Civil Procedure Code (Act 5 of 1908)

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Civil Procedure Code ( Act 5 of 1908) (PART -3) (Order –XXI to Final ) (Compilation of Citations)

(A free Circulation for Judicial Officers )

Compiled By:

M.P.Murugan, M.A.,LL.B., ([email protected]) Civil Judge (Junior Division), Tamil Nadu.

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Order XXI There

should

not

be

delay

in

execution

of

a

decree.

(SC)

(Anil

Dave,J) (2013 – 5 – LW -697) 29.4.2013 (Satyawati vs. Rajinder Singh Sing h and another) In AIR 2004 Supreme Court 1596 (Union of India V. West Coast Paper Mills Ltd.), the Honourable Apex Court has held as follows:

Even in relation to a civil dispute, an

appeal is considered to be a continuation of the suit and a decree decree becomes executable only when the same is finally disposed di sposed of by the Court C ourt of Appeal. (b) In AIR 2010 Andhra Pradesh 7 (Fateh Mohammed V. Fareeda Banu), it has been held that decree  - Limitation would start from date of decree decree passed passed by execution of injunction decree appellate Court and not by trial Court - Since appeal being continuation of proceedings of original suit decree passed decree passed by appellate Court merges with decree decree passed passed by trial Court. 10. In fact the decision reported in AIR 2004 Supreme Court 1596 (Union of India V. West Coast Paper Mills Ltd.) stands as a precursor to the decision rendered by the High Court of Andhra Pradesh. 11. From the conjoint reading of the said decisions, the Court can deduce the following factual as well as legal aspects: (a) Appeal is nothing but continuation of Original Suit (b) Judgment and decree passed decree passed by the trial Court have become merged with the Judgment and decree decree passed by appellate Court (c) Starting point of limitation would commence from the date of decree passed by appellate Court. The executing Court cannot go behind the decree – Likewise, the Executing Court cannot enlarge the scope of the decree to give a different relief which was not granted by the Court after full-fledged trail – no doubt, the Court below granted relief of permanent injunction, however by virtue of this order of injunction, the petitioners cannot seek for a larger relief, which was specifically denied by the trial Court as well as 1st appellate Court – CRP dismissed. (2011 -2 - TLNJ 458 (Civil) Kanniappan and Anr vs Ekambaram )

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Execution petition – Filed without certified copy of decree – But with suit register extract – Scope of admissibility of E.P. E.P. RATIO DECIDENDI: A Court can place reliance on the suit Register, when the judgment and reliefs granted in the decree, as found exemplified in the suit Register do tally with each other. ((2011) ((2011) 4 MLJ 959 P.G. .G. Pattabi vs Mythili and Ors).

Execution Proceedings – Impugned Order confirming order dismissing application filed by petitioners in execution petition for not bringing their dwelling house for auction sale – Execution petition filed by first respondent in pursuance of money decree obtained against father of petitioners who is second respondent herein – Petitioners contended that their father incurred debt for his own purpose and not for welfare of family and that it was tainted with illegality and immorality and also no notice was served upon them – Both Courts below held that there are no pleadings that second respondent borrowed money from first respondent for immoral purposes – Notice even not served is not fatal – Decree binding on members even if they were not made parties – Petitioners failed to establish their cases – Civil revision petition dismissed. Words and Phrases – “Pious obligation” – Every son, grand son or great grandson is under

pious duty to discharge debts with interest of father, grand father or great grand father. ((2009) 5 MLJ 1503 (Mad-NOC) Tamil Selvi and Others Vs. Dhamodaran and Others )

Civil Procedure Code, 1908, O.21, Limitation Act, 1963, S.5 -Provision of S.5 Limitation Act is not applicable to an application under O.21 CPC. (Mangilal Narsingdas Gattani Vs Shaligram Ukarda Payghan) 2003(1) Civil Court Cases 497 (Bombay)

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2006 (4) SCC 416 Manish Mohan Sharma Vs. Ram Bahadur Thakur Ltd., The effort

of executing court must be to see that the parties are given the fruits of the decree. This mandate is reinforced when it is a consent decree and doubly reinforced when the consent decree is a family settlement. 2006 (2) TNLJ 79 Civil (Mad.) Kaliyamoorthy Corporation, Kumbakonam Div Div..

Vs.

T.N. Stat State e Transport

The Judgment debtor deposited certain amount

pursuant to to the order of attachment pending earlier execution petition. Judgment debtor further paid certain certain amount. Pursuant to compensation Execution petition not pressed and dismissed. Filing of fresh Execution petition is not maintainable Civil Procedure Code, 1908, O.21.R.1, 2 -Payment of decretal amount out of Court D.H. in his income-tax return had shown that he was to recover only some amount out of balance amount -Is sufficient for purposes of satisfaction of Court that payment is evidenced in writing -Further as return was submitted by D.H. of his own accord as such he is estopped from denying such payment. (Bapulal Walchand Jain Vs Pandurang Vithal Pingle) AIR 2003 Bombay 5 Civil Procedure Code, 1908, O.21.R.1 -Execution -Payment of interest, cost and part of principal amount by J.D. -Calculation of interest thereafter on the whole principal amount by D.H. -Not permissible. (R.Lingaraj Vs Dr.Arumugha Pandian) AIR 2002 Madras 254 Civil Procedure Code, 1908, O.21.R.2 -Decree -Satisfaction - Rs.8,000/- alleged to be paid by J.D. in a compromise towards the satisfaction of decree -Writing to this effect undated and thumb marked by D.H. -There are no witnesses to the said writing and the same not signed or thumb marked by J.D. -Held, the said writing is not in conformity with the provision of O.21.R.2 CPC and the same cannot be taken to be adjustment of the decree. (Nahra Vs Surji & Ors.) 2004(2) Civil Court Cases 308

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(P&H) Code of Civil Procedure, 1908 (5 of 1908), Order 21, Rule 2 – Motor Vehicles Act, 1988 (59 of 1988), Sections 166 & 168 – Motor Accident – Claim Petition made on account of death of family member allowed – Subsequently compromise entered into between Claimant and Insurance Company outside Court for full and final

settlement of amount – Trial Court refused to record said Compromise Memo on account that same could not be entertained unless Court was invoking powers under Order 21 – Held, approach of Trial Court highly technical – Always open to parties to a dispute to arrive at compromise towards its settlement – Memo filed by parties in instant case, established depositing of agreed amount before Tribunal – In such circumstances, duty of Trial Court is to record execution of decree – Order of Trial Court set aside. (2012 (3) CTC 41 Royal Sundaram Allianz Insurance Company Ltd., through its Manager, Sundaram Towers, No.46, Whites Road, Royapettai, Chennai 600 014. Vs Rajendran, and Ors) Civil Procedure Code, 1908, O.21.R.2-A, Limitation Act, 1963, Art.125 -Execution Payment or adjustment -Not to be recognised if not certified or recorded by Court within 30 days from the date when the payment or adjustment is made. (Joseph Vs Kanakam) 2003(1) Civil Court Cases 387 (Kerala) Civil Procedure Code, 1908, O.21.R.2-A -Decree -Satisfaction -Unless certified or recorded payment or adjustment cannot be recognised by executing Court. (Gouri Sirkar Vs Goutam Sirkar) AIR 2002 Calcutta 70 Civil Procedure Code, 1908, O.21.R.2(2) -Eviction decree -Execution -Fresh lease during pendency of execution outside Court -Fresh least amounts to adjustment or satisfaction of decree -Application for recording of compromise must be made within 30 days of execution of fresh lease -In absence of recording of compromise, landlord

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is entitled to have decree executed and to recover possession. (B.M.Rajanna (Deceased) by L.Rs Vs K.S.Lingappa) 2005(1) Civil Ci vil Court Cases 659 (Karnataka) Civil Procedure Code, 1908, O.21.R.2(3) -Payment made out of Court -However, plaintiff admitting payment of certain amounts by defendants before Executing Court Such admission tantamount to D.H. certifying such payment -Court to record the same accordingly -Failure of Court to record it -Art.125 of Limitation Act providing that application to record adjustment or satisfaction of decree would be made within 30 days of date of payment -Not applicable in such cases -Once Executing Court was intimated about receipt of amount by D.H. it is duty of Court to record the same and there is no limitation prescribed for it. (Dilipkumar Vs Industrial Credit & Development Syndicate Limited) AIR 2004 Bombay 117 Civil Procedure Code, 1908, O.21.Rr.2(i) and 97 & S.47 -Ejectment order Execution Objections -Fresh tenancy alleged to be created by one of the D.H. Execution cannot be stayed -Any adjustment of decree which is not recorded by Court U.O.21.R.2(i) cannot be recognised by the executing Court and that too within the prescribed period of limitation of 30 days. (Ramesh Kumar Vs Vijay Kumar & Ors.) 2004(3) Civil Court Cases 644 (P&H) Civil Procedure Code, 1908, O.21.R.6A -Sale of entire property without considering J.D's plea that sale of only a portion would be sufficient -Order is illegal. (Thanka Vs Francis) AIR 2002 Kerala 379

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Order – 21 Rule – 11 Civil Procedure Code, 1908, O.21.R.11, O.15.R.6 -Execution -Verification Pleadings and execution cannot be placed on same pedestal -Requirement of O.21.R.11(2) is deemed to be fulfilled if verification is to the satisfaction of the Court. (International Security and Intelligence Agency Limited Vs Municipal Corporation) AIR 2002 Delhi 347 Civil Procedure Code, 1908, O.21.R.11 -Motor Accident Claim -Execution -Award of Motor Accident Claims Tribunal is to be treated as a decree of Civil Court and application U.O.21.R.11 CPC is maintainable -Claimants cannot be asked to go to District Collector for same relief -Tribunal possesses inherent jurisdiction to enforce its own award in accordance with the provisions of CPC as applicable to execution of orders and decrees passed by a Civil Court -When the Claims Tribunal possesses inherent jurisdiction to enforce its own award, the claimants cannot be asked to follow another procedure. (Pushpa Mishra & Ors. Vs MACT & Anr.) 2004(3) Civil Court Cases 68 (Rajasthan) Code of Civil Procedure, 1908 (5 of 1908), Order 21, Rules 11(2) & 16 – Persons

competent to file Execution Petitions – Signing and verification of Execution Petition – Suit for recovery of arrears of rent and damages was filed by One “R”, Managing Trustee of trust, subsequently EP was filed by one “V”, Managing Trustee after expiry of term of “M” – Judgment-debtor filed Application contending that Execution Application was not filed by proper persons and same is not maintainable – Held, it is not necessary that Execution petition must be signed and verified by decree holder and it is sufficient if same is signed by some other person or prove to satisfaction of Court about acquaintance of facts and such person is entitled to sign and verify Execution Petition – When there is no change in name of parties provision of Order 21, Rule 11(2) of CPC will not apply. Practice and Procedure – Execution Petition filed by

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decree holder pending Appeal before Supreme Court – Supreme Court has not stayed decree passed by Court below – There is no impediment for decree holder to execute decree pending Appeal before Supreme Court – In event of any order being passed by Supreme Court in favour of judgment-debtor he can apply for restitution.(2012 (2) CTC 698 Rajamani Gurukkal Vs Rama and Anr) Civil Procedure Code, 1908, O.21.R.12 -Decree for possession -When under

mortgage deed mortgagee is not entitled to induct tenants who would continue even after expiry of mortgage then actual physical possession is to be delivered as no relationship of landlord and tenant exists between mortgagor and tenant and tenant is not entitled to protection of Rent Act. (Gopal Sharan & Ors. Vs Smt.Radha Devi & Ors.) 2004(2) Civil Court Cases 163 (Rajasthan) Code of Civil Procedure (5 of 1908) – Execution proceedings – Objections projected by Objectors / Occupants – Sustainability of. FACTS IN BRIEF: Aggrieved by the order passed by the lower Court, a second appeal has been filed by the appellants / Obstructors. QUERIES: 1. Whether the subsequent events can be taken into account by the Court before final adjudication of the matter? 2. Whether a person in occupation of a premise can be treated as an obstructor in execution proceedings after having recognized him as a tenant by collecting the rents for the premises in his occupation during pendency of the very Execution proceedings? Held: It is to be borne in mind that subsequent events cannot be looked into by the Executing Court unless they come within the ambit of Order 21 Rule 13 read with Rule 13 of Code of Civil Procedure. As far as the present case is concerned, since the Executing Court has to execute Decree in terms of the Decree passed and also because of another vital fact that it cannot traverse beyond the purview and ambit of the Decree passed and in short, on a careful consideration of the facts and circumstances of the case and also in the light of the detailed discussions and that too, in a cumulative fashion, this Court is of the considered view that the appellants / Obstructors / Aliens have not made out a

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case in their favour and even though it is an axiomatic fact that an Appellate Court or Competent Court of Law can take note of the subsequent events after passing of the Decree and this Court opines that the appellants are not the Lawful Tenants and they can only be treated as Strangers / Obstructors and admittedly, they are parties to the proceedings right from the Suit except at the stage of execution and it is also made clear that the appellants claim as direct tenants have not been finally approved by the H.R. & C.E. Commissioner and notwithstanding the fact that they pay rent though without the rental receipt in the name of Panneerselvam, the same will not enure to their benefit or in any way, the same will not heighten their case and in this view of the matter, this Court answers to the substantial questions of law against the appellants and resultantly, dismissed the second appeal without costs. ((2011) 1 MLJ 120 SUNDAR AND ANOTHER VS ARULMIGHU GANGADHEESWARAR TEMPLE BY ITS E.O. AND ANOTHER)

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Order – 21 – Rule - 15

Civil Procedure Code, 1908, O.21.R.15 -Execution -Possession taken with help of police -During pendency of execution proceedings some of decree holders entered into agreement of tenancy along with J.D. and entered into said premises with help of unruly element -Defendants can be treated as trespassers -Since said agreement of tenancy is illegal it is not permissible for Court to create a new decree in said agreement which is in variance with original decree. (Manik Chandra Naskar Vs Smt.Tara Smt.T ara Debi and others) AIR 2004 Calcutta 207 Civil Procedure Code, 1908, O.21.R.15 -Joint decree holders -Death of one D.H. During pendency of execution and after death of deceased D.H. his heirs executed a relinquishment deed in favour of remaining D.H's -Provision of O.21.R.15 CPC is applicable and execution can proceed without bringing on record L.R's of deceased D.H. (Rifakat Ali & Anr. Vs Shyam Sunder & Ors.) 2005(2) Civil Court Cases 20 (Allahabad) Code of Civil Procedure (5 of 1908), Order 21 Rule 15 - Decree in a suit for

dissolution of partnership - Preliminary Decree directing accounts to be taken should contain a declaration of the rights of the parties and direct appointment of receiver The decree should be in Form No.21 Schedule (1) Appendix 'D' C.P.C. - Essential ingredients dealt with. ((2008) – 4 - MLJ-1295 (Mad-NOC) P. Manthiramurthy Vs. P. Marimuthu and Another )

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Civil Procedure Code, 1908, O.21.R.16

Civil Procedure Code, 1908, O.21.R.16 -Execution -By L.R's -Succession certificate is a must. (Sangappa Mallappa Kuri Vs Special Land Acquisition Officer) AIR 2003 Karnataka 142 Execution court to which Decree sent for execution after transmission cannot insist Assignee of decree-holder for its recognition under order 21 rule-16. (Dogipathi Venkata Balasubramaniam v. The Purasawalkam Permanent Fund Limited) ( 2013 – 6 – CTC – 291) ( B.Rajendran,J) 8.10.2013. Code of Civil Procedure (5 of 1908), Section 115 and Order 21 Rule 21 –

Simultaneous Execution – Simultaneous action to bring property for sale and seeking arrest of judgment-debtor – Suit for money – Decreed – Execution petition to bring property of Judgment-debtor for sale pending – Order of dismissal of execution petition seeking arrest of judgment-debtor, challenged – Revision maintainable under Section 115 only when error is committed by a subordinate Court by passing order without jurisdiction or on illegality or material irregularity of such order – No satisfactory reason assigned by decree-holder to maintain subsequent E.P. seeking arrest during pendency of earlier E.P. – No erroneous exercise of jurisdiction by Court below or illegality and no material irregularity, irregularity, so as to warrant any an y interference in revision under Section 115 – Revision liable to be dismissed. RATIO DECIDENDI: Revision is maintainable under Section 115 of the Code of Civil Procedure, only when error is committed by a Court, which is subordinate to the High Court by exercising jurisdiction not vested with the Court below or failed to exercise jurisdiction, so vested or when there is illegality or material irregularity in the order, under the revisional jurisdiction of this Court.((2011) 6 MLJ 851 P.N. Peruvazhuthi Vs R. S Saravanan) aravanan)

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Civil Procedure Code, 1908, O.21.R.22 -Execution within two years -Option is given to Court to give or not to give notice to J.D. -However, once notice is ordered to be given to J.D., withdrawing of same at the instance of D.H. on the ground of long delay in litigation and ordering delivery of possession without hearing other side is not legal Impugned order set aside -Matter remanded to Court below to dispose of execution afresh after hearing both the parties. (R.Kanthamma Vs Boyapati Ravindra) 2003(2) Civil Court Cases 655 (A.P.) order 21 rule 26 :- Petitioner cannot approach the executing court by filing an

application under order 21 rule 26 seeking stay of the execution proceedings without satisfying the requirements as under order 21 rule 26(1) – It is breathing time to the judgment-debtor to approach the appropriate forum and seek stay of the execution. ( 2012 – 5 – L.W. 370) (K.Lakshmiammal vs. D.S.Nagalakshmi) ( K.Ravichandrabaabu, J) (dated: 27.7.2012) The provisions of Order XXI Rule 29 came up for consideration before the Supreme Court in Krishna Singh vs. Mathura Ahir and another [AIR 1982 Supreme Court 686]. stay has has to be It was held by the Supreme Court therein that the power to grant interim stay exercised with great care and only in special cases. Civil Procedure Code, 1908, O.21.R.29 – Stay of execution proceedings – Power to grant interim stay to be exercised with great care and only in special cases – No difference between Application for stay in Civil Suit and Application for stay before executing Court – Dismissal of Application in Civil Suit squarely covers prayer made in Executing Court – No reason to interfere with Order of Court below – Civil Revision Petition dismissed. (2009) 1 CTC 352 - D.Arumuga Nadar Vs. K.Muthulakshmi.

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Code of Civil Procedure, 1908 (5 of 1908), Order 21, Rule 29 – Stay of execution proceedings – Power to grant interim stay to be exercised with great care and only in special cases – No difference between Application for stay in Civil Suit and Application for stay before executing Court – Dismissal of Application in Civil Suit squarely covers prayer made in Executing Court – No reason to interfere with Order of Court below – Civil Revision Petition dismissed. ((2009) 1 CTC

352

D.Arumuga Nadar Vs.

K.Muthulakshmi.)

Order: 21 - Rule: 30

Civil Procedure Code, 1908, O.21.R.30 -Property purchased vide registered sale deed prior to its attachment in execution -Decree holder cannot proceed against property in question. (Linga Vs M/s Saravana Enterprises) AIR 2003 Karnataka 128 Civil Procedure Code, 1908, O.21.R.30 -Property purchased vide registered sale deed prior to its attachment in execution -No specific direction in decree creating any charge on said property -General observation in decree that D.H. is entitled to proceed against assets of J.D. -Does not amount to creating charge on property -Decree holder is not entitled to attach and sale of property in execution. (Linga Vs M/s Sarvana Enterprises) AIR 2003 Karnataka 128 Civil Procedure Code, 1908, O.21.R.30 -Execution – Recovering of Debt – method to adopt, attachement or arrest to seek for enforcing decree – It is the right of the decree holder to proceed with it in a way he likes. The decree holder has got right to choose the mode of execution. (Kathirvel vs. Nachimuthu) (2012 – 3 – L.W – 486) 8.6.2012. (G.Rajasuria,J)

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Order: 21 - Rule: 32

Civil Procedure Code, 1908, O.21.R.32 & S.151, O.39.Rr.1,2 -Ad interim injunction -Its enforcement by filing application U.O.21.R.32 r/w S.151 -Not proper as stage for making such application arises only after passing of decree -Proceedings for violation, disobedience of injunction order can be initiated U.O.39.R.2-A CPC. (Kishan Lal Vs Smt.Naaheed Maylkat) AIR 2002 200 2 M.P M.P.. 149 Civil Procedure Code, 1908, O.21.R.32, Limitation Act, 1963, Art.136 Proviso Injunction decree -Execution -It has a permanent and perpetual life -It can be put into execution at any time to prevent breach or to prevent apprehended breach. (Yashodabai Ganesh Naik Gaunekar Vs Gopi Mukund Naik) 2003(1) Civil Court Cases 264 (Bombay) Civil Procedure Code, 1908, O.21.R.32 Expln. -Prohibitory injunction -Decree of Can now be enforced to a practicable extent in the same way as decrees for mandatory injunctions. (Ajayakumar Vs Damayanthi) 2004(2) Civil Court Cases 383 (Kerala) Civil Procedure Code, 1908, O.21.R.32 & 26, O.41.R.5 -Appeal -Order of status quo regarding possession passed in an appeal against decree of specific performance Execution not stayed -Executing Court directed to proceed with the execution and get the sale deed executed in favour of D.H. in accordance with law. (Jagir Singh Vs Sanjeev Kumar)2003(3) Civil Court Cases 267 (P&H) Civil Procedure Code, 1908, O.21.R.32 & S.51 -Injunction decree -Execution Attachment of property or by imprisonment -Can be resorted to only when J.D. had an opportunity of obeying the decree and has deliberately failed to obey it. (Yashodabai

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Ganesh Naik Gaunekar Vs Gopi Mukund Naik) 2003(1) Civil Court Cases 264 (Bombay) Civil Procedure Code, 1908, O.21.R.32 & S.51 -Injunction decree -Execution Despite civil imprisonment J.D. ventured to commit successive breaches -Effective order against him could be attachment and sale of his property and in absence thereof detention in civil prison again. (Yashodabai Ganesh Naik Gaunekar Vs Gopi Mukund Naik) 2003(1) Civil Court Cases 264 (Bombay) Civil Procedure Code, 1908, O.21.R.32 & S.51 -Injunction decree -Execution Detention of J.D. in civil prison is no substitute for compliance of decree -Compliance of decree can only be by resort to penal actions -Liability or obligation flowing from the decree cannot be taken to have been discharged by detaining a person liable to comply with the decree, to jail. (Yashodabai Ganesh Naik Gaunekar Vs Gopi Mukund Naik) 2003(1) Civil Court Cases 264 (Bombay) Civil Procedure Code, 1908, O.21.R.32 -Decree of permanent injunction restraining defendants from interfering in possession -Dispossession in violation of decree -Court can restore possession U.O.21.R.32 CPC. (Inder Singh and others Vs Dharma and others) 2003(3) Civil Court Cases 363 (P&H) Civil Procedure Code, 1908, O.21.R.32 -Decree of restitution of conjugal rights Execution -Wife sought execution of decree after 2-1/2 years -Decree can be executed by attachment and sale of property of defaulting party but Court cannot give physical custody of J.D. to decree holder. (Yudhisthar Singh Vs Smt.Sarita Sankhala) 2005(1) Civil Court Cases 353 (Rajasthan)

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Code of Civil Procedure, 1908 (5 of 1908), Order 21, Rule 32(5) r/w Section 151 – Petitioners/decree holders filed Suit seeking for relief of declaration that they are exclusively entitled to pathway and for relief of recovery of possession and permanent injunction – Court below did not grant relief of declaration of title in respect of pathway but held that suit pathway was private passage and Petitioners were entitled to use same – Court below negative relief of recovery of possession and granted relief of permanent injunction – Decree holder filed Execution Petition for removal of bunk shop put up by Respondent – Executing Court dismissed Petition – Hence, Revision – Decree holder admitted that bunk shop was put up even before filing of Suit – Court below specifically rejected relief of recovery of possession – By virtue of decree of permanent injunction decree holder cannot seek for larger relief which was specifically denied by Trial Court as well as Lower Appellate Court – Executing Court cannot enlarge scope of decree to give different relief which was not granted by Court after full fledged trial – Revision dismissed. ------------- Facts: Decree holders filed Suit and sought for relief of declaration of title over the pathway and prayed for recovery of possession and consequential permanent injunction restraining the Defendant. Court below denied the relief of declaration of title and recovery of possession. Court below granted the relief of permanent injunction. Decree holder filed an Execution Petition under Order 21, Rule 32 (5) r/w 151 of C.P.C. for removal of the bunk shop put up by the Respondent. Executing Court dismissed the Petition on merits. Aggrieved by the order of the Executing Court the Petitioner had filed this Civil Revision Petition by invoking jurisdiction of High Court under Section 151 of C.P.C.--------------------- Held: As rightly pointed out by the learned Counsel appearing for the Respondent, this relief of recovery of possession/handing over the possession was negatived by the Court below. In such circumstances, the only question to be considered in the present case is as to whether the Executing Court was bound to grant the relief sought for in the Execution Petition. It is a settled proposition of law that the Executing Court cannot go behind the decree. Likewise, the Executing Court cannot enlarge the scope of the decree to give a different relief, which was not granted by the Court after full-fledged

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trial. It is seen from the averments made in the Execution Petition, the Petitioners have contended as if that after the decree was obtained, the Respondent had put up the bunk shop. In fact the averments in the Execution Petition is to the effect that the Respondent in utter disobedience of the decree has put up construction thereby preventing the access of the Petitioners in the suit pathway. This pleading is totally inconsistence to the Plaint averment as well not in consonance with the decree granted by the Courts below. In such circumstances, the said averment in the Execution Petition deserves to be rejected as being false and contrary to the pleadings in the Plaint filed in O.S. No. 626 of 1982. (2011 (3) CTC 214 Kanniappan and Anr vs Ekambaram)

Civil Procedure Code, 1908 – Or. 21 R. 32, Ss. 47, 115 and Or. 23 R. 3 – Premature application for executionof compromise decree – When maintainable – Application for execution of decree filed prior to expiry of period of six months stipulated in decree – Objection raised under S. 47 that application being premature cannot be entertained – Rejecting the objection executing court took into consideration submission of judgment-debtor and passed execution order – By the time matter was taken up and order was passed, decree had become mature for execution – Held, executing court justified in entertaining premature execution application. ((2012) 4 Supreme Court Cases 751 Pushpa Sahakari Avas Samiti Limited Vs Gangotri Sahakari Avas Samiti

Limited and Ors)

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Order: 21 - Rule: 34 Civil Procedure Code, 1908, O.21.R.34, S.11 -Draft of document in terms of decree delivered to Court -Objection relating to nature of decree is not permissible -However, identical objections raised by J.D. were dealt with by executing Court -In view of principle of res judicata, it was not open for him to raise same objections again Finding of executing Court that decree in question has to be treated as a decree for specific performance of duties cast upon J.D. cannot therefore be faulted. (Rasika Vs Mount Mary Vaikunta Co-Op.Hous. Society Ltd.) 2003(3) Civil Court Cases 72 (Bombay) Civil Procedure Code, 1908, O.21.R.34 -Draft of document in terms of decree delivered to Court -It contained name of dead person -Direction given to substitute it with that of his L.R's. (Rasika Vs Mount Mary Vaikunta Co-Op.Hous. Society Ltd.) 2003(3) Civil Court Cases 72 (Bombay) Civil Procedure Code, 1908, O.21.R.34 -Draft of document in terms of decree delivered to Court -Objections thereto -Decided by Court -Objector can file appeal U.O.43.R.1(i) -Scope of appeal is restricted -Appellate Court while exercising its jurisdiction under order 43 cannot travel beyond purview of its appellate jurisdiction. (Rasika Vs Mount Mary Vaikunta Co-Op.Hous. Society Ltd.) 2003(3) Civil Court Cases 72 (Bombay) Civil Procedure Code, 1908, O.21.R.34 -Decree for execution of conveyance Defendant neither applied for setting aside ex parte decree nor did he challenge the same in appeal -He cannot be allowed to raise any objection in execution. (Rasika Vs Mount Mary Vaikunta Co-Op.Hous. Society Ltd.) 2003(3) Civil Court Cases 72 (Bombay)

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Civil Procedure Code, 1908, O.21.R.34 -Sale deed -Execution by Court -Draft of sale deed furnished by D.H. in execution of decree -J.D. remained exparte -Draft sale deed therefore not served on J.D. -Sale deed executed and registered -Rule 34 requires the Court and not the D.H. to serve the draft sale deed on J.D. -Object of service is to enable J.D. to raise any objections -However, J.D. has not pointed out any defect or illegality in draft sale deed in spite of their being aware of the contents of sale deed Only objection raised is that it was not served on them -Objection that sale deed is not valid since draft of sale sa le not served on J.D. is not sustainable. (S.Hassan ( S.Hassan & Anr. Anr. Vs Sha Peerchand, Pawn Broker & Money Lender) Len der) 2005(2) Civil Court Cases Ca ses 40 (A.P.) (A.P.) Civil Procedure Code, 1908, O.21.R.34 -Sale deed -Execution by Court -Executing Court is competent to refer to pleadings, if circumstances warrant for understanding the decree -Suit decreed directing plaintiff to pay balance of consideration agreed after giving credit to amount paid as advance and the amounts due as on the date of filing of suit under two pronotes executed -Amounts payable under pronotes shall be treated as part of consideration -If interest calculated upto date of filing of suit as per terms of decree, no amount remained unpaid by plaintiff towards consideration under the agreement -Contention that interest is not payable after filing of agreement of sale, that plaintiff has not paid balance of consideration as directed by decree and that therefore decree is not executable, not tenable as plaintiff cannot be said to have not complied with terms of agreement and decree -Sale deed executed by Executing Court is valid. (S.Hassan & Anr. Vs Sha Peerchand, Pawn Broker & Money Lender) 2005(2) Civil Court Cases 40 (A.P.) (A.P.)

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Order: 21 - Rule: 35 Civil Procedure Code, 1908, O.21.R.35, Transfer of Property Act, 1882, S.52 Property of a co-sharer purchased during pendency of proceedings -Principle that purchase made during pendency of litigation is unsustainable applies only if purchase is made from J.D. and not from a co-sharer - Share of first plaintiff, one of the coparceners, sold to respondent by his wife on his death -To the extent of his share, decree stood extinguished -Interest of coparceners in the property is undefined and indeterminate E.P. filed by L.Rs. of second plaintiff claiming recovery of possession of entire property having knowledge of the sale of share of first plaintiff in favour of respondent and also claiming to be the L.Rs of both the plaintiffs -Defective and not entertainable. (Katepaga Yadagiri & Ors. Vs B.Maheshwar Reddy) 2004(2) Civil Court Cases 174 (A.P.) Civil Procedure Code, 1908, O.21.R.35 -Execution -Dismissed as withdrawn Decree not satisfied -Subsequent execution application is maintainable. (Jit Singh Vs Bhago) AIR 2002 P&H 340

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Order: 21 - Rule: 36 Civil Procedure Code, 1908, O.21.R.36 -Tenant -Redemption of mortgage -Tenant inducted by mortgagee -Property redeemed and remortgaged and tenancy continued Held, as tenant was not inducted by mortgagor as such tenant is liable to be evicted in execution of final decree of redemption obtained against the second mortgagee. (Shambhu Dayal Vs Shivcharan Lal L al & Anr Anr.) .) 2004(2) Civil Court Cases 607 (Rajasthan) (R ajasthan) 2012 (4) CTC 603 Chandran and Ors Vs K.M. Muthusamy and Anr Code of Civil Procedure, 1908 (5 of 1908), Order 21, Rules 36, 97 & 98 – Suit for Specific Performance decreed and Sale Deed executed – At time of seeking delivery of possession, tenants filing Application under Order 21, Rule 36 that they should not be evicted except in accordance with law – Tenants in occupation, who are not parties to decree, could certainly file an Application under Order 21 , Rule 97 causing obstruction to effect that in event of ordering delivery, there could be symbolic delivery and not actual physical dispossession – Order passed under Rules 97 & 98 should be deemed to be a decree, over o ver which Appeal lies – Present Application filed under Order 221, 1, Rule 36, ought to have been returned for making necessary rectification, but it was not done – Matter was proceeded like an Interlocutory Application, without treating it like l ike a Suit – In such a case, Executing Court should have directed Application to be rectified and be re-presented as one under Order 21, Rule 97 – Impugned order set aside – Matter remitted to Lower Court with liberty to make necessary correction and amendments to Petition – Civil Revision Petition disposed off.

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Order: 21 - Rule: 37 Civil Procedure Code, 1908, O.21.R.37 -Execution -Arrest of J.D. in civil prison J.D. denying that he has any means to repay decretal amount -Further, no source of income or cash in hand of J.D. brought on record by D.H. -In such circumstances fair and decretal order of executing Court dismissing application -Cannot be interfere with by High Court. (K.M.Kannu Goudner Vs. Mahboob Mahbo ob Ali Sahib) AIR 2003 Madras 362 Civil Procedure Code, 1908, O.21.R.37 -Decretal amount -Non payment -Arrest of J.D. -Not to be ordered without giving a specific finding that J.D. is avoiding to make payment having sufficient means -Order of arrest without such a finding set aside -J.D. permitted to pay the decretal amount in five monthly equal installments. (Vesapogu Yeshaiah Vs Muppalla Subba Rao) 200 2003(1) 3(1) Civil Court Cases 496 (A.P (A.P.) .) Code of Civil Procedure, 1908, Order 21, Rule 37 – Mode of Execution – Decree holder moving Execution Petition for arrest of judgment-debtor – Same resisted on ground that decree holder has to file an Execution Petition only for attachment and only thereafter he can seek for arrest – It is for decree holder to decide and choose mode of execution and he cannot be compelled to go in for a particular mode of execution – Decision in State Bank of India Vs. Messers Indexport Registered, AIR 1992 SC 1740 relied on.( 2006 (3) CTC 546 Ganesh Vs. Sankaran and another) Code of Civil Procedure (5 of 1908), Order 21 Rule 37 – Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960), Sections 10(2)(i), 10(2)(ii)(a) – Jurisdiction of Rent Controller – Impugned order of arrest made in execution petition in rent control proceedings challenged – Eviction petition ordered with direction to recover rental arrears – Petition filed praying for execution of the decree in so far as the noncompliance of the order directing payment of arrears of rent – No power is vested with Rent Controller to pass a decree for payment of arrears of rent under the Act – Decree

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passed by the Rent Controller ordering payment of arrears of rent while ordering eviction is a statutory violation Decree is a nullity – Rent controller has no jurisdiction to give direction to pay the arrears of rent after ordering eviction on the ground of willful default – Order passed by Rent Controller ordering payment of arrears of rent within three months while ordering eviction on the ground of willful default is unsustainable – Consequential execution petition filed to execute that portion of the decree is also not maintainable – Order of arrest passed in the execution proceeding against the petitioner cannot be sustained and the same is set aside – Civil revision petition allowed – Petitioner to file separate suit for recovery of rental arrears. Constitution of India (1950), Article 227 – Supervisory jurisdiction – Decree passed Court without jurisdiction – Plea of nullity not considered by Rent controller – Petitioner justified in filing revision under Article 227.((2009) 5 MLJ. 1336 K.I.M. Sajjdeen Vs. A.1254, Theni Co-operative Sale society Limited)

Civil Procedure Code 1908 as amended, Order 21, Rule 37 – It is not the province or domain of a court of Law much less as Executing court to say or point out that the Decree holder should have opted to seek a particular kind of relief instead of other relief and this kind of observation by the Executing Court is not palatable one – petition allowed. (2011 -2 - TLNJ 483 (Civil) Gomathy (Died) and Ors vs Rajeswaran) Civil Procedure Code, 1908, O.21.R.37 It is necessary for executing court to record reasons as to why it is satisfied that power under Proviso to Rule 37(1) of Order 21 is invoked. (Senthil Kumar and another v. K.M.N. Surendran) T.S.sivagnanam,J. T.S.sivagnanam,J. 2012 (3) CTC 294. Civil Procedure Code, 1908, O.21.Rr.37, 40 -Execution -Arrest and detention -Rule 40 is not only procedural but also mandatory in nature and confers certain powers upon the executing Court during the pendency of an enquiry to be conducted -'Enquiry' contemplated under rule 40 means an enquiry with regard to defence, if any, taken by

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J.D. and also to enquire into the averments by D.H. before the J.D. is sent to civil prison -An enquiry has to be conducted before the Executing Court passes an order sending J.D. to civil prison. (S.Ismail & Anr. Vs Agraseni Chit Funds (P) Ltd. & Ors.) 2005(1) Civil Court Cases 518 (A.P.) (A.P.) Civil Procedure Code, 1908, 190 8, O.21.Rr O.21.Rr.37 .37 and 38 & S.41 -Arrest & detention -J.D. a man of no means -J.D. doing coolie work -When a person does not have any means to clear of his debts, he cannot be arrested -Order directing arrest of J.D. set aside. (Dharmalingam Vs Pavalkodi) 2005(1) Civil Court Cases 342 (Madras) Civil Procedure Code, 1908, O.21.R.37, S.51 Proviso -Money decree -Execution Arrest and detention -Notice to J.D. to show cause instead of warrant of arrest -Notice to be issued to J.D. to appear before the Court -However, such notice is not necessary when Court is satisfied by affidavit or otherwise, that with the object or effect of delaying the execution of the decree, J.D. is likely to abscond or leave the local limits of the jurisdiction of the Court. (Neelam Gautam Vs Balwinderjit Singh @ Bikramjit @ Happy) 2004(3) Civil Court Cases 121 (P&H) Civil Procedure Code, 1908, O.21.R.37 -Execution -Arrest and detention Application for arrest and detention of J.Drs. for recovery of decretal amount -Order of attachment of salary of one of the J.Drs. when application is made under rule 37 is unwarranted and uncalled for. (S.Ismail & Anr. Vs Agraseni Chit Funds (P) Ltd. & Ors.) 2005(1) Civil Court Cases 518 (A.P.) Civil Procedure Code, 1908, O.21.Rr.38, 40 -Execution -Arrest of J.D. -Court hearing counsel for parties and then issuing warrant under R.38 -It is not order under R.40 -It is order under R.38 without conduct of enquiry under R.40 -It being one under R.38, is not without jurisdiction. (K.Manokaran Vs A.U.Subbananan) AIR 2002 Madras

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2006 (3) TLNJ 296 (Civil) K. Vijayan Vs. K.G. Kuppusamy and others Civil

Procedure Code 1908 as amended – Section 51(C) and Order 21, Rule 40 – Execution petition for recovery of money by arrest and detention in civil prison – judgment debtor to be given opportunity to show cause – decree holder to prove capacity or means of judgment debtor – adverse inference not to be drawn just because judgment debtor did not enter the witness box – execution petition remanded to lower court for enquiry afresh. Code of Civil Procedure, 1908 (5 of 1908), Section 115 and Order 21, Rules 41(2) & 41(3) – Judgment-Debtor entered into Agreement with decree holder on 18.12.2002

and started trading in Stock Exchange – Judgment-Debtor defaulted in making payment due to loss in transaction – Dispute arose – Dispute was referred to National Stock Exchange of India – Arbitrator was appointed on 12.10.2004 to resolve disputes between parties – Arbitrator passed Award directing judgment-Debtor to pay to decree holder a sum of Rs.6,27,054.33 with interest at 18% p.a. from date of award till date of realization – Decree transmitted from City Civil Court, Chennai to 1 st Additional Subordinate Court, Erode – E.P. No.219 of 2005 filed by decree holder to realize amount by arrest of Judgment-Debtor – Judgment-Debtor filed proof affidavit stating that he did not own movable or immovable property – Decree holder filed an application seeking for direction to Judgment-Debtor for production of details of his income and properties for satisfaction of decree, as he was having another business in some other name and such Application was allowed – Judment-Debtor failed to comply with directions nor filed any affidavit stating details of his income but challenged said order – Object of Order 21, Rule 42, is to enable decree holder to get information of assets which is within knowledge of Judgment-Debtor – Order passed by executing Court directing production of document is correct order, upheld – Decree holder filed another Application seeking for arrest as Judgment-Debtor disobeyed order of Court by not filing affidavit and arrest was ordered – Even if Judgment-Debtor had no assets, Judgment-Debtor ought to have obeyed order of Court by filing affidavit

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and arrest was ordered – Even if Judgment-Debtor had no assets, Judgment-Debtor ought to have obeyed order of Court by filing affidavit – Order of arrest of JudgementDebtor was justified – order of arrest does not suffer from any procedural impropriety calling for intereference – Orders of Executing Court directing production of document or filing of affidavit and order of arrest on account of default in complaince of earlier order confirmed in Revision.CRP dismissed – No costs – MP Dismissed. ( 2007 (3) CTC 641 M/s. Shri Parvatham Textiles, rep by its sole proprietor Vs. M/s. Chona Financial Services Pvt. Ltd., rep by its Managing Director)

Civil Procedure Code, 1908, O.21.R.41, 11(2) -Application U.O.21.R.41 is not an application for execution of decree -Application can precede filing of execution petition. (United Phosphorous Ltd. Vs A.K.Kanoria) A.K.Kanoria) AIR 2003 Bombay 97 Civil Procedure Code, 1908, O.21.R.41 – Suit filed against Partners in name of Firm

– Every partner of Firm is jointly and severally liable for all acts of Firm. Decree passed against Firm is in effect decree against all partners, ( Zodiac Traders India v. Seychelles

Public

Transport

Corporation)

(

R.Sudhakar,J)

2013

–

6

-

CTC – 301. (dated: 1.10.2013) Civil Procedure Code, 1908, O.21.Rr.43, 54, O.32.R.15 -Lunatic -Attachment of property of a lunatic -Lunatic defended by a guardian appointed by a Court -Property can be attached in execution of decree. (Jolly Vs Oriental Kuries Ltd.) 2003(2) Civil Court Cases 484 (Kerala) Civil Procedure Code, 1908, O.21.Rr.43, 54 and 90 -Machinery embedded in earth and fastened with bolts -It is still movable property -Auction sale cannot be set aside for not following the procedure applicable to sale of immovable property. (Shree Arcee Steel Private Limited, Bangalore & Anr. Vs Bharat Overseas Bank Limited, Bangalore

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& Anr.) Anr.) 2005(2) Civil Court Cases 238 (Karnataka) (K arnataka) Civil Procedure Code, 1908, O.21.R.50 & O.30.R.6 -Decree against firm -Can be executed against partner individually who had been served with notice of suit and had appeared in suit individually -Personal property of such partner when attached in execution of decree against firm and he not objecting to same then objection against such attachment filed subsequently by L.R's of partner who were brought on record on death of partner during pendency of execution, is not sustainable. (Shivalingeshwara Oil Mill Vs Channaveerappa) 2005(2) Civil Court Cases 375 (Karnataka) Civil Procedure Code, 1908, O.21.Rr.54, 54 (1-a), 66, 90 -Notice -Mere issuance of notice U.O.21.R.54(1) cannot be construed as notice U.O.21.R.54(1-A) -Only when notice U.O.21.R.54(1-A) is issued proviso to O.21.R.66(2) springs into action i.e. when notice U.O.21.R.54(1-A) is issued then no further notice as required U.O.21.R.66(2) is required. (Pappasani Narayana Reddy Vs Mandem Reddappa Reddy) 2005(1) Civil Court Cases 480 (A.P.) Civil Procedure Code 1908 as amended – Section 39 (4) and Order 21, Rule 54 –

Executing Court – order restraining person from handling over property in his possession to judgment debtor along with concerned document and keeping documents in safe custody – they are in tthe he nature of a “freezing “freezing order” or a “Mareva injunction” and an order akin to an Anton Piller order, orders that can be issued even if the property or the person concerned is outside the jurisdiction of the Court.( 2007 (2) TLNJ(Civil) 585 (586) Mohit Bhargava Vs. Bharat Bhush Bhushan an Bhargava & Ors. )

Civil Procedure Code, 1908, O.21.Rr.54, 66 -Attachment -Omission to affix order of attachment in the notice board of the office of District Collector -Does not amount to material irregularity -Private sales will be valid only if it is shown that substantial injustice was done to the persons who purchased the property under private sales by

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virtue of non-compliance with the provisions in O.21.R.66 or O.21.R.54 CPC. (Peta Thallamma Vs Pedamallu Gopala Krishna Murthy) 2003(3) 200 3(3) Civil Court Cases 90 (A.P (A.P.) .) Civil Procedure Code, 1908, O.21.R.57 -Attachment in execution -Dismissal of execution petition -Order of attachment ceases to exist. (Linga Vs M/s Saravana Enterprises) AIR 2003 Karnataka 128 (2011) 3 MLJ 506 (SC) C.S. Mani (deceased) by LR C.S. Dhanapalan vs B. Chinnasamy Naidu (deceased) by Lrs. Code of Civil Procedure (5 of 1908), Order 21 Rule 57 – Execution of money decree – Attachment and sale of property of judgmentdebtor – Determination of attachment – Scope and ambit of. Held: If the order of the executing Court while closing the execution, was ‘attachment to continue’, the attachment would have continued in spite of the closing of the execution proceedings. Even if the executing Court had closed the execution, in view of the statutory stay, without any specific order continuing the attachment, the attachment would not have ceased as there was no ‘dismissal’ of execution under Order 21 Rule 57 of the Code. But, if the order dated 15.2.1975 had stated ‘attachment to continue for six months’, whether right or wrong, the attachment would have come to an end on the expiry of six months from 15.2.1975, unless it was continued by any subsequent order, or had been modified or set aside by a higher Court. The attachment dated 29.12.1974 continued till the property was sold by public auction on 6.6.1984 and confirmed on 30.7.1985. Consequently, any sale by the judgment debtor Mokshammal, during the subsistence of the attachment was void insofar as the decree obtained by the appellant. Therefore, it has to be held that neither the purchasers from Mokshammal nor the respondent who is the subsequent transferee, obtained any title in pursuance of the sales, as the sales were void as against the claims enforceable under the attachment.

