed or order made”, it would have an impact and might have altered the
decision. Moreover, absence of such important matter or evidence on record at the time of decision, must not
be the result of negligent attitude of the concerned person and therefore such person applying for Review is
required by law to strictly prove that such matter or evidence was not within his knowledge or could not be
adduced, even after exercising due diligence and unless such proof is given, application shall not be granted
[Indian Oil Corp. Ltd. v. State of Bihar, (1986) 4 SCC 146].
Illustration – “A sued B for a sum of money alleged to be due under an agreement and obtained the decree
for the same, against which B, subsequently filed an appeal in the Privy Council, and while the appeal was
pending, A obtained another decree against B on the strength of the former decree, for another sum of money
alleged by him to have become due under the same agreement and later Privy Council reversed the former
decree in the appeal, on the basis of which B applied to the court which had passed the second decree, for the
Review on the ground of the decision of Privy Council and so was accepted and held by the court to be a new
and important matter”
ii. “Some mistake or error apparent on the face of the record” - The mistake or error should be such, which is
very obvious and visible itself on the face of it, and therefore any error found out from the judgment after a
long reasoning and law based analysis, cannot be said to be one apparent on the face of record, as a ground
for review. However, such mistake or error can be of fact and as well as of law.
Illustrations – “Non-consideration of the very obvious application of particular law, such as law of limitation or
particular provision to the facts of the case, setting aside of the ex parte decree without being satisfied of the
any of the conditions laid down in Order 9 Rule 13, application of religious law which has not been legally
recognized, wrong interpretation of a settled legal issue, where a commission was issued to examine a witness
in a country where no reciprocal arrangement exists, have been held to be an error apparent on the face of
record” .
iii. “Any other sufficient reason” - Before 1922, the application of the term “Sufficient reason” was unrestricted
and unregulated, finally in that year a principle came to be laid down by the Privy Council in the case
of Chhajju Ram V. Neki AIR 1922 PC 112, which can be summarized as that “the third ground mentioned, is no
doubt giving wide scope to the grounds for review, but at the same time that “sufficient reason” has to be at
least analogous (ejusdem generis) to either of the other two grounds and the mere reason that decree was
passed or order made on erroneous ground that court failed to appreciate the important matter or evidence,
would not make any good ground for review, and therefore in such cases, the appeal and not review, is the
remedy to get such erroneous decree or order corrected”.
Illustrations – Failure to adhere to legal provision which required the court to act in a particular manner would
fall within the meaning of “Sufficient Reason” as analogous to the “Error Apparent on the Face of the Record”.
Order of the dismissal of a suit due to default of the plaintiff, cannot be reviewed on the ground of
misapprehension of the counsel as sufficient reason, but if order was on its face illegal then such order may be
reviewed on the ground as error of the law apparent on the face of the record.

Que. 10. Write notes-


(A) Legal Disability - Legal disability under Section 6 (Limitation Act 1963) –
1. Where a person entitled to institute a suit or make an application for the execution of a decree is, at the
time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute
the suit or make the application within the same period after the disability has ceases, as would otherwise
have been allowed from the time specified therefore in the third column of the Schedule.
2. Where such person is, at the time from which the prescribed period it to be reckoned, affected by two
such disabilities, or where, before his disability has ceased, he is affected by another disability, he may
institute the suit or make the application within the same period after both disabilities have ceased, as
would otherwise have been allowed from the time so specified.
3. Where the disability continues up-to-the death of that person, his legal representative may institute the
suit or make the application within the same period after the death, as would otherwise have been
allowed from the time so specified.
4. Where the legal representative referred to in sub-section (3) is, at the date of the death of the person
whom he represents. affected by any such disability, the rules contained in sub-sections (1) and (2) shall
apply.
5. Where a person under disability dies after the disability ceases but within the period allowed to him under
this section, his legal representative may institute the suit or make the application within the same period
after the death, as would otherwise have been available to that person had he not died.

(B) Decree – In a civil suit several facts might be alleged and the court may be required to rule on several claims. In
simple terms, a decree is the ruling of the court regarding the claims of the parties of the suit. For example in a suit
between A and B, A may claim that a particular property P belongs A. After hearing all the arguments, the court will
rule in the favor of either A or B. The final decision of the court regarding this claim i.e. whether the property belongs
to A or B, is a decree.
As per section 2(2) a decree is 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. It
can be final or preliminary.
From the above definition we can see the following essential elements of a decree -
1. There must be an adjudication - Adjudication means judicial determination of the matter in dispute. In other
words, the court must have applied its mind on the facts of the case to resolve the matter in dispute. For
example, dismissing a suite because of default in appearance of the plaintiff is not a decree. But dismissing a
suite on merits of the case would be a decree.
2. There must be a suit - Decree can only be given in relation to a suit. Although CPC does not define what suit
means, in Hansraj vs Dehradun Mussoorie Tramways Co. Ltd. AIR 1933, the Privy Council defined the term suit
as “a civil proceeding instituted by the presentation of a plaint”.
3. Rights of the parties - The adjudication must be about any or all of the matters in controversy in the suit. The
word right means substantive rights and not merely procedural rights. For example, an order refusing leave to
sue in forma pauperis (i.e. an order rejecting the application of a poor plaintiff to waive court costs) is not a
decree because it does not determine the right of the party in regards to the matters alleged in the suit.
4. Conclusive Determination - The determination of the right must be conclusive. This means that the court will
not entertain any argument to change the decision. I.e. as far as the court is concerned, the matter in issue
stands resolved. For example, an order striking out defence of a tenant under a relevant Rent Act, or an order
refusing an adjournment is not a decree as they do not determine the right of a party conclusively. On the
other hand, out of several properties in issue in a suit, the court may make a conclusive determination about
the ownership of a particular property. 0uch a conclusive determination would be a decree even though it
does not dispose off the suit completely.
5. Formal expression - To be a decree, the court must formally express its decision in the manner provided by
law. A mere comment of the judge cannot be a decree.
Examples of decisions which are Decrees -Dismissal of appeal as time barred, Dismissal or a suit or appeal for
want of evidence or proof, Order holding appeal to be not maintainable.
Examples of decisions which are not Decrees - Dismissal of appeal for default, order of remand, order
granting interim relief.

(C) Execution of Decree – As per Section 38, a decree may be executed either by the court which passed it or the
court to which it is sent for execution. While executing a decree, several questions and objections may arise as to
the manner of execution. It would be impractical to institute new suits to resolves such matters. Thus,
Section 47 lays down the general principal that any questions that arise in relation to the execution of the decree
should be resolved in execution proceeding itself and not by a separate suit. Section 47 says thus –
47. Questions to be determined by the Court executing decree –
1) All 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.
2) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for
the purposes of this section, be determined by the Court.
Explanation I. For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against
whom a suit has been dismissed are parties to the suit.
Explanation II. (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be
deemed to be a party to the suit in which the decree is passed; and
(b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall
be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of
this section.
The objective of this section is to provide cheap and fast remedy for the resolution of any questions arising at the
time of execution. Institution of new suits would only increase the number of suits and would also be a burden on the
parties. The scope of this section is very wide. It confers exclusive jurisdiction to the court executing the decree in
all the matters regarding the execution. It does not matter whether the matter has arisen before or after the
execution of the decree. Thus, this section should be construed liberally.
Conditions –
1. The question must be one arising between the parties or their representatives to the suit in which the decree
ispassed.
2. The question must relate to the execution, discharge, or satisfaction of the decree.
As held in the case of Arokiaswamy vs Margaret AIR 1982, both the conditions must be satisfied cumulatively.

Submitted By
Pankaj Kumar Rathaur