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Order 21, rule 58 Code of Civil Procedure, 1908 (5 of 1908), Order 21, Rule 58 - Claim preferred

under Order 21, Rule 58 against attachment of immovable properties has to be considered by Court executing decree irrespective of fact whether properties are sold or auction sale has been confirmed - Purchaser under agreement to sell who has filed Suit for specific performance could file objections in Execution Petition filed by wife of Vendor against Vendor for sale of same property in discharge of maintenance decree and order of Executing Court and High Court dismissing such objection without considering merits set aside and executing Court directed to consider same - Law laid down in

C. Jagannathan V. Padayaa  AIR AIR 1931 Mad 782, Magunta Mining Co.

V.M. Kondaram Kondaramireddy ireddy  and Another Anothe r, AIR 1983 AP 335 held to correct law and judgment

in Janki Mohan and Another V. Dr. S. Samaddar & Ors., AIR 1962 Pat.403 held to be incorrect.(2008 (2) CTC 774 Kancherla Lakshminarayana Vs. Mattaparthi Syamala & Others)

Civil Procedure Code, 1908, O.21.R.58, S.11 -Attachment before judgment Application for raising of attachment -Dismissed for default -Said default dismissal order became final and conclusive -Another application U.O.21.R.58 on same cause of action is not permissible. (Satyamsetti Vs Ramisetti) AIR 2004 A.P A.P.. 87 Civil Procedure Code, 1908, O.21.R.58, S.115 -Attachment -Application for raising attachment -Dismissed -Such dismissal amounts to a decree -Revision against -Not maintainable -Party affected can file appeal but not a fresh suit. (Ravindra Sheregara Vs Syndicate Bank) AIR 2002 Karnataka 324 Civil Procedure Code, 1908, O.21.R.58 -Attachment -Joint Family Property of father, 2 major sons and 2 minor sons -On petition by two major sons raising attachment

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allowed -Therefore attachment in respect of 2/5th share of two appellant minor sons can also be raised as they stand on same footing. (Kongisi Vs Kongisi) AIR 2003 A.P. 297 Civil Procedure Code, 1908, O.21.R.58 -Suit for recovery of money -Consent decree passed and decree also ordered sale of one building belonging to defendant -Said building did not fetch sufficient amount to satisfy decree -Sale of other properties Order not erroneous -Plea that earlier decree was only in respect of sale of property and was not a money decree, not tenable. (Ramzanali Gulamhussain Ramodiya Vs Hamida Karim Ramodiya) AIR 2002 Bombay 526

Civil Procedure Code, 1908, O.21.R.58, O.38.R.8, O.9.R.9 -Attachment -Appellant purchased the property and applied for raising of attachment -Application dismissed for default -Property put to sale in auction -Application U.O.21.R.58 filed in execution Inquiry provided U.O.38.R.8 is to be conducted like a trial in a regular suit and an order passed thereunder amounts to a decree against which an appeal lies -Held, second application in execution petition does not lie as the same is barred U.O.9.R.9 CPC. (Satyamsetti Somaraju Vs Ramisetti Naidu @ Vekata Rao & Anr.) 2004(2) Civil Court Cases 590 (A.P.) Civil Procedure Code, 1908, O.21.R.58, O.7.R.11 -Claim petition -Every claim petition need not be insisted to be tried as a suit on merits -Petition can be dismissed for non disclosure of cause of action U.O.7.R.11 U.O.7.R.11 CPC. (P (P.Divya .Divya (Kumari) Vs P P.Jayender .Jayender Rao & Anr.) Anr .) 2004(2) Civil Court Cases 438 (A.P.) (A.P.) Civil Procedure Code, 1908, O.21.R.58 -Attachment -Objections -Court is obliged to reject the objections if it considers that the objections have been designedly or unnecessarily delayed. (Ranjit Singh Vs Kamaljit Singh) 2004(2) Civil Court Cases 318 (P&H)

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Civil Procedure Code, 1908, O.21.R.58 -Attachment -Objections -Ownership claimed on the basis of Will dated 21.2.1993 - However on the basis of Will no mutation of inheritance entered and the Will did not see the light of the day till the suit property was attached -Principle laid down in O.21.R.58(1) Proviso (b) applies as the objections are filed designedly and unnecessarily to delay the execution -Objections dismissed. (Ranjit Singh Vs Kamaljit Singh) 2004(2) Civil Court Cases 318 (P&H) Civil Procedure Code, 1908, O.21.R.58 -Money decree -Execution -Attachment of joint property -If the co-owner of property is neither a debtor nor a guarantor then his share in the property cannot be attached merely because that co-owner happens to be the wife of J.D. or a partner in business. (Janki Vashdeo Bhojwani & Anr. Vs Indusind Bank Ltd. & Ors.) 2004(1) Apex Court Judgments 681 (S.C.) : 2004(2) Civil Court Cases 305 (S.C.) Code of Civil Procedure, 1908 (5 of 1908) - Sec.64, O.XXI R: 58, 63, O.XXXVIII R:5, 11-B-Attachment - Security - Notice - Failure - Registrar - Communication - Court Validity - Effect- apellant had purchased a property when it was under the Court attachment in the money suit filed by the respondent-After the suit was decreed, the respondent filed execution petition in which the Court proceeded to sell the property which was objected by the appellant- Appellant contended that he was not aware of the attachment and was a bone fide purchaser and without passing a preliminary order calling upon the debtor to offer security, order of attachment was passed straight away which was void and so the property could not be sold-Respondent objected it by contending that the appellant was a third party who could not raise such plea and there was a long delay in raising such plea-When the executing Court dismissed the petition, the appellant preferred appeal-Parties stood by their stands-Held, an order of attachment could be passed only on the failure of the respondent from furnishing security and complying with the order of the Court in that regard and the order of

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attachment passed straight away in violation of this condition was invalid- Intimating the order of attachment to the Registrar of registration was also mandatory-As both those conditions were violated, the order of attachment passed was not valid-Appeal was allowed and the sale proceeding was set aside. (2011 (2011 CIJ 644 ALJ Sri Humbi Hema Gooda & Ors Vs M/s. The Tamilnadu State Transport Corporation (CBE) Ltd & Ors) Code of Civil Procedure, 1908(5 of 1908)-Sec.64, O. XXI 58, 63, O. XXXVIII 5Attachment-Security-

Notice-Failure-Validity-Effect-Order

of

attachment

before

judgment passed by the Court without first calling upon the respondent to furnish the security would be void. Code of Civil Procedure, 1908 (5 of 1908)-Sec.64, O. XXI 58, 63, O. XXXVIII 5, 11B-Attachment-Registrar- Communication-Court-Failure-EffectCommunicating the order of attachment passed by the Court to the concerned registering officer is mandatory and in the absence of such communication, the order of attachment has no force. Ratios: a. Order of attachment before judgment passed by the Court without first calling upon the respondent to furnish the security would be void. b. Communicating the order of attachment passed by the Court to the concerned registering officer is mandatory and in the absence of such communication, the order of attachment has no force. c. When an order of attachment passed by the Court is void because of the violation of any of the mandatory provisions, it could be questioned even by the subsequent purchaser of the property. (2011 CIJ 644 ALJ Sri Humbi Hema Gooda & Ors Vs M/s. The Tamilnadu State Transport Corporation (CBE) Ltd & Ors) Civil Procedure Code, 1908, O.21.R.58. Question is whther the petition under O:21 R:58 is to be filed when the court passes an order of attachement or objection can be made, only after the order of attachment is executed.( Mrs. Nalini Sivaprakash v. K.A.Ganesan, Suriyaraj combines) Dated: 12.1.2012. (R.Banumathi,J., And S.Vimala,J) 2012 – 2 – L.W. 1022.

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Registration Act, 1908 (16 of 1908), Section 47 – Code of Civil Procedure, 1908 (5 of 1908), Section 64(2) & Order 21, Rule 58 – “Z” filed Suit for recovery of money against “R”, pending Suit he also filed Interim Application for attachment of property – “R” gave an undertaking that he would not alienate property and recording his undertaking Application was closed – Subsequently “Z” filed another Application for attachment of property and same was ordered on 3.9.2003 – Suit decreed on 9.12.2005 – “Z” filed Execution Petition for sale of attached property – At that time Appellant filed Application seeking declaration that he has title over attached property and prayed for raising attachment being bona fide purchaser of property – Courts below dismissed Application – Appellant contended that he is bona fide purchaser and Sale Deed was executed in his favour – Sale Deed was executed after order of attachment – Registration of any Sale Deed subsequent to attachment of property by Court would have no effect – Appellant cannot rely upon Sale Deed registered in respect of attached property by pleading as bona fide purc purchaser. haser. (2011 (2011 (2) CTC 401., C. SUBRAMANIAN VS N. CHOCKALINGAM ASARI AND OTHER)

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Order 21, rule 64.

Civil Procedure Code, 1908, O.21.R.64 -Proclamation stating that property will be sold in lots - Sale conducted in disregard to said condition - Improper and liable to be set aside, more so when judgment debtor had moved an application that entire property should not be sold in one lot. (M/s Vidya Hatechery Farm Vs Punjab National Bank) AIR 2002 H.P. 92 Civil Procedure Code, 1908, O.21.R.64 read with Section 151 CPCSuit decreed execution petition filed to realize decree amount – property brought to sale upset price earlier fixed as 2,00,000/-reduced to 1,25,000/--on petition by the execution court – on revision by JD, High Court expressed that the executing court reduced upset price taking consideration of facultative aspects relaying to property – Order of executing court confirmed – CRP is dismissed. 2010 (1) TLNJ 60 (Civil) - Ramasamy Vs Thangavel. 2006 (2) M.L.J. 289 (S.C) 2006 (3) CTC 180 Balakrishnan Vs. Malaiyandi Konar It

is the bounden duty of the Court to sell only such property or portion thereof as is necessary to satisfy satisfy the decree is the mandate of the legislature. This is not just discretion but an obligation imposed upon the Court. The sale held w without ithout examining this aspect and not in conformity with the mandatory requirement would be illegal and without jurisdiction. 2006 (3) CTC 180 Balakrishnan Vs. Malaiyandi Konar Code of Civil Procedure,

1908, Order 21, Rule 64 – Duties and Obligation of Executing Court – Law of Execution – Sale of property – Legislative intent clearly indicates that there cannot be a sale beyond the decretal amount mentioned in sale proclamation and same cannot be ignored – Executing Court has to decide whether it is necessary to bring entire property to sale or portion thereof as necessary to satisfy decree – Even if property is

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one, if a separate portion could be sold without violating any provision of law, only such property should be sold - Same is not discretion but obligation imposed on Court. Limitation Act, 1963, Article 134 - Code of Civil Procedure, 1908, Order 21, Rule 92 – Law of Limitation – Period of 1 year prescribed under Article 134 starts running from date of confirmation of sale and not from date when sale certificate is issued because there can be variety of factors conceivable for which delay can be caused in issuing a sale certificate – Object of prescribing one year period is only to finalize execution proceedings as quickly as possible and therefore remedy has to be sought from date of sale becoming absolute on confirmation under Order 21, Rule 92, CPC effectively passing title.

Civil Procedure Code 1908 as amended, Order 21, Rule 65 read with Section 151 CPCSuit decreed execution petition filed to realize decree amount – property brought to sale upset price earlier fixed as 2,00,000/- reduced to 1,25,000/- - on petition by the execution court – on revision by JD, High Court expressed that the executing court reduced upset price taking consideration of facultative aspects relaying to property – Order of executing court confirmed – CRP is dismissed.(2010 (1) TLNJ 60 (Civil) Ramasamy Vs Thangavel)

Civil Procedure Code, 1908, O.21.R.66, O.9.R.13 -Execution -Exparte decree

Execution -Sale of property during pendency of application to set aside ex parte decree -Held, once there is an application for stay of execution proceedings in an application for setting aside ex parte decree, trial Court should not proceed to sell the

property in post haste manner -Sale of land without notice to J.D. on the basis of refusal report on application U.O.21.R.66 CPC shows that the proceedings have been conducted to grant undue benefit to D.H. (Mehar Singh & Ors. Vs Firm Pakher Singh) 2003(3) Civil Court Cases 686 (P&H)

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Civil Procedure Code, 1908, O.21.R.66 -Notice of application U.O.21.R.66 not served upon J.D. -Valuation of property not given by D.H. -Sale of property suffers from material illegality and irregularity and thus the same set aside. (Mehar Singh & Ors. Vs Firm Pakher Singh) 2003(3) Civil Court Cases 686 (P&H) Civil Procedure Code, 1908, O.21.R.66 -Proclamation of sale -To be drawn up after notice to the decree holder and the judgment-debtor and is required to state fairly and accurately (i) the property to be sold or where a part of the property would be sufficient to satisfy the decree, such part; (ii) the revenue assessed upon the estate or part of the estate; (iii) any encumbrance to which the property is liable; and (iv) the amount for the recovery of which the sale is ordered. (Dharam Pal Vs Ludhiana Improvement Trust & Ors.) 2005(1) Civil Court Cases 30 (P&H) Civil Procedure Code, 1908, O.21.R.66 -Sale without notice to J.D. is nullity Jurisdiction to sell the right arises in a Court only where the owner is given notice of the execution for attachment and sale of his property -On notice owner can offer his estimate as he is the person who intimately knew the value of his property prevailing in the locality. (Randhir Singh & Ors. Vs New Bank of India) 2003(1) Civil Court Cases 530 (P&H) C.P.C., Order 21 Rule 66, 90/Sale of Property, Portion of, Necessity to satisfy decree – Blind sale of the entire en tire property ignoring the provisions pro visions of law in execution ca case se shall be deprecated – A portion of the property alone to be sold which is necessary to satisfy the decree, any sale proceedings in contravention of Order 21 Rule 64 and 66 (2) cannot be sustained – Judgment debtor cannot file any application to set aside the sale under Order 21, R.90(3) on the ground, which he could have raised anterior to the drawing up of proclamation of sale – In this case the ground as to value of property was raised after the proclamation was dawn up – If the judgment debtors had notice from court and acquiesced by taking no action before the date of sale proclamation,

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they are precluded from assailing its legality or correctness on the subsequent point of time alleging that the execution sale is bristled with material irregularities – Value of the property was three times the E.P. amount and the Executing Court should have noted the fact that a part of the sale of the property was necessary to satisfy the decree – Since such condition has been deviated, it has to be held that the sale is ab initio void. (2009-2-L.W. 376

1.K.J.Prakash Kumar 2. K.J.Hemalatha 3.

K.J.Padmasini Vs. 1.Rasheeda Yasin, 2. G G.R.Selvaraj) .R.Selvaraj) Civil Procedure Code, 1908, O.21.R.66(2), R.54 (1-A) -Sale proclamation -Failure of J.D. to file objections, if any, on the valuation assessed by D.H. -Even if no valuation was made by D.H. even then J.D. is not precluded from quoting his price -J.D. came forward only to pay some amount and sought for adjournment of sale -Held, when J.D. failed to avail the opportunity at the initial stage in spite of having full knowledge about the sale proclamation and the proceedings of settlement of terms of sale, no further opportunity need be given to him, at the time of sale. (S.Nooruddin Vs Khadam Gnanoba) 2004(3) Civil Ci vil Court Cases 696 (A.P (A.P.) .) Civil Procedure Code, 1908, O.21.R.66(2) and O.5.Rr.20, 15 -Notice -By affixture Not a valid notice in the absence of process server making repeated efforts to effect personal service and in the absence of Court ordering to follow the procedure contemplated u/o 5 rule 20 CPC on a report of process server. (Pappasani Narayana Reddy Vs Mandem Reddappa Reddy) 2005(1) Civil Court Cases Ca ses 480 (A.P.) (A.P.) 2006 (3) CTC 198 Saheb Khan Vs. Mohd. Yusufuddin and others Code of Civil

Procedure, 1908, Order 21, Rule 67 – Law of Execution – Provides for advertisement in newspaper for which there should be specific direction by Court – Proclamation by beat of drum also not mandatory – Advocate Commissioner distributing pamphlets several days prior to date fixed for sale in locality, besides also affixing notice copy on property itself – Case does not warrant setting aside such sale. Code of Civil

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Procedure, 1908, Order 21, Rule 90 – Law of Execution – To set aside sale of immovable property in execution of a decree, mere establishment of fraud or material irregularity is not sufficient - Applicant must further satisfy Court that it has resulted in substantial injury to Applicant – Conversely, even if substantial injury is made out, sale cannot be set aside if there is no material irregularity or fraud in process of sale – Bald allegations are not sufficient to set aside sale by Court when ingredients of provisions of law are not satisfied. Civil Procedure Code, 1908, O.21.R.72A(2) -“Reserve price” and “upset price” Difference -Though analogous and almost homologous are not synonymous. (Nedungadi Bank Ltd. Vs Ezhimala Agrl. Products) 2004(2) Civil Court Cases 95 (Kerala) Civil Procedure Code, 1908, O.21.R.77 -Arrears of pay -Sale of property -Petitioner never filed objections -Bank one of the creditors claiming first charge over said property also did not file objections to sale on ground of pendency of proceedings before Debt Recovery Tribunal -Officer of purchaser accepted in absence of better offer Petitioner and Banker subsequently raising objection to auction on ground of inadequate consideration -Held, not maintainable in absence of any bona fides Moreover, purchaser has already deposited entire payment and he should not suffer for no fault of his. (M/s Samrat Ashok Exports Ltd. Vs Asstt. Provident Fund Commissioner) AIR 2002 Karnataka 61 Civil Procedure Code, 1908, O.21.Rr.84, 86 -Auction sale -Deposit of 25% of purchase money in Court immediately after auction -Provision is mandatory -Failure to do so Renders the auction proceedings a nullity -Sale set aside -D.H. withdrew the amount deposited by auction purchaser subsequently -D.H. to refund the said amount with interest at 10% p.a. within 3 months, in default, to pay interest at 18% p.a. (M/s.Ganry's and Ganry's Vs M/s.J.Sikile (India) Ltd.) 2003(2) Civil Court Cases 237

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(A.P.) Civil Procedure Code, 1908, O.21.R. 84, 85, 89, 90, 91 & 92.:- Payment made by drafts – compliance of rule 84 & 85. Deposite under provision – Non-payment of and consequences of. Provisions, in nature of concession, are to be strictly complied with before setting aside a sale prior to its confirmation. ( Ram Karan Gupta v J.S.Exim Ltd) ( SC) (K.S.P.Radhakrishnan,J) (K.S.P.Radhakrishnan,J) ( 2012 – 6- CTC – 710) (date of judgment:- 3.12.2012) Civil Procedure Code, 1908, O.21.R.85 -Auction -Deposit of auction amount -Period of 15 days -Provision is mandatory -Court in exercise of power u/ss 148 or 151 cannot extend time. (United Commercial Bank Vs Mani Ram) AIR 2003 H.P. H.P. 63 Civil Procedure Code, 1908, O.21.R.85, Ss.148 & 151 -25% of auction money deposited -Failure to deposit the remainder within 15 days -Extension of time Provision of O.21.R.85 is mandatory and Court cannot extend time u/s 148 -Inherent power also cannot be used to extend time fixed by law -Time for deposit of full purchase money fixed by law as 15 days cannot be extended. (United Commercial Bank Vs Mani Ram, Dhani Ram) 2003(3) 2003(3 ) Civil Court Cases 498 (H.P.) (H.P.)

Civil Procedure Code, 1908, O.21.R.85 r/w R.72 -Auction sale -Failure to deposit full amount of sale price within specified period of 15 days -Sale becomes a nullity. (Fauja Singh Vs Mohinder Singh) 2003(3) Civil Court Cases 190 (P&H) Civil Procedure Code, 1908, O.21.R.85 -Provision is mandatory -Failure to deposit balance purchase money within period of 15 days results in cancellation of sale itself. (Kadeeja Vs Chandrika) 2005(1) Civil Court Cases 635 (Kerala) Civil Procedure Code, 1908, O.21.R.85 -Purchase money -Deposit -Period expiring on day while strike was on and deposit made on the working day next after lifting of strike

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-Deposit is within time. (Limitation Act, 1963, Ss.4, 5 & 9). (Kadeeja Vs Chandrika) 2005(1) Civil Court Cases 635 (Kerala) Civil Procedure Code, 1908, O.21.R.86 -25% of purchase money deposited -Failure to deposit the remainder within 15 days -Forfeiture -Default in despot stated to be due to lack of knowledge of the provision and also due to illness of mother and time consumed in treatment -After deducting the expenses of sale, one half of the remainder of the amount ordered to be forfeited to Govt. and the remaining half is ordered to be refunded to the auction purchaser. (United Commercial Bank Vs Mani Ram, Dhani Ram) 2003(3) 2 003(3) Civil Cou Court rt Cases 498 (H.P ( H.P.) .)

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Civil Procedure Code, 1908, O.21.Rr O.21.Rr.89 .89

Civil Procedure Code, 1908, O.21.Rr.89, 90 & 48 -Auction sale -Setting aside Fraud -

Sale can be set aside on ground of fraud -Undervaluation by itself is not sufficient to infer fraud -However gross undervaluation coupled with other circumstances such as one of the purchasers being the son of one of the J.D's and another one being a relative of one of the J.D's and the enthusiasm exhibited by J.D's in having the sale of their own property confirmed are circumstances indicating fraud. (Nedungadi Bank Ltd. Vs Ezhimala Agrl. Products) 2004(2) Civil Court Cases 95 (Kerala) Civil Procedure Code, 1908, Order 21 Rule 89 is 1) to save the judgment-debtor

from the threarened deprivation of his property, 2) to satisfy the claim of the decree holder and 3) to compensate the auction purchaser. Order 21 Rule 89(1) (a) requires applicant to deposit in Coourt 5 per cent of the purchase money for payment to the auction purchaser – deposit of the requisite amount in the Court is a sine qua non to an application for setting a side the execution of sale. Cases referred:- 1) 1954 - 67 – L.W. 632 = AIR AIR 1954 SC 349. 2) AIR 1996 SC 2781 3) 2001 – 3 – L.W – 596 = 2001 – 7 – SCC – 71. 4). 2008 – 11 – SCC 161. 5) AIR 2007 SC 998. 6) AIR – 1968 SC 372 7). 2004 – 2- L.W. - 350 = 2004 – 1 – SCC – 453. (This judgment is reported in 2013 – 1 – L.W. - 456) Ram Karan Gupta v. J.S.Exim Ltd and others ( SC) (Justice K.S.Radhakrishnan) ( 3.12.2012)

Code of Civil Procedure (5 of 1908), Order 21 Rule 89(1), 92(2) and Order 43 Rule 1(j) – Appeals from orders - Execution proceedings – Sale of properties – Court auction – Confirmation of sale in favour of decree holder - Filing of application by judgment debtor debt or to set aside sale – Dismissal Dis missal on ground of limitation lim itation – Maintainability of application under Rule 89(1) to set aside sale along with deposit – Scope of –

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Maintainability of appeal under Order 43 Rule 1(j) – Scope of - Order 21 Rule 89(1) integrally connected with Rule 92(2) – Follow up action to Rule 89(1) lies in Rule 92(2) – Order setting aside or refusing to set aside a sale on application under Rule 89(1) is appealable as an order under Order 43 Rule 1(j). RATIONES DECIDENDI I. An order setting aside or refusing to set aside a sale on an application under Rule 89(1) is appealable as an order under Order 43 Rule 1(j) of the Code of Civil Procedure. II. Filing of application for setting aside a sale and payment of deposit contemplated under Section Rule 89(1) of the Code of Civil Procedure shall be taken place simultaneously. III. An application under Rule 89(1) to set aside a sale along with deposit of money is well within time and maintainable even if it is filed after the prescribed period of sixty days from the date of sale on the date of reopening of Court, on account of expiration of prescribed period during summer recess. IV. The Court is entitled to make an order for setting aside the sale under Rule 92(2) Order 21 of the C.P.C after compliance of conditions under Rule 89(1) of the Code by judgment debtors. ((2011) 4 MLJ 786 Dr. Jayakar Joseph and Anr vs B. Raveendra Ra veendra Bose) Civil Procedure Code, 1908, O.21.Rr.89, 90, S.115 -Auction sale -Setting aside Cannot be allowed to be achieved by maintaining revision -Remedies U.O.21.Rr.89, 90 to be availed. (Vummethala Vs Thameeru) AIR 2003 A.P. A.P. 45

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Civil Procedure Code, 1908, O.21.Rr O.21.Rr.90 .90

Civil Procedure Code, 1908, O.21.Rr.90, 66 -Execution -Sale of property without notice to J.D. -Sale is nullity. (Randhir Singh Vs New Bank of India) AIR 2002 P&H 264 Civil Procedure Code, 1908, O.21.R.90, Limitation Act, 1963, S.5 -Auction sale Setting aside -Limitation is 60 days -Time begins to run from the date of sale -Process of moving an application U.O.21.R.90 has to precede the confirmation of sale Provision of S.5 Limitation Act is not applicable to an application under O.21 CPC. (Mangilal Narsingdas Gattani Vs Shaligram Ukarda Payghan) 2003(1) Civil Court Cases 497 (Bombay) Civil Procedure Code, 1908, O.21.R.90 & Limitation Act, 1963, Art.127 -Auction sale Setting aside -Limitation -Notice not given to J.D. for drawing up sale proclamation Sale is a nullity -There is no question of 60 days limitation in making application for setting aside sale. (Randhir Singh & Ors. Vs New Bank of India) 2003(1) Civil Court Cases 530 (P&H) Civil Procedure Code, 1908, O.21.R.90 -Auction sale -Setting aside -Mere assertion of circumstances not sufficient to prove fraud -No material produced to prove the same Further application to set aside sale filed beyond period of limitation of sixty days Application cannot be entertained. (Boban Vs Sajith Kumar) AIR 2004 Kerala 181 Civil Procedure Code, 1908, O.21.R.90 -Sale -Ordered to be conducted by SDO (Civil) -However, sale not conducted by him -It is material irregularity. (Ludhiana Improvement Trust Vs Balraj Singh) AIR 2002 P&H 277

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Civil Procedure Code, 1908, O.21.R.90 -Sale -Setting aside - Limitation -Sale sought to be set aside on ground of material irregularity or fraud in publishing or conducting sale - Held, length of time not to be admitted for refusing relief. (Ludhiana Improvement Trust Vs Balraj Singh) AIR 2002 P&H 277 Civil Procedure Code, 1908, O.21.R.90 -Sale -Setting aside -Notice to J.D. not given How much property will be sufficient to meet the decretal amount and how much should be the reserve price not decided -No notice to prospective bidders as to postponement of sale -No proclamation of sale in local newspaper -Sale price entered in sale deeds is not the true price as the same is under valued to avoid payment of stamp duty - Sale liable to be set aside. (Randhir Singh Vs New Bank of India) AIR 2002 P&H 264 Civil Procedure Code, 1908, O.21.R.90 -Sale -Setting aside -Notice to J.D. not given How much property will be sufficient to meet the decretal amount and how much should be the reserve price not decided -No notice to prospective bidders as to postponement of sale -No proclamation of sale in local newspaper -Sale price entered in sale deeds is not the true price as the same is under valued to avoid payment of stamp duty - Sale liable to be set aside. (Randhir Singh Vs New Bank of India) AIR 2002 P&H 264 Civil Procedure Code, 1908, O.21.R.90 -Sale -Setting aside -Sale found to be nullity No question of limitation in making application for setting aside sale arises in such cases. (Randhir Singh Vs New Bank Ban k of India) AIR 2002 P&H 264 Civil Procedure Code, 1908, O.21.R.90 -Auction sale -Setting aside -Failure to state the existence of a well and mango tree in the sale proclamation -J.D. was present through Advocate when sale proclamation was settled -No such objection was raised

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at that stage by J.D. -Held, J.D. is prohibited from raising that objection as constituting material irregularity in the conduct of sale in view of provisions of O.21.R.90(3) CPC. (Mangilal Narsingdas Gattani Vs Shaligram Ukarda Payghan) 2003(1) Civil Court Cases 497 (Bombay) Civil Procedure Code, 1908, O.21.R.90 -Auction sale -Setting aside -Mere inadequacy of price is not a ground to set aside auction sale -However if there is material irregularity in conducting the sale leading to substantial injury to J.D. then sale has to be set aside. (Randhir Singh & Ors. Vs New Bank of India) 2003(1) Civil Court Cases 530 (P&H)

Civil Procedure Code, 1908, O.21.R.90 - Sale - Notice not given to J.D. for drawing up sale proclamation -Amounts to substantial injury -Sale set aside. (Randhir Singh & Ors. Vs New Bank of India) 2003(1) Civil Ci vil Court Cases 530 (P&H) Civil Procedure Code, 1908, O.21.R.90 -Sale -Setting aside -Sale cannot be set aside merely on irregularity in publishing or conducting sale -Sale can be set aside if there is material irregularity or fraud in conducting or publishing the sale and there is irreparable injury. (Randhir Singh & Ors. Vs New Bank of India) 2003(1) Civil Court Cases 530 (P&H) Civil Procedure Code, 1908, O.21.Rr.90, 66 -Auction sale -Setting aside -Execution of exparte decree -Application for stay of execution filed in an application for setting aside exparte decree -Trial Court should not have proceeded to sell the property in posthaste manner -Sale of land without notice to J.D. on refusal report on an application U.O.21.R.66 CPC shows that the proceedings have been conducted to grant undue benefit to D.H. -Sale set aside. (Mehar Singh & Ors. Vs Firm Pakhar Singh Amir Singh & Ors.) 2005(1) Civil Court Cases 170 (P&H)

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Civil Procedure Code, 1908, O.21.Rr.90, 66 -Auction sale -Setting aside -Notice U.O.21.R.66 CPC not served upon J.D. nor the valuation of property given by D.H. Held, sale of property suffers from material illegality and irregularity and the same is liable to be set aside. (Mehar Singh & Ors. Vs Firm Pakhar Singh Amir Singh & Ors.) 2005(1) Civil Court Cases 170 (P&H) Civil Procedure Code, 1908, O.21.Rr.90, 66 -Auction sale -Setting aside Proclamation of sale -Notice ordered to be issued to J.D. but not served -Proclamation did not contain the correct amount of recovery of which sale was ordered -Court did not record the satisfaction that the sale of property or part of property would be sufficient to satisfy the decree -Proclamation did not contain the estimate given by J.D. in the proclamation -Held, these irregularities are sufficient not to confirm sale. (Dharam Pal Vs Ludhiana Improvement Trust & Ors.) 2005(1) Civil Court Cases 30 (P&H) 2006 (3) CTC 198 Saheb Khan Vs. Mohd. Yusufuddin and others Code of Civil

Procedure, 1908, Order 21, Rule 67 – Law of Execution – Provides for advertisement in newspaper for which there should be specific direction by Court – Proclamation by beat of drum also not mandatory – Advocate Commissioner distributing pamphlets several days prior to date fixed for sale in locality, besides also affixing notice copy on property itself – Case does not warrant setting aside such sale. Code of Civil Procedure, 1908, Order 21, Rule 90 – Law of Execution – To set aside sale of immovable property in execution of a decree, mere establishment of fraud or material irregularity is not sufficient - Applicant must further satisfy Court that it has resulted in substantial injury to Applicant – Conversely, even if substantial injury is made out, sale cannot be set aside if there is no material irregularity or fraud in process of sale – Bald allegations are not sufficient to set aside sale by Court when ingredients of provisions of law are not satisfied.

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2006 (3) CTC 180 Balakrishnan Vs. Malaiyandi Konar Code of Civil Procedure,

1908, Order 21, Rule 64 – Duties and Obligation of Executing Court – Law of Execution – Sale of property – Legislative intent clearly indicates that there cannot be a sale beyond the decretal amount mentioned in sale proclamation and same cannot be ignored – Executing Court has to decide whether it is necessary to bring entire property to sale or portion thereof as necessary to satisfy decree – Even if property is one, if a separate portion could be sold without violating any provision of law, only such property should be sold - Same is not discretion but obligation imposed on Court. Limitation Act, 1963, Article 134 - Code of Civil Procedure, 1908, Order 21, Rule 92 – Law of Limitation – Period of 1 year prescribed under Article 134 starts

running from date of confirmation of sale and not from date when sale certificate is issued because there can be variety of factors conceivable for which delay can be caused in issuing a sale certificate – Object of prescribing one year period is only to finalize execution proceedings as quickly as possible and therefore remedy has to be sought from date of sale becoming absolute on confirmation under Order 21, Rule 92, CPC effectively passing title. CIVIL PROCEDURE – C.P.C. – ORDER XXI RULE 90; SECTION 115 – Revision petition – Scope of powers – Suit for recovery of an amount of 26,720/- being the principal amount and interest due on a pro note executed by appellant for 24,000/- Suit decreed ex parte – Plaintiff respondent filed an execution petition for realization of decretal amount by sale of immovable property of appellant – Sale was held in favour of respondents – Appellant filed an application under Order 21 Rule 90 of the Code to set aside sale of property alleging that the property was worth 15 lacs but it was sold for 3,15,000/- to realize the decretal amount of 40,364/- - Application dismissed – In revision, High Court gave an opportunity to the judgment debtor to pay the decretal amount – Executing court dismissed the application to set aside sale of the property in question – On challenge, High Court remanded the matter to the trial Court for fresh disposal – Sale was set aside with a direction to the appellant to deposit a sum of

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18,000/- - High Court set aside this order ignoring deposit of 18,000/- by appellant – Whether judgment of the High Court was sustainable – Allowing the appeal, Held, In our opinion the impugned order of the High Court cannot be sustained. It appears that the High Court ignored the deposit of 18,000/- on 06.11.2001 in pursuance of order dated 2.11.2001, and failed to take into account the order dated 11.12.2001 of learned Additional Senior Civil Judge dismissing the Execution Petition No.17 of 1996 and also did not take into consideration the earlier order dated 10.4.1998 in Civil Revision Petition No.3957 of 1998. In our opinion the High Court was not justified in interfering in a Civil Revision Petition under Section 115 C.P.C. when the amount 18,000/- was deposited on 06.11.2001 as per order dated 02.11.2001. (2011 (4) SCALE 222 U. Sowri Reddy (Dead) by Lrs. Vs B. Suseelamma S useelamma & Ors.)

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Civil Procedure Code, 1908, O.21.Rr O.21.Rr.92 .92

Civil Procedure Code, 1908, O.21.Rr.92, 93, Companies Act, 1956, S.457(1)(c), Companies (Court) Rules, 1959, Rr.272, 273, 274 -Auction sale -Set aside Repayment of purchase price -Interest -Under O.21.R.93 CPC it is discretion of Court setting aside sale either to award interest or not to award interest -Obtaining of possession by purchaser on deposit of purchase price is relevant in deciding whether purchaser would be entitled to interest on the purchase price -Interest not allowed keeping in view that purchaser obtained possession even before he had paid the entire purchase price and had paid only 25 per cent or so of the purchase price and kept that possession for 10 years. (Allahabad Bank etc. Vs Bengal Paper Mills Co. Ltd. & Ors.) 2005(1) Apex Court Judgments 657 (S.C.) : 2005(2) Civil Court Cases 196 (S.C.) ( S.C.) Code of Civil Procedure, 1908, Order 21, Rule 94(2) – Court Auction Sale – Court auction sales do not give any warranty of title as principle of caveat emptor is applicable to such sales – Execution proceedings taken against property without impleading owner of property as party are null and void and owner could ignore sale in execution – Plaintiff purchased property from owner and said property was brought to sale by auction pursuant to decree passed in action by Municipality for recovery of arrears without impleading plaintiff as defendant but against original owner and original owner allowed suit to be decreed exparte   and owner’s wife purchases it in Court auction without impleading or bringing in plaintiff as party – Such sale is null and void and plaintiff could ignore such such sale. (2006 (3) CTC 702 Dr. T. Vijayendradas and another Vs. M. Subramanian and others )

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C.P.C., Order 21, R.95 / Non filing of an application under Order 21, Rule 95 to take delivery of the property, effect of, Limitation Act (1963), Section 27, Article 134. In the present case, suit was filed by the plaintiffs, who after losing their right over the suit property in the Court auction, filed the suit for declaration and injunction – First plaintiff lost his right in the suit property, as the suit property was sold in a Court auction – They are not entitled to maintain the suit for declaration and injunction against the respondent / defendant, who is the true owner. Non filing of an application under Order 21, Rule 95 to take delivery of the property cannot be put against the respondent / defendant – Section 27 extinguishes the right of the party from filing the suit for possession and it cannot be made applicable to an application under Order 21, Rule 95 – Admittedly, an application under Order 21, Rule 95 has to be filed for claiming possession of the property purchased in the Court auction and it cannot be equated to the suit for possession – He becomes a perfect title holder to the suit properties, being a purchaser in a Court auction – Second Appeal dismissed. (2011 - 3 – L.W. 890 Veluran @ Muthusamy Gounder (deceased) (dece ased) and Ors Vs Perumal Gounder) Civil Procedure Code, 1908, Order 21 Rule; 95 & Article 134 of Limitation Act; Period of one year prescribed under Article 134 of the Limitation Act starts running from the date of confirmation of sale and period of limitation does not start from the date when the sale certificate is issued – The sale becomes absolute on confirmation under order; 21 Rule;95 of the code effectively passing title. (K.Mohanram,J) 2012 – 2 -L.W – 839. (8th September, 2012, S.Sivasubramanian vs. N..Chinnasamy & one another) C.R.P. (NPD) NO. 420 of 2009 and M.P.No.1 of 2009. Civil Procedure Code, 1908, O.21.Rr.97, 99 -Execution -Decree of specific performance -Objectors claiming to be in possession of suit premises but miserably failing to prove same that he was running school in premises in question -Objections rightly dismissed. (Central Academy Educational Society Vs Mool Chand & Ors.) 2004(2) Civil Court Cases 353 (Rajasthan)

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Civil Procedure Code, 1908, O.21.R.97, O.41.R.11 -Dismissal of application U.O.21.R.97 -Dismissal to be treated as decree against which an appeal lies. (Balraj Singh & Anr. Anr. Vs Ajit Singh) 2004(3) Civil Ci vil Court Cases 673 6 73 (Rajasthan) Civil Procedure Code, 1908, O.21.R.97, S.115 -Execution -Decree for possession of immovable property -Application of obstructing party dismissed at its threshold on ground of maintainability -No inquiry into right, title and interest of parties made Held, such an order cannot be deemed to be decree -Revision and not appeal is maintainable against such order. (Ram Kumar Tiwari Vs Deenanath & Ors.) AIR 2002 Chhattisgarh 1 Civil Procedure Code, 1908, O.21.Rr.97, 99, O.47.R.1 -Decree for specific performance -Execution -Delivery of possession -Obstruction -Obstructing party not having subsisting right or outstanding claim of right in terms of settlement deed Clause relied on by him in the settlement deed not found valid - Obstruction is not maintainable. (Ittiyachan Vs M.I.Tomy) M.I.Tomy) AIR 2002 Kerala 5 Civil Procedure Code, 1908, O.21.R.97 -Decree for delivery of symbolic possession Applicant a stranger to decree in possession of suit premises as lessee -Unless and until objections of applicant are heard, no order in execution requiring applicant to handover vacant possession of suit premises can be passed. (Roshanlal Vs Avinash) AIR 2003 Bombay 31 Civil Procedure Code, 1908, O.21.R.97 -Execution -Decree for possession of immovable property -Objection can be raised by party apprehending dispossession. (Ram Kumar Tiwari Vs Deenanath) AIR 2002 Chhattisgarh 1

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Civil Procedure Code, 1908, O.21.R.97, S.151 -Application u/s 151 filed in execution petition seeking police protection for effecting delivery of possession -Though application is one u/s 151 but nature of relief sought is one under O.21.R.97 for removal of obstruction by third parties -Such an application cannot be ordered without notice - It is mandatory that adjudication be made in such application after giving notice and hearing the parties who are other than J.D's. (Dairapu Satyanarayana & Ors. Vs Omni Appala Naidu & Ors.) 2004(3) 2004( 3) Civil Court C Cases ases 505 (A.P.) (A.P.) Civil Procedure Code, 1908, O.21.R.97 & S.11 -Obstructors -Asserted their lawful possession as tenant -Earlier an application based on same facts was rejected -Order became final with dismissal of revision -Trial Court is not required to determine alleged claim of tenancy as the application is barred by res judicata u/s 11 of the Code. (Abdul Sattar & Ors. Vs Gurlingayya) 2003(1) Civil Court Cases 489 (Karnataka) Civil Procedure Code, 1908, O.21.R.97 -Application U.O.21.R.97 filed on 14.10.2003 but Court did not pass any order and posted it for orders on 1.11.2003 -However, on 14.10.2003 order for execution of decree with police help passed -Application U.O.21.R.97 CPC will be deemed to have been dismissed. (Balraj Singh & Anr. Vs Ajit Singh) 2004(3) Civil Court Cases 673 (Rajasthan) Civil Procedure Code, 1908, O.21.R.97 -Decree for possession -Obstruction by third party -Obstructor claiming possession by virtue of his induction as lessee under oral agreement by D.H. himself during pendency of suit -J.D. held to be in possession as lessee by trial Court and first Appellate Court -Claim made by obstructor cannot be believed in absence of evidence, as there cannot be two tenancies of single tenement Party claiming under D.H. cannot be obstructor and his petition against execution of decree is not maintainable. (Ramachandra Vs Smt.Kempamma) 2003(2) Civil Court Cases 254 (Karnataka)

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Civil Procedure Code, 1908, O.21.R.97 -Execution -Payments made during pendency of suit and/or execution proceedings -Adjustment -Provision of O.21.R.97 CPC cannot be invoked to make such an application. (Kokila Manohar Bhavsar & Anr. Vs Sulochana Vasant Bhavsar) 2005(1) Civil Court Cases 340 (Bombay) (Bomba y) Civil Procedure Code, 1908, O.21.R.97 -Obstruction to possession -In case of obstruction D.H. has to file an application under O.21.R.97 - Inspite of obstruction Court Nazir taking forcible possession -Illegal -Such an act of Nazir amounts to misconduct Conduct of Nazir and acceptance of his report by Executing Court in such circumstances of the case is reprehensible. (Katepaga Yadagiri & Ors. Vs B.Maheshwar Reddy) 2004(2) 2004( 2) Civil Court Cases 174 (A.P.) (A.P.) Civil Procedure Code, 1908, O.21.R.97 -Obstructor -Not clear as to what is his position -Order as to enquiry to ascertain position of obstructor -No illegality or irregularity in order.. (Balraj Singh & Anr. order Anr. Vs Ajit Singh) 2004(3) Civil Ci vil Court Cases 67 6733 (Rajasthan) Civil Procedure Code, 1908, O.21.R.97 -Removal of person bound by decree who does not vacate -It would include claim of a person who claims to be in possession in his own right and independently of judgment debtor but whose claim ex facie is unsustainable -However, when resistance is offered or where obstruction proceeds from the claimant claiming to be in possession in his own right and whose claim cannot be rejected on the ground of want of good faith, without investigation, the Decree Holder must proceed U.O.21.R.97 CPC. (P.Janardhana Rao Vs Kannan & Ors.) 2004(2) Apex Court Judgments 626 (S.C.)

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(2009) 4 L.W. 592 M.S. Mansoor Deen & 3 others Vs. Mrs. Fathimuthu Beevi & 7 others C.P.C., Order 21, Rr.97, 101, 103, Transfer of Property Act (1882), Section

52/Transferee Pendente Lite. It is to be borne in mind that an individual bound by a decree encompasses a person claiming through the judgment debtor. The provision for removal of an individual bound by a decree who does not vacate, takes into account a situation where resistance to possession is offered or obstruction is made by the judgment debtor, or any other person bound by the decree on the ground which is patently without substance. It may also include category of a person who claims to be in possession in his own right and independently of the judgment debtor, but whose claim is on the face of it an unacceptable and cannot be said to be made in good faith. Indeed, once resistance is offered by a so called stranger to the decree which comes to be noted by a Executing Court as well as by a decree holder against such an obstructionists is only as per Or.21 R.97, sub-rule (1) of Civil Procedure Code and he cannot get over such obstruction and insist on re-issuance of warrant for possession under Or.21 R.97. Although the proceedings under Order 21 Rule 97 and 98 may partake the character of the suit, the proceedings do not acquire the character of suit. In fact inter-vention by a third party in an execution proceeding by bringing a fresh suit is barred by Order 21 Rule 101 of Civil Procedure Code as per decision Mohamed Akhtar Hossain V. Suresh Singh AIR 2004 Cal 99. It is relevant to make a mention that a plea of limitation in proceedings under Order 21 Rule 97 is not available to the obstructer and the same is open to judgment debtor only as per decision AIR 1991 Rajesthan 136, 145. It is not out of place to point out that Rule 97 of Order 21 of Civil Procedure Code deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionists can be adjudicated upon before actual delivery of possession to the decree holder and this adjudication which is subject to the hierarchy of police will bind the parties to such proceedings and separate suit is barred as per decision of Honble Supreme Court Brahmodeo Chaudhary V. V. Rishikesh Prasad Jaiswal AIR 1997 SC 856, at 861 = 1997-2-L.W.266. It is pertinent to point out that an appeal against the order rejecting objection under

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Order 21 Rule 97 is not an Execution Appeal or Regular Appeal, but an Appeal under Order 21, Rule 103, the scope of manner of disposal is governed by Order 21 of Civil Procedure Code as per decision in M.S. Khalid V.K.R. Rangaswamy AIR 2003 Kant 174 (175). Also in Balraj Singh V. Ajit Singh AIR 2005 Raj 120 (123) it is held that an appeal can be filed before the District Judge. More-over, an appeal is maintainable only against an order adjudicating the rights of the parties under Order 21 Rule 97 of Civil Procedure Code when the finding of the Executing Court that the status of the appellant is that of a trespasser is not disputed by him, he cannot evade the order granting police help on the ground that the provision contained in Rule 208 of the Civil Rules and order has not been followed as per decision Hiralal Sha V. Debprosad Dey and others 1998 CWN 41:(1998) 1 CHN 399, 403 (DB).At this juncture, this Court points out the decision in Akula Ramulu and others V. Kammari Balaram and another 2003 AIHC 2538 at page 2541 wherein it is held that ‘if a transferee takes place during the pendency of suit or subsequent thereto will have to be ignorant outright by an Executing Court. In M/s. Deccan Enterprises V. Prem Raju alias Prem and another 2002 AIHC 381 at page 385 (Kant) it is held that ‘a person who is claiming through Judgment Debtor has no right to file an application under Order 21 Rule 97.’ It is held in Nabbu Khan V. III Additional District Judge, Pilibhit 2000 AIHC (All) 4470 at page 4472 that ‘once execution fails on account of resistance by some parties it is open to the decree holder to apply for fresh parwana for fresh execution and Section II of the Civil Procedure Code will not be a bar.’ In the decision 1998 AIHC 4261 at page 4270 and 4271 (AP) wherein it is held that ‘objection by Judgment Debtor’s brother-in-law to defeat the execution of a decree will be rejected.’ Also in V.K.Rama Setty V.A. Gopinath AIR 1998 Karnataka 186 (FB) it is held as follows: “Keeping in view the language employed in O.21, R.99 it is optional for a person, who is other than judgment-debtor and has been dispossessed, to make an application to the Court complaining of such dispossession. Under R.99 the use of the word “may” gives an option to a person to file application before the executing Court averring his grievance. But this rule does not make his remedy exhaustive thereby debarring him from

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preferring a suit for possession completely. It will be for him to choose either of the two forums. In the instant case, the respondent had filed application under O.21, R.99 of the C.P.C. Once such an application is filed it is mandatory on the part of the Court as provided under sub-rule (2) of R.99, to dispose of the same in accordance with the provisions contained in Rr.100 and 101 of O.21 of the C.P.C. as noticed above. It is further of importance to note that once an application is filed by the aggrieved person under R.97 or 99 then R.101 in an unambiguous term bars the filing of a separate suit on any question arising between the parties including the question relating to the right, title and interest in the property.” On a careful consideration of respective contentions, this Court is of the considered view that the transferees pendente lite from the judgment debtors have no independent right in the teeth of Section 52 of Transfer of Property Act, 1882 and they cannot resist the execution and in lieu of the fact that since under the Doctrine of Lis Pendens a decree passed in the suit during the pendency of which transfers are made bind the transferees the application filed by the original decree holder/petitioner in E.A.NO.766 of 2000 and later continued by his legal representatives (by virtue of their impleading as per Order dated 06.7.2004 in E.A.No.788 of 2003) praying for removal of obstruction under Order 21 Rule 97 in regard to the delivery of execution of petition mentioned property etc., is perfectly valid in law and inasmuch as when the revision petitioners have purchased the properties pending suit and later constructed buildings, the order of the Executing Court dated 21.4.2008 in allowing the E.A.No.766 of 2000 does not suffer from any serious infirmity or patent illegality in the eye of law and as such, the same does not require any interference by this Court and consequently, the revision petitions fail. ((2009) 4 L.W. 592 M.S. Mansoor Deen & 3 others Vs. Mrs. Fathimuthu Beevi & 7 others)

Civil Procedure Code, 1908, O.21.R.97(2) -Adjudication/enquiry -Adjudication envisaged need not necessarily be a full fledged adjudication akin to O.21.R.58 CPC It need not be a detailed enquiry by collection of evidence -However, if evidence is necessary then parties may be directed to adduce evidence. (Pagidi Padmavathi &

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Anr.. Vs Kanala Nagaraju & Ors.) 2004(2) Anr 20 04(2) Civil Court Cases 559 (A.P.) (A.P.) Civil Procedure Code, 1908, O.21.Rr.98, 103 -Execution -Possession -Obstruction by J.D. -Application by D.H. for removal of obstruction and delivery of possession Order rejecting application on ground that same was not filed within limitation Revision against -Not maintainable as remedy is to file appeal as order is to be treated as a decree. (Nallasivam Vs Dakshinamurthy) AIR 2004 Madras 387 2006 (4) SCC 476 Saheb Khan Vs. Mohamed Yousufuddin The condition

precedents for setting aside sale are (i) establishing material irregularity or fraud (ii) establishing to the satisfaction of the court that the material irregularity or fraud has resulted in substantial injury to the applicant. conditions is not sufficient.

Even fulfilling of only one of the

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Civil Procedure Code, 1908, O.21.Rr O.21.Rr.99 .99 Civil Procedure Code, 1908, O.21.R.99 -Dispossession -Open vacant land -When possession of open vacant land is delivered in execution of a decree it amounts to dispossession of the owner -Merely because at the time of execution of the decree owner was not physically present it cannot be said that delivery of possession to D.H. by Court does not amount to owners ouster or 'dispossession.' (Ashan Devi & Anr. Vs Phulwasi Devi & Ors.) 2004(1) Apex Court Judgments 25 (S.C.) : 2004(2) Civil Court Cases 212 (S.C.) CPC Section 144/Restitution, redelivery of possession ordering of, by Rent Control Appellate authority, Section 151/order 21, Rule 97, 99, 103/Applications to be filed, redelivery; necessity of, Tamil Nadu Buildings Lease and Rent Control Act (1960) Section 25/willful default/ Execution Fraud, Redelivery, ordering of, Scope. Revision petitioner filed six RCOPS as against six persons – And sought for eviction on the ground of ‘wilful default’ in paying the rents in respect of the six demised premises described therein – Rent Controller passed eviction orders, as against which no appeal emerged – Six E.Ps were filed and under that delivery of the demised premises was taken by the revision petitioner – Several persons filed Execution applications before the learned Rent Controller, invoking Section 144 of C.P.C. for redelivery of the said properties. Among them, the second respondents in all these revision petitions were the petitioners in various E.A. For redelivery on the ground that they have been illegally disposed and those six respondents in the RCOPs had nothing to do with the suit properties, but the revision petitioner in collusion with those six persons obtained RCOP decrees and illegally dispossessed those petitioners, who sought redelivery in the E.As. Rent Controller dismissed the applications as against which, the six second respondents in these revisions, each preferred RCAs. Appellate authority ordered redelivery. Held: Six Revisions were filed against that order – Appellate authority

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arrived at the just conclusion that as on the date of delivery, the six second respondents herein and others like them were there in occupation of the premises and they were dispossessed, illegally. Respondents ought to have filed applications under Order 21 Rule 99 of C.P.C – But they have filed the applications initially under Section 144 of CPC and thereafter got them converted into ones under Section 151 of C.P.C. Dispossession of the actual occupants turned out to be illegal and erroneous and hence, status-quo-ante has to be restored. Revision petitioner by citing technical defects in ordering redelivery cannot try to retain the illegal delivery obtained by him. Because of the non-framing of the issues and also non-conducting of those EAs as suits, the revision petitioner herein had not at all adduced any evidence. Dismissal order passed by the Rent Controller in EAs can never be termed as decree because he never dealt with any application under Order 21 Rule 99 of C.P.C – Fraud vitiates all proceedings and any forum at any stage can treat such acts borne out of fraud as non est and rectify the illegality. But for the erroneous action of the bailiffs of the Court and the Rent Controller, the six second respondents herein would have continued to occupy the premises and as such status-quo ante has to be restored – Direction Passed. (2012 – 2- L.W. 851 R. Chandrasekaran in all the revisions Vs S. Karthik & Ors) Civil Procedure Code, 1908, O.21.Rr.99 & 100 -Application U.O.21.Rr.99 & 100 Requirement for consideration of application is whether applicant claimed a right independent of the judgment debtor or not -A person claiming through or under J.D. may be dispossessed in execution of a decree passed against J.D. but not when he is in possession of the premises in question in his own independent right or otherwise. (H.Seshadri Vs K.R.Natarajan & Anr.) Anr.) 2003(2) Apex Court Judgments 01 (S.C.) Civil Procedure Code, 1908, O.21.R.99 -Restoration of possession -Application U.O.21.R.99 is maintainable even if execution petition is closed on delivery of possession -Need to file such an application arises only after dispossession and not

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earlier -Executing Court can entertain such application and pass appropriate orders Respondent dispossessed with help of Court Nazir having knowledge of its purchase by him - Impugned order of Court below in ordering restoration of possession to respondent -Not illegal. (Katepaga Yadagiri & Ors. Vs B.Maheshwar Reddy) 2004(2) Civil Court Cases 174 (A.P.) Civil Procedure Code, 1908, O.21.Rr.99 & 100 -Application U.O.21.Rr.99 & 100 Requirement for consideration of application is whether applicant claimed a right independent of the judgment debtor or not -A person claiming through or under J.D. may be dispossessed in execution of a decree passed against J.D. but not when he is in possession of the premises in question in his own independent right or otherwise. (H.Seshadri Vs K.R.Natarajan) 2003(3) Civil Court Cases 01 (S.C.) Civil Procedure Code, 1908, O.21.Rr.101, 99, 97 -Open vacant land -In execution of decree owner dispossessed as possession reported to be delivered to D.H. -Owner looses his right and control over the land when Nazir of Court delivered possession to D.H. -Such a person can make an application to executing Court and seek adjudication of his right and title in accordance with O.21.R.101 -Separate suit claiming title not required. (Ashan Devi & Anr. Vs Phulwasi Devi & Ors.) 2004(1) Apex Court Judgments 25 (S.C.) : 2004(2) Civil Court Cases C ases 212 (S.C.)

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Civil Procedure Code, 1908, O.21.R.102 -Claim petition -Order in a claim petition is a

decree and appeal and second appeal lies -No revision lies. (Vasanthakumari Vs George Selvaraj) 2004(2) Civil Court Cases 524 (Kerala) Civil Procedure Code, 1908, O.21.R.102, Transfer of Property Act, 1882, S.52 L.R's of J.D. brought on record in execution -Become J.D. -Cannot raise objection for transfer of property to the auction purchaser by claiming tenancy right in said property Lease created in favour of L.Rs subsequent to passing of decree -Hit by doctrine of lis pendence -Hence void. (Muppidi Dora Reddy Vs Bollreddy Ramakrishan Reddy) AIR 2003 A.P. A.P. 299 2 99

Code of Civil Procedure (5 of 1908), Order 21 Rules 104 to 106 – Amendment Act 104 of 1976 – Limitation Act (36 of 1963), Section 5 – Execution proceedings – Ex parte order of attachment – Application to condone delay in seeking to set aside ex parte order – Same dismissed – Revision – Applicability of Section 5, Limitation Act – Court in Tamil Nadu need not, nay cannot invoke Section 5 of Limitation Act by taking recourse to Rule 105(4) as sub-rule (4) was deleted way back in 1972 – It is enough if proviso to sub-rule (3) of Rule 105 is invoked – So long as proviso under sub-rule (3) not shown to be inconsistent with any of amendments, it cannot be stated to have been repealed under Central Amendment Acts – Order of Court below refusing to entertain application set aside. RATIO DECIDENDI: When a Court need not draw power to condone the delay from Section 5 of the Limitation Act, but could draw such a power from the very provisions of the enactment under which a case is decided, the said power cannot be obliterated except by any express or implied repeal, in terms of any amendment made specifically. ((2011) 8 MLJ 12 N. Rajendran Vs Shriram Chits Tamil Nadu Pvt. Ltd. Rep. By its Branch Manager/Foreman, Tiruvarur)

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Execution Proceedings, Ex parte order of attachment pursuant to a Money decree, Setting aside of, Delay in applying for setting aside Exparte order, Condonation, Scope. C.P.C. (1908), Sections 121, 122, Powers of High Court to make Rules, Scope, C.P.C. Amendment Act (104 of 1976) (Act 45 of 1999) Section 97, (Act 22 of 2002), Order 21, Rules 105, 106, Historical tracing of Amending Acts, Limitation Act (1963), Section 5 ,whether applicable. Question is whether the Proviso under Sub-rule (3) of Rule 105 stood repealed in terms of Section 97(1) of Amendment Act 104 of 1976 or not – Held: A Court in Tamil Nadu need not, nay cannot, invoke Section 5 of the Limitation Act, 1963, by taking recourse to Rule 105(4) as Sub-rule (4) was deleted way back in 1972 – It is enough if the Proviso to Sub-rule (3) of Rule 105 is invoked. Consequences of the above Madras High Court Amendment made with effect from 01.11.1972 – The first was to delete Sub-rule (4) of Rule 105 and the second was to insert a proviso under Rule (3) of Rule 105. Section 97 of the Amendment Act 104 of 1976 made it clear that an amendment made by a State Legislature or High Court, to the principal Act, would also stand repealed by the Amendment Act, if any such amendment was inconsistent with the provisions of the principal Act that were expressly repealed by the Amendment Act 104 of 1976 – Section 97 (1) of Amendment Act 104 of 1976 merely merely contained an omnibus provision to repeal by one stroke, stroke, all State and High Court Amendments that became inconsistent with the provisions of the amended Code. There is nothing on record to show that the proviso to Sub-rule (3) of Rule 105, which would now become the proviso to Sub-rule (3) of Rule 106 of Order XXI, is, in any way, inconsistent with the amendments introduced either in 1976 or in 1999 or even in 2002 – So long as the proviso under Sub-rule (3) is not shown to be inconsistent with any of the amendments, it cannot be stated to have been repealed under the Central Amendment Acts. Order of the Court below, refusing to entertain the application on the ground that it was filed beyond 30 days and that there was no power to entertain the same, is not in accordance with law – CRP allowed on terms. (2011-5-L.W. 174 N. Rajendran Vs Shriram Chits Tamil Nadu Pvt. Ltd. Rep. by its Branch Manager/Foreman, No.23/3, Nethaji Road, Roa d, Tiruvarur)

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Civil Procedure Code, 1908, O.21.R.105 -'Hearing' -Meaning -It includes stage of delivery of judgment also. (Smt.Vithabai G.Ghodake G.Ghodake Vs The United Western Bank Ltd.) 2003(2) Civil Court Cases 137 (Karnataka) Civil Procedure Code, 1908, O.21.Rr.105, 106 & S.151 -Execution -Dismissal for default -Restoration -Where application is filed in time and sufficient cause is shown for non appearance of decree-holder on day of hearing, Court can restore dismissed petition to file -Such restoration does not amount to fresh execution and question of limitation therefore does not arise to bar execution. (Smt.Vithabai G.Ghodake Vs The United Western Bank Ltd.) 2003(2) Civil Court Cases Cas es 137 (Karnataka)

Code of Civil Procedure (5 of 1908), Order 21, Rules 105, 106 (3), Section 151 – Inherent powers of the Court, under – Application to set aside ex parte order dismissing E.P. for default allowed with condition – E.A. Filed under Section 151, C.P.C. – Maintainability – Respondent-plaintiff obtained decree in respect of Suit Property and if E.A. not allowed it would cause inconvenience and hardship to respondent-plaintiff – Said conclusion of Executing Court, exercising its judicial discretion in allowing E.A., correct – E.A. by respondent-plaintiff, filed under Section 151, C.P.C., competent in the eye of law – Respondent-plaintiff directed to pay 500 costs to petitioner-defendant. RATIONES DECIDENDI I. The inherent powers of a Court of law has its root in necessity. II. Since the ex parte order of dismissal of the E.P. would result in hardship and inconvenience to the decree holder, the Court could exercise its judicial discretion and allow the E.P. filed under Section 151, C.P.C., to restore the E.P. to file.III. The application filed by the plaintiff decree holder under Section 151, C.P.C., C.P.C., to set aside the order dismissing the E.P. E.P. for default, is competent in the eye of law. ((2011) ((2011) 4 MLJ 664 66 4 Nattan Ambalam vs Dhanalakshmi)

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Civil Procedure Code, 1908, O.21.R.106, O.5.R.10 and 19-A(2) -Execution Restoration -Notice returned with endorsement as 'not claimed' -Notice is deemed to be duly served -Fact also within knowledge of parties and inspite of this they not participating -Restoration cannot be therefore said to be bad on ground on non service. (Smt.Vithabai G.Ghodake Vs United Western Bank Ltd.) AIR 2003 Karnataka 266 Civil Procedure Code, 1908, O.21.R.106 -Execution -Restoration of execution proceedings -Does not amount to fresh execution -Petition for execution filed within period of 12 years -Plea that restoration of execution amounts to fresh execution and is barred by limitation -Not sustainable. (Smt.Vithabai G.Ghodake Vs United Western Bank Ltd.) AIR 2003 Karnataka 266

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Order XXII Civil Procedure Code, 1908, O.22.R.1 -Impleading of L.R's -Delay of three years After further gap of 7 years application for condonation of delay filed -Reason stated that applicant practising on criminal side did not know requirements of civil law and the lack of knowledge as to filing of requisite application -Weak and untenable -Right though valuable

got

extinguished

by

passage

of

time

-Application

dismissed.

(Smt.H.T.Shrimathi (Smt.H.T .Shrimathi Rao Vs Prafulla) AIR 2002 Karnataka 255 Civil Procedure Code, 1908, O.22.Rr.1 and 4(4) -Death of sole defendant during pendency of application U.O.9.R.7 CPC -Plaintiff failing to bring on record L.R's within time -No application for setting aside abatement filed by plaintiff thereafter Suit automatically abated on date of death of sole defendant. (Dharam Singh & Ors. Vs Mukhtiar Singh & Anr.) Anr.) 2005(1) Civil Court Cases 622 (Rajasthan) Civil Procedure Code, 1908, O.22.Rr.2, 4, 6 & 11 -Death of one of defendant during pendency of appeal against decree in partition suit -When right to appeal survives on death of one of several defendants, but his L.R's not brought on record within period of limitation, appeal abates -Judgment pronounced by first Appellate Court when appeal had abated, is of no consequence -Second appeal is not maintainable. (M.R.Laxmana (Dead) by Lrs & Ors. Vs Govindappa) 2004(2) Civil Ci vil Court Cases 147 (Karnataka) Death of a Party – Abatement of appeal – Effect of on execution proceedings – Civil

Suits by joint owners for recovery of possession against tenants – Suits decreed – Appeals by tenant allowed – Death of one landlord during pendency of Second appeals, not brought to the notice of Court – Second appeals allowed – Legal heirs of the deceased landlord, impleaded in the execution petition – Order challenged in Revisions – Four brothers sought for eviction of tenant and recovery of possession –

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All of them being co-owners joined together and filed the suit – Even if one of them died, there was substantial representation – “Doctrine of Substantial Representation” is applicable – Right to sue continues on the remaining owners – Second appeals were substantially represented – Executing Court cannot go beyond the decree and declare the decree as nullity – Revision petitions dismissed.( (2007) 2 MLJ 895 M.Gopal (DIED) rep. by his L.Rs. Vs. T.Somasundaram)

Civil Procedure Code, 1908, O.22.R.3 -Death of party during pendency of appeal against interlocutory order -L.R's impleaded -L.R's on record would enure for subsequent stage of suit. (Kanhaiya Prasad Srivastava Vs Smt.Santosh Kumari) AIR 2004 All. 333 Civil Procedure Code, 1908, O.22.R.3 -Suit for specific performance filed jointly by 3 plaintiffs -One of them dying -L.R's not impleaded within time -Entire suit abates. (Smt.Annabai Devram Kini Vs Mithilal Daisangar Singh) AIR 2002 Bombay 332 Civil Procedure Code, 1908, O.22.R.3, O.8.R.1 -L.R's -Cannot take a stand contrary to what had been taken by their predecessor-in-interest. (Smt.Chandrakala Vs Kanak Mal) 2003(2) Civil Court Cases 497 (Rajasthan) Civil Procedure Code, 1908, O.22.R.3 -Appeal -Death of appellant during pendency of appeal -Applicant came to know about pendency of appeal when he received a communication from Advocate engaged by his father -Application rejected on the ground that there was no prayer for setting aside abatement of appeal nor for condonation of delay -Applicant therefore filed separate applications which were also rejected -Held, such technical objections should not come in doing full and complete justice between the parties -L.R's allowed to be brought on record. (K.Rudrappa Vs Shivappa) 2005(1) Civil Court Cases 627 (S.C.)

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Civil Procedure Code, 1908, O.22.R.3 -Death of one plaintiff during pendency of first appeal and his L.R's not brought on record -All the plaintiffs claimed common ownership and possession -Appeal stands abated in its entirety. (Arigela Laxmi & Anr. Vs Boodireddy Chandraiah) 2003(2) 2 003(2) Civil Court Cases 67 6799 (A.P (A.P.. Civil Procedure Code, 1908, O.22.R.3 An order dismissing an Application under Order 22, Rule 3 after an enquiry under Rule 5 and consequently dismissing Suit is also not a decree – Aggrieved person can challenge order by way of Revision before High Court and not by way of Appeal. Order 22 – Rules of Abatement – Nature and Scope – (a) When sole Plaintiff dies and right to sue survives, on an Application made in that behalf, Court shall cause Legal Representative of deceased Plaintiff to be brother on record and proceed with Suit – (b) If Court holds that right to sue does not survive on death of Plaintiff, Suit will abate under Rule 1 of Order 22 – (c) Even where right to sue survives, if no Application is made for making Legal Representative a party to Suit, within time limited by law (within period of 90 days from date of death of Plaintiff), Suit abates, as per Rule 3(2) of Order 22 – (d) Abatement occurs as a Legal Consequence of (i) Court holding that right to sue does not survive; or (ii) no Application being made by any legal representative of deceased Plaintiff to come on record and continue Suit : Abatement is not dependant upon any formal order of Court that Suit has abated – (e) Even though formal order declaring abatement is not necessary when Suit abates, as proceedings in Suit are likely to linger and will not be closed without formal order of Court, Court is usually to make an order recording that Suit has abated, or dismiss Suit by reason of abatement under Order 22 – (f) Where a Suit abates or where Suit is dismissed, any person claiming o be Legal abatement or dismissal of Suit under Order 22, Rule 9(2) : If sufficient cause is shown, Court will set aside abatement or dismissal : If however such Application is dismissed, order dismissing such an Application is open to challenge in an Appeal under Order 43, Rule 1(k) of the Code – (g) A person claiming to be Legal Representative cannot make an Application under Rule 9(2) of Order 22 for setting aside abatement or dismissal, if he had already applied under

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Order 22, Rule 3 for being brought on record within time and his Application had been dismissed after an enquiry under Rule 5 of Order 22, on ground that he is not Legal Representative. (2011 (2011 (6) CTC 214 Mangluram De Dewangan wangan Vs Surendra Singh & Ors) Civil Procedure Code, 1908, O.22.R.3 -Appeal -Death of appellant during pendency of appeal -Applicant came to know about pendency of appeal when he received a communication from Advocate engaged by his father -Application rejected on the ground that there was no prayer for setting aside abatement of appeal nor for condonation of delay -Applicant therefore filed separate applications which were also rejected -Held, such technical objections should not come in doing full and complete justice between the parties -L.R's allowed to be brought on record. (K.Rudrappa Vs Shivappa) 2005(1) Civil Court Cases 627 (S.C.) : 2005(1) Apex Court Judgments 21 (S.C.) Code of Civil Procedure, 1908 (5 of 1908), Section 104, Order 22, Rules 3 & 9 (2) Order 43, Rule 1(k) – Abatement – Whether an order of Trial Court rejecting an Application filed under Order 22, Rule 3 by person claiming to be legatee under Will of Plaintiff and consequently dismissing Suit in absence of any legal heir, is appealable decree or not – Held, no Appeal is provided against order under Order 22, Rules 3 & 5, either under Section 104 or Order 43, Rule 1 – When an order is passed under Order 22, Rules 3 & 5, dismissing an Application by a person claiming to be Legal Representative on ground that he is not Legal Representative and consequently dismissing Suit, is not appealable under Section 104 or Order 43, Rule 1 – An order dismissing an Application under Order 22, Rule 3 after an enquiry under Rule 5 and consequently dismissing Suit is also not a decree – Aggrieved person can challenge order by way of Revision before High Court and not by way of Appeal. Code of Civil Procedure, 1908 (5 of 1908), Order 22, Rule 3 – Abatement – Whether rejection of Application under Order 22, Rule 3 after an enquiry under Rule 5, and consequential dismissal of Suit on ground that there is no Legal Representative would amount to

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decree or not – Held, if Court orders that Suit has abated or dismissed, Suit as having abated, as consequence of rejection of Application under Order 22, Rule 3, such order is not a decree –When any order declares that Suit has abated or dismisses Suit not as consequence of Legal Representatives filing any Application to come on record, but in view of finding that right to sue does not survive on death of sole Plaintiff, and there is an adjudication determining rights of parties in regard to all or any of matters in controversy in Suit, such order will be a decree – Law laid down in Niranjan Nath v. Afzal Hussain, AIR 1916 Lahore 245 and Mithulal v. Badri Prasad, AIR 1981 M.P. 1 (FB) approved and followed. Code of Civil Procedure, 1908 (5 of 1908), Order 22 – Rules of Abatement – Nature and Scope – (a) When sole Plaintiff dies and right to sue survives, on an Application made in that behalf, Court shall cause Legal Representative of deceased Plaintiff to be brother on record and proceed with Suit – (b) If Court holds that right to sue does not survive on death of Plaintiff, Suit will abate under Rule 1 of Order 22 – (c) Even where right to sue survives, if no Application is made for making Legal Representative a party to Suit, within time limited by law (within period of 90 days from date of death of Plaintiff), Suit abates, as per Rule 3(2) of Order 22 – (d) Abatement occurs as a Legal Consequence of (i) Court holding that right to sue does not survive; or (ii) no Application being made by any legal representative of deceased Plaintiff to come on record and continue Suit : Abatement is not dependant upon any formal order of Court that Suit has abated – (e) Even though formal order declaring abatement is not necessary when Suit abates, as proceedings in Suit are likely to linger and will not be closed without formal order of Court, Court is usually to make an order recording that Suit has abated, or dismiss Suit by reason of abatement under Order 22 – (f) Where a Suit abates or where Suit is dismissed, any person claiming o be Legal abatement or dismissal of Suit under Order 22, Rule 9(2) : If sufficient cause is shown, Court will set aside abatement or dismissal : If however such Application is dismissed, order dismissing such an Application is open to challenge in an Appeal under Order 43, Rule 1(k) of the Code – (g) A person claiming to be Legal Representative cannot make an Application under Rule 9(2) of Order 22

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for setting aside abatement or dismissal, if he had already applied under Order 22, Rule 3 for being brought on record within time and his Application had been dismissed after an enquiry under Rule 5 of Order 22, on ground that he is not Legal Representative.(20111 (6) CTC 214 Mangluram Dewangan Vs Surendra Singh & Ors) Representative.(201 Civil Procedure Code, 1908, O.22.Rr.3, 11 -L.R's -Impleading of beneficiary of Will Allowed -Order upheld as in the matter of determination of legal representatives, the genuineness of Will is not to be final determined as inquiry for determination of legal representatives is summary in nature. (Daljit Singh Vs Bhupinder Singh) 2004(2) Civil Court Cases 352 (P&H)

Civil Procedure Code, Co de, 1908, O.22.Rr.3 & 11, S.11 S.11 -Impleading of L.R's Application held not maintainable on ground that separate application for condonation of delay not filed -Subsequently separate applications filed -Held, subsequent applications not barred by principle of res judicata. (Ganeshprasad Badrinarayan Lahoti (D) by Lrs. Vs Sanjeevprasad Jamnaprasad Chourasiya & Anr.) 2004(2) Apex Court Judgments 281 (S.C.) : 2004(3) Civil Court Cases 410 (S.C.) Civil Procedure Code 1908 as amended, Order 22, Rule 3 – Preliminary decree passed in a partition suit – sole plaintiff died – Legal heirs filed application to implead them as parties to the proceedings – trial court dismissed the application and bared by limitation –on revision by the aggrieved legal heirs, the High Court, Madras (Madurai Bench) opined that a petition suit does not abate even legal representatives are nto brought on record – petition to implead legal heirs will not be hit by limitation if not brought on record with the prescribed time stated under order 22 Rule 3 – order of trail court set aside and Civil Revision petition allowed. (2011 -2 - TLNJ 122 (Civil) Mariyammal and Ors vs Mariyappan and Ors)

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Civil Procedure Code, 1908, O.22.Rr O.22.Rr.4 .4 Civil Procedure Code, 1908, O.22.R.4 -Death of one of the defendants -Impleading L.R's. -Averments in application vague -Date of death not given -Deceased defendant a well known person and Ex-Chief Minister of State whose date of death could be easily ascertained by Bank -Belated application without giving explanation for delay Filed on date when hearing was concluded and delivery of judgment was reserved Application rejected. (Indian Bank Vs M/s B.Patnaik Mines (P) Ltd.) AIR 2003 Orissa 81 Civil Procedure Code, 1908, O.22.R.4 -Legal representatives -Do not ipso facto become entitled to file a fresh written statement or to take pleading inconsistent to that already taken, or additional defence, or the like -Legal representatives cannot take up a defence which is individual to them and which was not open to deceased defendant. (L.Rs. of Shri Bhanwar Lal Vs L.Rs. of Shri Kanhaiya Lal) 2003(1) Civil Court Cases 255 (Rajasthan) Civil Procedure Code, 1908, O.22.R.4(2) -L.R's are entitled to take any defence appropriate to their character as legal representatives and can put all contentions which the deceased-defendant could have urged except only those which were personal to the deceased -Legal representatives are not prevented from setting up also their own independent title in which case there could be no objection to the Court impleading them not merely as the L.Rs. of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on title. (Raghunath Dey alias Ray Vs Mahammad Usman Khan) 2003(2) Civil Court Cases 462 (Orissa)

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Civil Procedure Code, 1908, O.22.R.4(4) -Death of defendant who was proceeded exparte -L.R's not impleaded -Permission as contemplated under the provision not sought so as not to implead L.R's of deceased defendant - Held, L.R's of such a deceased defendant were entitled to be brought on record in the suit. (Zahirul Islam Vs Mohd.Usman & Ors.) 2003(1) Apex Court Judgments 329 (S.C.) Civil Procedure Code, 1908, O.22.R.4(4) -Death of sole defendant during pendency of application U.O.9.R.7 CPC -Plaintiff himself submitted application for bringing on record LRs of defendant -Suit could not have proceeded without deciding said application -Court was under obligation to issue notice to LRs of defendant -Finding of appellate Court that plaintiffs were not required to submit any application for bringing on record LRs of defendant as trial Court had already passed exparte order -Liable to be set aside. (Dharam Singh & Ors. Vs Mukhtiar Singh & Anr.) 2005(1) Civil Court Cases 622 (Rajasthan) O.22.Rr.4, 9 . Abatement - Application to set aside -Dismissal -Appeal and not revision

lies -Fact of composite application U.O.22.Rr.4 & 9 alongwith application u/s 5 Limitation Act is immaterial as fact remains that abatement of suit is automatic on failure to bring on record legal representatives of deceased defendant and order passed is one rejecting application to set aside abatement -Revision dismissed with liberty to file appeal within 15 days from receipt of copy of order. (Manohar Lal Vs Surajmal) 2003(2) Civil Court Cases 257 (Rajasthan) Civil Procedure Code, 1908, O.22.R.4 -Non impleading of L.R's of a defendant who died during pendency of suit -Effect -Suit for possession of seven rooms -It was specifically mentioned in plaint as to which room is in possession of which defendant If the interest of the co-defendants are separate, as in case of co-owners, the suit will abate only as regards the particular interest of the deceased party -Held, in the instant case suit abates only against deceased defendant whose L.R's not impleaded.

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(Shahazada Bi & Ors. Vs Halimabi (since dead) by her Lrs.) 2004(2) Apex Court Judgments 437 (S.C.) : 2004(3) Civil Court Cases 689 (S.C.)

Civil Procedure Code, 1908, O.22 R.4 -L.R's -Not entitled to take up a new plea other than the one taken up by the deceased defendant -They are to proceed with the case from the stage of death of defendant. (J.Vijaya Bhaskar & Ors. Vs J.Jayalakshmi & Ors.) 2004(3) Civil Court Cases 176 (Madras) Civil Procedure Code, 1908, O.22.R.4 -Substitution of defendants No.4 & 5 as L.R's of deceased defendant No.1 their father -Application not opposed by plaintiff -Contest put up by defendant No.1 not to be taken into consideration for rejection of application Inter-se dispute of defendants, if any, has to be decided in independent proceedings Further held, that substitution shall not confer upon defendants No.4 & 5 any right of being trustees in the trust. (Ajay Kumar Jaiswal & Anr. Vs Joginder Kumar & Ors.) 2005(2) Civil Court Cases 186 (P&H) Civil Procedure Code, 1908, O.22.R.4(4) -Death of sole defendant during pendency of application U.O.9.R.7 CPC -Plaintiff himself submitted application for bringing on record LRs of defendant -Suit could not have proceeded without deciding said application -Court was under obligation to issue notice to LRs of defendant -Finding of appellate Court that plaintiffs were not required to submit any application for bringing on record LRs of defendant as trial Court had already passed exparte order -Liable to be set aside. (Dharam Singh & Ors. Vs Mukhtiar Singh & Anr.) 2005(1) Civil Court Cases 622 (Rajasthan) Civil Procedure Code, 1908, O.22.Rr.4, 9 -Impleading of L.R's -Setting aside abatement -Prayer for bringing on record legal representatives -Relief of setting aside abatement though not prayed is implied -Order of abatement set aside. (Ram Dulari & Ors. Vs Maniram Ram Prasad Tiwari & Ors.) 2005(1) Civil Court Cases 297 (Bombay) (Bomba y)

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Civil Procedure Code, 1908, O.22.Rr.4, 9 -Sole defendant -Death -L.R's not brought on record -Abatement of suit -Plaintiff had no knowledge of death of defendant Proceedings of suit stayed because of revision filed by defendant -Death of defendant during pendency of revision -Application to implead L.R's filed after four years -Held, in such circumstances trial Court ought to have exercised discretion for allowing application under rule 4 -Application of plaintiff for substitution treated as consolidated application under rules 4 and 9 and same allowed by condoning delay. (Smt.Mohan Devi @ Mohini Devi Vs Lrs. of Himmat Lal Menaria) 2005(1) Civil Court Cases 431 (Rajasthan)

Civil Procedure Code, 1908, O.22.Rr.4(3) & 9, O.43.R.1(k) -Death of one of the defendants -Impleading of L.R's -Failure to implead -Suit does not abate when one or some of the legal representative are already on record though in a different capacity. (Gautam Bhawan Nirman Sahkari Samiti Ltd., Jodhpur Vs Smt.Ramnik Kumari & Ors.) 2004(3) Civil Court Cases 318 (Rajasthan)

(2011) 4 Supreme Court Cases 363 Lanka Venkateswarlu (Dead) By LRS. Vs State of Andhra Pradesh and Ors Civil Procedure Code, 1908 - Or. 22 R. 4 & 9 – Condonation of delay in bringing on record LRS of deceased respondent – Discretionary power must be exercised reasonably – Death of sole respondent (original plaintiff) during pendency of appeal before High Court against judgment and decree passed against appellants (original defendants and appellants before High Court) – Intimation about death given before High Court by advocate appearing for deceased respondent – But appellants failed to bring on record LRS of deceased respondent – High Court directed Government Pleader to take steps to bring on record LRs but no action taken by Government Pleader – Consequently appeal stood abated and dismissed in terms of High Court’s order – Applications filed for condonation of 883 days’ delay in filing

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petition to set aside dismissal order and for condonation of 3703 days’ delay in bringing on record LRs of deceased respondent – High Court, while finding absence of any explanation to justify delay as well as negligence on part of appellants and observing that in normal course it would have dismissed applications, allowed those applications taking view that delay was due to inefficiency, ineptitude and negligence of Government Pleader concerned – Held, High Court not justified in allowing applications for condonation of delay – High Court failed to exercise its discretion to condone delay in reasonable, impartial and objective manner – Hence application dismissed and appeal of respondents before High Court held to have abated – Practice and Procedure – Abatement. Held:The courts in this country, including the Supreme Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. However, the concepts such as “liberal approach’, “justice oriented approach”, “substantial justice” cannot be employed to jettison the substantial law of limitation. Especially, in case where the court concludes that there is no justification for the delay. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. ((2011) 4 Supreme Court Cases 363 Lanka Venkateswarlu (Dead) By LRS. Vs V s State State of Andhra Pradesh and Ors)

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Civil Procedure Code, 1908, O.22 R.5

Civil Procedure Code, 1908, O.22.R.5 -Impleading of L.R's during pendency of revision -Revisional Court to decide application first and then pass order on merits. (Dubbzar Vs Ist ADJ, Azamgarh) AIR 2002 Allahabad 358 Civil Procedure Code, 1908, O.22.R.5 -Legal heirs -Dispute as to who are the legal heirs of the deceased -It is incumbent upon the Court to adjudicate the point and without adjudication, L.R's cannot be brought on record. (Karamjit Kaur & Anr. Vs Gurbant Singh) 2003(3) Civil Court Cases 88 (P&H) Civil Procedure Code, 1908, O.22.R.5, S.11 -Legal representative -Determination Not res judicata in subsequent proceedings -Determination under O.22.R.5 CPC is exclusively for the purpose of ensuring that the deceased is represented effectively by somebody or the other -Such a determination cannot be treated as final pronouncement as to the devolution of, or succession to the rights of the deceased Separate proceedings have to be initiated for this purpose unless those very questions and issues fall for consideration in that suit or other proceedings itself and all the affected persons are parties to it. (G.N.Kishore Reddy Vs R.Venugopal Rao & Ors.) 2005(1) Civil Court Cases 173 (A.P.) (A.P.) Civil Procedure Code, 1908, O.22.R.5 -Legal representative -Impleadment -Order as to -Not a final adjudication as to validity of Will -Final adjudication is not required as to the status of L.R. before impleading him as legal representative. (Shri Baini Parshad Udyog, Jagadhri Vs Nirmal Gupta & Ors.) 2004(2) 2004(2 ) Civil Court Cases 566 (P&H)

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Civil Procedure Code, 1908, O.22.R.5 -Legal representatives -All the legal heirs giving up their claim in favour of one by filing an affidavit to this effect -No challenge to the affidavit that the same is false or is result of misrepresentation or fraud -Impleading of one legal heir as legal representative of the deceased plaintiff is proper. (Shri Baini Parshad Udyog, Jagadhri Vs Nirmal Gupta & Ors.) 2004(2) Civil Court Cases 566 (P&H) Civil Procedure Code, 1908, O.22.R.5 -'Legal heir' & 'Legal representative' Distinction Concept of 'Legal heir' is the result of operation of law of succession and other related personal laws -Legal representative is a person who is entitled to represent the estate of the deceased in the proceedings in which the necessity arises -Legal heir cannot be treated as legal representative if there is conflict of interests between him and the deceased. (G.N.Kishore Reddy Vs R.Venugopal Rao & Ors.) 2005(1) Civil Court Cases 173 (A.P.) Limitation Act (1963), Section 5/Condonation of Delay, Discretion of Court/Concept of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, Scope, C.P.C., Order 22, Rule 5. Appellant before Supreme Court submitted that the impugned order of the High Court cannot be justified on any legal ground and that the High Court having itself recorded the utter negligence of the respondents (State of A.P.) in pursuing the appeal at every stage, without any justification, condoned the delay – It was pointed out that there was no explanation, much less any plausible explanation, to justify the delay of 3703 days in filing the application for bringing on record the LRs. of the sole respondent or for the delay in filing the application for setting aside the order dated 6th February, 1998, Held: Court is at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. Concepts such as “liberal approach” “justice oriented approach”, “substantial justice” cannot be employed to jettison the substantial law of limitation – Especially, in cases where the Court

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concludes that there is no justification for the delay. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, Courts do not enjoy unlimited and unbridled discretionary powers – All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law – Discretion has to be exercised in a systematic manner informed by reason.Judges at all levels in this country subscribe to an oath when entering upon office of judgeship, to do justice without fear or favour, ill will or malice – This commitment in form of a solemn oath is to ensure that judges base their opinions on objectivity and impartiality – The first casualty of prejudice is objectivity and impartiality – It is also well known that anger deprives a human being of his ability to reason – Judges being human are not immune to such disability – It is of utmost importance that in expressing their opinions, Judges and Magistrates be guided only by the considerations of doing justice. Judgment of the High Court is unsustainable either in law or in equity. Consequently,, the appeals are allowed. (2011 Consequently (2011 - 3 – L.W. 26 Lanka Venkateswaralu (D) by Lrs. Vs State of A.P. & Ors)

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Civil Procedure Code, 1908, O.22.R.9 Civil Procedure Code, 1908, O.22.R.9 -Abatement -Setting aside -Application filed U.O.22.R.9 & S.151 -Application and supporting affidavit showing that plaintiff could not know death of defendant and steps for bring on record L.R's could not be taken in time -Application in substance is an application for setting aside abatement -fact that no explicit prayer or setting aside abatement is made -Immaterial. (Smt.Kamlesh Vs Tekchand) AIR 2003 Allahabad Allahaba d 299 Civil Procedure Code, 1908, O.22.R.10 -Detailed enquiry at the stage of granting leave is not contemplated -Court to be only prima facie satisfied for exercising its discretion in granting leave for continuing the suit by or against the person on whom the interest has devolved by assignment or devolution -Question about the existence and validity of the assignment or devolution can be considered at the final hearing of the proceedings. (Amit Kumar Shaw & Anr. Vs Farida Khatoon & Anr.) 2005(2) Civil Court Cases 423 (S.C.) Code of Civil Procedure (5 of 1908), Order 22 Rule 10 – Assignment of interest during pendency of suit – Suit – Suit for permanent injunction – Bona fide purchaser of suit property – Impleading of transferee pendent lite as party in suit – Scope of. FACTS IN BRIEF: Civil Revision Petition has been filed under Article 227 of the Constitution against the order passed by the lower Court whereby the application filed by the petitioner who is a bona fide purchaser of the property during the pendency of the suit to implead him as a second plaintiff in the suit was dismissed by observing that previous cause of action cannot be the cause of action for the petitioner against the defendants and that the remedy for the petitioner is to file a fresh suit with new cause of action. QUERY: Whether the transferee pendent lite is entitled to be impleaded as a party in the suit? Held: In one line of decisions by the Supreme Court, it has been held

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that the transferee pendent lite has got substantial interest in the subject matter of the case and hence, his presence is necessary and so he has to be impleaded as a party. In another set of decisions by the Apex Court cited on behalf of the 6th respondent, it has been held that the transferee pendent lite need not be included as a party to the suit in the absence of leave of the Court for transfer of the property during its pendency and that such purchaser can neither be termed as a necessary party nor proper party. In view of the above said position, the Court deems it fit to refer the matter to a larger bench for deciding the legal issue to be followed by Courts.((2011) 3 MLJ 553 V.L. Dhandapani vs Revathy Ramachandran, Ramachandran, Kumar, Village Administrative Officer,, Vedanenmeli, Perur Post) Officer Order 22 Rule 10 – Transfer of Property Act (4 of 1882), Section 52 – Rights of

transferee pendent lite – Second Appeal – Suit for declaration of title of property and permanent injunction – Suit decreed – Concurrent findings – Appellants/defendants are purchasers pendent lite impleaded in suit by plaintiffs themselves – Denial of opportunity to appellants to contest matter by adducing evidence due to filing of I.A. by plaintiff to prevent appellants from cross–examination of plaintiffs witness – Purchasers pendente lite prevented by lower Courts from cross-examining plaintiffs witness adduce rebuttal evidence – Prevention of appellants from contesting matter on merits by lower Courts, not justified – Pendente lite purchaser entitled to get impleaded in suit and contest matter on merits – Second appeal allowed – Matter remitted back to first appellate Court to give opportunity to appellants to cross-examine and adduce evidence. RATIO DECIDENDI: Purchasers pendente lite is entitled to get impleaded in a suit in which he is having substantial interest and contest matter on merits by cross examining plaintiffs witness and adducing rebuttal evidence. ((2011) 6 MLJ 364 V. Damodaran (died) and Ors Vs Thulasirama Reddy and Ors)

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Order 22 Rule 10-A – Death of a party – Effect of – In an appeal by the defendant,

one of the two plaintiffs, died during the pendency of appeal – But such fact was not brought to the notice of the Court – Judgment was delivered by the appellate Court – The legal representative of the deceased plaintiff, is bound by the decree, since the decree cannot be treated as a nullity. (2006 (4) MLJ 898 C. Manoharan Vs. C.V. Subramaniam and Others)

Order 22 Rule 10-A –Sufficient repersentation – death of respondent 1 during

pendency of suit – duty of pleader to communicate to court – sons of deceased respondent 1 already on record – one legal heir, wife of respondent 1, left out – whether suit could be decreed without substitution of all legal representatives of deceased party – held substitution to be made to enable estate of deceased to be represented where case of action susrvives his death – decree obtained without fraud or collusion – principle of substantial representation of estate applies, estate of deceased sufficiently represented by respondents 2 & 3 – failure to implead one or more of several legal representatives would not affect valididty of decree. ( A.Sivaprakash v. Ammasaiathal 2 Chinnammal (died) and others) (Justice Ms. Aruna Jagadeesan) ( 2012 – 8 – MLJ – 566) (5.10.2012) Order 22 Rule.10-A:- It is the duty of the lawyer for the defendant to supply the date of death of the deceased defendant with names of the Hiers and Legal Representatives of the deceased defendant. (2013 (20 13 – 1 – CTC – 791) ( A.Sivaprakash vs. Ammasaiathal @ Chinnammal (deceased) ( 5.10.2012) 5.10 .2012) ( Aruna Jagadesan,J) Civil Procedure Code, 1908, O.22.R.12 -Execution -Death of D.H. during pendency of execution petition -Execution cannot proceed until legal heirs of D.H. are brought on record. (MakkhanLal Jaiswal Vs Executive Engineer) AIR 2002 All. 75

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Order XXIII

It is said that, finest hour of the justice is the hour of compromise, when parties, after burying the hatchet, re-unite by a reasonable and just compromise.

The sat satisfaction isfaction of the Court is paramount and the Court,

using its judicial discretion, should dispose of the compromise application, taking into account the facts and surrounding circumstances of that very case; and gist is that, O.23, R.3 of C.P.C. should be read in the light of provisions enunciated in O.3, R.1 of C.P.C. and the principle is that, a Counsel has implied authority to act by way of compromising a case in which he is engaged, even without specific consent from his client, but subject to following two conditions:- 1. He must act in good faith and for the benefit of his client; and 2. It is prudent and proper to consult his client and take his consent, if there is time and opportunity. The law on the point is that, a compromise can be lawfully recorded in terms of O.23, r.3 of C.P.C., even though the memo of compromise is not signed by the parties in person and is signed by the Counsels of the parties.

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Citations

Code of Civil Procedure (5 of 1908), Section 11 and Order 23 – Withdrawal and adjustment of suits – Second Appeal – Suit filed for declaration of title, injunction and mandatory injunction to remove structures – Withdrawal of earlier suit by plaintiff in appeal stage due to some change in cause of action pendente lite – Use of words in Appellate Court order as if giving permission to withdraw appeal with liberty to file a fresh appeal on same cause of action – Fresh suit filed by plaintiff dismissed by trial Court on ground of res judicata misinterpreting Appellate Court order – Order 23 do not contemplate withdrawal of appeal with liberty to file a fresh appeal – Mere typographical error in Court order cannot be taken advantage of by defendants – Dismissal of fresh suit by trial Court on ground of bar of res judicata, not justified – Suit not barred by res judicata – Matter remitted back to lower Court to be decided on merits. RATIO DECIDENDI: Order 23 of the Code of Civil Procedure do not contemplate that an appeal could be withdrawn with liberty to file a fresh appeal. ((2011) ((201 1) 7 MLJ 413 T. Sivasubramaniam Vs Muniammal and Ors)

Civil Procedure Code, 1908, O.23.R.1, O.2.R.1 -Withdrawal of suit -Unconditional withdrawal of suit -Claim which could have been claimed but not claimed, stands relinquished as lost claim and plaintiff cannot file a second suit for such claims. (Hari Ram Vs Lichmaniya & Ors.) 2004(2) Civil Court Cases 244 (Rajasthan) Civil Procedure Code, 1908, O.23.R.1, O.3.R.1 -Suit for specific performance Dismissed by trial Court and affirmed by first appellate Court but claim for refund of Rs.2500/-with interest allowed -In second appeal in terms of consensus of both counsels decree modified where respondents were to pay Rs.25,000/-to appellant Contention that in absence of compromise in writing and signed by parties, impugned

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decree could not be passed -Held, judgment or decree passed as result of consensus arrived at before Court cannot always be said to be one passed on compromise or settlement and adjustment - No allegation attributing any impropriety to act of counsels No interference is called for. (Jineshwardas (D) through LRs. & Ors. Vs Smt.Jagrani & Anr.) Anr .) 2003(2) Apex Court Judgments 405 (S.C.) : 2003(3) Civil Court Cases 713 7 13 (S.C.) Civil Procedure Code, 1908, O.23.R.1, O.37.R.1 -Summary suit -Plaintiff can at any time abandon or give up part of claim unilaterally -Recording of statement of plaintiff by Court is sufficient -Making of formal application by plaintiff for same is not necessary. (SICOM Ltd. Vs Prashant S.T S.Tanna) anna) AIR 2004 Bombay Bomba y 186 Civil Procedure Code, 1908, O.23.R.1 -A litigant should not be allowed to reagitate the same cause of action once he has availed an opportunity to approach the Court with respect thereto. (Hari Ram Vs Lichmaniya & Ors.) 2004(2) Civil Court Cases 244 (Rajasthan) Civil Procedure Code, 1908, O.23.R.1 -Appeal dismissed as withdrawn -Restoration of appeal by recalling the order of dismissal as withdrawn -Maintainable if fraud is played upon plaintiff or appellant as the case may be -In the instant case constructive fraud was played on appellant as such order dismissing appeal as withdrawn recalled and appeal restored to its original number and position. (State Bank of India Vs Firm Jamuna Prasad Jaiswal and Sons and Anr.) 2004(2) Civil Court Cases 119 (Allahabad) Civil Procedure Code, 1908, O.23.R.1 -Compromise decree -Benefit under decree cannot be defeated merely by death of decree holder. (Manju Lata Sharma Vs Vinay Kumar Dubey) AIR 2004 Allahabad 92 Civil Procedure Code, 1908, O.23.R.1 -Compromise decree -Compromise instrument or compromise decree is to be read as a whole in order to gather intention of parties

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and for interpretation of any particular part of expression. (Manju Lata Sharma V. Vinay Kumar Dubey) AIR 2004 Allahabad 92

Civil Procedure Code, 1908, O.23.R.1 -Compromise decree -Recall -Premises vacated on receipt of Rs.7.50 lacs -Respondent however seeking recall of consent decree on the plea that consent was obtained under duress and coercion -Respondent alleged to be forcibly evicted on 24.12.1997 and consent terms signed on 29.12.1997 -If respondent was forcibly evicted on 24.12.1997 then he would not have signed consent terms on 29.12.1997 -Secondly respondent subsequent to consent terms encashed cheques -Encashing of cheques is itself a proof that he himself is bound by the terms of settlement -Held, consent decree passed is valid in law. (Gangadeep Pratishthan Pvt. Ltd. & Ors. Vs M/s.Mechano & Ors.) 2005(2) Civil Court Cases 52 (S.C.) Civil Procedure Code, 1908, O.23.R.1 -Deletion of name of one of the defendants Order cannot be challenged by defendant who is still a party to the suit as he has no grievance as to the deletion of name of other defendant. (Brown-Forman Mauritius Ltd., Mauritius Vs M/s Jagatjit Industries Ltd. & Ors.) 2005(1) Civil Court Cases 475 (P&H) Civil Procedure Code, 1908, O.23.R.1 -Deletion of name of proforma defendant Held, plaintiff is the dominus litus of the suit and he can choose as to against which party he wants claim as relief -Plaintiff is well within his right to pray for deletion of name of one of the defendants. (Brown-Forman Mauritius Ltd., Mauritius Vs M/s Jagatjit Industries Ltd. & Ors.) 2005(1) Civil Court Cases 475 (P&H) Civil Procedure Code, 1908, O.23.R.1 -Earlier suit claiming right of pathway not complying with provisions of O.7.R.3 -Suit dismissed as not pressed -Not a bar to later suit containing necessary averment for establishment of easement right with schedule as required by O.7.R.3 CPC. (Subha Jayan Vs Meenakshy Kumaran & Ors.) 2004(2)

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Civil Court Cases 669 (Kerala) Civil Procedure Code, 1908, O.23.R.1 -Earlier suit claiming right of pathway not complying with provisions of O.7.R.3 CPC -Suit dismissed as not pressed -Later suit claiming easement right containing necessary averments for establishment of easement right -No contention regarding maintainability of suit in written statement nor plaint of earlier suit produced as exhibit -Dismissal of suit on issue of maintainability, not justified. (Subha Jayan Vs Meenakshy Kumaran & Ors.) 2004(2) Civil Court Cases 669 (Kerala) Civil Procedure Code, 1908, O.23.R.1 -Judgment or decree passed as a result of consensus arrived at before Court cannot always be said to be one passed on compromise or settlement and adjustment -It may, at times, be also a judgment on admission. (Jineshwardas (D) through LRs. & Ors. Vs Smt.Jagrani & Anr.) 2003(2) Apex Court Judgments 405 (S.C.) : 2003(3) Civil Ci vil Court Cases 713 (S.C.) Civil Procedure Code, 1908, O.23.R.1 - Partition suit - Withdrawal of suit - In partition suit even defendants can seek separate possession of their share by paying necessary Court fee and in case of withdrawal of suit they can seek to transpose themselves as plaintiffs and continue suit -Where defendant has sought separate possession and paid necessary court fee, permitting plaintiff to withdraw suit amounts to denial of defendant's right to continue suit -Such order for withdrawal is liable to be set aside. (Smt.Gowramma Vs Nanjappa) 2003(1) Civil Court Cases 267 (Karnataka) Civil Procedure Code, 1908, O.23.R.1 -Party desiring to file fresh suit on new cause of action -Leave of Court -Not necessary. (Mahadkar Agency Vs Padmakar Achanna Shetty) AIR 2003 Bombay 136

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Civil Procedure Code, 1908, O.23.R.1 -Second suit on the same cause of action filed the day earlier suit was withdrawn -Earlier suit withdrawn without permission of Court to file fresh suit on the same cause of action -Fact of filing of earlier suit not mentioned in the second suit -Second suit dismissed being not maintainable. (Jonnala Sura Reddy & Anr. Vs Tityyagura Srinivasa Reddy & Ors.) 2004(2) Civil Court Cases 417 (A.P.) Civil Procedure Code, 1908, O.23.R.1 -Unconditional withdrawal of suit as defendant satisfied the plaintiff -Held, if satisfaction of plaintiff has not resulted into a decree and plaintiff withdraws suit unconditionally then plaintiff cannot reagitate the issues which were involved in the suit. (Hari Ram Vs Lichmaniya & Ors.) 2004(2) Civil Court Cases 244 (Rajasthan) Civil Procedure Code, 1908, O.23.R.1 -Withdrawal of suit -At appellate stage -Suit for perpetual and mandatory injunction dismissed on merits by holding that no part of land belonging to plaintiff was encroached by defendant -Order permitting withdrawal of suit by plaintiff at appellate stage with leave to file fresh suit on the same cause of action is not proper. (Mangat Ram Vs Chura Dutt & Anr.) Anr.) 2003(3) Civil Court Cases 408 (H.P.) (H.P.) Civil Procedure Code, 1908, O.23.R.1 -Withdrawal of suit at appellate stage -Not permissible. (Gian Chand Modi Vs M/s Sawan Ram Muni Lal) 2003(2) Civil Court Cases 118 (P&H) Civil Procedure Code, 1908, O.23.R.1 -Withdrawal of suit at appellate stage with liberty to file fresh suit on the same cause of action -To avoid multiplicity of proceedings, suit can be permitted to be withdrawn with liberty to file a fresh suit on the same cause of action. (C.Vaiyapuri Gounder & Ors. Vs Commissioner, H.R. & C.E (Administration Department), Chennai & Ors.) 2005(2) Civil Court Cases 429 (Madras)

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Civil Procedure Code, 1908, O.23.R.1 -Withdrawal of withdrawal application Permissible if fraud is played upon plaintiff or upon the appellant as the case may be. (State Bank of India Vs Firm Jamuna Prasad Jaiswal and Sons and Anr.) 2004(2) Civil Court Cases 119 (Allahabad) Civil Procedure Code, 1908, O.23.R.1 -Withdrawl of suit -Speaking order not necessary for allowing withdrawal simpliciter. (Mahadkar Agency Vs Padmakar Achanna Shetty) AIR 2003 Bombay 136 Code of Civil Procedure, 1908 ( 5 of 1908), Section 2(2) – Decree – Meaning of - Order allowing Suit to be withdrawn does not constitute decree. Code of Civil Procedure, 1908 (5 of 1908), Order 2, Rule 2 and Order 23, Rule 1 – Order 2, Rule while Order 23, Rule 1 refers refers to 'subject 2. Relates to 'reliefs which can be granted while matter' – Grant of leave is not matter of right – Different subject matters are relatable to provisions contained in Order 23, Rule 1. Code of Civil Procedure, 1908 (5 of 1908), Order 23, Rules 1(1) & 1(4) – Withdrawal of Suit – Effect of – When Courts allows Suit to be withdrawn without liberty to file fresh Suit without any adjudication, such order allowing withdrawal cannot constitute a decree and it cannot debar plaintiff in such withdrawn suit from taking plea in defence in second round of litigation. ( 2007 (3) CTC 767

Kandapazha Nadar & Others Vs. Chitraganiammal & Others.)

Order 23 Rule:1 :- Petition for amendment rejected by Trial Court and subsequently

by Honourable High Court. In such circumstances no petition to withdraw the suit could be maintained. ( Subramanian, A. Vs. Rathinammal) (V.Dhanapalan,J) 2012 – 5 – CTC – 786) (30.7.2012) C.P.C., Order 7, Rule 11, Order 23, Rule 1, Order 2, Rule 2/Compromise decree filed, bare injunction later not maintainable. Constitution of India, Article 227.Respondents 1 to 6 laid the suit for permanent injunction restraining the defendants 7 to 13 therein

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from alienating or encumbering the suit property in any manner – In the said suit, the petitioners being the defendants 7 and 9 filed an application under Order 7 Rule 11 CPC to reject the plaint and it was dismissed – Civil revision is directed against the said order. Pleadings in the present suit are verbatim of the pleadings raised in the earlier suit – Respondents 1 to 6 herein has made an endorsement to dismiss the suit as withdrawn with a liberty to file a fresh suit – No reason whatsoever has been stated by the counsel, as to why the said suit is sought to be withdrawn – Under Order 23 Rule 1 CPC, a suit could be withdrawn seeking liberty to file a fresh suit, if there are some formal defects and if the Court is satisfied the sufficient grounds exist for allowing the plaintiff to institute a fresh suit – Respondents 1 to 6 have not sought permission to withdraw the suit with liberty to file a fresh suit giving any reasons thereon and have not filed any application under Order 23 Rule 1 CPC. Though respondents 1 to 6 sought permission to withdraw the suit, with a liberty to file a fresh suit, this Court was cautious enough in saying that if the plaintiffs have got any right to do so, they can do so. Persons who were parties to the compromise decree can no longer maintain the suit for bare injunction – Present suit is not only barred by Res Judicate but also a clear abuse of process of law. (2012-1-L.W. 280 Smt. P. Leelarathinam W/o. P.Venkata Gopala Rathinam and Anr Vs P.E. Srinivasan and 11 Ors) Civil Procedure Code, 1908, O.23.R.1- Petitioner's attempt to withdraw the suit and to have liberty to initiate fresh proceedings, inorder to get rid of claim in amendment plaeadings. Withdrawal of suit cannot be allowed when defendant has acquired certain right in subject matter of the suit. Present claim for withdrawing the suit would amount to recalling the earlier order passed by this Court. (2013 – 1 – L.W – 368) (Justice V.Dhanapalan) A.Subramani & another v. Rathinammal & others. Dtd: 30.07.2012.

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Civil Procedure Code, 1908, O.23.R.1(3) -Withdrawl of suit at final stage -Not allowed considering large number of pending cases and time required for hearing each case Also due to absence of special circumstances. (Siddagangappa Vs Thimmanna) AIR 2003 Karnataka 164 Code of Civil Procedure (5 of 1908), Order 23, Rule 1(3) – Withdrawal of Suits –

Permission to withdraw the suit ought to have been obtained in earlier suit by filing application under Order 23 Rule 1(3) C.P.C. – When a suit is withdrawn without leave to file a fresh suit, filing of second suit on the same allegations and for same relief is barred – The consequence of not obtaining permission to bring a fresh suit at the time of withdrawal of the suit is that it takes away the right of the plaintiff to bring a fresh suit. Permission to w withdraw ithdraw the suit ought to have been obtained in the earlier suit by filing application under Order 23, Rule 1(3) C.P.C . When a suit is withdraw without leave to file a fresh suit, filing of second suit on the same allegations and for same relief is barred. The consequence of not obtaining obtaining permission to bring a fresh suit at the time of withdrawal of the suit is that it takes away the right of the plaintiff to bring a fresh suit. (2008) 3 MLJ 821 M.Somasundaram M.Somasundaram and Another Another Vs. District Co Collectorllectorcum-Accommodation Controller, Controller, Chennai and Others)

Civil Procedure Code, 1908, O.23.R.1(4) -Bar created by O.23.R.1(4) does not operate against the successor-in-title. (Harischandra Vithoba Narawade & Ors. Vs Smt.Vatsalabai w/o Narayan Shinde) 2005(1) Civil Court Cases 217 (Bombay) Civil Procedure Code, 1908, O.23.R.1(4) -Formal defect -Petition allowed to be withdrawn -Grant of liberty to file fresh petition on the same cause of action has to be inferred. (Mangal Sain Vs Jiwan Dass) 2003(1) Civil Court Cases 329 (P&H)

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Civil Procedure Code, 1908, O.23.R.1(4) -Withdrawal of suit -Sought immediately after filing of written statement by defendant and before framing of issues as plea of misrepresentation and fraud by inadvertence could not be taken and that detailed particulars of fraud and misrepresentation were sought to be pleaded by filing the new suit - Application allowed. (Narain Vs Rewati) 2005(1) Civil Court Cases 386 (P&H)

Order 23 Rule 1 of C.P.C:- Withdrawel of divorce etition by memo – withdrawal of

Divorce petition with liberty to file fresh petition is not a “settlement in respect of subject matter of the suit or proceeding” - seeking permission to withdraw the divorce petition cannot be said to be proceedings under Sec.10(3) – for withdarawal of the divorce petition, petition under order 23 Rule 1 & 2 ought to have been filed. The court has to be satisfied satisfied about the existence of “formal defect” and must must state the rsons for holding that a case within order 23 Rule 1(3) caluse (a) or (b) has been made out. (Kavitha v. C.Prabakar) (Justice R.Banumathi) (DB) 2012 – 5 - L.W - 33. Dtd: 17.9.2012.

Any abandonmend before registration of suit would not constitute withdrawal or abandonment of suit within meaning of Order 23 rule 1 CPC to operate as legal bar for subsequent suit of very same nature. (Olympic Cards Limited v. Standard charted Bank) ( 2013 – 1 – MLJ M LJ – 504) ( Ms.R.Banumathi,J) ( 17.12.2012) Right of plaintiff to withdraw or abandon suit at his will is subjec to few limitations / restrictions based on principle that if third party has acquired valuable right, there is no room for withdrawal to his prejudice – plaintiffs do not have absolute right either to withdraw suit or abandon their claim. ( Athiappan v. Palaniappan) ( M.Venugopal,J) (2013 – 4 – MLJ – 315) (Dtd:- 4.4.2013)

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Order;23 Rule;1A and Hindu succession Act.Sec.6 – withdrawal of suit – transposition of dependents as plaintiff – Permissibility suit for partition of joint family properties – claim by one dependent for partition and separate possession of her share taken in written statement by paying necessary court fee – subsequent memo filed by plaintiff and other dependents for withdrawal of suit on the ground of settlement of dispute out of the court – order of court dismissing suit as settled out of court not proper – def.claiming partition should be permitted to continue the suit by transposing herself as plaintiff. (2000 – TLNJ – 298 (SSS.J) Civil Procedure Code, 1908, O.23.R.1-A Transposition of defendant as plaintiff – a person who seeks to transpose himself as a plaintiff must prove that he has substantial question to be decided and must have identity of interest along with plaintiff. (Good Shepard Evangelical Mission Private Ltd v. Meenakshi Achi) 2012 (3) MLJ 737. (Justice. P.Jyothimani). P.Jyothimani).

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Civil Procedure Code, 1908, O.23.R.3 Application U.O.23.R.3 - No ad-valorem court fee needs to be affixed on such an

application. (Ravinder Kumar Rishi Vs Sushma Rishi) 2003(2) Civil Court Cases 612 (Delhi) Civil Procedure Code, 1908, O.23.R.3 -Compromise suit - “compromise” - meaning – Bimal Kumar v. v. Shakunthala Debi (201 (20122 3 SCC 548) Civil Procedure Code, 1908, O.23.R.3, S.96 -Compromise decree -Appeal against Not maintainable. (Santosh Kumar Vs Karam Devi) AIR 2002 P&H 20 Civil Procedure Code, 1908, O.23.R.3, O.47.R.1, S.151 -Consent decree Review/recall petition -Does not lie -However, review petition is maintainable u/s 151 only if it is proved that fraud is played on Court. (Smt.Anita Vs R.Rambilas) AIR 2003 A.P. 32 Civil Procedure Code, 1908, O.23.R.3 -Compromise -Between tenant and one of the landlords -Compromise cannot be enforced qua the other landlords. (Sat Pal & Ors. Vs Firm Sat Pal Sanjeev Kumar & Ors.) 2004(2) Civil Court Cases 422 (P&H) Civil Procedure Code, 1908, O.23.R.3 -Compromise -By counsel -Consent of client is not needed for a matter which is within the ordinary authority of the counsel Compromise in Court by the counsel whose authority has not been expressly limited, the client is bound by such compromise -If matter is settled in Court in presence of client, his consent will be inferred. (Girnari Devi Vs Gopal Dass) 2003(1) Civil Court Cases 410 (P&H)

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Compromise -Entered in two between landlord and tenant and revision disposed of in terms of compromise -Compromise not signed by either of parties or counsel -It violates O.23.R.3 -Cannot be enforced -Even if revision is adjusted or disposed of by agreement and there is no final adjudication, same cannot dilute requirement of compromise being signed in writing by parties. (S.P.Minocha Vs Lila Ram) AIR 2002 Delhi 223 Civil Procedure Code, 1908, O.23.R.3 -Compromise -In writing signed by parties at the time of recording of compromise -Petitioner examined by Court for being satisfied that she had entered into compromise and petitioner admitted factum of compromise Original compromise petition contained seal of Court on all pages and signatures of all parties and their advocates -It cannot be said that compromise was not lawfully entered. (Ramawati Devi Vs Maheshwar Singh) AIR 2003 Patna 101 Civil Procedure Code, 1908, O.23.R.3 -Compromise -Normally Court passes decree in terms of compromise -However Court can make a change -If Court makes a change then reasons for making the change have to be recorded and then decree is not in terms of compromise. (Rajasthan Financial Corporation Vs M/s.Man Industrial Corporation Ltd.) 2003(2) Apex Court Judgments 490 (S.C.) O.23.R.3 -Compromise -On the basis of compromise decree passed and plaintiff acted upon the decree -Held, plaintiff then has no right to say that compromise is the result of mis-representation or fraud. (Jagat Singh (Deceased) Vs Babu Singh & Ors.) 2005(1) Civil Court Cases 789 (P&H) Compromise -Recorded in police station during pendency of suit -Suit cannot be disposed of except by recording compromise and that too by following the procedure, and recording the satisfaction, contemplated co ntemplated by O.23.R.3 CPC. (Ajad Singh @ Ajad Vs Chatra & Ors.) 2005(1) Apex Court Judgments 385 (S.C.) : 2005(1) C.C.C. 577 (S.C.)

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Civil Procedure Code, 1908, O.23.R.3 -Compromise -Validity -Can be challenged before the same Court -Compromise whether void or voidable has to be determined by the Court -Once it is held that compromise is fraudulent the same per se would be unlawful and the Court is required to declare the same as such. (Dwarka Prasad Agarwal (D) by Lrs. and Anr. Vs B.D.Agarwal & Ors.) 2003(2) Apex Court Judgments 453 (S.C.) : 2003(3) Civil Court Cou rt Cases 546 (S.C.) Civil Procedure Code, 1908, O.23.R.3 - Compromise decree -Setting aside -Petitioner in cross examination admitted that opposite Advocate read over compromise petition to them and thereafter they signed it -Thus, petitioners knew contents of compromise but had not raised any objection thereto -Cannot be allowed to challenge compromise decree alleging that it was not prepared according to terms and conditions of settlement reached between parties. (Kalipada Deka Vs Danpati Deka) AIR 2003 Gauhati 64 Civil Procedure Code, 1908, O.23.R.3 -Compromise decree -Testamentary suit Compromise can be acted upon if same is entered into by all legal heirs of testator -If the heirs compromise then decree will not be binding on other heirs who had not joined compromise. (P.Jothi (P.Jothi Bai Vs B.Dorairaj) AIR 2002 Madras 191 Civil Procedure Code, 1908, O.23.R.3 & S.151 -Compromise decree -Setting aside Decree alleged to be obtained by fraud -Suit seeking setting aside of compromise dismissed as barred by O.23.R.3-A -Said order attained finality -Thereafter petition U.O.23.R.3 read with S.151 seeking setting aside of compromise decree -Not maintainable. (Kalipada Deka Vs Danpati Deka) AIR 2003 Gauhati 64

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Civil Procedure Code, 1908, O.23.R.3 Proviso, S.96 - Consent decree - Appeal against -Availability of alternative remedy under Proviso to R.3 of O.23 -Not a ground for non entertaining appeal. (Kantaben T.Shah Vs Devendrakumar C.Shah) AIR 2002 Gujarat 2006 (3) TLNJ 350 (Civil)Pushpa Devi Bhagat (D) Th. LR.Smt. Sadhna Rai Vs. Rajinder Singh & Others.Civil Procedure Code 1908 as amended – Section 96 and

Order 23, Rule Rule 3 – Proviso - The position that emerges from the amended prov provisions isions of Order 23, can be summed up thus.(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in section 96(3) CPC. (ii)

No

appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) Rule 1 Order 43.(iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3A.(iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 of Order 23.

Therefore, the only on ly remedy available to a

party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree, is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. Code of Civil Procedure (5 of 1908), Order 23, Rule 3 –Compromise of suit – Compromise memo signed by counsels of both parties – Absence of signature of parties in memo – Allegation of fraud in obtaining compromise – Counsel of party possess implied authority to enter into compromise on behalf of party – Compromise

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memo valid in absence of signature of parties unless there is any written prohibition or limitation to curtail authority of counsel – Party not entitled to challenge act of entry into compromise by counsel unless any adverse interest attributed to him – Compromise memo held, valid. FACTS IN BRIEF: Compromise decree was challenged after more than 30 years on the ground that the memo of compromise was signed by advocates of parties alone and not by the parties and that the compromise was obtained by way of fraud. QUERIES: 1. Whether a compromise memo containing signatures of advocates of parties alone is valid in the absence of signature of parties? 2. Whether challenge to compromise decree after 30 years is barred by limitation? Held: The provision in force, earlier to the amended Act No. 104 of 1976 dated 1.2.1977, did not contain the terms “in writing and signed by the parties”. Hence, it was not the statutory requirement anterior to the advent of amended Act, that the compromise should receive the signatures of the parties. The authority was given to the counsel appearing for the party to enter into a compromise. Unless any adverse interest attributed to the counsel on record, the party on a later point of time could not challenge the act of the counsel who has entered into compromise ignoring the authority or power already given to him. ((2011) 3 MLJ 819 Tirupurasundari (died) and Ors vs C. Nagarajan and Ors)

Civil Procedure Code, 1908, O.23.R.3- Compromise Suit – compromise meaning of – Bimal Kumar vs. shakuntala Debi – 2012 – 3 – SCC – 548. Compromise decree passed without association of all parties. Compromise must be sign by all parties. Absence of anyone party, party, no compromise decree coul couldd be passed. ( Ramanathan K.M., v. v. Rengasamy)( 2013 – 2 – CTC – 13) ( DB) ( K.K.Sasidharan,J K.K.Sasidharan,J))

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Order-23 Rule-3:- Appeal is maintainable against the decree passed in pursuant to

recording of a compromise memo – Defendants were present in the court with their counsel at the time of filing the memo and stated before the Court that they are agreeing to the terms of compromise. (Signature found in compromise memo was disputed) (2013 – 5 – L.W – 239) ( Chinnapaiyan & another v. A.Mohamed Yusuf & others) ( 29.07.2013) ( (K.Ravichandra Baabu,J) Order 23 – Companies (Court) Rules, 1959, Rule,9:- Order quashing criminal

proceedings – nature of – criminal proceedings against Respondent quashed onaccount of full and final payment made with regard to Civil liability of Respondent – said order,held, would not be a compromise decree. (official Liquidator, High Court Madras v. R.vijayakumar) ( DB) ( K.K.Sashidharan,J) (2013 – 2- CTC 241) Dated: 5.3.2013) C.P.C., 1908, O.23.R.3-A and 3-B and S.11, Evidence Act, 1872, S.115 -Partition suit

-Compromise -Decree passed on basis of compromise reached by parties representing heads of branches without notice to other members of branches who are interested in suit and without obtaining leave of Court to compromise -Such compromise decree does not bind other members of branches -Such member is competent to file suit for appropriate relief ignoring such compromise decree -Such suit is not barred either by principle of res judicata or estoppel. (Siddalingeshwar & Ors. Vs Virupaxgouda & Ors.) 2004(2) Civil Court Cases 655 (Karnataka) Civil Procedure Code, 1908, O.23.R.3-A – bar to suit – Held there is nothing in Order

23 , Rule 3-A, to bar the institution of suit before civil court even in reard to decrees or orders passed in suits and / or proceedings under different statutes before court, tribunal or authority of limited and restricted jurisdiction – In facts of the case, provision of order 23 shall not act as bar against suit filed by appellant. ( Horil v. Keshav) ( 2012 – 5 – MLJ – 419 (SC) ) ( Aftab alam, J) 20.1.2012.

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Civil Procedure Code, 1908, O.23.R.3-A – Suit for setting aside Preliminary decree

passed in another suit – whether maintainable – plaintiffs seeking declaration that Preliminary decree passed in suit for mandatory injunction in which instant plaintiffs were defendants, wall null and void. Held, said suit was decreed ex parte and application filed by instant plaintiffs for setting aside exparte decree was dismissed – in such circumstances, said decree binding on plaintiffs – moreover, decree in said suit being based on compromise memo filed by parties, present suit filed by plaintiff not maintainable. Dismissal of instant suit by Courts below upheld. (Mariyammal v. Dhandapani) (R.S.Ramanathan, J) (2013 – 6 – CTC 157) (27.08.2013) Civil Procedure Code, 1908, O.23. R.3-B -Partition suit -Compromise decree -Leave

not granted by Court -Notice not given to members of branches who are interested in suit -Compromise is void -Person interested in suit but had no notice of compromise is not barred from challenging compromise decree. (Siddalingeshwar & Ors. Vs Virupaxgouda & Ors.) 2004(2) Civil Court Cases 655 (Karnataka) (K arnataka) Civil Procedure Code, 1908, O.23.R.3B -Compromise decree -Court not expressly record grant of leave to parties to enter into compromise and no notice given to persons interested in suit -Compromise held, void -O.23.R.3A will not bar subsequent suit challenging compromise decree -Persons interested in said suit can file subsequent suit challenging consent decree. (Siddalingeshwar Vs Virupaxgouda) AIR 2003 Karnataka 407 Civil Procedure Code, 1908, O.23.Rr.3A, 3B and S.11 -Representative suit -Decree passed in compromise without complying R.3B -Any person affected by it, but not party to it can file separate suit seeking appropriate relief in regard to said decree by way of declaration or otherwise -He can also file suit for appropriate relief ignoring compromise decree and such suit will not be barred by principle of res judicata.

(Siddalingeshwar Vs Virupaxgouda) AIR 2003 Karnataka 407

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Civil Procedure Code, 1908, O.23.Rr.3, 3-A, 3-B -Compromise decree -Tendency of trial Court to pass mechanically compromise decree without examining whether suit is representative suit and without satisfying itself about lawfulness of compromise -Such tendency is deprecated. (Siddalingeshwar & Ors. Vs Virupaxgouda & Ors.) 2004(2) Civil Court Cases 655 (Karnataka) Civil Procedure Code, 1908, O.23.Rr.3, 3-A -Compromise decree -Remedy against Decree can be assailed either U.O.23.R.3 before the Court which passed the compromise decree or by way of an appeal -Suit to assail such decree is barred. (Gopal Lal Vs Babu Lal & Ors.) 2004(2) Civil Court Cases 462 (Rajasthan) Compromise - Joint memo of compromise between parties - Order and decretal order passed in terms of compromise memo - No right to petitioner to challenge order after reaping entire benefits under compromise decree.(2010) 6 MLJ 166 Navinchandra Chandulal & Co., Rep. by its Partners vs Bhagawandass (Deceased) by LR's and Ors).

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Order XXVI BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/01/2010

CORAM

THE

HONOURABLE

MR.JUSTICE

R.S.RAMANATHAN

C.R.P.(PD)MD.No.1711 of 2009 and M.P.(MD)No.1 of 2009 C.K.T.(Chennai Kammavar Trust) Rep. by its Chairman P.Balakrishnan, ... Petitioner/Plaintiff vs 1.M.Jeyalakshmi 2.M.Latha 3.M.Geetha ... Respondents/Defendants ORDER

The plaintiff in O.S.No.64 of 2007, on the file of the District Munsif, Kovilpatti, is the revision petitioner petitione r. 2.The plaintiff filed the suit for permanent injunction and in that suit, he filed I.A.No.1540 of 2007 for appointment of Advocate Advocate   Commissioner Commissioner   to inspect the schedule property to note down the physical features and to file a detailed report and that was also ordered by the learned District Munsif, Kovilpatti on 11.04.2008 and Commissioner and he Mr.R.Sivaraja Gopal, Advocate, Advocate, was appointed as Advocate Commissioner was directed to visit the suit property and note down the physical features and file his detailed report along with plan on or before 12.06.2008.

Though, the Advocate Advocate

Commissioner was was paid his remuneration, the Advocate Advocate Commissioner did Commissioner did not inspect Commissioner the suit property and the petition was periodically adjourned for filing the report of the Advocate   Commissioner Commissioner   and on 26.11.2008, the learned District Munsif, passed an Advocate order, directing the Advocate Commissioner Commissioner to file his report and plan on or before 23.12.2008, failing which the petition will automatically stands dismissed and on 23.12.2008, the application I.A.No.1540 of 2007 was dismissed, stating that the

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conditional order passed on 26.11.2008 26.11.2008 was not complied with. Against the same, this revision petition is filed by the plaintiff.

3.It is very unfortunate that the lower court without applying its mind and without bestowing any attention to the relief prayed for and without verifying whether any mistake has been committed by the revision petitioner, dismissed the application after Commissioner.. When, a commissioner commissioner has been appointed by the appointing the Commissioner lower court and that commissioner did commissioner did not inspect the premises and submit his report within the stipulated time, the lower court should have recalled the warrant issued and appointed another Advocate Commissioner Commissioner to inspect the premises.

Instead of

following that procedure, the lower court has dismissed the application filed by the Commissioner in not inspecting the premises plaintiff for the default of the Advocate Advocate Commissioner and submitting his report. The order of the lower court will expose the total nonapplication of mind by the learned District Munsif, Kovilpatti. 4.Hence, the order passed by the lower lower in I.A.No.1540 of 2007 is set aside and the learned District Munsif, Kovilpatti, is directed to appoint a fresh Advocate Advocate   Commissioner,, after recalling warrant, issued in favour of the earlier Advocate Advocate   Commissioner Commissioner.. Accordingly, Accordingly, this civil civil revision petition is allowed. Commissioner connected Miscellaneous Petition is closed. No costs.

Consequently,

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Civil Procedure Code, 1908, O.26 Civil Procedure Code, 1908, O.26.R.1 -Commissioner -Appointment at pre evidence stage to know the correct ground reality of the suit property -Not improper when no prejudice or hardship is likely to be caused to the opposite party. (Suresh Vs Vijaykumar)2003(2) Civil Court Cases 584 (Karnataka) Civil Procedure Code, 1908, O.26.R.1 -Witness -Examination -On commission - It is not choice of witness. wi tness. (Rayala Umamaheswara Umamahes wara Rao Vs Dantuluri) AIR 2002 A.P. A.P. 178 Civil Procedure Code, 1908, O.26.R.4 -Commission to examine witness -Affidavit or medical certificate indicating illness and immobility, not filed alongwith application Held, application was rightly rejected. (Smt.Shanti Bai Vs Udai Raj) 2005(2) Civil Court Cases 56 (Rajasthan)

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Civil Procedure Code, 1908, O.26, R.9 In a suit for injunction commissioner could be appointed to locate the disputed land, but not for probing possession. ( Selvi vs. Dorathy paul) ( 2013 – 2 – TLNJ – 332 – Civil) ( 12.3.2013) 12 .3.2013) ( Mr.Justice Mr.Justice M.Venugopal) Civil Procedure Code, 1908, O.26.R.9, S.115 -Local Commissioner -Refusal to appoint -Order is interlocutory -Revision against -Not maintainable. (M/s.Benz Automobiles Private Limited, Vs C.Mohanasundaram & Ors.) 2004(2) Civil Court Cases 278 (Madras) Civil Procedure Code, 1908, O.26.R.9 -Local Commission -Court can appoint suo moto -When local investigation is requisite or proper, Court can appoint Local Commissioner suo moto. (Punjab Wakf Board Vs Shri Neeko) 2004(3) Civil Court Cases 52 (P&H)

Civil Procedure Code, 1908, O.26.R.9 -Local Commissioner -Cannot be appointed to ascertain as to who is in possession. (M/s.Benz Automobiles Private Limited, Vs C.Mohanasundaram & Ors.) 2004(2) Civil Court Cases 278 (Madras) Civil Procedure Code, 1908, O.26.R.9 -Local commissioner -Court has discretion to order local investigation - In boundary disputes and disputes about identity of land Court should order local investigation. (Kishanlal Maniklal Rathi Vs Dinkar Yashwant Patil) 2004(2) Civil Court Cases 456 (Bombay)

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Civil Procedure Code, 1908, O.26.R.9 -Local commissioner -Encroachment -Oral evidence cannot conclusively prove such an issue -To determine the area encroached it is always desirable to get the field measured by an expert and find out the area encroached upon. (Kishanlal Maniklal Rathi Vs Dinkar Yashwant Patil) 2004(2) Civil Court Cases 456 (Bombay) Civil Procedure Code, 1908, O.26.R.9 -Local Commissioner -To ascertain as to which party is in possession -It is beyond the scope of O.26.R.9 CPC -This question has to be decided by Court after parties adduce evidence. (Ashutosh Dubey & Anr. Vs Tilak Grih Nirman Sahkari S ahkari Samiti & Anr.) 2004(3) Civil Court Cases 678 (M.P.) (M.P.) Civil Procedure Code, 1908, O.26.R.9 -Local Commissioner -When there is a dispute about an encroachment or dimension of a site, Commissioner must be appointed by Court to take joint measurements. (Kashinath Chindhuji Shastri Vs Haribhau Nathuji Bawanthade) 2004(2) Civil Court Cases 436 (Bombay) Civil Procedure Code, 1908, O.26.R.9 -Second local commissioner -Merely because the first report was confirmed, subject to the evidence by the parties, the issuance of the second commission could not be denied. (Ghurhu Vs X Additional District Judge, Varanasi & Ors.) 2004(2) Civil Court Cases 309 (Allahabad) Order -26, R-9:-Appointment of advocate commissioner-Guidelines issued-trial court

shall fix date and time for inspection on date of appointment of advocate commissioner –court shall grant time of not no t less than two weeks but or order der to concerned tashildar and to taluk or firca surveyor if their assistant is required and such officer shall render necessary assistance to adv-commr .if such officer officer is not able to assist adv-commr on date fixed such officer shall file memo before court giving valued reasons for his inability to do work and court shall fix alternate day either by consent of parties or on

its own accord. Court Shall initiate suo moto contempt proceedings in event of failure

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by such official to render necessary assistance-court shall determine remuneration payable to surveyor –adv.ncommr should file his report within 4 weeks from date of inspection in case of partition and 2 weeks in other cases. ( 2002(5) CTC 104 )

2006 (1) T TLNJ LNJ Civil 389 (Mad. (Mad.)) R. Sivasubramanian

Vs. S. Balamurugan

Appointment of second advocate commissioner without assigning any reason and without rendering any opinion as to the report of the earlier commissioner is not proper.

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2009 (4) TLNJ 427 (Civil) Elango Vs Kasthuri

Civil Procedure Code 1908 as amended, Order 26, Rule 9 – Suit for injunction to restrain land lord from evicting plaintiff – plaintiff sought appointment of advocate commissioner – allowed

by trial trial court – on revision in High Court held that

appointment of advocate commissioner cannot be sought indirectly to note down factum of possession under pretext of nothing physical features – trial court order set aside – CRP (PD) is allowed. According to the petitioner, the lease was given to the respondent for a period of three years and the respondent had agreed to vacate the premises on the expiry of the lease period of three years and accordingly on 17.2.2008, he vacated the premises and also got the refund of Rs.1,00,000/-, which he had paid as advance. Pending the suit, the respondent has filed the said application for appointment of an Advocate Commissioner to note down the features relating to the fact that the respondent had been in possession of the property and the electricity service connection had been disconnected to the suit property. It is the case of the respondent that the petitioner was trying to dispossess the respondent unlawfully by resorting to illegal methods of disconnecting the electricity service connection with an ulterior motive to paralyze the business of the respondent and force him to vacate from the suit property. In the counter filed by the petitioner in the said application, it is stated that the lease was given to the respondent for a period of three years and as agreed, the respondent vacated the premises and also got the refund of Rs.1,00,000/-. Therefore, it was submitted by the petitioner that no Advocate Commissioner can be appointed in order to collect or gather evidence in respect of one party. The court below appointed an Advocate Commissioner by the impugned order on the

ground that for the purpose of elucidating the matter in dispute and to find out as to

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whether the electricity service connection is disconnected, there is necessity for appointment of an Advocate Commissioner and thus allowed the petition by the impugned order. Hence, this Civil Revision Petition has been bee n filed. This court carefully considered the arguments of the learned counsel on either side. Order 26 Rule 9 of CPC reads as follows:-“Commission to make local investigation: In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. Provided that where the State Government has made the rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.” It is evident from the aforesaid provision of law that a court may appoint an Advocate Commissioner in any suit where it deems a local investigation is requisite for the purpose of elucidating any matter in dispute. It is necessary to point out that in the affidavit filed in support of the said application, it is stated by the respondent that he is likely to be dispossessed at any time and he need to prove that he is in possession of the suit property, which necessitated him to file this petition for appointment of an Advocate Commissioner to inspect the physical features of the suit property, indirectly seeking to note down the factum of possession under the pretext of noting of the physical features. Such a reason ought to have been rejected by the court below as untenable. As far as the factum of possession is concerned, the court alone could gather evidence through the parties and it cannot entrust the said matter to the Advocate Commissioner to collect evidence. Likewise, disconnection of electricity service

connection can be proved by other means and evidence and it is not necessary to

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appoint an Advocate Commissioner for the said purpose. The judgement relied by the respondent rendered in the case of Karthikeyan Vs. Kannan @ Rajendran [2008-2TLNJ-93-Civil] has no application to the case on hand, as the said suit was filed for specific performance and appointment of Advocate Commissioner was made to note down features of the suit property. property. Taking into consideration the facts and circumstances involved in this case and also the decisions relied on by the learned counsel for the petitioner, this court is of the considered view that the impugned order appointing an Advocate Commissioner is unsustainable in law and hence, the same is liable to be set aside and accordingly, it is set aside. (2009 (4) TLNJ 427 (Civil) Elango Vs Kasthuri) **************************************************************************************************

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Civil Procedure Code, 1908, O.26.Rr.9, 10 -Local Commissioner can be appointed

ex parte -Report of Local Commissioner without issuing notice to the other party is admissible in law -However, report of Local Commissioner is not admissible in evidence unless Local Commissioner is examined in Court and an opportunity is given to the other party to cross examine him. (Piara Lal Vs The Liquidator Cooperative Store, Kapurthala Kapurthala & Ors.) 2004(2) Civil Ci vil Court Cases 573 (P&H) Civil Procedure Code (5 of 1908) – Order 26, Rule 9 – Appointment of Advocate –

Commissioner – Suit for permanent injunction – Interim injunction obtained- Long thereafter, plaintiff seeking appointment of Advocate–Commissioner to inspect property alleging encroachment by defendants – No averment of encroachment in plaint – Possession of property, disputed question of fact – to be adjudicated by Court – Advocate-Commissioner cannot be appointed to find out possession of propertyCourt cannot exercise power of appointment of Advocate-Commissioner for local investigation to assist party to collect evidence – Lower Court’s order appointing Advocate-Commissioner suffers from material irregularity, hence set aside.( (2007) 1 MLJ 513 Chinnathambi Vs. Anjalai)

Code of Civil Procedure (5 of 1908), Order 26 Rule 9, Order 41 Rule 27 – Scope of receiving additional evidence at appellate stage – Objections for commissioner report at trial Court filed belatedly – Basic principles requisite for admission of additional evidence at appellate Court not fulfilled – Appointment of Advocate Commissioner for the second time not permitted – Revision dismissed.((2008) 6 MLJ

363

R.NandakumarVs. Dindigul Co-op. Housing Building Society Limited, rep. by its Secretary, Dindigul)

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O.26.Rr.9, 10 - L ocal Commissioner - Court has power to appoint a Local Commissioner for the purpose of elucidating any matter in dispute. (Piara Lal Vs The Liquidator Cooperative Store, Kapurthala & Ors.) 2004(2) Civil Court Cases 573 (P&H) Civil Procedure Code, 1908, O.26.Rr.9, 10 -Local Commissioner --Neither objections

raised nor request made for appointment of another Local Commissioner Presence of Local Commissioner before Court is not necessary -Report of Local Commissioner can be read in evidence. (Jagdish & Anr. Vs Sanjay Kumar & Ors.) 2004(2) Civil Court Cases 286 (P&H) O.26.R.9 -Local Commissioner -Appointment for knowing as to whose possession -

Parties can lead evidence -Appointment of Local Commissioner would amount to collecting evidence on behalf of plaintiff -Order rejecting application justified. (Madhu Sudan Pradhan Vs Santosh Kumar Das) AIR 2004 Orissa 86 Civil Procedure Code, 1908, O.26.Rr.9, 14(3), S.115, Constitution of India, Art.227

-Commission report partitioning properties in a final decree proceedings -Order refusing to set aside the report -Order not revisable but correctness of the order can be gone into in exercise of the powers under Art.227 of the Constitution of India. (Nirmala Ravindran Vs Mohanan) 2004(2) Civil Court Cases 81 (Kerala) Civil Procedure Code 1908 as amended - Order 26 Rule 9 - In a suit for declaration

advocate commissioner was appointed - filed report and objections were also submitted - plaintiff further wanted to remit warrant to the same commissioner to file additional report and plan in the light of his objections - petition dismissed - on revision High Court opined that the legal procedures are to do complete justice and plaintiff seeking further report from commissioner to prove his case, is justified - Revision allowed.(2008 (2) TLNJ 553 (Civil) A. Palaniappan Vs. K. Nallasamy and 6

Others)

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Civil Procedure Code 1908 as amended - Order 26, Rule 9 - In a suit for

injunction against laying road as it may cause damage to air pipe line and water pipe line - in the suit appointment of advocate commissioner was sought - dismissed as already a report was available in the earlier suit between the same parties and issues being same - On revision High Court distinguished the relief sought in application and held that the commissioner can be appointed for the plaintiff to enlighten the case revision petition allowed. ((2008) 6 MLJ 735 = 2008 (2) TLNJ 563 (Civil) M. Shanmugam Vs. M. Arumugam)

Code of Civil Procedure (5 of 1908), Order 26, Rule 9 – Appointment of Advocate Commissioner – Application seeking appointment of Advocate Commissioner, dismissed on the ground of availability of report of Advocate Commissioner in an earlier suit between the same parties – Revision against that order – Report of the Advocate Commissioner in the earlier suit pertains to physical features and nothing to do with the present requirement of inspection – Certain factors need to be elucidated with the help of Advocate Commissioner – Dismissal of application, not proper – Revision allowed.(2008 (2) TLNJ 563 (Civil) = (2008) 6 MLJ 735 M.Shanmugam and Another Vs. M.Arumugam.)

Code of Civil Procedure (5 of 1908), Order 26 Rule 9 and Section 151 – Rejection of prayer for comparing signatures in admitted documents to decide issues involved in suit regarding disputed signatures – Also rejection of prayer for appointing Advocate Commissioner – Request for sending documents out of Court for verification in presence of Advocate Commissioner rejected – Revision Petitions – Court bound to do justice to parties which can be achieved only on verification of signatures by Handwriting expert – Reason given by Court below that on any circumstance documents cannot be sent out of Court, unsustainable – Court below ought to have appointed Advocate Commissioner to get

documents from Court and ought to have directed Government Expert to verify

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same in presence of Advocate Commissioner – Revision Petitions allowed. (2009 (2) MLJ 665 S.M.Narasingam and Other Vs. S.M.Sridharan and Others).

Application for reissuing Commission Warrant – When warranted? – Held,

applicant not objecting to report initially – Application for reissuing arrant made at fag end when matter posted for judgment – Not proper – Plaintiff cannot take help of Court for broad based enquiry – Court to decide matter with Commissioner’s report and oral and documentary evidence – Order of Trial Court in Interim Application set aside.Commissioner’s report submitted in a Suit filed by the respondent / plaintiff claiming right over a wall. The respondent / plaintiff filed no objections to the report, on the other other hand, the petitioner/defendant filed objection. At the fag end when tthe he matter came to be posted for judgment, the respondent/plaintiff filed an Interim Application for reissuing Commissioner Warrant to Commissioner. The said Application came to be allowed.

Being aggrieved by the said order, the

petitioner/defendant has preferred the instant Revision Petition.

A bare perusal of

the judgment of the Lower Court and the records would clearly demonstrate that earlier the Commissioner visited the suit property and submitted his report. Whereupon the defendant filed the objection, but the plaintiff has not filed any objection. In such a case, after the matter was posted for judgment, I could see no rhyme or reason on the part of the plaintiff in filing such an Application for directing the Commissioner to revisit the suit property, so as to find out in whose property actually the Suit wall situates. The Lower Court is having before it the Commissioner’s report and the sketch and also the oral and documentary evidence. At the fag end of the Suit, it is not open for the plaintiff to seek for a direction to find out which is the suit wall, out of the alleged two walls standing side by side. With reference to the documents, plan and commissioner’s report, it is for the Court to arrive at the conclusion. Without setting aside the earlier report of the the Commissioner Commissioner,, a fresh Commission warrant could not also be issued and to that effect there are catena of

decisions. The plaintiff cannot be allowed to take the help of the Court to make a

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broad based rowing enquiry, by getting appointed Commissioner to locate and find out as to what actually is the suit wall. The plaintiff has to come forward with a specific case that the entire wall belongs to him and in such a case it is for the Court to decide from the available evidence. Put simply the approach of the Lower Court is far from satisfactory.. Accordingly, satisfactory Accordingly, the order in I.A. No.1078 of 2007 set aside. The Trial Trial Court is directed to proceed with the matter with the available evidence and record.( 2009-(3) CTC 845 K.Subramaniam Vs. R.K.Angappan)

Civil Procedure Code 1908 as amended, Order 26, Rule 9 – Suit for injunction to restrain land lord from evicting plaintiff – plaintiff sought appointment of advocate commissioner – allowed by trial court – on revision in High Court held that appointment of advocate commissioner cannot be sought indirectly to note down factum of possession under pretext of nothing physical features – trial court order set aside – CRP (PD) is allowed.(2009 (4) TLNJ 427 (Civil) Elango Ela ngo Vs Kasthuri) Civil Procedure Code 1908 as amended, Order 26, Rule 9 :- The right of objection is an opportunity available to parties – It is always open to the parties to raise all issues during trial on receipt of the commissioner's report. ( S.A.Manian vs. the wild life and Nature and Environment Lovers of the General Public of the Nilgris and others) ( 2012 – 4 – TLNJ 185 (civil) 2.7.2012. (Justice. V.Dhanapalan). V.Dhanapalan). Civil Procedure Code 1908 as amended, Order 26, Rule 9 :- Plaintiffs have prayed for appointment of commissioner for ascertaining the four boundaries for the suit property – it amounts amoun ts to collection of evidence e vidence – appointment of advocate commissioner is not essential. ( 2012 – 5 – L.W. - 300) ( (S.Palanivelu,J) 13.9.2012 ( Santha Satheesh vs. H.J.Walter & Others)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/10/2011 CORAM THE HONOURABLE MR. JUSTICE M.JAICHANDREN C.R.P. PD (MD).1023 of 2009 and M.P M.P.No.1 .No.1 of 2009 20 09 Raman Ramanathan athan

v.

Palkan Palkanii Amml.

ORDER

2. The petitioner in the present Civil Revision Petition is the appellant, in A.S.No.87 of 2007. The respondent herein had filed a suit, in O.S.No.36 of 2006, on the file of the Ditsrict Munsif Court, Tiruchendur. The said suit had been filed praying for a permanent injunction against the petitioner herein, in respect of the suit schedule properties. The suit had been decreed, restraining the petitioner from interfering with the possession and enjoyment of the suit schedule properties by the respondent. 3. The trial Court had stated, inter alia, that the petitioner, who was the defendant in the suit, had not proved his possession of the properties in question, by way of a report filed by an Advocate Advocate Commissioner Commissioner.. The petitioner herein had filed an appeal, in A.S.No.87 of 2007, challenging the judgment and decree of the trial Court, dated 25.4.2007, made in O.S.No.36 of 2006, on the file of the District Munsif Court, Tuticorin. He had also filed an interlocutory application, in I.A.No.1 of 2009, in A.S.No.87 of 2007, along with the necessary petition, praying for the appointment of an Advocate Advocate Commissioner Commissioner   to file a report, after having noted down the physical features of the suit schedule properties, in order to prove that the possession of the said properties was with the petitioner. However, by an order, dated 4.7.2009, the Subordinate Court, Tuticorin, had dismissed the interlocutory application stating that it was not open to the petitioner to prove his possession, by way of a report to be filed by Commissioner. Hence, the petitioner has preferred the present Civil the Advocate Advocate Commissioner. Revision Petition before this Court, challenging the order passed by the Subordinate Court, Tuticorin, in I.A.No.1 of 2009.

4. The learned counsel appearing on behalf of the petitioner had submitted that

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the petitioner had filed the interlocutory application, in I.A.No.1 of 2009, only due to the reason that the trial Court had stated in its judgment, dated 25.4.2007, made in O.S.No.36 of 2006, that the petitioner had failed to prove his possession of the suit schedule properties, by way of a report filed by an advocate advocate   commissioner commissioner,, noting down the physical features of the properties in question. Therefore, it is not open to the Subordinate Court, Tuticorin, to reject the request of the petitioner for the appointment of an Advocate Commissioner stating Commissioner stating that the petitioner cannot prove his possession of the suit schedule properties, by way of an opinion to be given by the Advocate Commissioner.. In fact, the Advocate Commissioner Advocate Commissioner Commissioner could only give a report noting down the physical features of the properties in question, it would not be open to him to given an opinion, with regard to the possession of the suit schedule properties. 5. The learned counsel appearing on behalf of the petitioner had relied on the decision, reported in A.Sulthan and another Vs. Mohammed Dasthagir (2008(6) MLJ 359), wherein it had been held as follows: follows: Even in a suit for for bare injunction, an Advocate Commissioner   can be appointed to make local investigation. Such local Advocate Commissioner investigation would facilitate the Court to decide the issue more effectively rather than shutting out the remedy and driving the parties to initiate fresh legal proceedings. To have a local investigation is the best way and to shut out that evidence would amount to denying him the right to adduce evidence and the Court also will be denied of the first hand knowledge about the allegation and counter allegations. 6. The learned counsel appearing on behalf of the respondent had stated that the petitioner cannot prove his possession of the suit schedule properties, by getting commissioner.. Therefore, the Subordinate Court, an opinion from an advocate advocate commissioner Tuticorin, had rightly rejected the request of the petitioner for the appointment of an Advocate Commissioner,, by his order, dated 4.7.2009, made in Advocate Commissioner

I.A.No.1 of 2009.

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7. The learned counsel appearing on behalf of the respondent had relied on the decision, reported in Chockalingam Vs. Pichai (2003(2) M.L.J. 399), wherein, it had been held as follows: The application for appointment of a Commissioner Commissioner   should not be allowed for the asking. Power Po wer should be exercised jjudicially. udicially. 8. He had also relied on the decision, reported in Chinnathambi Vs. Anjalai (2007(1) MLJ 513), wherein, it had been held as follows: It is a well settled settled principle of law that an Advocate Advocate Commissioner should not be appointed to find out the possession of the property, which has to be adjudicated by Court after recording oral and documentary evidence. 9. In view of the averments made by the learned counsels appearing on behalf of the petitioner, as well as the respondent, and on a perusal of the records available, this Court is of the considered view that the Subordinate Court, Tuticorin, had erred in advocate   rejecting the request of the petitioner for the appointment of an advocate commissioner commissioner,, in I.A.No.1 of 2009, in A.S.No.87of 2007, stating that the petitioner cannot prove the possession of the suit schedule properties, by an opinion given by Advocate  commissioner commissioner.. the Advocate 10.It

is a well settled position in law that an advocate advocate commissioner cannot

given an opinion, with regard to the possession of the properties in question. The advocate advocate commissioner commissioner   can only note down the physical features of the properties concerned and to submit a report in that regard. Thereafter, it is for the Court concerned to decide the issue relating to the possesion of the properties in question, based on the evidence available on record. In such view of the matter, this Court finds it appropriate to set aside an order of the Subordinate Court, Tuticorin, made in I.A.No.1 of

2009, in A.S.No.87 of 2007.

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Consequently, the Subordinate Court, Tuticorin, is directed to pass an appropriate order appointing an advocate advocate   commissioner commissioner to to note down the physical features of the suit schedule properties and to file a report, within a specified time. Thereafter, the subordinate Court, Tuticorin, is to proceed with the appeal, in A.S.No.87 of 2007 and to dispose of the same, on merits and in accordance with law, as expeditiously as possible, not later than six months from the date of receipt of a copy of this order. Accordingly, the Civil Revision Petition is allowed, with the above directions. No costs. Consequently, connected miscellaneous petition is closed. ************************************************************************************************

Power of civil court to appoint a commissioner to seize and take possession of hypothecated vehicles. Civil Court has power under sec.9 of Arbitration Act.

(2013 – 6 – CTC – 654) ( L.&T Finance Ltd v. G.G.Granites) V.Ramasubramanian,J) 6.9.2013. Order -26 Rule.9 :- Advocate commissioner cannot be appointed to ascertain the age of the building. 2013 – 4 – TNLJ – 300) Banu @ Banumathi and others vs.

Muniammal) ( 30.8.2013) (K.Suguna & M.Duraisamy,JJ)

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Civil Procedure Code, 1908, O.26 R.10

Civil Procedure Code, 1908, O.26.R.10 -Commissioners report -Cannot form basis of decree in absence of proof -Merely because objections not raised by defendant, report cannot be said to be proved. (Khurshed Banoo Vs Vasant Malikarjun Manthalkar) AIR 2003 Bombay 52 2006 (3) TLNJ (Civil) 1 (Mad.) Gnanaraj Vs. Bakyalakshmi and another Civil

Procedure Code 1908 as amended – Order 26, Rule 10 (2) – Scope of – Examination of Commissioner.i) Under Order 26, Rule 10(2) CPC, the Report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall part of the record;ii)The Court itself could examine the Commissioner and in such cases, the Commissioner is to be invariably examined as a Court Witness;iii)When Application is filed by any of the parties to the Suit to examine the Commissioner, it is the discretion of the Court to allow the Appli Application. cation. But permission Should not be withheld arbitrarily.

If permission is declined it must be b e by a reasoned order.

When the Court grants permission to the party to examine the Commissioner, it is the discretion of the Court either to examine the Commissioner as a Court Witness or as that of the party’s witness;iv)In the facts and circumstances of the case, the Court has to judicially determine whether the Commissioner is to be examined as Court witness or the Party’s Witness;v)The contention that in all the instances the Commissioner is to be examined only as Court witness, is unacceptable. Protection is afforded to the Commissioner from any vexatious examination by either of the party party..

In the cases of R.Nandakumar Vs. Dindigul Cooperative Housing Building Society Ltd by its Secretary, Dindigul [2008-6-MLJ-363] and Anna Sudha Devi Vs. P.George

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Samuel [2009-2-CTC-205] wherein it is consistently held that a second Advocate Advocate Commissioner   cannot be appointed without setting aside the report of the first Commissioner Advocate Commissioner Advocate Commissioner.. So only when the court is not satisfied with the report of the first Advocate Commissioner Commissioner,, it can direct him to submit a fresh report or it can set aside his report and issue a second commission under Rule 10(3) of Order 26 of CPC. Civil Procedure Code, 1908, O.26.R.11 -Commission -Examination of witness Admission of document -Is different from admission of recital -If opportunity to examine witness not given petitioners right of substantial and effective defence would be adversely affected -Order rejecting application for examination of witnesses liable to be set aside. (Dasu Jaya Vani Vs Bala Seethapati) AIR 2003 A.P. A.P. 293 Civil Procedure Code, 1908, O.26.R.10-A -Age of ink -Cannot be determined on the basis of the writing. (Yash Pal Vs Kartar Singh) 2003(3) Civil Court Cases 630 (P&H) Civil Procedure Procedure Code, 1908, O.26.R.10-A

- This rule contemplates scientific

examination, which would include opinion of expert – Moreover burden of proof being on plaintiff to prove signature, Application filed by defendant to obtian expert opinion, cannot be treated as an attempt to drag proceedings – In such circumstances, order of Trial Court set aside. ( Saharban Beevi v. S.Mumtaj) ( S.Vimala,J) ( 2013 – 2 – CTC 394) ( 14.2.2013)

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Order XXIX Civil Procedure Code, 1908, O.29.R.1 -Principal Officer of Corporation cannot delegate power to file appeal -Appeal filed by District Manager who was authorised by Regional Manager to file appeal is not maintainable. (Food Corporation of India, Hissar Vs Dhani Ram) 2005(1) Civil Court Cases 159 (P&H) Civil Procedure Code, 1908, O.29.R.2 -Corporation -Service of summons -Service report not indicating that efforts were made to serve summons on Secretary or Direc Director tor or any other Principal Officer of Corporation in terms of Cl.(a) of R.2 -Resort to mode of service provided by Cl.(b) of R.2 -Improper. (Rajesh Bansal Vs M/s Ansal Housing Construction) AIR 2002 Delhi 214

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Order XXX Civil Procedure Code, 1908, O.30.R.1 -Partnership firm -Registered -Suit filed by person who was one of the partners -Suit is competent. (S.Butail and Co. Vs H.P.State Forest Corpn.) AIR 2002 H.P.1 Civil Procedure Code, 1908, O.30.Rr.1 & 2 -Suit by one of the partners of firm -Not invalid for non joinder of firm. (State of Tripura Vs M/s Bhowmik & Company) AIR 2004 Gauhati 19 Civil Procedure Code, 1908, O.30.R.10 -Proprietorship firm -Suit can be filed by or against the firm in business name than in the name of individual partners. (M/s.Paras Industries, Ludhiana Vs M/s.Paras Special Machine Co.) 2003(3) Civil Court Cases 540 (P&H) Civil Procedure Code, 1908, O.30.R.10 -Proprietorship firm -Suit has to be brought in the name of proprietor and not in the trading name. (Municipal Council, Tiroda Vs K.Ravindra & Company) 2003(2) Civil Court Cases 578 (Bombay)

Civil Procedure Code, 1908, O.30. R.30 – Suit filed against Partners in name of Firm

– Every partner of Firm is jointly and severally liable for all acts of Firm. Decree passed against Firm is in effect decree against all partners, ( Zodiac Traders India v. Seychelles

Public

Transport

CTC – 301. (dated: 1.10.2013)

Corporation)

(R.Sudhakar,J)

2013

–

6

-

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Order - 31

Civil Procedure Code 1908 as amended, Order 31, Rule 1 and City Tenants Protection Act 1921, Section 9 – Scope – Suit filed for recovery of possession of a

property belonging to the trust – Suit filed by the trustee in his individual capacity with discloser of fact that property belongs to the trust – Dependent pleading Protection under the Madras City tenants Protection Act held under Order XXXI, Rule 1, is only an enabling provision and it does not disentitle a person who happens to be a trustee from suing in his individual capacity at his option – although he has not described himself as a trustee of the trust in the long cause title – instituting the suit in his capacity as a trustee and conceding that the suit property is of the trust is not a material defects – building should be put up before the applicability or extension by notification of the city tenants Protection Act in order to claim benefit under Section 9 of the Act however the appeal filed by the defendant was allowed for want of proper notice recovery of possession of the plaintiff denied – SA allowed. (2012 -1-TLNJ 612 (Civil) Sambandam (died) and Ors Vs Nataraja Chettiar and Anr)

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Order 32 Civil Procedure Code, 1908, O.32.R.1 -Minor -Petition filed through brother though father alive -Minor can sue through a guardian, who may not have any interest adverse to him/her, it may be, father, mother or brother -Once, brother is held having no interest adverse to the minor, a lis can be filed through him. (Ramesh Kumar Vs Sunita Devi) 2005(1) Civil Court Cases 572 5 72 (P&H) Civil Procedure Code, 1908, O.32.R.1 -Minor's undivided share in joint family property -Partition suit on behalf of minor filed by mother as next friend of minor against minor's father -Suit is not maintainable where it is not proved that father as natural guardian of minor has neglected to provide for minor's maintenance or denied his right or mismanaged property jeopardizing minor's interest therein. (Smt.Gourawwa Vs Basappa) 2003(3) Civil Court Cases 328 (Karnataka) Civil Procedure Code, 1908, O.32.R.2 -Minor -Suit filed without next friend Defective Irregularity in instituting the suit does not make the suit wholly bad -It is a defect in procedure -Such defect can be corrected only when the defendant makes an application under Rule (2) of Order 32 CPC or when an application is filed by next friend on noticing the said defect. (Y.Chinna Butchi Reddy & Ors. Vs Y.Kesava Madhusudhana Reddy & Ors.) 2004(2) Civil Ci vil Court Cases 206 (A.P.) (A.P.) Civil Procedure Code 1908 as amended, Order 32, Rule 5 – The executing Court cannot go behind the decree – Likewise, the Executing Court cannot enlarge the scope of the decree to give a different relief which was not granted by the Court after full-fledged trail – no doubt, the Court below granted relief of permanent injunction, however by virtue of this order of injunction, the petitioners cannot seek for a larger relief, which was specifically denied by the trial Court as well as 1st appellate Court –

CRP dismissed. (2011 2 TLNJ 458 (Civil) Kanniappan and Anr vs Ekambaram )

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Civil Procedure Code, 1908, O.32.Rr.2, 3 -Minor -Suit filed by minor thinking that he was major based on school certificate which appears to be not correct -On defect being pointed out in written statement his grand mother immediately filed an application to permit her as next friend and to make necessary amendments Defendant failed to make an application U.O.32.R.2(1) -Question of taking the plaint off the file does not arise in such circumstances -Allowing of such application by Court below U.O.32.R.2(2) is perfectly justified. (Y.Chinna Butchi Reddy & Ors. Vs Y.Kesava Madhusudhana Reddy & Ors.) 2004(2) Civil Ci vil Court Cases 206 (A.P.) (A.P.) Civil Procedure Code, 1908, O.32.Rr.2, 3 -Minor -Suit filed without next friend Two contingencies -One is that suit is filed knowing that he is minor and he is incompetent to institute a suit without the next friend and yet filing a suit with a view to deceive the Court or with some ulterior purposes and the other a minor filing suit without knowing or realizing his minority -In the former case suit is to be dismissed and in the latter case the plaint is to be taken off the file. (Y.Chinna Butchi Reddy & Ors. Vs Y.Kesava Madhusudhana Reddy & Ors.) 2004(2) Civil Ci vil Court Cases 206 (A.P.) (A.P.) Civil Procedure Code, 1908, O.32.R.2 - Suit filed by a person of unsound mind - When such a finding is reached by Court suit is not to be dismissed but plaint is to be taken off the file enabling person of unsound mind to cure irregularities -When defect is cured and person of unsound mind is properly represented then suit continues. (Amrutaben Budhaji Thakore Vs Nitaben Somabhai Patel) AIR 2003 Gujarat 292 O.32.R.3 -Minor -Compromise -Without leave of Court -Can be attacked in three ways (a) by an application to the Court in which the compromise took place; (b) by a regular suit to set aside the decree and (c) by bringing a fresh suit. (Rama & Ors. Vs Hari

Singh & Ors.) 2004(3) Civil Court Cases 708 (P&H)

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Civil Procedure Code, 1908, O.32.R.7 -Dismissal of suit on basis of report of referee Contention that judgment is nullity as dispute could not be referred on behalf of minor to referee without leave of Court -Does not make the decree void but voidable at instance of minor. (Rama & Ors. Vs Hari Singh & Ors.) 2004(3) Civil Court Cases 708 (P&H) Civil Procedure Code, 1908, O.32.R.15 -Aged lady -Inability to defend due to advanced age -Appointment of guardian -Guardian can only be appointed after holding an enquiry whether applicant is incapable of protecting her interest by reason of any mental infirmity or not. (Kasturi Bai & Ors. Vs Anguri Chaudhary) 2003(1) Apex Court Judgments 690 (S.C.) Code of Civil Procedure, 1908 (5 of 1908), Order 32, Rule 15 – Application seeking

medical – examination of person who is declared to be mentally retarded at interim stage – Maintainability of – Order 32, Rule 15 would cover two classes of cases viz. (a) persons who are already adjudged to be of unsound mind and (b) persons who are not so adjudged to be of unsound mind – Power is vested in Court to order medicalexamination of person even during pendency of Suit – Son who sough declaration of his mother’s mental status produced certificates to establish the same and defendants produced contra-certificates – Contradictory claims were made – Sending mother for medical-examination would be right course of action in view of divergent medical opinion on mothers mental health condition – Order passed rejecting such prayer set aside and Government Hospital directed to constitute team of Doctors to examine mother and submit report.(2007 (3) CTC 1 G.V. Lakshminarayanan and others Vs. G.V. Nagammal ( A mentally retarded person in the custody of M.E. Devarajan) and others)

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Civil Procedure Code, 1908, O.32.R.15 -Aged lady -Inability to defend due to advanced age -Appointment of guardian -Guardian can only be appointed after holding an enquiry whether applicant is incapable of protecting her interest by reason of any mental infirmity or not. (Kasturi Bai Vs Anguri Chaudhary) 2003(2) Civil Court Cases 699 (S.C.) Civil Procedure Code, 1908, O.32.R.15 -Lunatic -Decree against -No formal order passed appointing a guardian from the date of institution of suit till the appointment No prejudice caused to the J.D. -Suit not null and void -Court has jurisdiction to try the suit. (Jolly Vs Oriental Kuries Ltd.) 2003(2) Civil Court Cases Ca ses 484 (Kerala) Civil Procedure Code, 1908, O.32.R.15 -Unsound mind -Question as to -For this purpose trial Court should examine the alleged lunatic either in open Court or in Chambers and in the presence of medical expert -Trial Court has got ample power to compel the attendance of the alleged lunatic before it and to submit himself for medical examination. (Shakunthala Devi Vs K.S.Naidu & Anr.) 2005(1) Civil Court Cases 271 (Madras) Civil Procedure Code 1908 as amended Order 32, Rule 15 – Appointment of and removal of Guardian – Scope of – explained – allegations of unsound mind or mental infirmity, it is the duty of the court to examine the individual – as precaution, the evidence of the expert in the medical profession will be useful – enquiry under rule 15 is mandatory – order of trial court is set aside – revision allowed. (2006 (4) TLNJ 61 (Civil) C.S. Navamani Vs. C.K. Sivasubraman Sivasubramanian) ian)

Civil Procedure Code, 1908, O.32.R.15 -Guardian -Appointment -Plaintiff examined himself -Medical certificate proved by doctor -Procedure followed and hence no interference in order of appointment of guardian. (M/s Leelason Breweries Ltd. Vs

Beemireddy Lakshminaryana Lakshmi naryana Reddy) Redd y) AIR 2002 A.P. A.P. 253

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Order 33 Civil Procedure Code, 1908, O.33.R.1 -Permission to sue as indigent person -Report of Collector that husband of applicant has substantial income and that she is living with her husband -Nothing stated about income of applicant - Held, inquiry has to be into the means of the person who applies to sue as indigent person -Permission to sue as indigent person granted. (Janak Kumari Vs Land Acquisition Officer) 2003(1) Civil Court Cases 155 (M.P.) Civil Procedure Code, 1908, O.33.Rr.1,2 -Permission to sue as indigent person Specific pleading that plaintiff does not possess any property -It amount to compliance of R.2 of O.33 CPC. (Devarakondappa Vs K.Rajeshwari) 2003(3) Civil Court Cases 202 (Karnataka) Civil Procedure Code, 1908, O.33.Rr.1 & 5 -Application to sue as indigent person Suit against Insurance Company for recovery of damages caused to car -Details of property belonging to plaintiff not appended with the application -Plaintiff exserviceman and had also purchased a car -Appellate Court, however, protected his interest by referring the matter to trial Court U.O.33.R.15-A CPC -Petition dismissed. (Harnam Singh Vs Oriental Fire and General Co.Ltd.) 2003(3) Civil Court Cases 295 (P&H) Civil Procedure Code, 1908, O.33.R.2 -Permission to sue as indigent person -Utmost bona fide is required in matter of disclosure of assets -Deliberate concealment of material particulars of properties entails dismissal of application. (Doddananjappa & Ors. Vs The Sub-Registrar, Hoskote Taluk, Hoskote & Ors.) 2003(3) Civil Court Cases 422 (Karnataka)

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Civil Procedure Code, 1908, O.33.R.1 -Forma pauperis -Mere possession of ornaments or a plot is not sufficient -If property in possession of appellant is not sufficient enough to raise money to pay the requisite court fee, he or she should not be deemed to be possessing sufficient means to pay court fee -Appellant allowed to file appeal as forma pauperis. (Smt.Manjulata Vs Sidhkaran) 2005(1) Civil Court Cases 07 (Rajasthan)

Civil Procedure Code, 1908, O.33.R.1 -Permission to sue as indigent person -Suit for damages -Facts on record completely belied statement -Plaintiff a person with lots of wealth and resources -Person claiming damages of 29 lakhs must be wealthiest person Such frivolous attempts by suppressing true facts would be abuse of process of law and make liable for punishment. (S.Saraswathi Vs Executive Member, Karnataka Industrial Area Development Board) AIR 2002 Karnataka 447 Civil Procedure Code, 1908, O.33.R.1 -Permission to sue as indigent person Petitioner partner in a firm having annual income of Rs.15 lacs -Petitioner also having some immovable property -Plea that if income from firm is used for payment of stamp duty then business will stop -Not tenable -Petitioner cannot be permitted to sue as indigent person. (Lokesh Patawari Vs State of U.P. & Ors.) 2005(2) Civil Court Cases 193 (Allahabad) Civil Procedure Code, 1908, O.33.R.1 -Permission to sue in forma pauperis Collector in his report stated that husband of applicant has 13 acres of land and is having annual income of Rs.30,000/-Nothing in report that applicant has any source of income and is possessed of any means or sufficient realisable property from which she could arrange for payment of Court fees -Rejection of application, not proper. (Janak Kumari Vs Land Acquisition Officer) AIR 2002 M.P. M.P. 253

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C.P.C., Order 33, Rule 1, Order 7, Rule 11, Practice and Procedure, Challenge to order of lower court granting permission of the Court to recognize the Power Agent to continue the suit – As per Order 33, Rule 1 of C.P.C., when an application filed is rejected by the Court, refusing to grant permission to the plaintiff to sue as indigent person, sufficient time has to be given to the plaintiff - Even after the dismissal of the application filed under Order 33, Rule 1 of C.P.C., the Court has to give further time to the plaintiffs to pay the Court fee in this case, c ase, that situation has not arisen. In this case, though the time was fixed by this Court respondents filed application under Order 33, Rule 1 of C.P.C., seeking permission of the Court to continue the proceedings as informa pauperis – In that application before passing any order, the Stamp duty and the Court fee was paid – It cannot be stated that there is non compliance of Order 7, Rule 11 of C.P.C., which warrants dismissal or the rejection of the plaint. As per the residuary power given by the principal, the Agent is entitled to file the suit in respect of the permission given in the Power – No infirmity in the order of the Court below. It is admitted that this Court vide order 08.01.2008, passed in C.R.P(NPD) No. 1399 of 2006, directed the respondents to pay the Court fee under Section 40 of the said Act and granted two months time to pay the same. It is seen from the endorsement of the Court below that the plaint was returned to the respondents on 08.01.2008, with a direction to pay the Court fee within a period of two months. Thereafter, on 29.02.2008, the respondents/plaintiffs filed an application under Order 33, Rule 1 of C.P.C., seeking permission of the Court below to pay the Court fee. That petition was returned for compliance of certain defects and by order dated 20.03.2009, excepts the minor plaintiffs, all other plaintiffs were directed to be present before the Court for recording sworn statement. Thereafter, the petition was re-presented and finally the respondents/plaintiffs made an endorsement agreeing to pay the Court fee and sought permission of the Court to permit the respondents/plaintiffs to pay the Court fee and that was accepted and the plaint numbered. (2011 -2- L.W. 270 S.R. Jayaraman and Ors vs C. Jothirlingam and Ors)

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C.P.C., Order 33, Rule 1, Order 7, Rule 11, Tamil Nadu Court Fees and Suits Valuation Act (1955), Section 25(d), 40, Practice and Procedure – Revision against order of lower court dismissing petition to reject the plaint, for non-payment of the Court fee within the time granted by the Court in CRP (NPD) No. 1399 of 2006 – In this case, though the time famed was fixed by this Court in C.R.P(NPD)No.1399 of 2006, the respondents filed application under Order 33, Rule 1 of C.P.C., seeking permission of the Court to continue the proceedings as informa pauperis and in that application before passing any order, the Stamp duty and the Court fee was paid – Hence, it cannot be stated that there is non compliance of Order 7, Rule 11 of C.P.C., which warrants dismissal or the rejection of the plaint – CRP (NPD) NO.1399 of 2006 dismissed. C.R.P.No.3862 of 2009: was filed against the order passed in Unnumbered Interlocutory Application filed by the respondents/plaintiffs, seeking permission of the Court to sue as indigent persons – Along with the application filed under Order 33, Rule 1 of C.P.C., the respondents/plaintiffs also filed application seeking permission of the Court to recognize the Power Agent to continue the suit and that was granted, and that order is challenged in this revision petition. Held: Power Agent has filed an application to continue the application filed under Order 33, Rule 1, which is only a formal application – Further, Further, in the Power given by the Principals to the Power Agent, it was stated that Power is given to act on behalf of the Principal in respect of any matter, which had not been stated in the Power, and such residuary power was given to the Agent to act on behalf of the Principal – Therefore, as per the residuary power given by the principal, the Agent is entitled to file the suit in respect of the permission given in the Power, and therefore, that cannot be challenged by the revision petitioner. (20111 -2- L.W. (201 L.W. 445 S.R. Jayaraman and Ors vvss C. Jothirlingam and Ors) Civil Procedure Code, 1908, O.33.Rr.2,5(a) -Permission to sue as pauper -List of moveable and immovable property with estimated value -Is mandatory -Deliberate omission on part of applicants to show that they do not possess sufficient means

Rejection of application, proper. (Doddanjappa Vs The Sub Registrar) AIR 2003

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Karnataka 205 Civil Procedure Code, 1908, O.33.R.3 & S.34 -Application to sue as an indigent person -Permission declined -Suit shall be deemed to be filed the day application seeking permission to sue as indigent person was filed and not on the day Court fee was paid -Interest on the amount decreed is thus payable from the day application seeking permission to sue as indigent person was filed. (Shiv Dayal & Ors. Vs Ram Kali & Ors.) 2005(2) Civil Court Cases 242 (P&H) Civil Procedure Code, 1908, O.33.Rr.3, 4 -Permission to sue as indigent person Application to presented in person by applicant or leave of Court be taken if to be presented by authroised agent or power of attorney holder -Where leave of Court to present application through power of attorney holder is not obtained, Court examining power of attorney holder regarding merits of applicant's claim is without jurisdiction. (Easi Technologies Private Limited, Bangalore Vs S.K.Sannakalegowda) 2004(2) Civil Court Cases 572 (Karnataka) C.P.C., Order 33, Order 44, ‘Indigent person’, who is, ‘Sufficient means’; what is, Scope of, Pension and Money received by the respondent from his son employed abroad whether is covered. “Sufficient means” in Order 33 Rule 1 of CPC contemplates the ability or capacity of a person in the ordinary course to raise money by available lawful means to pay court fee. Object and purpose of Order 33 and Order 44 of CPC are to enable a person, who is ridden by poverty, or not possessed of sufficient means to pay court fee, to seek justice. Amount of money received by the respondent from his son employed abroad and by way of pension amounts to a ‘sufficient means’ to pay court fee which disentitles him to be an indigent person under Order 33 Rule 1 and Order 44 Rule 1 of CPC. Respondent cannot be declared as an indigent person in order to prosecute regular first appeals before the High Court.

(2011-4-L.W. (201 1-4-L.W. 618 Mathai M. Paikeday Vs C.K. Antony)

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Civil Procedure Code, 1908, O.33.R.10 – A Judge has to pass orders and he has got the discretion to direct either the plaintiff or the defendant to pay the Court fee – In this case the plaintiff shall pay the Court fee within a period of three months from this date, as a condition precedent for getting the decree executed. (G.Rajasuriya,J) 2012 – 3 – L.W -20.) (G.Karthick vs. T.S.V.Giri and others) 23.4.2012. Civil Procedure Code, 1908, O.33.R.15, 15-A -Permission to sue in forma pauperis Rejection of application -Court to grant reasonable time to pay requisite Court fee irrespective of whether time to pay Court fee is sought or not -Trial Court was not justified in preventing applicant from prosecuting his suit by rejecting Court fee subsequently tendered on ground that he had not sought Court's permission to prosecute suit. (Smt.B.S.Annapurna & Ors. Vs Kumaraswamy & Anr.) 2004(2) Civil Court Cases 562 (Karnataka)

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Order 34 Suit for redemption of mortgage, appropriation of payments, how to be done. First towards interest and then, if there is any surplus, towards the principal – creditor when justified in refusing to accept the payment towards principal. (

2013 – 5 – L.W – 268) (P.R.Shivakumar,J) 17.09.2013. (The purasawakkam Permanent Benefit Fund Ltd v. P.Shanmugam & others)

Civil Procedure Code, 1908, O.34:- 2006 (2) MLJ 54 S.C. Prakash and others

Harbans Vs. Om

A mortgage being the security for the debt, the right of

redemption continues although the mortgagor fails to pay the debt at the due date. When there is no stipulation regarding period of limitation, a mortgage can be redeemed at any time. Civil Procedure Code, 1908, O.34.Rr.7 & 8 -Final decree -Limitation to file application to pass a final decree starts to run from the date of expiry of the period fixed in the preliminary decree and if no period is fixed, within six months from the date of the preliminary decree unless it is extended by an order of the Court. (Govindan Nair Vs Abraham) 2003(1) Civil Court Cases 206 (Kerala) Civil Procedure Code, 1908, O.34.R.11 -Bank loan -Suit for recovery -Interest Reduced from 12% to 6% from date of suit to date of realisation. (M/s Radha Agencies Vs Vijaya Bank) AIR 2002 20 02 A.P. A.P. 91 Civil Procedure Code, 1908, O.34.R.11 -Mortgaged suit -Interest -Prior to filing of suit and pendente lite interest -Interest payable is contractually fixed between parties. (State (St ate Bank of India Indi a Vs Swapan Basak) AIR 2002 Gauhati 48

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Order 37

Civil Procedure Code, 1908, O.37.R.1 -Summary suit -Counter claim filed -Would not detract or result in suit filed as summary suit being treated as regular suit. (Suraj Sanghi Finance Ltd. Vs Credential Finance Ltd.) AIR 2002 Bombay 481 Civil Procedure Code, 1908, O.37.R.1(2) -Summary suit -Contract of guarantee Default committed by principal debtor and suit filed against guarantor in terms of contract treating him as guarantor -Suit cannot be said to be suit on guarantee U.O.37.R.1(2) but based on written contract between parties -Suit is maintainable as summary suit. (Mukesh Gupta Vs SICOM SIC OM Ltd.) AIR AIR 2004 Bombay Bomb ay 104 Civil Procedure Code, 1908, O.37.R.1(2) -Summary suit -Falling within one of classes of suits -Suit is maintainable even if claim made therein is not properly quantified or is in excess of what the plaintiff is entitled to. (SICOM Ltd. Vs Prashant S.Tanna) AIR 2004 Bombay 186 Civil Procedure Code, 1908, O.37.R.1, O.23.Rr.1 and 1(4) -Summary suit -Plaintiff is entitled at any time to abandon or give up a part of the claim unilaterally -This can be done by making a statement to be recorded by the Court without the necessity of making a formal application for withdrawing the summons for judgment, amending the plaint and taking out fresh summons for judgment. (Sicom Ltd. Vs Prashant S.Tanna & Ors.) 2004(3) Civil Court Cases 495 (Bombay) Civil Procedure Code, 1908, O.37.R.1 -Summary suit -Mere making of an excess claim or not quantifying the same properly does not render a suit not maintainable as a summary suit. (Sicom Ltd. Vs Prashant S.Tanna & Ors.) 2004(3) Civil Court Cases 495

(Bombay)

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138

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Civil Procedure Code, 1908, O.37.R.1 -Summary suit -Suit for recovery against guarantor -Suit instituted in terms of agreement -Suit is maintainable as summary suit. (Mukesh Gupta Vs Sicom Ltd., Mumabi) 2004(2) Civil Court Cases C ases 539 (Bombay) Civil Procedure Code, 1908, O.37.R.1(2) -Loan by cheque -Non payment -Is not a suit upon a cheque or bill of exchange -Suit is not maintainable as a summary suit. (Ms.Purnima Jaitly Vs Ravi Bansi Jaisingh) 2004(2) Civil Court Cases 364 (Bombay) Civil Procedure Code, 1908, O.37.R.1(2) – Trial court is bound to see that defence raised by defendant in Summary suit is plausible – defence raised by defendant cannot be simply brushed aside – reasoning of trial court that defendant should file separate suit for adjudication of dispute will only result in multiplicity of proceedings. ( 2013 – 6 – CTC 332) ( B.Rajendran,J) (Vidyasagar Proprieter Winstar Shipping service v. v. Everest India Pvt Ltd) (25.10.2013. n Civil Procedure Code, 1908, O.37.Rr.1,4 -Summary suit -Suit based on invoice Invoice not containing any terms and conditions entered into between parties regarding supply of goods and its payment -No written contract between parties -Suit not triable as summary suit. (M/s A.R.Electronic Pvt.Ltd. Vs M/s R.K.Graphics Pvt.Ltd.) 2003(2) Civil Court Cases 544 (Delhi) Civil Procedure Code, 1908, O.37.R.2 -Summary suit -Balance payable confirmed by debtor and creditor -If interest was paid in past at 18% per annum then subject to anything to the contrary it would imply a promise to continue to pay interest at that rate on balance confirmed -In such circumstances it is not necessary to have express stipulation that balance would be paid with interest. (Sun N Sand Hotel Limited Vs M/s.V.V M/s.V .V.Kamat, .Kamat, HUF) 2003(3) Civil Court Cases 508 5 08 (Bombay)

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139

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Civil Procedure Code, 1908, O.37.R.2 -Summary suit -Suit based on balance confirmation letter is maintainable as summary suit. (Sun N Sand Hotel Limited Vs M/s.V.V M/s.V .V.Kamat, .Kamat, HUF) 2003(3) Civil Court Cases 508 5 08 (Bombay) Civil Procedure Code, 1908, O.37.R.2 Evidence Act, 1872, S.34 Bankers Book Evidence Act, 1891, S.4 -Bank loan -Suit for recovery -Proof of loan -Entries in books of account are not sufficient -Some independent evidence to show that sum has been advanced must be given by Bank -As original loan transaction admitted as such statement of account relied upon. (M/s Radhu Agencies Vs Vijaya Bank) AIR 2002 A.P. A.P. 91 Civil Procedure Code, 1908, O.37.R.3 -Defendant served with summons for judgment but failing to apply for judgment with prescribed time -Held, plaintiff is entitled to judgment U.O.37.R.3(6). (Kishan Bharwany Vs V.P V.P.Aggarwal) .Aggarwal) AIR 2002 Delhi 345 O.37.R.3 -Entering appearance -Counsel for defendant filing Vakalatnama by way of entering appearance -Actual date of service of summons was two months thereafter Filing of Vakalatnama can be treated as entering appearance in terms of sub-rules (1) and (3) of R.3. (M/s NEPA NEPA Ltd. Vs M/s Medica Asia Pvt.Ltd.) AIR 2002 Delhi 128 Civil Procedure Code, 1908, O.37.R.3 -Summary suit -Part of claim not disputed Court as a condition for leave to defend can permit withdrawal of money by plaintiff against guarantee or security. (Motorola India Limited Vs Kiklu I.Malani) AIR 2003 Bombay 92 Civil Procedure Code, 1908, O.37.R.3(4) -Summary suit -Summons for judgment ' Dasti' service -Is insufficient serve -Cannot be acted upon. (Rajesh Bansal Vs M/s Ansal Housing Construction) AIR 2002 Delhi 214

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Civil Procedure Code, 1908, O.37.R.3(4) -Summary suit -Summons for judgment Affidavit to accompany summons for judgment -Supply of copy of affidavit before passing of order for issuance of summons for judgment -Is improper. (Rajesh Bansal Vs M/s Ansal Housing Construction) AIR 2002 Delhi 214 Civil Procedure Code, 1908, O.37.R.3(6), S.96 -Summary suit -Leave to defend Refusal - Appeal and not revision is maintainable. (V.S.Saini Vs D.C.M. Ltd.) AIR 2004 Delhi 219 Civil Procedure Code, 1908, O.37.R.3 -Summary suit -Leave to defend -Conditional leave can be granted in respect of part of the claim and unconditional relief for remaining part of the claim -In such an event if defendant fails to comply with the condition, he would suffer the consequences qua only that of the claim for which conditional leave to defend has been granted and not in respect of that part of the claim for which unconditional leave has been granted. (Sicom Ltd. Vs Prashant S.Tanna S.T anna & Ors.) 2004(3) Civil Court Cases 495 (Bombay) Civil Procedure Code, 1908, O.37.R.3(5) - Promissory note - Summary suit - Failure to reply to notice of demand -Does not amount to admission of the claim made in the notice -Application by defendant disclosing valid defence leading to a triable issue to be decided only after giving opportunity to both sides to substantiate their respective pleas Dismissal of application on the ground of defendant's failure to reply notice -Not legal. (Manepalli Udaya Bhaskara Rao Vs Kanuboyina Dharmaraju) 2004(3) Civil Court Cases 281 (A.P.) Civil Procedure Code, 1908, O.37.R.4, O.9.R.13 -Difference between the two provisions -Enumerated. (Rajni Kumar Vs Suresh Kumar Malhotra & Anr.) 2003(1)

Apex Court Judgments Ju dgments 511 (S.C.)

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Civil Procedure Code, 1908, O.37.R.4 -Not only special circumstances which prevented from appearance or applying for leave to defend but also facts, by affidavit or otherwise, have to be shown which would entitle him to defend the suit -In this respect O.37.R.4 is different from O.9.R.13 CPC. (Rajni Kumar Vs Suresh Kumar Malhotra & Anr.) Anr.) 2003(1) Apex Cou Court rt Judgments 511 (S.C.) Civil Procedure Code, 1908, O.37.R.4 -Security -Deposit of decretal amount to serve as security for the suit amount in the event Court granting leave to defend the suit Relief not granted -Amount can be withdrawn by depositor or he can have it adjusted in satisfaction of the decree. ((Rajni Kumar Vs Suresh Kumar Malhotra & Anr.) 2003(1) Apex Court Judgments Ju dgments 511 (S.C.) Civil Procedure Code, 1908, O.37.R.4 -Sufficient cause for non appearance on the date of passing exparte decree shown but failure to disclose facts which would entitle him to defend the case -Application rightly dismissed. (Rajni Kumar Vs Suresh Kumar Malhotra & Anr.) Anr.) 2003(1) Apex Cou Court rt Judgments 511 (S.C.) Civil Procedure Code, 1908, O.37.R.4 -Summary suit on basis of pronote -Defendant disputing execution and amount of pronote and pleading payment as also other pleas as to deficiency of stamp on pronote and money lending licence -Held, triable issues are raised as such leave to defend rightly granted. (Mahesh Chandra Vs Balu Ram) 2003(1) Civil Court Cases 687 (Rajasthan) Civil Procedure Code, 1908, O.37.Rr.4, 3(4), O.9.R.13 & S.115 -Exparte decree U.O. 37 -Setting aside -Merely a printed line in summons that affidavit as required to be filed U.O.37.R.3(4) stands filed is not sufficient whereas in fact no such affidavit is filed Since there is no compliance with mandatory provision of Order 37.R.3(4) exparte

decree set aside by treating application U.O.9.R.13 to be one U.O.37.R.4 CPC. (Mukesh Kumar Vs Bhopal Singh) 2005(1) Civil Court Cases 549 (Rajasthan)

C.P.C

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Civil Procedure Code, 1908, O.37.R.5 - Summary suit - Leave to defend - Suit on basis of cheques -Leave to defend sought by one of the defendants alleging no passing of consideration -Defence not a possible defence -Applicant not able to deny totally the liability being a partner of firm -Leave to defend granted on condition to deposit proportionate amount to meet the claim. (P.G.Sadasivam Vs M/s.Andavar Electrical Distributions) 2003(1) Civil Court Cases 65 (Madras) Civil Procedure Code, 1908, O.37.R.5, O.1.R.10 -Summary suit -Leave to defend Letter of Credit/Bank guarantee -Presentation of documents and negotiation thereof made in terms of credit -Dishonoured -Reasons given by Bank not convincing but improper -Leave to defend granted on furnishing security. (Amarnath Sanganaria Vs Sonali Bank) AIR 2003 Calcutta 255 Civil Procedure Code, 1908 – Or. 37 R.3(5) – Unconditional leave to defend suit – Denial of – Propriety – Inherent inconsistency in the case of defendant – Effect – Defendant on one hand claiming that signatures on promissory note concerned were fraudulently obtained - On the other hand defendant claiming that said signatures were in fact not his signatures – Trial Court and High Court rejecting defendant’s petition on ground of the said inconsistency – Propriety – Held, trial court and High Court took a rather technical view of the matter -

In the overall facts facts and

circumstances of the case, petitioner ought to have at least been allowed to defend the suit,

subject to condition condition of depositing a part of plaintiff’s claim - Appeal

allowed.((2008) 2 SCC 583 (SC) S.Raju Vs. C.Sathammai)

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Order 38

Civil Procedure Code, 1908, O.38.R.5 -Attachment before judgment -Before passing order of attachment before judgment Court must be satisfied that the defendant with intent to obstruct or delay the execution of any decree that may be passed is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, only then, under such contingencies, Court may direct the defendant within a time to be fixed by it, either to furnish security in such sum specified, to produce and place at the disposal of the Court, when required, the said property or the value or to appear and show cause as to why he should not furnish security. (Southern Petrochemical Industries Corpn. Ltd. Vs S.Rathish Kanna) 2004(2) Civil Court Cases Cas es 346 (Madras) Civil Procedure Code, 1908, O.38.R.5 -Attachment before judgment -Exparte order without giving any opportunity to the defendant -Held, order is arbitrary, unreasonable, illegal and the same set aside. (Southern Petrochemical Industries Corpn. Ltd. Vs S.Rathish Kanna) 2004(2) Civil Court Cases 346 (Madras) Civil Procedure Code, 1908, O.38.R.5 -Attachment before judgment -If an order of attachment is made without complying with the provisions of sub-rule (1) then order of attachment is void. (Southern Petrochemical Industries Corpn. Ltd. Vs S.Rathish Kanna) 2004(2) Civil Court Cases 346 (Madras) Civil Procedure Code, 1908, O.38.R.5 -Attachment before judgment -Suit for recovery of money -When defendant is got restrained from alienating his property, then order to attach property before judgment should not be made. (M/s.V.G.Quenim & Anr Vs M/s Bandekar Brothers Pvt.Ltd.) 2003(1) Civil Court Cases 146 (S.C.)

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Civil Procedure Code, 1908, O.38.Rr.5,10 and S.64, Transfer of Property Act, 1882, S.40 -Agreement of sale -Executed prior to order of attachment before judgment Held, agreement of sale prevails over the attachment. (Adinarayana Vs S.Gafoor Sab & Ors.) 2004(2) Civil Ci vil Court Cases 234 (A.P.) (A.P.) Civil Procedure Code, 1908, O.38.R.5 -Attachment before judgment -Debtor unable to pay debt -Debtor's property cannot be attached merely for this reason -Circumstance that company was in financial strains -Cannot be ground for attachment of its property before judgment. (Saraswat Co-operative Bank Ltd. Vs Chandrakant Maganlal Shah) AIR 2002 Bombay 203

Civil Procedure Code, 1908, O.38.R.5 -Attachment before judgment -Order on ground that defendant did not appear inspite of notice -Nothing on record to show that defendant with intent to obstruct or delay execution of decree was about to dispose of suit property -Impugned order of attachment passed without taking into consideration said aspect and recording satisfaction in that respect and also without following guidelines of High Court -Impugned order set aside. (M/s R.B.M.Pati Joint Venture Vs M/s Bengal Builders) AIR 2004 Calcutta 58 Civil Procedure Code, 1908, O.38.R.5 -Attachment before judgment -Sale deed executed prior to attachment order but its registration took place after order of attachment -Sale deed executed prior to attachment can be considered for sustaining claim petition of third party. (Abdul Jalal Vs M/s Mariya Financiers) AIR 2002 Kerala 276

Civil Procedure Code, 1908, O.38.R.5 -Attachment before judgment -Speak order Not

necessary.. (Greater Cochin Development Authority Vs Harrisons) AIR 2002 Kerala 119 necessary

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Purpose of Order 38 Rule 5 of the Code of Civil Procedure is not to convert an

unsecured debt into a secured debt – It the attachement is effected, that will amount to closing down the properties of the defendant. Cases referred:- 1) 2008 – 3 – L.W – 744 = 2008 – 2 – MLJ 1058 SC) 2). 2 ). 2008 – 2 LL.W.-721 .W.-721 = AIR 2008 SC 1170) 3).1989 – 1- L.W. - 549) 4). 1984 – 1 – MLJ MLJ - 148) (This case is reported in:- 2013 – 1 – L.W. 452) (Justice R.S.Ramanathan) ( 14.12.2012) ( M/s. Gem Graphics v. M/s. Sri Sai Papers). Code of Civil Procedure (5 of 1908), Order 38 Rules 5,6 – Order of attachment –

Affidavit averments filed in support of Application, not complying with requisite conditions as required under Order 38, Rule 5 C.P.C. - As such, order of attachment could not be passed in favour of plaintiff. ( (2007) 4 MLJ 863 Sri Panduranga Brick Works, rep. by its Power Agent, and Others Vs. Gururagavendra Foundations Pvt. Ltd., Chennai and Others.)

Code of Civil Procedure, 1908 (5 of 1908), Order 38, Rules 5,6 & 11 – Order of Attachment – Before passing an order of attachment, it is duty of Court to satisfy from particulars made available that Defendant is about to dispose of whole or any part of his or her property, with a view to delay or defeat execution of any decree that may be passed against him or her – Order of attachment directly passed – Stipulations contained in Order 38 not allowed – Order of attachment is void – Further order of attachment not communicated to Registering Officer – Appellant is a bona fide purchaser – Order of attachment was communicated 12 years from date of purchase by Appellant – In absence of communication to Registering Officer, order of attachment has no force. (2012 (1) CTC 407 Sri Humbi Hema Gooda and Ors Vs Tamil Nadu St State ate Transport Corporation (CBE) Ltd., and Ors)

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Civil Procedure Code, 1908, O.38.Rr.5, 6 -Suit for recovery of money -Defendant making attempt to close his business to defraud his creditors -Attachment of movable ordered to furnish security for suit amount -Not improper. (Bommanasaree Mandir Vs Manisha Sarees) Sare es) AIR 2002 A.P. A.P. 66 Civil Procedure Code, 1908, O.38.R.9 -Attachment before judgment -Raising of Non furnishing of security within 48 hours -Is not a ground to refuse prayer for raising of attachment -Court can raise attachment whenever there is offer made by party for accepting security. (Madigiri Kiran Kumar Kuma r Vs Swaragi Swaragiri) ri) AIR 2004 A.P. A.P. 104 Civil Procedure Code, 1908, O.38.R.10, S.64 -Money decree -Execution -Agreement to sell executed before order of attachment -Agreement of sale accepted by Court Decree passed in performance thereof had become final -Agreement of sale prevails over attachment before judgment. (Adinarayana Vs S.Gafoor Sab) AIR 2004 A.P. A.P. 377

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Order 39 An injunction is a judicial process commanding an act which the Court regards as essential to justice or restraining an act which it thinks contrary to equity or good conscience. It is an equitable relief of preventive nature, the grant, or refusal of which lies with the discretion of the Court. In India the law relating to injunction is found in part-III chapter VII & VIII of the Specific Relief Act, 1963 consisting of section 36 to 42. While the relief of perpetual injunction, being a final relief, can be granted only by the decree of the Court after hearing on the merits of the suit, a temporary injunction, being a relief of interim nature, is usually granted during the pendency of a suit for preservation of property in dispute till the rights asserted by the parties to the suit are determined on merits. Section 37 (1) of Specific Relief Act, 1963 makes it clear that the relief of temporary injunction, which is regulated by the provisions of Code of Civil Procedure (section 94 (c) and order 39 rules 1 to 5 C. P. C), may be granted at any stage of the suit and may continue either until a specified time or until further orders of the Court. It is common experience that in most of the suits the issue regarding grant or refusal of temporary injunction generates lot of heat and dust inside the Courtroom thereby raising its temperature sometimes to the optimum level. Despite this, the Court is expected to render justice in utmost judicious manner without being swayed by the pitch or heat of the arguments. In such a situation the conceptual clarity, regarding basic aspects of the field in the mind of the judge may pave the way for sound exercise of judicial discretion in an equitable and just manner. Hence, here is an attempt to deal with some of the basic b asic issues, which are of rec recurring urring importance.

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THE THREE PILLARS:

The question regarding grant of temporary injunction requires, almost ritualistically, that the party seeking it holds prima facie case and balance of convenience in his/her favour and further that if such relief is refused he/she will suffer irreparable loss. Nay not say ritualistic approach has the inherent tendency of degenerating into rigidity of outlook which may in turn result in injustice. Here comes the role of discretion. It has aptly been said that it is the discretion, which converts pleasure of administering law into the charm of delivering justice. Therefore, the discretion should not be allowed to be shackled in a ritualistic approach. The Apex Court in this respect in Dalpat Kumar Vs. Prahlad Singh, A. I. R. 1993 SC 276   reminded that the phrases "prima facie case", "balance of convenience"   and "irreparable loss"   are not rhetoric phrases for incantation, but words of width and

elasticity to meet myriad situations presented by men's ingenuity in given facts and circumstances and should always be hedged with sound exercise of discretion to meet the ends of justice.

PRIMA FACIE CASE :

The first and foremost requirement for grant of temporary injunction is that the party seeking such relief r elief must establish pprima rima facie case in his/her fa favour vour.. To To make out prima facie case a party is not required to establish his title, it is enough if he can show that he has fair question to raise as to the existence of the alleged right and that the property in the meantime should be preserved as such. Putting its seal of approval on the aforesaid principle, our own High Court in Shankar Lal Rathore Vs S State tate of M. P. 1978 J. L. J. 51 observed that prima facie facie case does not imply prima facie title. To

make out a prima facie case plaintiff is not required to make out a title in respect of the proper property. ty. In Dalpat Kumar   (Supra), (Supra), the Apex Court propounded that prima facie case is not to be confused with prima facie title which has to be established, on

evidence at the trial. Prima facie  case case is substantial question raised, Bona fide, which needs investigation and a decision on merits. Explaining the aspect of prima facie

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case, our own High Court in Madan Lal Vs Masonic Lodge, 1991 J. L. J. 266   observed that prima facie case should be considered in relation to available relevant material on record to examine the probability of plaintiff's ultimate success in the suit. In the light of the aforesaid pronouncements of our own High Court as well as of the Apex Court it can be said that to make out a prima facie case a party is required to show before the the Court that not only he/she has a fair question to raise as to tthe he existence of the alleged right but also that he/she has probability of success in the suit.

IRREPARABLE LOSS:

The Honourable Supreme court has held in 2013 – 1 – L.W. - 238, M/s. Best Sellers Retail (India) pvt Ltd vs. M/S. Aditya Birla Nuvo Ltd & ors, that Even when prima facie case is in favour of the plaintiff, the Court will refuse temporary injunction if the injury suffered by the plaintiff on account of refusal of temporary injunction was not irreparable. A temporary injunction, as a general rule, will not be granted unless it is shown that its refusal will result in irreparable loss to the party seeking such relief. An injury/loss is irreparable when it cannot be adequately compensated in terms of money, (see:Kuldip singh Vs Subhash Chandra Jain, A. I. R. 2000 SC 1410  ), or where there exists no certain pecuniary standard for the measurement of the damages. An injury to be irreparable need not be such as to render its repair physically impossible. Thus, an injury/loss can be treated tre ated as irreparable: (i)

where it cannot be adequately compensated in damages, or

(ii)

where there exists no certain pecuniary standard for the determination of damages. Further, it may be noted that to render an injury irreparable it is not necessary

that the pecuniary loss or damage should be great. Acts committed without just cause

or excuse that interfere with ones business, credit, or profits do amount to irreparable injury.

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BALANCE OF CONVENIENCE CONVENIENCE::

The Court is further required to take into consideration the relative inconvenience which the parties will sustain by the refusal or grant of temporary injunction. The rule is that when issuance of a temporary injunction will cause great hardship to the defendant and will confer no benefit or very little benefit in comparison to the applicant then then it is proper to refuse temporary injunction. The rule permitted the the Court to take into consideration the relative inconvenience which will be suffered by the respective parties by reason of the allowance or refusal of the injunction.

EQUITIES:

In addition to the aforesaid three basic requirements, the party must also show that equity lies in his/her favour. The maxim that he who seeks equity must do equity applies with full force in such a situation. As the refusal or grant of temporary injunction ultimately rests with the sound discretion of the Court, it is the duty of the Court to take into consideration the conduct of the party claiming the relief. As a general rule a temporary injunction cannot be sought as a matter of right, though the three basic requirements for its grant have been established, and if it appears to the Court that the party seeking such relief has acted dishonestly, fraudulently or illegally in respect to the matter in dispute or that he has encouraged, invited or contributed to the injury sought to be prevented it may well be refused. Highlighting this aspect the Apex Court in M/s Gujarat Bottling Co Ltd. Vs. Coca Cola Co. A.I.R. 1995 SC 2372  laid down that apart from other considerations the party seeking the relief must also show that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable ineq uitable in his dealings with the opposite party.

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TEMPORARY INJUNCTION REGARDING POSSESSION:

Where parties to the suit claim to be in possession of the suit property, temporary injunction should not be granted restraining the defendant from interfering with the plaintiff's possession unless the Court finds a very strong probability that the plaintiff is in possession. The Apex Court while dealing with the aspect of possession in Gangubai Bably Vs Sitaram Balchandra A. I. R.1983 SC 742  laid down that when injunction is sought the Court may have to examine whether the party seeking assistance of the Court was at any time in lawful possession of the property, if so, one would prima facie ask the other side how the plaintiff was dispossessed. Here a pertinent question arises as to whether nature of possession should be examined while deciding question of temporary injunction. In a number of authorities, the view has been expressed that while dealing with the the question of issuance of interim injunction only factum of possession should be considered and legality or otherwise of such possession should not be looked into. The Apex Court in Mahadeo Savlaram Shelke Vs Pune Municipal Corporation, (1995) 3 SCC 33   has held that it is settled law that no injunction could be granted

against the true owner at the instance of persons in unlawful possession. The issue regarding grant of ex parte injunction was considered in detail by the Apex Court in Morgan Stanley Mutual Fund Vs Kartick Das 1994 A. I. R. SCW 2801. 2801 . The Apex Court expressed that as a principle ex parte injunction can be granted only exceptionally.. It was exceptionally was further further laid down that while considering considering the grant of ex part partee injunction the following factors must weigh with the Court:1.

Whether irreparable/serious mischief will ensue to plaintiff.

2.

Whether refusal will involve greater injustice than grant.

3.

The time at which plaintiff had notice of the act complained of.

4.

Whether plaintiff had acquiesced for sometime-if yes-ex parte injunction not to be granted.

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5.

Utmost good faith on the part of the applicant be shown.

6.

Even if granted ex parte  injunction injunction would be for a limited period of time.

7.

General principles as prima facie case/balance of convenience /

irreparable injury would also be considered. One more aspect which requires attention is that a party securing an order under O. 39 R. 3 cannot take advantage of it without complying with requisites of clauses (a) and (b) of Rule 3, viz. sending copy of order to opposite party and filing an affidavit stating that copies of the aforesaid order are delivered. Further such an order is appealable, refer : A. Venkatasubbiah Naidu Vs. Chellappan and Ors AIR 2000 SC 3032

INJUNCTION AGAINST ATTEMPTED ALIENATION :

The law is well settled that courts have power to issue a temporary injunction restraining attempted alienation of the suit property. property. No doubt the doctrine of lis pendence  as as enshrined in section 52 of the Transfer of Property Act may take care of

the interest of the plaintiff in respect of alienation of the disputed property pending trial but that by itself may not be sufficient remedy in all cases and may also give rise to multiplicity of suits.

TEMPORARY INJUNCTION IN MANDATORY FORM:

A temporary injunction in mandatory form may well be granted under the provisions of order 39 rules 1 and 2, of course such an injunction can be issued only in exceptional situations. The Apex Court in Dorab Cawasji Warden Vs Coomi Sorab Warden A. I. R. 1990 SC 867  laid laid down following guidelines for the grant of temporary

injunction in mandatory form: 1.

The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.

2.

It is necessary to prevent irreparable or serious injury, injury, which normally

cannot

be compensated in terms of money. 3.

The balance of convenience is in favour of the one seeking such relief.

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Citations

Injunction

–

Interlocutory

injunction

–

Claim

of

possession

made

by

respondents/plaintiffs in light of rival claim made by appellants on basis of revenue records – First appellant co-owner of property and no injunction could be granted against first appellant – Appellants 2 to 5 are subsequent purchasers and they have stepped into shoes of first appellant – Appellants 2 to 5, after mutation of records, obtained planning permission – In view of rival claims, suit property should continue to be in joint possession of appellants and respondents during pendency of suit. RATIO DECIDENDI: When the subject property is a vacant site, the question of title assumes importance even to decide the issue regarding possession in view of the settled position that possession follows title. (2011) 4 MLJ 459 Rau Padma and Ors vs Gayatri Devi and Ors. Suit for Permanent Injunction – Suit filed for purpose of safeguarding enjoyment of plaintiffs over suit passage – Proposition that one co-owner cannot get injunction as against another co-owner-Same not applicable – Suit decreed to said limited extent. RATIONES DECIDENDI: I. Once the passage happens to be the common passage for the occupants of that property, then one occupant of that property should not prevent the other occupant of the said property arbitrarily without finally getting their respective rights decided and adjudged by the competent Court in appropriate proceedings. II. The broad proposition that “one co-owner cannot get injunction against another co-owner” is not applicable, if the suit filed by one co-owner is for enjoyment of common passage of the suit property. ((2011) 7 MLJ 1110 J. Venkatraman @ Venkatramanan and Anr Vs K. Velu)

Person seeking injunction relating to possession of property should prove that he is in

possession and that such possession is lawful before becoming entitled to a permanent injunction.2006 (2) CTC 24 (Mad.) Lalitha and another Vs. Selvaraj

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Civil Procedure Code, 1908, O.39.R.1,2 -Temporary injunction -Exparte injunction Granting of injunction on the ground that other side refused to receive notice without recording reasons and without discussing matter on merits -Not legal. (Mididodi Saraswathi & Anr. Vs Mandal Revenue Officer & Ors.) 2005(1) Civil Court Cases 233 (A.P.) 2006 (2) M.L.J. 453 S. Parthasarathy Vs. Durai @ Govindhasamy & others In

a

suit for permanent injunction, it is sufficient to decide as to who is in possession on date of filing of the suit.

The Court has also got to see whether plaintiff has

established prima-facie right over the property. 2006 (1) MLJ 480 (F (F.B.) .B.) Mad. H.C Maragad Maragadhamani hamani Vs. General Manag Manager, er, BHEL, Trichy The suit in civil court for declaration that a person belongs to a particulars

community and for mandatory injunction, directing the authorities to issue community certificate in pursuance of the said declaration is not maintainable; the decree in the said suit is a nullity and as such it is not binding on the authorities. Temporary injunction – Restraining defendants, brothers and sisters of plaintiff, from interfering with possession of plaintiff over suit property – Suit property purchased by father of deceased in name of plaintiff as he was only major son at relevant time – Plaintiff was unemployed at time of purchasing said property – Building constructed on said property by father of deceased after selling some of ancestral properties – Plaintiff was not in exclusive possession and enjoyment of property at time of filing of suit – Relief of injunction as sought – Could not be granted. (AIR 2006 MADRAS 228 S. Parthasarathy Vs. Durai @ Govindasamy & Others)

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Civil Procedure Code 1908 as amended – Order 39, Rule 1 – Grant of interim injunction – plaintiff/revision petitioner filed lease agreement entered into with government – plaintiff have right to draw sea water from buckingham canal for salt manufacture – suit property delivered to plaintiff under land delivery receipt – held both the courts belowened in holding that the lease agreement does not prohibit person other that the plaintiff to draw sea water – not proper – plaintiffs have prima facie case – respondent/defendant restrained from drawing sea water – revision petitions petition s allowed – lower court directed to dispose of the suit on merits within six months.(2006 (3) TLNJ 290 (Civil) M/s. Sri Maruthi Marine Industries Ltd., rep. by its Manager Sudarsan, Thiruporur Vs. Munusamy, Munusamy, S/o Mega Naicker and an d others ) Code of Civil Procedure, 1908 – O Order rder 39 Rul Rules es 1 & 2 - Interim injunction

against the trademark “Oxyline” used for marketing and selling of medicinal product i.e. eye drops – Interim injunction continuing for over six years – Plaintiff started using its mark in 1984 in other countries – Both medicinal products used for different organs of body – Likelihood of confusion and likely loss of vision on account of use of the product of defendant – Order granting interim injunction, confirmed.( 2007 (34) PTC 267 (Cal.)

Allergan Ins. Vs. Chetana Pharmaceuticals)

Civil Procedure Code (5 of 1908) – Order 39, Rules 1 and 2 – Partition suit – Grant

of interim injunction – Relevant factors – Order should be passed having regard to prima facie   case, balance of convenienve and irreparable injury – Conduct of the

parties is also relevant – Courts below, not going into relevant facts and misdirecting themselves – Injunction order modified.(2007) 1 MLJ 41 (SC) M. Gurudas Vs. Rasaranjan)

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Civil Procedure Code 1908 as amended – Order 39, Rule 1 and 2 – Main relief –

main relief whether can be granted at interim relief stage – relief granted by the learned Single Judge at the interim stage is nothing but the prayer in the suit itself which has to be considered only at the ultimate stage of final decree, the learned Single Judge, without going into the legal proposition involved in this regard, has granted the main relief itself which is sought in the suit at the interim stage, which in other words, tantamounts to a pre-trial decree.(2007 (2) TNLJ 289 (Civil) The Bank of Tokyo Mitsubishi Limited Mumbai Vs. Spartex Ceramics India Limited, 52, Chamiers Road, Chennai 600 028 and two others.)

Industrial Disputes Act (14 of 1947), Section 33 – Code of Civil Procedure (5 of 1908) Order 39, Rules 1 & 2.:- Interim Injunction – Grant of – Matter relating to dispute between between employer and workmen – Conciliation proceedings, p pending ending before Assistant Commissioner of Labour – Employer filing suit for declaration and permanent injunction – Employer also seeking interim injunction against the workmen from obstructing its carrying on the business – Strike is a legitimate and unavoidable weapon in the hands of the Labour – When strike is wrongful, it may invite consequences under the provisions of the Industrial Disputes Act. Act. But the same does not prov provide ide basis for a civil action, so as to oustrain them from proceedings on strike – Competent Authority under the Industrial Disputes, is to determine the status of the workmen – Grant of interim injunction would enable the employer to resist any industrial dispute of the workman – Interim injunction already granted, is liable to be vacated – Application dismissed – ((2008) 2 MLJ 992 HC Bharat Petroleum Corporation Ltd., Vs. Bharathiya Empoyees Mazdoor Sangh & Others)

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Code of Civil Procedure (5 of 1908), Order 39 Rule 1 - Grant of ad interim  injunction injunction

- Relevant factors to be considered - Interim injunction sought for regarding Wakf property - Injunction petition allowed by the Trial Court - No reason assigned for granting the Order - In view of the Right to Information Act, 2005, public authoritities are bound to disclose information relating to their functioning - Though Courts are not liable to furnish information like Public bodies, they are still expected to reveal the reasons in the Order, which made them to pass the particular Orders - Only if reasons were given, the Appellate Court could consider the dispute without any difficulty - Trial Court to hear the injunction petition, afresh - Revision allowed. The Court had considered the order of the Lower Court carefully found no reason, much less prima facie  reasons, reasons, in the order impugned in this revision. The learned Subordinate Judge

has observed that as the petitioners have prima facie   proved their possession, the injunction Petition is allowed and the Injunction is made absolute. It is not stated in so many (sic) words as to how the Court has arrived at a conclusion with regard to the prima facie   case case in favour of the petitioners so as to grant injunction till the disposal of

the case.(Para 8 ) While deciding the lis  between between the parties, Courts cannot put the parties in darkness about the materials which weighed with the Court in arriving at the conclusion. Law has developed considerably and now after the introduction of the Right to Information Act, 2005, information pertaining to public authorities are now made mandatory to be disclosed if the information sought comes within the purview of the said Act. Such being the position, the Courts though are not liable to furnish the information like public bodies are still expected to reveal the reasons in the order which made the Court in passing the particular order. The order of the Subordinate Courts are appealable before the higher Courts and in case reasons are given, it would enable the appellate Court to appreciate the matter and to resolve the dispute without any difficulty.(Para difficulty.(Para 9) None of the parties to the proceedings should have ha ve a

feeling that his case has not been understood by the Court in its proper perspective. In case reasons are supplemented in the order, unnecessary criticism of the Courts at the hands of the litigants could be avoided.(Para10)(2008) 2 MLJ 392

Kasim

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Maraikkayar and Another Vs. Haji kathija Beevi Trust rep by its Turn T Trustee rustee Ummalhutha, Nagapattinam.)

Civil Procedure Code, 1908, O.39.R.1(c) -Temporary injunction -Plaintiff in possession under agreement of sale -Heavy amount paid to vendor on date of execution of agreement -Sale deed could not be executed due to failure of owner to obtain Incometax Clearance certificate -Plaintiffs cannot be blamed for non payment of remaining amount -Prima facie they were ready and willing -Plaintiff in possession of date of suit, balance of convenience was in their favour -They were likely to suffer substantial injury if temporary injunction was not granted -Held, plaintiff is entitled to temporary injunction. (M/s Chetak Constructions Limited Vs Om Prakash & Ors.) 2003(3) Civil Court Cases 477 (M.P.) Civil Procedure Code, 1908, O.39 Rr.1 & 2 -Cosharer in joint possession -Suit for injunction to restrain the other co-sharer from selling more than his share and raise construction -Injunction granted as the defendant not found to be in exclusive possession -Order upheld by the High Court and further held that equity demands that the property should be preserved in present state -Status-quo ordered. (Balbir Singh Vs Lamber Singh ) 2004(3) Civil Court Cases 129 (P&H) Civil Procedure Code, 1908, O.39.Rr.1, 2 & S.115, Constitution of India, Art.227 Interim injunction -Granted by trial Court -Order reversed by Ist Appellate Court Revision against -Not maintainable -However, revision treated to be a petition under Article 227 of the Constitution of India. (Dr.Bhupesh Mangla Vs Dr.Ravi Chander Mangla) 2004(2) Civil Court Cases 42 (P&H)

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Civil Procedure Code, 1908, O.39.R.1, 2 -Temporary injunction -Restraining from interference in possession -Plaintiff in possession in exchange of his house with his father, the original owner of suit land -Possession continued on basis of mutation entry and report made in Roznamcha -Defendant claiming ownership over suit land on basis of some consent decree -But said consent decree prima facie found to be result of fraud -In such circumstances injunction can be granted. (Gurmail Singhy Vs Hardyal Singh) AIR 2002 P&H 327 Civil Procedure Code, 1908, O.39.R.1 -Interim injunction or ad interim injunction No qualitative difference between the two. (Rajendraprasad R.Singh Vs Municipal Corporation) AIR 2003 Bombay 392 Civil Procedure Code, 1908, O.39.R.1 -Interim relief not be granted which amounts to final relief -In exceptional circumstances where Court is satisfied that ultimately petitioner is bound to succeed and fact-situation warrants granting such a relief, Court may grant the relief but it must record reasons for passing such an order and make it clear as what are the special circumstances for which such a relief is being granted to a party. party. (Ashok Kumar Kuma r Bajpai Vs Dr.Ranjana Dr.Ranjana Bajpai) AIR 2004 All. 107 Civil Procedure Code, 1908, O.39.R.1 - Jurisdiction - Raise an arguable issue and need not be decided at the ad interim stage. (The Bengal Club Ltd. Vs Susanta Kumar Chowdhary) AIR 2003 Calcutta 96 Civil Procedure Code, 1908, O.39.R.1,2 -Police help -Interference in possession inspite of stay order -Held, when an injunction order is not carried out it is always open for the parties to seek police protection to see that the injunction order is properly

implemented. (Sk.Yousuf Vs Shaik Madhar) AIR 2003 A.P A.P.. 44

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Civil Procedure Code, 1908, O.39.R.1(a) and S.151 -Transporter of goods Detaining goods and filing suit for recovery of hire charges -One of the defendants Warehousing Corporation who delivered goods for transportation seeking release of goods claiming himself as custodian of goods -Goods in danger of being wasted or damaged -Can be released on furnishing Bank guarantee. (M/s Central Warehousing Corporation Vs Prabhu Narain Singh) Sin gh) AIR 2003 Allahabad Allahabad 223 Civil Procedure Code, 1908, O.39.Rr.1, 2, Constitution of India, Art.226 Restraining petitioners from transferring suit land or any part thereof to any third person -Father during his life time disposed of 1/3rd share in property and petitioner in possession out of this 1/3rd share which was acquired for valuable consideration Merely because there was no evidence of partition of property that by itself cannot enure to the benefit of the plaintiff to obtain equitable relief of injunction -Order as far as it imposed restrictions upon the petitioners from transferring or alienating the suit land or any portion thereof or creating any encumbrance quashed. (Ramchandra Shankar Randive & Ors. Vs Uttam Marutrao Randive & Ors.) 2003(3) Civil Court Cases 442 (Bombay) Civil Procedure Code, 1908, O.39.Rr.1, 2, S.11 -Temporary injunction -Second application under changed circumstances -Not barred by res judicata. (Bhura Vs Addl. District Judge No.8, Jaipur City & Ors.) 2004(2) Civil Court Cases 90 (Rajasthan) Civil Procedure Code, 1908, O.39.Rr.1, 2, S.104(2), O.43.R.1(r) -Second appeal against appellate order granting or rejecting injunction -Not maintainable. (Motilal Ramdev Teli Teli Vs Bhandari) Bha ndari) AIR 2002 Chhattisgarh Chh attisgarh 6

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Civil Procedure Code, 1908, O.39.Rr.1, 2, O.7.R.11 -Rejection of plaint -Appeal against -Held, in such an appeal Appellate Court has power to grant temporary injunction. (Sanjay Purushottam Agrawal & Anr. Vs Nirmaladevi Shantilal Ruparel & Ors.) 2004(2) Civil Court Cases 616 (Bombay) Civil Procedure Code, 1908, O.39.Rr.1, 2, O.9.R.13 -Exparte temporary injunction Application U.O.9.R.13 CPC to set aside exparte temporary injunction -Grant of ex parte temporary injunction is only an order and not a decree -O.9.R.13 CPC is not applicable to set aside asid e such an order. (Mididodi Saraswathi & Anr. Vs Mandal Revenue Officer & Ors.) 2005(1) Civil Court Cases 233 (A.P.) (A.P.) Civil Procedure Code, 1908, O.39.Rr.1, 2, O.43.R.1 -Interim injunction -Order refusing to grant ex parte injunction -Order is not appealable -Hence, bar of S.115(2) is not applicable -Revision against such order is maintainable. (Smt.Urmila Devi Vs Nagar Nigam) AIR 2003 Allahabad Allahabad 1158 58 Civil Procedure Code, 1908, O.39.Rr.1, 2, O.43.R.1 -Temporary injunction Appellate Court finally deciding disputed question of fact at injunction stage -Order set aside Case remanded for decision afresh. (Mohd. Sharif Vs ADJ No.2 Sikar & Anr.) 2004(2) Civil Court Cases 682 (Rajasthan) Civil Procedure Code, 1908, O.39.Rr.1, 2, O.43.R.1(r) & S.115 -Exparte ad interim injunction -Order is appealable -Revision does not lie. (Airport Authority of India V. M/s Paradise Hotel & Restaurant) AIR 2002 Gauhati 146 Civil Procedure Code, 1908, O.39.Rr.1, 2 -Ad interim injunction -Person in possession

can protect his possession by seeking injunction against any other person but not against the true owner. (Dharamvir Vs Naresh Kumar & Oars.) 2005(1) Civil Court Cases 770 (P&H)

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Civil Procedure Code, 1908, O.39.Rr.1, 2 -Ad interim injunction -Restraining defendants from interfering in peaceful possession -Defendant father of plaintiff owner of entire house -Plaintiff produced no documents showing that nature of property is Joint Hindu Family Property or that he is a co-sharer in any manner -Status of plaintiff cannot be more than a mere licensee -Injunction cannot be granted against the true owner -Interim stay declined -Order upheld. (Dharamvir Vs Naresh Kumar & Oars.) 2005(1) Civil Court Cases 770 (P&H) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Ad interim injunction -Restraining true owner from interfering in possession -Servant of tenant occupied premises when it was vacated by tenant -Held, possession of servant was in fact an occupation as an agent or a servant of the original tenant and thus his possession cannot amount to actual physical possession by a tenant -Held, plaintiff is not entitled to injunction. (Sahban Khan Vs Rajendra Prasad Srivastava & Anr.) 2005(1) Civil Court Cases 785 (Allahabad) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Ad interim injunction -Trade Mark -Prior user -Plaintiff using mark 'Malikchand' but not much publicized -At a subsequent point of time defendant started use of mark 'Malikchand' in a large scale -At relevant time, neither party had a registered trade mark for the respective marks claimed by them -A number of cases registered against defendant under Prevention of Food Adulteration Act -Prima facie establishment of prior user goes a long way in enabling the plaintiff to claim an injunction in a passing-off action -Grant of interim injunction in favour of plaintiff held to be justified. (Dhariwal Industries Ltd. & Anr. Vs M/s M.S.S. Food Products) 2005(1) Apex Court Judgments 546 (S.C.) : 2005(2) Civil Court Cases 261

(S.C.)

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Civil Procedure Code, 1908, O.39.Rr.1, 2 -Cement factory -Restraining defendant from constructing factory for manufacturing cement cavity box -Licence for running factory duly granted -Manufacturing yet to start -No actionable nuisance caused -Suit filed on ground that activity would cause pollution and spread of disease -Suit lies only after cause of action erupts on account of manufacturing activity -Suit liable to be dismissed. (Thressiamma Vs Sebastian Mathew) AIR 2002 Kerala 1 Civil Procedure Code, 1908, O.39.Rr.1, 2 -Co-sharer -Restraining another co-sharer from raising construction -Defendant seeking permission to raise construction and demolish the same later on after partition -Held, such a course would result into unnecessary complications even in partition proceedings. (Pritam Singh & Ors. Vs Chanan Singh) 2003(1) Civil Court Cases 426 (P&H) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Co-sharer -Restraining another co-sharer from raising construction over superior and valuable portion of the suit property without getting the same partitioned -Held, plaintiff a co-sharer is entitled to protect the suit land to ensure that the nature of suit land is not changed by another co-sharer Proceedings for partition have been initiated and defendant would not suffer any prejudice because it would soon be clear which of the co-sharer would be entitled to occupy and possess which portion of the land. (Pritam Singh & Ors. Vs Chanan Singh) 2003(1) Civil Court Cases 426 (P&H) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Departmental proceedings -Stay during pendency of criminal proceedings launched on the same set of facts -AIR 1997 SC 13 followed wherein held : (i) Both proceedings can continue simultaneously; (2) If charge in criminal case is of a grave nature which involves complicated questions of law and

fact then departmental proceedings to be stayed till conclusion of criminal case; (3) Charge being grave or involving complicated questions of fact and law, depends upon nature of offence; (4) factors No.2 & 3 cannot be considered in isolation to stay

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departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed; (5) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest. (Syama Ghana Biswal Vs General Manager, SBI) 2003(3) Civil Court Cases 305 (Orissa) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Discussion made on documents and findings recorded for disposal of application U.O.39.Rr.1,2 CPC is only for the purpose of deciding the application -Do not have the effect of adjudicating the relevant issues in the suit. (Upendranath Singh Vs Smruti Ranjan Mohanty) 2003(2) Civil Court Cases 432 (Orissa) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Exclusive copy-right over industrial drawings and designs claims -Not registered under Designs Act -Cannot claim copyright -Not entitled to injunction. (M/s Polymer Papers Ltd. Vs Gurmit Singh) AIR 2002 Delhi 530 Civil Procedure Code, 1908, O.39.Rr.1, 2 -Exparte temporary injunction -Court is required to record reasons in support of its conclusions for grant of temporary injunction. (Mididodi Saraswathi & Anr. Vs Mandal Revenue Officer & Ors.) 2005(1) Civil Court Cases 233 (A.P.) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Injunction -An equitable relief -Plaintiff if

guilty of inequitable conduct, is not entitled to the relief of injunction. (Kanchusthabam Satyanarayana & Ors. Vs Namuduri Atchutaramayya & Ors.) 2005(1) Apex Court Judgments 607 (S.C.) : 2005(2) Civil Court Cases 187 (S.C.)

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Civil Procedure Code, 1908, O.39.Rr.1, 2 -Interim injunction -Consent eviction decree Challenged as being obtained by fraud by putting an imposter -Plaintiff not to be dispossessed during pendency of suit. (Sumitra Devi Anand (Dead) by LRs. Vs Shanti Devi (Dead) by Lrs.) 2005(1) Apex Court Judgments 679 (S.C.) : 2005(1) Civil Court Cases 692 (S.C.) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Interim injunction -Plaintiff in lawful possession of suit property situated within development area under U.P.Urban Planning and Development Act and not under Nagar Mahapalika -Plaintiff held entitled to grant of injunction restraining officials of Nagar Nigam from forcible dispossession. (Smt.Urmila Devi Vs Nagar Nigam) AIR 2003 Allahabad 158 Civil Procedure Code, 1908, O.39.Rr.1, 2 -Interim injunction -Plaintiff running nursing home and permitting doctors to practice profession in chambers of cabins Defendants were in fiduciary relationship with plaintiff -On termination of directorship and withdrawal of permission, defendant cannot be allowed to disturb working of hospital by committing trespass and nuisance. (Geetanjali Nursing Home (P) Ltd. Vs Dr.Dileep Makhija & Ors.) AIR 2004 Delhi 53 Civil Procedure Code, 1908, O.39.Rr.1, 2 -Interim injunction -Restraining defendant from interfering in joint use of electric motor connection -In revenue record plaintiff shown to be owner in possession where electric motor is installed -Held, grant of injunction restraining other co-owners from interfering with the joint use of electric motor connection is proper and calls for no interference. (Ajit Singh Vs Tarsem Tarsem Singh & Ors.) 2005(1) Civil Court Cases 748 (P&H)

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Civil Procedure Code, 1908, O.39.Rr.1, 2 -Interim injunction -Unlawful possession or possession without any right to be lawfully in possession of the property -Plaintiff not entitled to injunction against the true owner. (K.Ankaiah Vs Tirumala Tirupati Devasthanams) 2003(1) Civil Ci vil Court Cases 135 (A.P (A.P.) .) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Interim injunction restraining defendant from raising any construction over the property in dispute -Undertaking by defendant to raise construction at his own risk and responsibility and that he will not claim any compensation and rather remove the malba in case suit is decided against him Defendant allowed to raise construction at his own risk subject to the final decision of the suit. (Dr.Bhupesh Mangla Vs Dr.Ravi Chander Mangla) 2004(2) Civil Court Cases 42 (P&H) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Once an application is made by opposite party for referring the matter to arbitration in terms of arbitration agreement, thereafter Court cannot decide the application U.O.39.Rr.1,2 as nothing further is required to be done. (Arbitration and Conciliation Act, 1996, S.7). (M/s Jagdish Raj & Brothers Vs Jagdish Raj) 2003(1) Civil Court Cases 367 (P&H) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Partner -Restraining retired partner from using trade mark of firm -Defendant alleging no dissolution of firm in the eye of law and that he is still a partner of the firm -In the caveat filed by defendant, intimation to tax authorities and settlement of accounts, though disputed, are sufficient for decision of temporary injunction application that defendant has left the partnership firm -Validity of these documents to be decided at the time of trial -Prima facie case in favour of plaintiff -Trade mark forms part and parcel of the assets of the firm -Temporary

injunction as prayed for granted. (Sivaramakrishna Traders Vs Kamal Traders) 2003(3) Civil Court Cases 649 (A.P.)

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Civil Procedure Code, 1908, O.39.Rr.1, 2 -Plaintiff suppressing material facts in order to get advantage over defendants -Playing fraud on Court -Not entitled to discretionary relief of injunction. (M/s Polymer Papers Ltd. Vs Gurmit Singh) Singh ) AIR AIR 2002 Delhi 530 Civil Procedure Code, 1908, O.39.Rr.1, 2 -Police help to implement order of temporary injunction -When once an injunction order is not carried out, it is always open for the parties to seek police protection to see that the order of temporary injunction is properly implemented. (Sk.Yousuf & Ors. Vs Shaik Madhar Saheb) 2003(1) Civil Court Cases 392 (A.P.) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Possession -Jamabandi -In absence of clear evidence of possession and title entries in jamabandi cannot constitute the basis for concluding that the plaintiff is in possession -Vendor cannot pass to the vendee a title better than his own title or rights better than his own rights - Once the vendor of plaintiff was not in possession it remains unexplained as to how entries in the jamabandies have been b een incorporated i ncorporated showing that the t he plaintiff pl aintiff is in possession -Held, view taken by appellate Court that it is not believable that vendor of plaintiff is owner in possession does not suffer from any legal flaw -Order upheld. (Jai Pal Singh Vs Ram Dhan Saini) 2003(1) Civil Court Cases 142 (P&H) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Prohibition injunction -Plaintiff not in possession -Grant of injunction in favour of plaintiff is proper when plaintiff is actual owner and defendant fails to prove title by adverse possession. (Mohandas Dattaram Prabhu Vs U.F.M. U.F.M. Mukund Honnappa Honn appa Naik) AIR 2003 K Karnataka arnataka 428 Civil Procedure Code, 1908, O.39.Rr.1, 2 -Restitution order -An order of restitution is

stayed only in exceptional circumstances. (Kanchusthabam Satyanarayana & Ors. Vs Namuduri Atchutaramayya & Ors.) 2005(1) Apex Court Judgments 607 (S.C.) : 2005(2) Civil Court Cases 187 (S.C.)

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Civil Procedure Code, 1908, O.39.Rr.1, 2 -Restraining alienation during pendency of suit -Any transfer made during pendency of suit is subject to the provision of S.52 of Transfer of Property Act as such there is no necessity to pass an order of prohibitory injunction prohibiting the alienation of property during pendency of suit. (Upendranath Singh Vs Smruti Ranjan Mohanty) 2003(2) Civil Court Cases 432 (Orissa) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Restraining defendant from raising any construction on suit land -Status quo order granted -Appellate Court vacated order Not proper in view of fact that there was possibility of defendant altering nature of suit property during pendency of suit -Order of trial Court restored. (Parboti Adhikary Vs Pradip Adhikary) AIR 2004 Gauh Gauhati ati 49 Civil Procedure Code, 1908, O.39.Rr.1, 2 -Suit for injunction -Suit withdrawn without permission of Court to file fresh suit on the same cause of action -Second suit filed without mentioning the fact of filing of earlier suit - Held, injunction is an equitable relief and the same cannot be granted to a person who does not come to Court with clean hands and who is guilty of suppression of facts. (Jonnala Sura Reddy & Anr. Vs Tityyagura Srinivasa Reddy & Ors.) 2004(2) 2 004(2) Civil Court C ourt Cases 417 (A.P.) (A.P.) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Suit for specific performance -Oral agreement -Original title deeds in possession of plaintiff -Certain other circumstance also in favour of plaintiff -However injunction not granted in view of undertaking given by defendant that he had no intention to sell property. (Haraparbati Thakurrani Bije Vs Ramakanta Gupta) AIR 2002 Orissa 89 Civil Procedure Code, 1908, O.39.Rr.1, 2 -Suit for specific performance -Restraining

defendant from transferring suit land by way of sale or by any other mode till the final disposal of the suit - Held, without a prayer for decree of perpetual injunction, an interim injunction cannot be granted. (Ishwarbhai Vs Bhanushali Hiralal Mohanlal

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Nanda) AIR 2002 Gujarat 328 Civil Procedure Code, 1908, O.39.Rr.1, 2 -Suppression of material facts -Disentitled party for getting discretionary relief of injunction -Plaintiff withholding vital documents relevant to litigation in order to gain advantage on other side -He would be guilty of playing fraud on Court as well as on opposite party -Not entitled to discretionary relief of injunction. (Rohit Dhawan Vs G.K.Malhotra) G.K.Malhotra) AIR 2002 Delhi 151 Civil Procedure Code, 1908, O.39.Rr.1, 2 -Telephone booth -Permission to run PCO in railway premises -Cancellation -No show cause notice or opportunity of hearing given to plaintiff before proposed action -Further application by plaintiff to convert her prayer of temporary injunction into an interim mandatory injunction -Can be allowed Strong prima facie case, balance of convenience and irreparably injury in favour of applicant Direction given to defendant to remove lock from PCO booth, deliver its possession and to restore electricity supply and telephone connection forthwith to plaintiff. (Smt.Ajra Habib Vs R.K.Gupta) AIR 2002 M.P. M.P. 95 Civil Procedure Code, 1908, O.39.Rr.1, 2 - Temporary injunction -Agreement to sell Suit for specific performance -Restraint order from interference with possession sought -Agreement denied by vendor -Vendor alleged possession of another vendee under registered sale deed -Plaintiff admittedly in possession -Plaintiff having prima facie case on raising a serious and substantial question -Balance of convenience also in favour of plaintiff -Refusal of injunction likely to cause irreparable injury to plaintiff Consequently direction issued for maintaining status quo subject to deposit of Rs.75,000/-annually to safeguard the interest of purchaser from vendor. (Sukkha Singh Vs Mahal Singh) 2003(2) Civil Court Cases 547 (Rajasthan)

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Civil Procedure Code, 1908, O.39.Rr.1, 2 -Temporary injunction -Both plaintiff and defendant seeking temporary injunction -Application of plaintiff dismissed whereas application of defendant allowed and plaintiff retrained from interfering with possession of defendant -Suit stood disposed of for want of prosecution as plaintiff sought permission to withdraw suit -Held, order of temporary injunction passed in favour of defendant is not executable. (Ramesh Akre Vs Mangalabai Pralhad Akre) AIR 2002 Bombay 487 Civil Procedure Code, Cod e, 1908, O.39.Rr.1, 2 -Temporary -Temporary injunction -Co-sharers -Co-s harers -Once the parties are in exclusive possession of their respective shares, the question of issuance of any ad interim injunction qua the suit property does not arise. (Baldev Singh Vs Sewa Singh & Anr.) Anr.) 2004(2) Civil Court C Cases ases 422 (P&H) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Temporary injunction -Encroachment on road -Report of Local Commissioner that plaintiff has encroached 5 feet street land in front of his house -Held, interim injunction rightly denied to him. (Gian Singh Vs Jarnail Singh) 2003(2) Civil Court Cases 625 (P&H)

Civil Procedure Code, 1908, O.39.Rr.1, 2 -Temporary injunction -Grant of -Appeal against -Satisfaction that there is prima facie case -By itself not sufficient to grant injunction -On point of irreparable injury there was no conclusion -No material or affidavit discussed to come to conclusion that balance of convenience is in favour of plaintiff -Reasons also not discussed regarding balance of convenience -Important ingredients for grant of injunction not satisfied -Order granting injunction liable to be interfered with. (Lark Laboratories (India) Ltd. Vs Medico Interpharma Ltd.) AIR 2002 Gujarat 368

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Civil Procedure Code, 1908, O.39.Rr.1, 2 -Temporary injunction -Grant of -Guiding principles -(i) prima facie case, (ii) balance of convenience and (iii) irreparable loss and/or injury if temporary injunction is refused -Injunction cannot be granted without examining the matter in detail by merely saying that prima facie case is made, apart from stating that the other two requirements are fulfilled or not -Order granting or refusing to grant interim relief must contain some discussion with respect to the documents placed on record -Order must reflect an application of mind on the part of the Court passing the order. (Ajay Mittal Industrial Premises Co-Operative Society Vs Raj Publicity) 2004(3) Civil Court Cases 639 (Bombay) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Temporary injunction -It is not necessary for plaintiff to establish his full fledged title over suit property. (Satya Prakash Vs Ist ADJ) AIR 2002 Allahabad 198 Civil Procedure Code, 1908, O.39.Rr.1, 2 -Temporary injunction -Jurisdiction Clause in agreement viz. “Court of Bombay and no other Court' -Plea of not consciously agreeing to the exclusion of jurisdiction of Courts other than Bombay Until a clear finding is recorded that Court has territorial jurisdiction to try the suit, no injunction can be granted in favour of plaintiff by making a general remark that plaintiff has an arguable case and that he did not consciously agree to the exclusion of the jurisdiction of the Court other than Bombay. (Shree Subhlaxmi Fabrics Pvt.Ltd. Vs Chand Mal Baradia & Ors.) 2005(2) Civil Court Cases 227 (S.C.) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Temporary injunction -Order passed u/s 145/146 Cr.P.C. -Civil Court has jurisdiction to make an order of injunction inconsistent with the order of Executive Magistrate. (Shanti Kumar Panda Vs Shakuntala Devi)

2005(1) Apex Court Judgments 169 (S.C.) : 2005(1) Civil Court Cases 344 (S.C.) ( S.C.)

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Civil Procedure Code, 1908, O.39.Rr.1, 2 -Temporary injunction -Plaintiff failing to prove long possession -Other party holding registered sale deed executed 20 years back -Refusal of grant of injunction against his dispossession -Proper. (Shetra Pal Vs Renu) AIR 2002 Rajasthan 159 Civil Procedure Code, 1908, O.39.Rr.1, 2 -Temporary injunction -Public property Encroacher of public land has no right to seek injunction. (Chunni Lal & Ors. Vs State of Haryana & Ors.) 2004(2) Civil Court Cases 586 (P&H) Civil Procedure Code, Cod e, 1908, O.39.Rr.1, 2 -Temporary -Temporary injunction -Restraining -Res training alienation and raising construction -Temporary injunction cannot be declined on the basis that alienation will be subject to law of lis pendens and construction raised will be at own risk or on the basis of an undertaking that there will be no alienation and construction will be at own risk -Unless and until a case of irreparable loss or damage is made out by a party to the suit, Court should not permit the nature of property being changed with also includes alienation or transfer of property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. (Maharwal Khewaji Trust (Regd.), Faridkot Vs Baldev Dass) 2005(1) Apex Court Judgments 457 (S.C.) : 2005(1) Civil Court Cases 430 (S.C.) Civil Procedure Code, 1908, O.39.Rr.1, 2 - Temporary injunction -Separate electricity meter and water connection -No specific prayer to that effect in plaint -Plaintiff licencee in suit premises - Possession of plaintiff in suit premises not disputed - Relief of separate electricity meter and water connection granted on the basis of balance of convenience as also on humanitarian grounds -No error in granting relief to plaintiff in

equity even if there was no specific prayer in plaint to that effect. (Niranjan Lal Joshi & Anr.. Vs P Anr P.K.Joshi .K.Joshi & Ors.) 2005(1) Civil Court Cases 181 (Rajasthan)

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Civil Procedure Code, 1908, O.39.Rr.1, 2 -Temporary injunction -Street Encroachment by plaintiff -Held, an encroacher has no right to seek temporary injunction against Gram Panchayat. (Ishwar Singh Vs Gram Panchayat) 2004(2) Civil Court Cases 279 (P&H) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Temporary injunction -Tenanted premises Reconstruction of roof by tenant -Tenant is duty bound to maintain leased premises in as good a condition, as they were when they were let out -He has right to effect repairs in tenanted premises in terms of S.108(m) Transfer of Property Act -Provision in Rent Act enabling tenant to seek repairs from landlord does not take away right of tenant to effect repairs himself -Held, landlord cannot claim injunction restraining tenant from reconstructing roof of tenanted premises. (Transfer of Property Act, 1882, S.108(m), U.P.Urban Buildings (Regulation of Letting, rent and Eviction) Act, 1972, S.28). (Smt.Saroj Dwivedi Vs Additional District Judge) 2003(3) Civil Court Cases 717 (Allahabad)

Civil Procedure Code, 1908, O.39.Rr.1, 2 -Temporary injunction -Violation of copyright -Applicant assessing monetary claim that may result from violation of copyright -Same can be compensated in terms of money -Temporary injunction not granted. (Gee Pee Films Pvt. Ltd. Vs Pratik Chowdhury) Cho wdhury) AIR 2002 Calcutta 33 Civil Procedure Code, 1908, O.39.Rr.1, 2 -Temporary mandatory injunction -Can be granted -Principles governing are (1) The plaintiff has a strong case for trial i.e., a higher standard than a prima facie case that is normally required for a prohibitory injunction; (2) It is necessary to prevent irreparable or serious injury which normally

cannot be compensated in terms of money; (3) The balance of convenience is in favour of the one seeking such relief. (Appukuttan Nair Vs Hydrose) 2004(2) Civil Court Cases 605 (Kerala)

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Civil Procedure Code, 1908, O.39.Rr.1, 2 -Temporary mandatory injunction -Can be granted only in exceptional cases coming within exceptions noticed in Dorab Cawasji Warden case. (Metro Marins & Anr. Vs Bonus Watch Co. Pvt. Ltd. & Ors.) 2005(1) Apex Court Judgments 436 (S.C.) : 2005(1) Civil Ci vil Court Cases 308 (S.C.) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Temporary mandatory injunction -Expiry of period of license -Suit for possession -Interim mandatory injunction directing defendant to hand over vacant and peaceful possession of premises -Cannot be granted Granting of interim order directing handing over of possession would only mean decreeing the suit even before trial. (Metro Marins & Anr. Vs Bonus Watch Co. Pvt. Ltd. & Ors.) 2005(1) Apex Court Judgments 436 (S.C.) : 2005(1) 2005 (1) Civil Court Cases 308 (S.C.) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Temporary mandatory injunction -Wall put up across a way which was in existence for more than 12 years and the plaintiff was prevented from using that way to go to his house just two days prior to the institution of suit -Interim injunction, prohibitory or mandatory can be granted even for restoring status quo anterior to the date of the suit if it is found that it is absolutely necessary Order to remove wall, upheld. (Appukuttan Nair Vs Hydrose) 2004(2) Civil Court Cases 605 (Kerala) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Tenant can be restrained from making any structural addition or alternations and from changing the existing position or effecting any major repair in the shop illegally or forcibly without the prior consent of the landlord or without the prior permission of the Rent Controller. (M/s Changa Weaving and

Hosiery Factory Vs Sanjiv Kumar) 2003(1) Civil Court Cases 20 (P&H)

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Civil Procedure Code, 1908, O.39.Rr.1, 2 -Tenant on second floor -One room on second floor occupied by servant of landlord -Common latrine and bath room used by tenant and servant of landlord -Tenant cannot seek injunction restraining servants of landlord from using common amenity during pendency of eviction petition. (Smt.Urmila Devi Jain Vs Shorey Lal) AIR 2003 Delhi 6 Civil Procedure Code, 1908, O.39.Rr.1, 2 -Tenanted premises -Destruction overnight Whether pulled down by landlord? -Can be gone into only after taking evidence Unless said issue is finally decided no permission can be granted to conduct business in temporary shed -Moreover permission granted by Court to put up shed to house machinery of mill cannot be taken as licence to conduct business in newly erected shed No permission or licence obtained from Gram Panchayat to conduct business in shed No prima facie case made out to grant interlocutory injunction. (M.B.Muhammed Ali Vs Ibrahim Haji) AIR 2002 Kerala 336 Civil Procedure Code, Co de, 1908, O.39.Rr.1, 2 - Tenanted premises - Use of roof - Staircase and upper floor in exclusive possession of plaintiff -Defendant had no approach to upper floors in any manner as only access to upper floor was through the staircase which was built inside the rented premises and in possession of plaintiff -Even when rent note is silent about tenancy of the roof the same is included in the tenancy Defendant restrained from interfering with the possession of plaintiff and use of staircase leading to the first floor and also from the second floor. (Bhupinder Singh Vs Manpreet Singh) 2003(3) Civil Court Cases 323 (P&H) Civil Procedure Code, 1908, O.39.Rr.1, 2 -Transfer of immovable property in violation of an order of injunction or prohibition confers no right, title or interest in the transferee,

as it is no transfer at all. (Keshrimal Jivji Shah & Anr. Vs Bank of Maharashtra & Ors.) 2004(3) Civil Court Cases 375 (Bombay)

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Civil Procedure Code, 1908, O.39.Rr.1, 2 -Water and sewerage charges -Authorities seeking fixed sum of money by way of taxes from plaintiff -Refusal of injunction not causing irreparable injury to plaintiff which cannot be compensated in terms of money Held, interim injunction cannot be granted. (Som Datta Bukders Ltd. Vs Kanpur Jal Sansthan) AIR 2002 Allahabad 249 Civil Procedure Code, 1908, O.39.Rr.1, 2 & O.19.Rr.1,2 -Injunction -Power of Court to act on affidavits -Is unfettered -Not subject to O.19.Rr.1,2. (Satya Prakash Vs Ist ADJ) AIR 2002 Allahabad 198 Civil Procedure Code, 1908, O.39.Rr.1, 2 & O.43.R.1 -Appeal lies against injunction granted U.O.39.Rr.1,2 while revision lies against injunction granted u/s 151 CPC. (Satya Prakash Vs Ist ADJ) AIR 2002 Allahabad 198

2006 (2) CTC 137 (S.C) BSES Ltd (now Reliance Energy L Ltd.,) td.,) Vs. Fenner India Ltd., and another Injunction against invoking of Bank Guarantee can be granted only

under two exceptional circumstances. Viz. (a) egregious fraud; (b) special equities like irretrievable injury. injury. If no case for special equities are made out injunction cannot be granted. Foreign judgments on any law cannot be relied upon when law in India is clear, settled and without any deviation de viation whatsoever.

Order 39 Rule 1 of CPC :- Temporary injection – following requirements. 1) Existence of a prime facie case as pleaded, necessiting protection of the plaiting rights by issue of a temporary injunction. 2) When the need for protection of the plaintiffs right is

compared with or weighed against the need for protection of the defends rights or likely infringement of the defends right balance of convenience tilting is favour of the plaintiff. 3)Clear possibility of irreparable injury being caused to the plaintiff if the

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temporary injunction is not granted. In addition temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiffs conduct is free from blanch and he approaches the court with clean hands. (2006 (5) SCC 282 : AIR 1992 ALL 254) Order-39, R-1: -

Supression of fact –no injunction could be granted. (AIR 1992

Del.1997: 1997(2) L.W L.W.780) .780) Order 39, Rules 1 & 3 – Law of Injunctions – Temporary Injunction – Grant of –

discretionary – Principles explained – Three conditions viz. (a) prima facie   case of legal rights of the Plaintiff: Existence of strong probability of ultimate chance of success in Suit – (b) balance of convenience in favour of Plaintiff: Court weighs and balances mischief or inconvenience to either side – (c) whether Plaintiff would suffer irreparable injury if injunction is not granted: Substantial injury which cannot be adequately compensated by damages – Satisfaction and proof of any of three conditions by itself not sufficient – All three conditions are to be satisfied. (2007 (5) CTC 504 Archana Bansal Vs. NEPC Limited & another)

Order 39, Rule 1 :- When the prayer for interim injunction and prayer for permanent injunction re one and the same and interim injunction having the effect of granting a final relief should not be granted. (2008 (2) CTC 51) C.P.C., Order 8, Rule 4,5., Order 39, Rule 1,2/ Terminal Benefits of deceased employee, if can be attached, Constitution of India, Article 226 / Mandamus – Writ Petition was filed praying this court to issue a writ of mandamus, directing the respondent to release the terminal benefits of late husband (A) of the petitioners

herein who worked in the respondent Corporation forthwith – Plaintiff filed application under Order 38 Rule 5 C.P.C. to order conditional attachment before judgment, all the monetary death benefits arising out of the death which are lying in the hands of the 9 th

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defendant and I.A. under Order 39 Rule 1 and 2 C.P.C. to grant interim injunction restraining the 9th defendant, Food Corporation of India from disbursing the monetary benefits arising out of the death of A to the defendants 3 to 8 pending disposal of the suit, and it was allowed – CRP was filed against that – Held: effect of both the prayers in the applications is that the amounts due to the deceased employee should not be released to his legal representatives – Trial court as well as the lower Appellate court, committed an illegality in granting an order of interim injunction restraining the Food Corporation of India from releasing the terminal benefits of the deceased employee – The trial court as well as the lower Appellate Court have failed to appreciate the fact that the amounts due to the deceased employee are towards Provident fund, Leave Salary, Gratuity, etc. payable under different statutes which are all welfare legislations – When that amount is blocked, it will certainly ce rtainly cause great prejudice to the legal heirs of the employee – 2004(1) L.W. 125 will certainly apply – Civil revision petition is allowed. (2009-3-L.W. 369 Annie Anandhi, Zareena @ Gladys Vs. The District Manager,, Food Corporation of India, 623, Aziz centre, Thousand lights, Chennai.) Manager

Interim injunction – Order of Court below granting ad interim injunction – Revision – Revision petitioner ranked as first defendant in suit not impleaded as party in interim injunction petition – Petitioner should have been made as party to injunction application – Order passed by Court below is cryptic and does not contain any reasons as to prejudice caused to petitioner – Impugned order set aside. ( (2009)-5-MLJ 823 M.Krishnamoorthys Vs. V.Rajalakshmi V.Rajalakshmi and Others.)

Order 39, Rules 1 & 2 – Injunctions – Right of people to hold demonstration – Citizens alone can claim fundamental rights – Constitution guarantees right to every citizen to make grievance on any issue and right of expression or of assembly by some cannot

be curtailed unless clear case of infringement of right of another complaining about same is made out – Wrong perception of issue sought to be discussed by means of pamphlets, demonstrations in exercise of their right of freedom of expression and

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assembly can be curtailed only on grounds of public order, decency or morality – Injunction can be granted only if prima facie case is made out and on applying principles of balance of convenience and irreparable loss – Multinational Company sought temporary injunction restraining respondents from holding demonstration outside office of multinational Company and obstructing, blocking or preventing ingress and egress into Company by relying on demonstration held on particular day and with no Complaints of similar nature thereafter – Pleading did not disclose any injury caused b demonstration – Injunction Applications dismissed – Case law on various issues and articles of jurists and view of American Judiciary on Indian Judicial System noted and discussed. ((2009) 4 CTC 542 Dow Chemical International Pvt. Ltd. Vs Nithyanandam & 5 others. )

Order 39, Rule 1- In a suit for declaration of title status quo ordered by trial court – on appeal intra court bench held that when plaintiff and defendant seek their rights and if the land is a vacant site till a decision is taken in the suits, status quo may be granted – either parties not to be allowed to do any construction –OSA is disposed with direction.( 2010 (1) TLNJ 101 (Civil) Radha & Others Vs M. Shanthi)

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2010 (1) TLNJ 101 (Civil) Radha & Others Vs M. Shanthi

1) Civil Procedure Code 1908 as amended, Order 39, Rule 1- In a suit for declaration of title status quo ordered by trial court – on appeal intra court bench held that when plaintiff and defendant seek their rights and if the land is a vacant site till a decision is taken in the suits, status quo may be granted – either parties not to be allowed to do any construction –OSA is disposed with direction. 2) It is not in controversy that the plaintiff has filed a suit for declaration that the suit property belonged to her; that the same was purchased by one Rani from the power of attorney of the owner and the said Rani also sold the property to the mother of the plaintiff and the mother of the plaintiff in turn executed a settlement deed in favour of the plaintiff and thus, she derived title to the property and she is in possession of the property. 3) It is also not in controversy that the property measuring 4.2 acres belonged to two persons namely Dhandapani and Shanmgam and the entire property was plotted out and sold to different persons and O.S. No. 6486/2004 was originally filed by Dhandapani and the present plaintiff and her mother were shown as defendants and an exparte decree came to be passed and an application to set aside the exparte decree was ordered on condition of payment of costs. A perusal of the plaint in O.S. No. 6486/2004 would indicate that the declaration is sought for, the vast area of property including the property in question. Apart from that, as rightly pointed out by the learned counsel for the respondent/plaintiff recovery of possession has not been asked for. The plaintiff in the present suit has averred that the plaintiff is actually in possession of the property and sought for declaration in respect of the property. The

only question that would arise for consideration would be whether the status quo order now ordered by the learned single Judge n the interlocutory application in the suit has got to be sustained. Considering the facts and circumstances of the case, the Court is

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of the opinion that it is a fit case where status quo has got to be maintained for the reason that the property, in respect of which, the plaintiff has sought for the reason that the property, in respect of which, the plaintiff has sought for declaration and the defendants who are the appellants herein who are prosecuting the suit in O.S. 6486/2004 and the property mentioned in the said suit, are actually common property. It is also admitted, at present, the property is a vacant site. Till a decision is taken in the suit, either of the parties should not be allowed to raise any construction. Under such circumstances, the trial Judge, on considering the factual position, has taken a correct view that status quo has got to be maintained. The Court is of the opinion that the order of the learned single Judge does not require any interference. Therefore, the order passed by the learned single Judge is sustained. After the exparte decree passed in O.S. No. 6486/2004 is set aside, it could be taken on file of this Court for the purpose of joint trial of both the suits, to take a decision in the matter, on appreciation of the evidence to be let in by both the parties. Accordingly, the appeal is disposed of. No costs. Consequently Consequentl y, M.P. M.P. No. 1 of 2009 is closed. **************************************************************************************************

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CIVIL PROCEDURE – C.P.C. – ORDER XXXIX RULE 1 & 2 – Interim relief – Dispute between brothers about the rights to a property which was being developed – Respondent 1-plaintiff claiming that he was the exclusive owner of that property and that he had taken steps to develop that property – Two buildings had already been put up on that property and the third one was under construction – It was his further case that since 1999, he had not been keeping well, and therefore, he executed three Powers of Attorney from time to time in favour of his brother, appellant for performing various acts and deeds on his behalf as his Constituted Attorneys in furtherance of this project – Allegations that respondent had opened joint bank accounts with appellant for carrying the transactions relating to the property but from time to time appellant 1 surreptitiously withdrew amounts from the joint accounts – Appellants pleaded that the Powers of Attorney were executed for valid consideration and the same were coupled with interest in the concerned property – Appellants pointed out that although the property was purchased in the name of respondent 1, almost ninety percent of the amount for the purchase was contributed by appellant 1 – Two sisters of respondent 1 and appellants filed affidavits supporting appellants with respect to family settlement – Whether prayer made by respondent for restraining appellants as attorneys or agents of respondent 1 or restraining them from entering into the property could be granted – Held, No – Whether Division Bench of the High Court was justified in holding that an interim order will have to be granted – Held, No – Allowing the appeal, Held, The question which comes up for our consideration is whether the learned Single Judge exercised his discretion in such an arbitrary or perverse manner that the Appellate Court ought to have interfered with it? The Learned Single Judge has passed a detailed order explaining as to why he was constrained to grant only the limited interim relief. It was in the interest of both the parties as well as the flat purchasers. The Order passed by the learned Single Judge is also on the basis that anything beyond the

limited protection given at that stage would deny the opportunity to the Appellants to establish their case at the trial when it is not in dispute that Appellant No. 1 contributed ninety percent of the purchase money to the property and he took steps all throughout

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to develop the property. Undoubtedly, there are many inconsistencies in the stories that are put up by both the parties, and an interlocutory stage is not the one where one can reach at a definite conclusion one way or the other, particularly where the fact situation is as above and it would result into non-suiting one party. (2011 (5) SCALE 391 Purshottam Vishandas Raheja and Anr vs Shrichand Vishandas Raheja (D) Through Lrs. and Ors)

Civil Procedure Code, 1908, O.39.Rr.1, 2 & O.9.R.13 -Exparte temporary injunction Application U.O.9.R.13 to set aside exparte temporary injunction -Not maintainable For setting aside such an order, only course open is to file an appeal or to seek adjudication of matter on merits. (Mididodi Saraswathi & Anr. Vs Mandal Revenue Officer & Ors.) 2005(1) Civil Court Cases 233 (A.P.) (A.P.) Civil Procedure Code, 1908, O.39.Rr.1, 2 & S.151 -Interlocutory orders -Restoration of suit dismissed for default -Interlocutory orders passed before dismissal of suit revive when dismissal is set aside and suit is restored unless Court expressly or by implication excludes the operation of interlocutory orders passed during period between dismissal of suit and restoration. (Vareed Jacob Vs Sosamma Geevarghese & Ors.) 2004(1) Apex Court Judgments 487 (S.C.) : 2004(2) Civil Court Cases 365 (S.C.) Civil Procedure Code, 1908, O.39.Rr.1, 2 & S.151 -Temporary injunction -Can be issued at the instance of a defendant against co-defendant. (Fr.Simon Vs Fr.Skaria) 2005(1) Civil Court Cases 76 (Kerala)

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Order 39 Rule 1&2 – Order 19 Rule 1 &2,:- Suit for declaration – defendant seeking

ad-interim injunction – plaintiff seeking permission to cross-examine deponent of affidavit, filed in support of Application seeking injunction – affidavit is not included in definition of evidence – when an affidavit is filed in support of an application, either party cannot invoke order 19 Rule-2, to call upon deponent for cross-examination, as affidavit is not filed as evidence – whereas if any evidence is given by affidavit, court may at instance of either party , order attendance of deponent for cross-examination. Defendants who have sought injunction, have to prove their poss. Since defendants are not coming forward to prove their possession by entering into box and satissfy Court by marking documents, it is not open to plaintiffs to insist, that they must be cross-examined.

(Karuppannan,s.

And

another

v.

N.Chinnappan)

(Justice

R.S.Ramanathan) (2012 – 6- CTC 64) Date of Judgment: 16.10.2012) Civil procedure code 1908 as amended – Pleadings – proof explained – party who

claims possession must give all such details as issue, and the Court can reject the claim or pass a decree on admission – Principles of law explained and crystallized – even by long possession of years or decades such person would not acquire any right or interest in the said property – suit dismissed. Civil procedure code 1908 as amended Order 39, Rule 1 – Suit for injunction against the true owner – was not

maintainable – See Section 6 of Specific Relief Act 1963. Specific Relief Act, 1963,

Section 6 – Possession by Caretaker, Servant, Watchmen or Gratuitous stay – suit for injunction a caretaker’s possession can never be a possession on individual’s right and no such suit for injunction under Section 6 of the Specific Relief Act was maintainable – held that No one acquires title to the property if her or she was allowed to stay in the premises gratuitously – even by long possession of years or decades such person would not acquire any right or interest in the said property it further held

that Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession – the caretaker or servant has to give (up) possession (of the property) forthwith on demand – Apex Court also laid fresh

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guidelines that caretakers, watchman or servants do not acquire any title to a property merely because of its possession by them for several years – Court further observed that Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount – which happens because of the enormous delay in adjudication of cases in our courts? If pragmatic approach is adopted, then this problem can be minimized to a large extent. (2012 -1-TLNJ 1 (Civil) Maria Margarida Sequeria Fernandes and Ors Vs Erasmo Jack De SEqueria (Dead) Through L.Rs. )

Civil Procedure Code, 1908, O.39.Rr.1, 2 :- A person who comes to court seeking equitable relief of injunction, ought to have come with clean hands – Applicant cannot use Court as a tool to make his adversaries silent, when he actively posts questions in media. (Sri Nithyananda Swami v. S.Aarthi Rao) (Justice K.chandru) ( 2012 – 6 – CTC – 74 ) Date of Judgment: 10.10.2012. Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (54 of 2002), Section 13, 17 and 34 – Code of Civil Procedure (5 of 1908), Order 39 Rule 1 and 2 read with Section 151 – Suit for partition – Plaintiff, a minor – Order of temporary injunction against appellant/bank – Challenged – Creation of mortgage by father of minor in favour of bank – Execution of personal guarantee by parents of minor – SARFAESI proceedings by bank – Maintainability of civil suit – Scope of – Remedy of appeal before DRT available under Section 17 – No jurisdiction for Civil Court to grant order of injunction against bank – Civil Court to have jurisdiction only when action of secured creditor is fraudulent or claim absurd – No such allegation against bank – Applications filed by parents before DRT, dismissed – Order of

temporary injunction, set aside – Appeal allowed. RATIO DECIDENDI: The Civil Court has no jurisdiction to grant an order of injunction as against bank after the bank had initiated action under the provisions of the Securitisation and Reconstruction of

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Financial Assets and Enforcement of Security Interest Act, 2002 unless when the action of the bank is fraudulent or claim is absurd and the remedy of appeal lies before the Debts Recovery Tribunal under Section 17 of the aforesaid Act. ((2012) 1 MLJ 952 State Bank of India, Vadavalli Branch, Coimbatore, Now at State Bank of India, Stressed Assets Management Branch Vs Minor Krithaanyaa rep. by its mother/guardian G. Rekha)

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Order -39, rule 2-A

Civil Procedure Code, 1908, O.39.R.2-A, Contempt of Courts Act, 1971, Ss.10, 11 Temporary injunction -Violation -Contempt proceedings do not lie as there is equally efficacious alternate remedy available U.O.39.R.2-A CPC. (Surinder Singh Vs Rai Rani) 2003(1) Civil Court Cases 195 (P&H) Civil Procedure Code, 1908, O.39.R.2-A, O.43.R.1(r) -Appeal against -Maintainable Restricted meaning that appeal lies only in case where the trial Court has refused to initiate action under O.39.R.2-A -Does not flow from the provisions of O.43.R.1(r). (Rajinder Kaur Vs Sukhbir Singh) AIR 2002 P&H 12 Civil Procedure Code, 1908, O.39.R.2-A -Injunction -Violation -High Court in exercise of inherent powers can order demolition of construction in violation of injunction order and bring back status quo ante -Plea that Court should not order demolition and confine its powers only to modalities prescribe under O.39.R.20A -Not tenable. (Baishnab Pradhan Vs Guru Charan Chara n Pradhan) AIR 2003 Orissa 73 Civil Procedure Code, 1908, O.39.R.2-A -Status quo -Violation of order -Unless there is clear evidence, person cannot be punished on mere surmises. (Thresia Vs Johny) AIR 2003 Kerala 97 Civil Procedure Code, 1908, O.39.R.2-A -Temporary injunction -Breach of -It is necessary for trial Court to give notice to a party who allegedly committed breach before proceeding against him in the matter. (Jawahar Singh Vs Des Raj) AIR 2002

J&K 134

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Civil Procedure Code, 1908, O.39.R.2-A, O.7.R.11 -Proceedings U.O.39.R.2-A are quasi criminal in nature -In criminal proceedings provision O.7.R.11 CPC has no application -If an application for disobeying the order of Court is filed, Court has to examine the allegations in the application, giving full opportunity to the other party of hearing and decide it as a criminal trial. (Urban Improvement Trust, Jodhpur Vs Barkat Khan) 2003(2) Civil Court Cases 119 (Rajasthan) Civil Procedure Code, 1908, O.39.R.2-A -Injunction order against father -Sons after being impleaded as L.R's executed sale deed in violation of injunction order granted against their father -Held, injunction order passed against father is required to be respected by legal representatives who succeeded to the property and having knowledge of the injunction order against their father -L.R's since have violated the order of injunction are liable to be punished. (Mohd.Sharfuddin Vs Mohd.Jamal) 2003(3) Civil Court Cases 695 (A.P.) (A.P.) Civil Procedure Code, 1908, O.39.R.2-A -Injunction -Disobedience -Defendant restrained from causing obstruction in lifting of clinker by plaintiffs in his vehicles from cement factory -Order not referring to particular registration numbers of trucks -Out of these vehicles plaintiff not permitted to lift clinker in one vehicle of which he was not owner -Violation of injunction order -Court holding defendants guilty of disobedience of injunction order on ground that though operative part of order does not refer to particular registration numbers of trucks, the identity of these three trucks was to be found in suit laid by plaintiff -Held, for this purpose pleadings cannot be looked into Impugned order set aside. (Sushil Mittal & Anr. Vs R.D.Bhardwaj & Anr.) 2004(2) Civil Court Cases 341 (H.P.)

Civil Procedure Code, 1908, O.39.R.2-A -Injunction -Disobedience -It is only wilful disobedience of injunction order which invites punitive action depriving a person of his personal liberty and property -Expression “wilful” means a deliberate or voluntary or

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intentional Act -Unintentional disobedience is not enough to justify an action against the defaulter under O.39.R.3 CPC. (Sushil Mittal & Anr. Vs R.D.Bhardwaj & Anr.) 2004(2) Civil Court Cases 341 (H.P.) (H.P.) Civil Procedure Code, 1908, O.39.R.2-A -Injunction -Disobedience -When an order is passed by the Court, it is not open to a party to go behind the order, by looking into the pleadings together the intention of the Court or mind of the Presiding Officer, to comply with the orders of the Court, particularly when any non-compliance entail punitive consequences. (Sushil Mittal & Anr. Vs R.D.Bhardwaj & Anr.) 2004(2) Civil Court Cases 341 (H.P.) Civil Procedure Code, 1908, O.39.R.2-A -Injunction -Violation -By a person not party to the suit -A person knowing full well that an injunction order is passed against the defendant and still violates the injunction order irrespective of fact whether he is a party to the injunction or not and commits violation of the order, is required to face the consequences under Rule 2-A of O.39 CPC. (Mohd.Sharfuddin Vs Mohd.Jamal) 2003(3) Civil Court Cases 695 (A.P.) (A.P.)

Civil Procedure Code, 1908, O.39.R.2-A -Injunction -Violation/disobedience -Sale deed executed in disobedience of injunction order -Sale is a nullity -Entire property directed to be attached. (Smt.Savitri Devi Vs Civil Judge (Senior Division), Gorakhpur & Ors.) 2004(2) Civil Court Cases 90 (Allahabad) Civil Procedure Code, 1908, O.39.R.2-A -Proceedings U.O.39.R.2-A CPC are quasi criminal in nature. (Avtar Singh Vs Balkar Singh) 2003(1) Criminal Court Cases 135 (P&H)

Civil Procedure Code, 1908, O.39.R.2-A -Punishment for violation of injunction order When once the order is violated it is open for the Court either to commit the contemnor

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for civil prison or to attach the property or to order both -Conditional attachment of property and deposit of Rs.20,000/-in unwarranted as it runs counter to statutory provisions -Conditional order of attachment of property subject to deposit a sum of Rs.20,000/-and permitting the respondents to withdraw the same is not sustainable. (Mohd.Sharfuddin Vs Mohd.Jamal) 2003(3) Civil Court Cases 695 (A.P.) (A.P.) Civil Procedure Code, 1908, 190 8, O.39.R.2-A -Undert -Undertaking aking -Breach -When Court acts on an undertaking given by a party, in substance it amounts to an injunction restraining him from acting in breach thereof -Act done in breach thereof is punishable U.O.39.R.2-A CPC. (Thiruvalkani K.Nagaraj (in CMP) State of A.P.) Vs Thiruvalkani Sarojamma) 2003(1) Civil Court Cases 281 (A.P.) (A.P.) Civil Procedure Code, 1908, O.39.R.2-A -Violation of injunction order by L.R. Separate injunction order against L.R's is not required and L.R's are bound by the injunction order issued against their father and are liable to be punished for violation. (Mohd.Sharfuddin Vs Mohd.Jamal) 2003(3) Civil Court Cases 695 (A.P.) (A.P.) Civil Procedure Code, 1908, O.39.R.2-A -Violation/disobedience of injunction order Proceedings are analogous to the Contempt of Court proceedings but they are taken under the provisions of O.39.R.2A CPC - Special provision in the Code prevails over the general law of contempt contained in Contempt of Courts Act. (Smt.Savitri Devi Vs Civil Judge (Senior Division), Gorakhpur & Ors.) 2004(2) Civil Court Cases 90 (Allahabad) Civil Procedure Code, 1908, O.39.R.2-A -Violation/disobedience of injunction order Proceedings under O.39.R.2A are quasi criminal in nature which are meant to maintain

the dignity of the Court in the eyes of the people so that the supremacy of law may prevail and to deter the people for mustering the courage to disobey the interim injunction passed by the Court. (Smt.Savitri Devi Vs Civil Judge (Senior Division),

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Gorakhpur & Ors.) 2004(2) Civil Court Cases 90 (Allahabad) Civil Procedure Code, 1908, O.39.R.2-A -Violation/disobedience- Contempt petition – apology is not sufficient – Exemplary cost to be imposed. ( 2009 – 4 – MLJ – 292) (

SC) ( C.Elumalai vs. AGL AGL Irudayaraj) ( DR.Arijit Pasayat,J)

************************************************************************************************** (2012) 4 Supreme Court Cases 307 Kanwar Singh Saini Vs High Court Delhi A. Civil Suit – Enforcement of interim or final orders/decee of court including

undertaking given to court – Role of execution vis-Ã -vis contempt proceedingspr oceedingsProper and advisable first mode for enforcement of orders, held, is to file an application under Or. 39 R. 2-A CPC for enforcement of interim orders/undertaking to court when suit is pending, or to file application for execution in case suit has been decreed based on undertaking or otherwise – When matter relates to infringement of a decree or decretal order embodying rights as between parties, contempt jurisdiction cannot be invoked merely because other remedies may take time or are more circumlocutory in nature - Violation of permanent injunction or willful breach of any undertaking given to court on basis of which suit itself was disposed of, can be set right in execution proceedings by attachment of defaulter’s property or by detention in civil prison, and not by contempt proceedings – Contempt jurisdiction is attracted when disobedience of court order or undertaking to court is willful and contumacious – Civil Procedure Code, 1908 – Or. 39 R. 2-A and Or. 21 R. 32 and Or. 21 – Contempt of Courts Act, 1971 – S. 2(b) – Specific Relief Act, 1963, Ss. 36 to 42.

B. Civil Procedure Code, 1908 – Or. 39 R. 2-A and 1 & 2 and Or. 21 R. 32, Or. 21 and

S. 47 – Application under Or. 39 R. 2-A – Maintainability of – Held, said application is

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maintainable only during pendency of suit where interim order passed by court or undertaking given by a party is violated – In instant case, no interim order was ever passed and undertaking given by appellant-defendant not to dispossess plaintiff from suit premises had culminated into final decree – If any further action was required it could be taken only in execution proceedings under Or. 21 R.32 – High Court erred in entertaining application under Or. 39 R. 2-A against appellant – Specific Relief Act, 1963, Ss. 36 to 42. C. Practice and Procedure – Interim order – Held, interim order always merges in final

order after decree is passed and where case is dismissed, interim order stands automatically nullified – Civil Ci vil Procedure Code, 1908, Or. 39 Rr. 1,2 and 2-A. D. Civil Procedure Code, 1908 – Or. 21 R. 32 – Injunctions enforceable under – Held,

Or. 21 R. 32 applies to prohibitory as well as mandatory injunctions – Execution of an injunction decree is to be made in terms of said provision since CPC provides particular manner and mode of execution – No other mode, hence, permissible – Specific Relief Act, 1963, Ss. 36 to 42.

E. Courts, Tribunals and Judiciary – Jurisdiction – Order/Decrees passed by court

having no jurisdiction – Effect – Acquiescence – Relevance – Held, conferment of

jurisdiction is a legislative function and can ca n neither be conferred with consent of parties nor by superior court – Order/decree passed by court having no jurisdiction over the matter is a nullity as it goes to root of the cause – Acquiescence of a party cannot also be permitted to defeat legislative animation – Court cannot derive jurisdiction apart from statute.

F. Statute Law – Statutory Scheme involving Adjudicatory Process – Enforcement of

rights and obligations under Statute – Held, when a statute gives rights and provides forum for adjudication of rights, remedy has to be sought only under the provisions of

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that Act in the specified manner – Thus, for enforcement of a right/obligation under a statute, the only remedy available is to get g et adjudication of rights under the ssaid aid Act. G. Civil Procedure Code, 1908 – S. 47 and Or. 21 R. 32 – Powers of executing court –

Scope – Held, executing court cannot go behind decree – In absence of any challenge to decree, no objection can be raised in execution – Practice and Procedure – Execution. H. Civil Procedure Code, 1908 – Or. 21 R. 32 and Or. 39 R. 2-A – Disobedience of

decree passed on basis of admission/undertaking given to court – Appropriate remedy – Held, is to file an application for execution e xecution under Or O r. 21 R. 3322 and not under u nder Or. Or. 39 R. 2-A – Procedure in execution of an injunction decree is same as prescribed under Or.. 39 R. 2-A i.e. attachment of property and detention in civil prison. Or I. Contempt of Courts Act, 1971 – Ss. 2(b) and (c) – Civil or criminal contempt –

Determination of – Violation/breach of undertaking given to court on basis of which decree was passed – Held, constitutes civil contempt since it is for sole benefit of other party to the suit and court must satisfy itself that such violation was willful and intentional – In such situation administration of justice could be undermined if order of competent court is permitted to be disregarded with impunity, but it does not involve sufficient public interest for it to be treated as criminal contempt – Where contemnor satisfies court that disobedience was under compelling judgment or decree punishment can be awarded – For violation of a judgment or decree provisions of criminal contempt are not attracted. J. Civil Procedure Code, 1908 – S. 47, Or. 21 and Or. 21 R. 32 – Execution – Nature

of disobedience/noncompliance by judgment-debtor – Relevance of – Held, in execution proceedings, court may not be bothered with whether disobedience is willful or not and court is bound to execute decree irrespective of consequences – Civil Suit

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– Execution. K. Contempt of court – Criminal Contempt – Initiation of criminal contempt

proceedings up to punishment therefor – If properly conducted/contempt power properly exercised – False affidavit (taking inconsistent pleas in reply filed to application under Or. 39 R. 2-A CPC) – High Court convicting appellant for criminal contempt and sending him to jail but not granting any relief so far as enforcement of decree was concerned – Propriety – Held, purposes of initiation of contempt proceedings are twofold: to ensure compliance with order passed by court; and to punish contemnor as he has the audacity to challenge majesty of law – High Court erred in not taking any steps for enforcing decree and sending appellant to jail, which was a glaring example of no-application of mind and non-observance of procedure prescribed by law – Civil Procedure Code, 1908 – Or. 21 R.32 and Or. 39 R. 2-A – Contempt ofCourts Act, 1971, Ss. 10, 11, 12 and 2(c). L. Contempt of Court – Contempt proceedings – Nature of – Standard of proof –

Benefit of doubt – Held,contempt proceedings being quasi-criminal in nature, standard of proof required is the same as in othercriminal cases – Alleged contemnor is entitled to protection of all safeguards/rights provided in criminaljurisprudence, including benefit of doubt – There must be clear-cut case of obstruction ofadministration of justice by a party intentionally to bring the matter within the ambit of contempt – Case should not rest only on surmises and conjectures. M. Maxims – Sublato fundamento cadit opus – Applicability – On facts held, since

application under Or. 39 R. 2-A CPC itself was not maintainable all subsequent proceedings remained inconsequential – Thus, foundation being removed, entire

structure collapsed.

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N. Civil Procedure Code, 1908 – Or. 10 R.1, Or.14 R. 1(5) and Or.15 R.1 – “First

hearing of the suit” – When contemplated – Held, it comes after framing of issues whereafter suit is posted for trial – Said hearing can never be earlier than date fixed for preliminary examination of parties and settlement of issues – “Hearing” presupposes existence of an occasion which enables parties to be heard in respect of the cause – “First day of hearing” does not mean day for return of summons or the returnable date, but day on which court applies its mind to the case – Words and Phrases – “First hearing of the suit”.

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Order – 39, Rule - 3 Civil Procedure Code, 1908, O.39.R.3 -Ex parte ad interim injunction -Recording of reasons is mandatory. (The Bengal Club Ltd. Vs Susanta Umar Chowdhary) AIR 2003 Calcutta 96 Civil Procedure Code, 1908, O.39.R.3 -Ad interim injunction -Exparte grant of injunction -Order passed taking into consideration plaint and other material on record Order cannot be said to be without jurisdiction. (Akbar Sekh & Ors. Vs M/s Mousumi Factory Agency & Ors.) 2005(1) Civil Court Cases 814 (Delhi) Civil Procedure Code, 1908, O.39.R.3, O.5.R.12 & O.27.R.4 -Notice -Suit against Govt. officials -Treating of refusal to receive notice by Asst. Government Pleader appointed for the Court who is Agent of Government as constituting service -Proper. (Mididodi Saraswathi & Anr. Vs Mandal Revenue Officer & Ors.) 2005(1) Civil Court Cases 233 (A.P.) C.P.C., Order 39, Rule 1 / Injunction suit, Interim order, Practice and Procedure, Constitution of India, Article 227/Revisional jurisdiction of High Court, Scope, Alternative remedy – CRP under Article 227 was filed against order granting ad interim Injunction in suit for a permanent injunction restraining the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of the portions of the suit property, contending that a cryptic order has been passed granting ad-interim injunction without giving reasons and therefore, the mandatory provision of Order 39 Rule 3 has been violated and is liable to be set aside – It was contended that, under

Order 39 Rule 1 & 2 C.P.C., if an application is filed for an interim injunction, pending disposal of the suit, the normal practice is to order notice to the other side, and if the court decides to grant an exparte order of interim injunction, then, the Court shall

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record the reasons under Rule 3 Order 39 C.P.C., and therefore, the Order could be challenged straightway under Article 227 – Held: From the provisions of Order Order 39, Rule 3, it is very clear that if the trial court has decided to grant an ex-parte Order of injunction, it shall record the reasons for doing so and Rule 3 of Order 39 C.P.C. is a mandatory provision and that should be strictly complied complied with by all the courts. When the trial Court decides to grant an ex-parte order of injunction under Order 39 Rules 1 and 2 C.P.C., the trial Court should mandatorily follow Rule 3 of the code, and if the subordinate Courts do not adhere to this mandatory rule and pass ex-parte orders of injunction by exceeding their limits and jurisdiction, the trial courts need to be restrained by this Court under Article 227, to see that the trial court is complying with the mandatory rules of the Procedure code – Order of the trial court is illegal and accordingly, the same is set aside.(2009-3-L.W 2009-3-L.W.. 163 Irin Stephan & 3 Others (All are residing at Old No.2, New No.3, Kummalamman Koil Street, Kilpauk, Chennai Vs. Musafargani, 23/5, Purasawalkam Road, Chennai – 600 007. Irin Irin Stephan & 3

others …… Petitioners (All are residing at Old No.2, New No.3, Kummalamman Koil Street, Kilpauk, Chennai – 600 010. Vs. J.Musafargani 23/5, Purasawalkam Road, Chennai – 600 007 This Civil Revision Petition is filed under Article 227 of Constitution of India against the Order dated 25.02.2008 made in I.A. No.3252 of 2008 in O.S.No.1244 of 2008 on the file of the IV Assistant Judge, City Civil Court, Chennai.) (2011) 4 MLJ 42 V. Uma vs V. Balaji Code of Civil Procedure (5 of 1908), Order 39 Rule 2A – Temporary injunctions and interlocutory orders – Consequence of disobedience or breach of injunction – Remedy in Code of Civil Procedure in event of disobedience of order of injunction granted by Civil Court – Whenever disobedience to injunction order brought to notice of Court, Trial Court should make attempt to take up applications not withstanding pendency of suit – In view of alternative remedy

available to petitioner under Order 39 Rule 2A C.P.C., not permissible for petitioner to invoke jurisdiction under Contempt of Courts Act ( 70 of 1971). RATIO DECIDENDI: Whenever disobedience to the injunction order is brought to the notice of the Court

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and such applications are filed, the trial Court should take up those applications not withstanding the pendency of o f the suit. ((201 ((2 011) 1) 4 MLJ 42 V. Uma vs V. Balaji ) 2011 (2) CTC 861 V. Uma vs V. Balaji Contempt of courts Act, 1971 (70 of 1971) – Code of civil procedure, 1908, (5 of 1908), order 39, Rule 2-A – Contempt Petition – Maintainability of – Contention that Respondent had put up a compound wall in violation of order of injunction – Rule 2-A of Order 39 takes care of situations in case a party against whom order of injunction was issued, violated said order – It provides for attachment and sale of property belonging to contemner – Order 39, Rule 2-A is intended for enforcing order or decree of injunction – It is an adequate remedy – Provision also enables contemner to produce materials to show that he had not committed any act of contempt as alleged – Contempt is essentially a matter between Court and contemner – Trial Court should make an attempt to take up such violation Applications, before disposal of Suit - Main objection of Rule 2-A is to uphold majesty of judicial orders, as otherwise it would erode faith of litigants appealable – Since alternative remedy is available to Petitioner, it is not appropriate to permit Petitioner to invoke jurisdiction under Contempt of Courts Act – Opportunity given to Petitioner to approach Trial Court – Objection raised by Registry sustained – Contempt Petition dismissed. Facts : Petitioner sought to initiate Contempt proceedings against the Respondent for violating the order of injunction passed by the Trial Court. High Court held that there is an adequate remedy for the Petitioner under Order 39, Rule 2-A of the Code of Civil Procedure, for violation of decree for injunction and the Code of Civil Procedure contains an inbuilt provision to safeguard the interest of the parties. The Contempt jurisdiction was distinguished as one essentially between the Court and the contemner and in view of the alternative remedy available to the Petitioner, the High Court held that the Petitioner cannot invoke jurisdiction under the Contempt of Courts

Act. By giving liberty to the Petitioner to approach the Trial Court with an appropriate Application, the objection raised by the registry was sustained and Contempt Petition was dismissed. Held : The Civil Procedure Code contains provisions grant of decrees

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199

and orders as also its enforcement. Order 39, Rule 1 provides for granting temporary injunctions and interlocutory orders. Order 39, 2-A of the Civil Procedure Code indicates the consequences of disobedience or breach of order of injunction. The provision reads thus: (1) In the case of disobedience of any injunction granted or other order made under Rule 1 of Rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Suit or proceeding is transferred, may order the property of the person guilty of disobedience or breach to be attached, and may also order such person to be detained in the Civil prison for a term not exceeding three months, unless in the meantime the court directs his release. (2) No attachment made under this Rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, the party entitled thereto. (2011 (2) CTC 861 V. Uma vs V. Balaji) Lower

court

has

gone

through

documents

and

allegations

of

financial

mismanagement, mal-administration and corrupt practice against defendants were made out. Order 39 rule-3 only contemplates reasons to be recorded for grant of injunction. Lower Court applied its mind, found prima facie case and grnated interim injunction, same cannot be challenged in revision. ( G.Devakadasham v. Daniel Diwakar) ( R.S.Ramanathan,j) (2013 – 6 – MLJ – 123) 15.4.2013.

Civil Procedure Code, 1908 – Or.39 Rr. 1, 2, 3 & 3-A, Or. 20 R. 12 and S. 144 – Ad

interim ex parte injunction – Principles for grant of – Should be granted only in exceptional cases – Ordinarily, court should pass appropriate order only after issuing

short notice to defendant and hearing both parties – While granting ex parte injunction, court should record undertaking from applicant that he would pay full restitution, mesne profit at market rate and actual costs in the event of dismissal of the application

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and suit – If anyone obtains ex parte injunction on false pleadings and forged documents, he should be prosecuted for perjury and adequately punished – If ex parte injunction is granted, court should dispose of injunction application at the earliest preferably a soon as defendant appears in court – Ad interim ex parte injunction should be granted only for a short period i.e. one week or so – Penal Code, 1860 – Ss. 191 to 193 and 196 to 200 – Practice and Procedure – Interim orders. ((2011) 8 Supreme Court Cases 249 Ramrameshwari Devi and Ors Vs Nirmala Devi and Ors) Civil Procedure Code, 1908, O.39.R.3-A -Injunction -Implementation -Application not disposed of within 30 days after passing order of ad interim injunction -Court not recorded its inability to dispose of same within stipulated time -Thus injunction neither confirmed nor extended for further period -Therefore it cannot be said to be non est in the eye of law -But by efflux of time it has become inoperative -Held, dismissal of application of police aid is proper as order of injunction was not in existence. (Kudithi Vs Gantla) AIR 2002 A.P. 418 Civil Procedure Code, 1908, O.39.R.3-A, O.43.R.1(r) and Ss.104, 115 -Violation of mandate of O.39.R.3-A -Appeal lies against such order -When remedy of appeal is available, revision petition is not maintainable. (Dr.Rajaratan Basavanneppa Ghanti Vs Chandrasekhar) 2003(3) Civil Court Cases 253 (Karnataka)

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Injun“tion 1. Suit for bare injun“tion not maintainable 1. 1997 – 1 – CTC 407 2. 1992 – 1 – L.W – 207 3. 1998 – 3 – L.W. – 119 4. 1999 – 3 –L.W – 621. 2. When a person ”oes not have any “on“lusive right to seek for enfor“ement against ”efen”ant he “annot be “onsi”ere” entitle” to a” interim injun“tion. 1997 3 CCC 90 SC. The Agri“ulture Pro”u“e Market Committee, Gon”al Vs. Sri.Gir”harbai Sri.Gir”harbai Ramjibhai Chinnayana. 3. O:39 R: 1 & 2 . Granting injun“tion is a matter of ”is“retionary power – Balan“e of “onvenien“e an” irreme”iable injury are triable issues. Require” to be examine” an” foun” positively. Balan“e of “onvenien“e ”oes not lie in issuing a”-interim injun“tion – appellant su““ee”s in suit for prohibiting running of business. 1997 2 CCC 250 (SC) Dinesh Mathur Vs. O.P.Arora. 4. O;39 R:1 – inherent powers – power to grant interim injun“tion – power “annot be invoke” to nullify provision of S.41 (b) of Spe“ifi“ Relief A“t. AIR 1983 – SC – 1272. 5. I.I – Dispute about title of lan” – plaintiff an” ”efen”ant foun” to be in possession of about half portion of ”ispute” lan” – Hel” Injun“tion restraining ”efen”ant from putting up “onstru“tion “onstru“tion on entire lan” woul” be justifie” – situation might be“ome irreversible by the time ”ispute is ”e“i”e” if injun“tion is not grante”. AIR 1983 SC 742, 1983 – 4 – SCC -31. 6. Matter tou“hing ”is“ipline or a”ministration of internal affair of university – “ourt shoul” refuse to grant an Injun“tion unless a fairly goo” prima fa“ie “ase is ma”e out for interferen“e with the internal affairs of E”u“ational Institutions. Varanasaya Sanskrit Vishwavi”yalaya Vs. Rajkishore Triathi. AIR – 1977 SC 615. 7. Suit for ”e“laration an” permanent injun“tion against ”efen”ant no.1 – refusing to have interfere” with the possession of plaintiff, in written statement – “ommissioner report also saying that the D1 not interfere” – suit is to be ”ismisse”. 2001 – SAR – 370.

8. Dissolution of Firm – Tra”e Mark forming part of assets – right to ex“lusive use of tra”e mark – injun“tion restraining use by one of partners. Se“.43 Partnership Partnership A“t. AIR 1973 SC 2572. 9. Grant of Injun“tion where fun”amental right affe“te” – test of imminent ”anger applie” – “onstitution of In”ia Art.19 (1) (a) an” 21. Relian“e

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petro“hemi“als limite” Vs. Proprietors of In”ian Express News Paper Bombay petro“hemi“als Lt”. 1988 – 4 – SCC – 592. AIR 1989 SC 190. 10.Cir“umstan“es to be “onsi”ere” by “ourt while granting interim injun“tion – where refusal to grant of injun“tion may pre“lu”e fair an” just ”e“ision while grant of injun“tion will not “ause any in“onvenien“e to the other party. Hel”. Injun“tion shoul” be grante” in the interest of justi“e. AIR 1983 SC 742. 11.Prin“iples of governing grant of perpetual an” temporary injun“tion – plaintiff has to prove that there is obligation existing in favour of plaintiff an” that he has subsisting legal right to enfor“e. Plaintiff has to proof right in his favour an” brea“h of same by ”efen”ant. 1999 – III – CTC 247. 12.O; 39 R1. I.I is meant to prote“t the the rights asserte” asserte” in the suit suit an” not the events arising subsequent to the institution of the suit – AIR 1973 “al 48. 13.O; 39 R-1 The wor” imminent means that the reme”y sought for by the plaintiff shoul” not be premature AIR 1976 karn 53. 14.O: 39 R-1 A se“on” appli“ation for grant of a temporary Injun“tion is not barre” it “an be “onsi”ere” only if new fa“ts an” “ir“umstan“es have subsequently emerge”. AIR 1988 Raj 61; AIR 1974 ker 154; fresh “ause of a“tion – fresh suit an” fresh appli“ation for Injun“tion maintainable 15.Meaning of an” interim an” temporary injun“tion AIR 1988 “al 95. 16.The wor” any property is wi”e enough to in“lu”e pa””y lan”s an” a temporary injun“tion injun“tion in respe“t thereof “an be grante”. AIR 1982 ma” 197. 17.No I.I against Institutions)

18.

au“tion

pur“hasers

AIR

1975

SC

615

Prima fa“ie fa“ie “ase – meaning of. AIR 1981 SC 1426. 1967 – 1 – MCJ – 353.

(E”u“ational

80 ma” LW 279,

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Civil Procedure Code, 1908, O.39.R.4 O.3 9.R.4 Civil Procedure Code, 1908, O.39.R.4, O.41.R.33 -Exparte ad interim injunction Appeal against -Appellant can point out before appellate Court that plaintiff before trial Court suppressed facts. (The Bengal Club Ltd. Vs Susanta Kumar Chowdhary) AIR 2003 Calcutta 96 Civil

Procedure

Code,

1908,

O.39.R.4

-Temporary

injunction

Variation/discharge/vacation -Court may consider subsequent events. (Dover Park Builders Pvt.Ltd. Vs Madhuri Jalan) AIR 2003 Calcutta 55 Order 39, Rule 7 (1) (a) – Power of civil court to appoint a commissioner to seize and take possession of hypothecated vehicles. Civil Court has power under sec.9 of Arbitration Act. (2013 – 6 – CTC – 654) ( L.&T Finance Ltd v. G.G.Granites) V.Ramasubramanian,J) 6.9.2013.

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Order 40

Civil Procedure Code, 1908, O.40.R.1 -Receiver -Appointment of receiver is considered as one of the harshest remedies and is allowed only in extreme cases and in circumstances where the interest of person seeking the appointment of receiver is exposed to manifest peril -Protection of properties and safeguarding the rights of the parties are the twin objectives impelling the appointment of a Receiver. (Chandana Veeranjaneyulu & Ors. Vs Chandana Panduranganayakamma) 2003(3) Civil Court Cases 688 (A.P.) Civil Procedure Code, 1908, O.40.R.1 -Receiver -Not to be appointed as a matter of course -As it is a harsh remedy, discretion must be exercised with care and caution -An order of appointment of receiver should not be made where it has the effect of depriving of a party defacto possession which it may cause irreparable loss. (Rabinarayan Mahasuar Vs Lokanath Mahasuar) 2003(1) Civil Court Cases 311 (Orissa) Civil Procedure Code, 1908, O.40.R.1 -Receiver -Partition suit -Receiver cannot be appointed in respect of properties already alienated by Karta or any of the coparceners Receiver can only be appointed with regard to properties in the possession or management of Karta of the family. (Manne Krishna Veni @ Veeraveni & Ors. Vs Rangisetti Pavan Kumar & Ors.) 2005(1) Civil Court Cases 474 (A.P ( A.P.) .) Civil Procedure Code, 1908, O.40.R.1 - Receiver - Partnership firm - L.R's of deceased partner, who died during pendency of suit, seeking appointment of receiver -L.R's are non-partners of the firm -Receiver cannot be appointed at the instance of non-partners. (Rabinarayan Mahasuar Vs Lokanath Mahasuar) 2003(1)

Civil Court Cases 31 3111 (Orissa)

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Civil Procedure Code, 1908, O.40.R.1 -Receiver -Serving judicial officer should not be appointed as receiver. (Dilip Kumar Sharma Vs Civil Judge) AIR 2004 Allahabad 86 Civil Procedure Code, 1908, O.40.R.1 -Receiver -Should not be made without ascertaining right of plaintiff to maintain action -Trial Court to first decided injunction application -Appointment of receiver straightway instead of deciding injunction application which necessarily required it to consider question of locus standi -Is not proper.. (Dilip Kumar Sharma Vs Civil Judge (Sr.Divn.) AIR 2004 Allahabad 86 proper Civil Procedure Code, 1908, O.40.R.1 -Receiver -Suit for dissolution of partnership Particulars not given as to property being in danger of being wasted, damaged, transferred or alienated -Respondent looking after business of firm for a pretty long time -No case for appointment of receiver is made out. (Prahlad Sharma Vs Khubhi Ram & Anr.) Anr.) 2004(2) Civil Court Cases 571 (Rajasthan) Civil Procedure Code, 1908, O.40.R.1 -Suit by bank for recovery of advance -Land and factory premises not offered as security to Bank -Held, there is no question of appointment of Receiver in respect of land and factory premises or tenancy rights thereof would arise. (Saraswat Co-operative Bank Ltd. Vs Chandrakant Maganlal Shah) AIR 2002 Bombay 203

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Order - 41 Civil Procedure Code, 1908, O.41 & S.151, Limitation Act, 1963, Arts. 122, 137 Appeal -Dismissal for non prosecution by persons interested in the matter -Can only be under S.151 CPC and not under any other provision of O.41 CPC Restoration of appeal dismissed u/s 151 CPC -Art.122 Limitation Act has no application -It is Art.137 Limitation Act which applies. (G.Christhudas & Anr. Vs Anbiah (Dead) & Ors.) 2003(1) Apex Court Judgments 471 (S.C.) Civil Procedure Code, 1908, O.41.R.1 -Appeal -Certified copy of impugned order Though appeal should accompany impugned order but in exceptional circumstances, appeal can be filed without that order and appellant can be allowed to place on record the same subsequently. (Mehar Singh Vs Sadhu Ram) 2003(3) Civil Court Cases 175 (P&H) Civil Procedure Code, 1908, O.41.R.1 -Cross objections -When appeal is withdrawn or dismissed, cross objections can still be heard and determined. (Hari Shankar Rastogi Vs Shri Sham Manohar & Ors.) 2005(1) Apex Court Judgments 503 (S.C.) : 2005(2) Civil Court Cases 241 (S.C.) Civil Procedure Code, 1908, O.41.R.1(3), 5(5) -Money decree -Appeal against -Stay of execution -Not sought -Appellate Court however can suo motu direct deposit of decretal amount pending appeal. (Bhogvati Sahakari Sakhar Karkhana Ltd. Vs M/s Chaugule and Sons) AIR 2003 Bombay 185 Civil Procedure Code, 1908, O.41.R.1(3) -Rule is directory and not mandatory as the rule does not state that appeal can be dismissed if amount is not deposited or security is not given. (State of Kerala Vs Kuruvilla) 2004(2) Civil Court Cases 95

(Kerala) Civil Procedure Code, 1908, O.41.Rr.1,2 -Appeal -By third party -A person whose right is affected by reason of the judgment and decree has right to file an appeal Appeal by third party is not maintainable when there is no contention that in the

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event the impugned judgment and decree is allowed to stand the same will cause personal injury to him or shall affect his interest otherwise. (Baldev Singh Vs Surinder Mohan Sharma) 2003(2) Civil Court Cases 16 (S.C.) Civil Procedure Code, 1908, O.41.R.5 & S.151 -Declaratory decree -Stay of operation of decree pending disposal of appeal -Held, appellate Court has power to grant stay of operation of decree. (Ramesh Chandra Mohapatra Vs Bishnupriya Mangaraj) 2003(1) Civil Court Cases 307 (Orissa) Civil Procedure Code, 1908, O.41.R.5 -Mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the Court below -Appellate Court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made Appellate Court while passing an order of stay may put the parties on such terms that enforcement whereof would satisfy the demand for justice of the party found successful at the end of appeal. (M/s.Atma Ram Properties (P) Ltd. Vs M/s.Federal Motors Pvt. Ltd.) 2005(1) Civil Court Cases 454 (S.C.) : 2005(1) Apex Court Judgments 426 (S.C.) In Kamla Devi vs. Takhatmal {AIR 1964 SC 859}, the Supreme Court pointed out that Order 41, Rule 5 CPC, embodies the general principle of law that an appeal shall not operate as a stay stay of proceedings under a decree decree.. To hold that Order 41, Rule 5 CPC, embodies only the general principle of law,the Supreme Court quoted with approval the opinion of the Judicial Committee in Juscurn Bold vs. Pirthi Chand Lal {(1918) LR 46 Indian Appeal 52}, to the following effect:- Under the Indian Law and Procedure, a original decree is decree is not suspended by presentation decree on on appeal is one of of an appeal nor is its operation interrupted where the decree dismissal.

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Civil Procedure Code, 1908, O.41.R.5(3) r/w O.27.R.8A -State is not required to give the security. (State of Kerala Vs Kuruvilla) 2004(2) Civil Court Cases 95 (Kerala) Order 41 Rule 6 (2) C.P.C. – Executing Court has full power to stay, on

furnishing security – But the judgment – debtors have not complied with the conditional order of deposit – Without complying with the condition of deposit of amount, judgment-debtors are not entitled to invoke Order 41 Rule 6 (2) C.P.C. – Revision allowed. ( (2007) 2 MLJ 901 T. Govindarajan Vs. T T.Soundarajan) .Soundarajan) Civil Procedure Code, 1908, O.41.R.9 (As amended) -Appeal is to be filed U.O.41.R.1 in the Court in which it is maintainable - All that Order 41 Rule 9 requires is that a copy of memorandum of appeal which has been filed in the appellate court should also be presented before the court against whose decree the appeal has been filed and endorsement thereof shall be made by the decreeing court in a book called the Register of Appeals -Merely because a memorandum of appeal is not filed under Order 41 Rule 9 will not, to our mind, make the appeal filed in the appellate court as a defective one. (Salem Advocate Bar Association Vs Union of India) 2003(1) Civil Court Cases 198 (S.C.) Civil Procedure Code, 1908, O.41.Rr.11 & S.96 -First appeal -Admission of appeal subject of deposit of specific amount is not envisaged by provision of S.96 read with O.41.R.11 CPC -Further imposition of condition that failure to deposit the amount would result in dismissal of appeal also cannot be sustained. (Management of Devi Theatre Vs Vishwanath Raju) 2004(2) Apex Court Judgments 137 (S.C.) : 2004(2) Civil Court Cases 568 (S.C.) Civil Procedure Code, 1908, O.41.R.19 -Non compliance of Court order -Appeal

dismissed Fault on part of counsel Party should not suffer for fault of counsel Appeal ordered to be readmitted. (Rajasthan State Ind. Dev. Vs M/s.Modi Thread Mills) 2003(3) Civil Court Cases 268 (Raj.)

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Civil Procedure Code, 1908, O.41.R.19, Limitation Act, 1963, S.5 -Appeal Restoration -Application for condonation of delay -Deciding of both applications simultaneously without affording opportunity of hearing to pro forma opposite parties Improper. Improper. (Jagsingh Patra Vs Debram Jhakar) AIR 2002 Orissa 191 (A) Code of Civil Procedure (5 of 1908), Order 41, Rule 19 – Restoration petition

dismissed – On ground application for condonation of delay not filed therewith – When petition presented, no objection by Registry regarding limitation – Registry numbering restoration petition – Fault of Registry, not of appellant – Progmatic approach necessary when dealing with restoration petition filed after delay – Should not be dismissed on mere technicalities.(B) Code of Civil Procedure (5 of 1908), Order 41, Rule 19 – Restoration

petition dismissed on ground counsel for

appellant reported “no instructions” - Ex-parte order – Held, counsel to inform client by registered post of his inability to appeal – Only on receipt of postal acknowledgement, counsel to report “no instructions” to Court. RATIONES DECIDENDI I. “Restoration petitions filed after delay should be dealt with a pragmatic approach. Such petitions should not be dismissed on ground of mere technicalities.”II. “It is the counsel's duty to inform his client by registered post, of his inability to appear; only on receipt of postal acknowledgement thereto can he report “no instructions” to the Court.” ((2008) 1 MLJ 122 Manickavasagam Vs. Ammayappa Pillai and Another)

Civil Procedure Code, 1908, O.41.R.22 -Cross objections -Extension of time -

Cross objections if not filed within time then period can be extended but that must be done before the hearing of cross objection. (Tarun Chandra Dey & Ors. Vs State of Tripura & Ors.) 2004(2) Civil Court Cases 305 (Gauhati)

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Civil Procedure Code, 1908, O.41.R.22 -Cross objections -Not filed within a month from the date fixed by Court for hearing of appeal -Extension of time also not sought Respondent rather participated in the hearing on cross objections Thereafter respondent filed application for condonation of delay -Held, application not maintainable as extension of time can be sought only prior to hearing of cross objections. (Tarun Chandra Dey & Ors. Vs State of Tripura & Ors.) 2004(2) Civil Court Cases 305 (Gauhati) Civil Procedure Code, 1908, O.41.R.22 -Cross objections -Not filed within time Period cannot be extended after conclusion of arguments. (Tarun Chandra Dey & Ors. Vs State of Tripura Tripura & Ors.) 2004(2) Civil Court Cases 305 (Gauhati)

Civil Procedure Code, 1908, O.41.R.22(4), Land Acquisition Act, 1894, S.54(2) Cross objections -Court can hear and determine cross objections even when original appeal in which cross objections are filed, has been dismissed. (Chandrashekar Vs The Assistant Commissioner) 2003(2) Civil Court Cases 498 (Karnataka) Civil Procedure Code, 1908, O.41.Rr.22, 33 -Appeal by defendant -Plaintiff not filing any cross appeal or cross objections -Appellate Court cannot pass a decree which is to the prejudice of the appellant-defendant and to the advantage of the respondent-plaintiff. (Banarsi & Ors. Vs Ram Phal) 2003(1) Apex Court Judgments 639 (S.C.)

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Order – 41, Rule-23 Civil Procedure Code, 1908, O.41.R.23 -Remand -Only when appellate Court arrives at finding that judgment of trial Court is erroneous and is liable to be reversed or set aside -This is a condition precedent for passing of remand order -In the instant case finding by appellate Court that partnership was not dissolved and trial Court has to decide matter on certain issues is not sufficient to sustain order of remand. (Kota Suryanarayana Sur yanarayana Vs Penumatcha) AIR 2002 A.P A.P.. 340 Civil Procedure Code, 1908, O.41.R.23 -Remand -Report of Local Commissioner regarding boundaries of disputed land found unsatisfactory -Remand of entire case for decision afresh -Not proper -Proper course is to direct appointment of another Commissioner or to call for fresh report. (Gian Chand Khatana Vs Inderjit Chohdha) AIR 2003 H.P. 49 Civil Procedure Code, 1908, O.41.R.23 -Remand of case after framing additional issues -Non application of mind as to whether issues already framed required any amendment, modification or alteration -Appellate Court required to pass such order so that trial Court may decide factual aspects avoiding second chance of remand Order of Appellate Court set aside -Appellate Court directed to look into those issues which are still alive -Appellate Court after hearing parties to decide whether the entire matter required re-trial or not. (Nandlal Vs Bhanwarlal) 2003(3) Civil Court Cases 64 (Rajasthan) Civil Procedure Code, 1908, O.41.R.23 -Remand -Power of remand cannot be exercised in cases where Appellate Court can decide the issue considering the evidence on record. (Sreenivasan Vs Thilakan) 2003(3) Civil Court Cases 296 (Kerala)

Code of Civil Procedure (5 of 1908), Order 41, Rule 3(A) – Limitation Act (36 of 1963), Section 5 – Building let out to petitioner government’s school, found damaged later – Inspection by competent au authorities thorities – Building

vacated and

handed over to respondent – Suit by respondent claiming certain amounts for repair

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of premises, arrears of rent and for loss of income for 11 months, with interest – Decreed by Trial Court directing revision petitioner to pay Rs.3,53,200/- to respondent with interest and costs – Appeal by petitioner – Petition therewith to condone 1109 days delay dismissed – In C.R.P. held, 1 st appellate Court to consider whether respondent established negligence so as to claim damages – Trial Court’s judgment of decree not apportioned arrears of rent payable and actual damage estimated on basis of evidence – Respondent not objecting to disposing of appeal on merits – To meet ends of justice, C.R.P. allowed – Since as per Supreme Court, factors peculiar to governmental functioning require adoption of pragmatic approach in justice oriented process – Revision allowed on condition petitioner pays respondent 2,000 within time specified – If said conditional order complied with, lower Court to restore appeal and dispose of same on merits. ( (2008) 7 MLJ 129 Director of School Education, Chennai Vs. Fathima Yakub) Civil Procedure Code, 1908, Order 41 Rule 22 – Effect of 1976 Amendment to

order 41 Rule 22 – Cross – objection – appeal against mere findings – maintainability of cross – objection – amendment conferes right to file crossobjections against findings – After amendment if appeal stands withdrawn or dismissed for default, if any cross- objection is filed challenging of trial court such cross objection need to be adjudicated on merits such remedy was available before amendment. ( Hardevinder Singh v. Paramjit Singh (SC) (Dipak Misra,J) ( 2013 – 1 – CTC 409) ( 7.1.2013) Civil Procedure Code, 1908, Order 41 Rule 24 – Issue regarding limitation not

framed by the lower Courts – But parties were fully aware about the fact that the matter invoked question of limitation in adducing evidence – Mere omission by the lower Courts to frame a direct issue regarding limitation will not be a ground to remit the matter – Court can produce judgment on merit, regarding question of limitation

also. ((2008) 5 MLJ 566 Singaram Vs. Leelavathi Achi)

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Civil Procedure Code 1908 as amended, Order 41 Rule 23, Rule 23A, Rule 24 –

Scope of/Suit filed for delivery of possession of B schedule property and declaration of letter providing electricity connection is honest in law/Lac reversing the dismissal of the suit and remanding the matter for appointment of commissioner for properly identifying the property was held to be unsustainable by the High Court/order of remand for re-trial can be done only in exceptional cases – CMAs allowed. ( 2012-1TLNJ 414 (Civil) Andal Vs Ajjai Alva and Ors)

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Order 41 – Rule – 27

Civil Procedure Code, 1908, O.41.R.27, S.115 -Additional evidence at appellate stage -Revision is maintainable against an order on an application U.O.41.R.27 CPC. (Sailo Ram Vs V s Kuldip Chand) AIR 2003 H.P. H.P. 148 Civil Procedure Code, 1908, O.41.R.27 -Additional evidence at appellate stage Relegation of parties to trial Court for providing fair opportunity to opposite party to meet that evidence by appellate Court, proper. (Sheo Shankar Prasad Sinha Vs St State ate of Bihar) AIR 2003 Patna 30 Civil Procedure Code, 1908, O.41.R.27 -Additional evidence at appellate stage Certified copies of public record -On comparison of these documents with those already on record it was found that the two are at variance -Variance determined either way would have a material bearing on the crucial issue arising for decision between the parties -No prejudice is likely to be caused to the other party in such a case -Production of such documents allowed. (Jayaramdas and Sons Vs Mirza Rafatullah Baig and Ors.) 2004(1) Apex Court Judgments 499 (S.C.)

Civil Procedure Code, 1908, O.41.R.27 -Additional evidence at appellate stage -If on a visual comparison of signatures on document to be produced by way of additional evidence Court finds that signatures differ with the admitted signatures then Court can decline the prayer for additional evidence. (Ram Chand Premi Vs Nawab Kaur) 2004(2) Civil Court Cases 188 (P&H) Civil Procedure Code, 1908, O.41.R.27 -Additional evidence at appellate stage -Not to be allowed unless a case for admission thereof is made out by reference to

clause (a) or (aa) of sub-rule (1) of Rule 27 or unless the Appellate Court requires such evidence to enable it to pronounce judgment or for any other substantial cause within the meaning of clause (b). (Jayaramdas and Sons Vs Mirza Rafatullah Baig and Ors.) 2004(1) Apex Court Judgments 499 (S.C.)

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Civil Procedure Code, 1908, O.41.R.27 -Additional evidence at appellate stage Parties are not entitled to produce additional evidence at appellate stage, whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the court to pronounce proper judgment. (Karnataka Board of Wakf Vs Government of India & Ors.) 2004(2) Apex Court Judgments 379 (S.C.) : 2004(3) Civil Court Cases 326 (S.C.) Civil Procedure Code, 1908, O.41.R.27 -Additional evidence at appellate stage Reason for failure to file documents shown as lack of legal knowledge and lack of proper advice -Knowledge about existence of documents being there -Lack of legal knowledge and proper advice not a ground for production of additional evidence at appellate stage -Order rejecting application, upheld. (Enugukonda Venkata Raghavacharyulu & Ors. Vs Pushpagiri Mattam Cuddapah Dist. & Anr.) 2003(3) Civil Court Cases 360 (A.P.) Civil Procedure Code, 1908, O.41.R.27 -Additional evidence in appeal -Cannot be allowed before commencement of hearing of appeal on merit -It is only in course of hearing of appeal on merit if it appears to be expedient for rendering effective decision or for any other substantial cause, the Appellate Court may require additional evidence, documentary or oral, to be produced by the parties. (Sapam Ibomcha Singh Vs Sapam Ningol Ibema Devi) 2004(2) Civil Court Cases 385 (Gauhati) Civil Procedure Code, 1908, O.41.R.27 -Appeal -Additional evidence -Failure to establish that such evidence was not within knowledge or could not, after exercise of due diligence, be produced at the time of passing of decree -Application rejected. (Shantilal Vs Mahendra Kumar & Ors.) 2003 (2) Civil Court Cases 706 (Raj.)

Civil Procedure Code, 1908, O.41.R.27 -Delay in filing application -Can never be fatal -Court is to impart justice and for delay other party can be compensated by way of costs -Held, if court requires any evidence same could be ordered under order 41 rule 27 and it should be allowed when a party makes such application.

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(Punjab Wakf Board Vs Shri Neeko) 2004(3) Civil Court Cases 52 (P&H) Code of Civil Procedure, 1908 (5 of 1908), Order 41, Rule 27 -

Receipt of

Additional Documents at Appellate Stage – Certified copy of family arrangement sought to be filed in Appeal as only photo copy had been filed during trial and person who signed such document did not examine himself as witness in trial and original though available during trial was not filed – Glaring discrepancies found in two documents – Application for additional documents rejected. ( 2008 (1) CTC 97 J. Naval Kishore Vs. D.Swarna Bhadran) Code of Civil Procedure, 1908 (5 of 1908), Order 41, Rule 27 – Additional

evidence – Practice & Procedure – Finding by Appellate Court based on a document produced at time of argument de hors  to to Rule 27 of Order 41 of CPC is not sustainable in eye of law – Appellate Court is bound to follow mandate of Rule 27 while dealing with additional documents.( (2008) 1 CTC 537 Basayya I. Mathad Vs. Rudrayya S. Mathad & Ors.) Code of Civil Procedure ( 5 of 1908), Order 41, Rule 27 (1) (aa) and (b) –

Admission of additional evidence by Appellate Court – Clause (aa) and (b) of Order 41 Rule 27 – Respective scope and applicability – Conditions precedent for application of Order 41 Rule 27 (1) (aa) – Cannot admit additional evidence to patch up the weakness in the evidence of the unsuccessful party – can be admitted if the Court requires the evidence to do justice – High Court allowing additional evidence without considering the provisions of Order 41 Rule 27 in its correct perspective – Matter remitted to Trial Court for fresh consideration in accordance with law.RA RATIO TIO DECIDENDI “Power of the Appellate Court to pass an Order under Order 41, Rule 27, Code of Civil Procedure, 1908 to admit additional evidence in limited. For exercising its jurisdiction thereunder, the Appellate

Court must arrive at a finding that one or the other conditions enumerated thereunder is satisfied. A good reason must also to be shown as to why the evidence was not produced in the trial Court.” ((2008) 1 MLJ 1253 (SC) K.R. Mohan Reddy Vs. Network INC. Rep. T.R.M.D.)

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Code of Civil Procedure (5 of 1908), Order 41 Rule 27 and Order 6 Rule 17 Amendment of pleadings - Impugned order dismissing application filed by appellant seeking leave to amend written statement - Said application dismissed on ground that such an application could not be entertained in second appeal - Appeal - High Court altogether failed to consider application filed by appellant under Order 41 Rule 27 C.P.C. - Application under Order 6 Rule 17 has not been dealt with in its correct perspective -High Court was in error in rejecting application under Order 6 Rule 17 on sole ground that such an application was not maintainable at stage of second appeal - Appeal allowed. RA RATIONES TIONES DECIDENDI I. "The question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits.” II. "Order 6 Rule 17 C.P. C. postulates amendment of pleadings at any stage of the proceedings. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. " ((2008) 8 MLJ 789 (SC) North Eastern Railway Administration, Gorakhpur Vs.Bhagwan Das (D) by Lrs.)

Code of Civil Procedure, 1908 (5 of 1908), Order 41, Rule 27 – Production of additional evidence at Appellate stage – If any Petition is filed under Order 41, Rule 27, it is incumbent on part of Appellate Court to consider as to whether document sought to be adduced has any relevance to issues involved – Additional evidence cannot be permitted to be adduced to fill up lacunae in case – Court is required to take a decision one way or other, when an Application is filed under Order 41, Rule 27. Facts: In Civil Appeals, the Supreme Court held that when an Application is

filed for reception of additional evidence of under Order 41, Rule 27 of the Code of Civil Procedure, it is the duty of the Court to deal with same on merits and that additional evidence cannot be permitted to enable the party fill up the lacunae. Held: In view of the above provision, in our opinion, when an Application for

reception of additional evidence under Order 41, Rule 27 of C.P.C. was filed by the

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parties, it was the duty of the High Court to deal with the same on merits. The above principle has been reiterated by this Court in Jatinder Singh & Anr. v. Mehar Singh & Ors. 2008 (5) CTC 374 (SC) : AIR 2009 SC 354 and Shyam Gopal Bindal and Others v. Land Acquisition Officer and another, 2010 (2) SCC 316. If any Petition is filed under Order 41, Rule 27, in an Appeal, it is incumbent on the part of the Appellate Court to consider at the time of hearing the Appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. It is trite to observe that under order 41, Rule 27, additional evidence could be adduced in on of the three situations, namely, (a) whether the Trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary in order to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature. It is equally well-settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case. (2011 (1) CTC 122 Malayalam Plantations Ltd. Vs State of Kerala & another) 2011 – 3 - TLNJ 310 (Civil) Nalini Muthu vs Muthu Civil Procedure Code 1908 as amended Order 41, Rule 27(1)(b) – When additional documents were sought to be produced as exhibits in appellate court, the court held that unless tangible explanations were made for non production of the document earlier the same cannot be admitted in appellate stage – is not a matter of right to produce any document or examine any witness before appellate authority – cannot be allowed to fill up gap in evidence tendered earlier or cure weakness of the case - CMA dismissed. Hindu Marriage Act 1955, Section 13(1)(ia) – Husband filed petition for divorce – alleged wife makes untrue allegations of extra marital relationship of husband with person working in his office – trial court opined that no evidence for

the wife to prove allegations leveled against husband and granted divorce as prayed – on appeal by wife High Court held that allegations to be proved to the satisfaction of the court – when not proved by the person who made such allegations it constitutes cruelty resulting in mental agony and loss of peace of mind to the other spouse – CMA dismissed

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Code of Civil Procedure, 1908 (5 of 1908), Order 41, Rule Rule 27 & Evidence Act, 1872 (1 of 1872), Sections 45 & 73 – Suit for recovery of money lent on Promissory Note dismissed on account of denial of signature by Defendant – In Appeal, Application filed by Plaintiff for referring document to Expert for comparison and verification of signature, allowed – Revision filed thereagainst – Held, primary duty of Court to decide as to whether disputed signature and admitted signature were signed by one and same person – Allowing of said Application would not amount to letting in of additional evidence in terms of Order 41, Rule 27 of Civil Procedure Code – Appellate Court, held, rightly exercised power under Section 45 of Act – Appellate Court directed to follow procedure prescribed in K.R. Chinnasamy v. K.R. Chinnasamy,, 201 Chinnasamy 20111 (2) MWN (Civil) 6637. 37. ( 2012 (2) CTC 410 - D. Janaki Vs S. Jayalakshmi)

Code of Civil Procedure, (5 of 1908), Order 41 Rule 27 – Indian Evidence Act (1 of 1872), Sections 73 and 45 – Expert opinion – Suit for recovery of money – Money lent on a promissory note – Genuineness of signature disputed – Held, where the trial Court has not given a positive conclusion on admitted and disputed signature inspite of exercise of power under Section 73, first appellate Court can send the documents to get expert opinion under Section 45 – Exercise of first appellate Court not amounting to letting in additional evidence in terms of Order 41 Rule 27 CPC – Order of first appellate Court, justified – Revision petition dismissed. RATIO DECIDENDI: There is no bar on the first appellate Court for sending documents to get expert opinion under Section 45 of the Indian Evidence Act, 1872 on the reason that the trial Court has by its self compared the admitted signature and the disputed signature invoking power under Section 73 of the said Act and such exercise of

power by the first appellate Court cannot be stated as letting in additional evidence in terms of Order 41 Rule 27 of the Code of Civil Procedure, 1908.( (2012) 3 MLJ 694 D. Janaki Vs S. Jayalakshmi)

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41 – Rule – 31

Civil Procedure Code, 1908, O.41.R.31 -Appellate Court if deals with all the grounds taken in the Memorandum of appeal and gives decision on those grounds with reasons, it amounts to sufficient compliance of O.41.R.31 CPC. (Mohd.Ibrahim Vs Managing Committee of Masjid-e-Khursheed Jah) 2003(3) Civil Court Cases 581 (A.P ( A.P.) .) O.41.R.31 -First appeal -Points for consideration -Non framing of -Does not vitiate appellate judgment when there is substantial compliance with provision by considering all aspects, both oral and documentary, in detail answering all the points -Does not vitiate the judgment of appellate Court. (Sughra Bee Vs Kareez Fatima Qureshi) 2004(2) Civil Court Cases 685 (A.P (A.P.) .) Civil Procedure Code, 1908, O.41.R.31 -Formulation of points for determination Literal compliance thereof not to be insisted upon if Court considers all the questions raised before it and gives reasons for its decision -Judgment is not vitiated just because Court did not formulate a point or points for determination in the appeal -Substantial compliance with the rule is sufficient. (A.Narayan Rao Vs Shanta Bai & Ors.) 2004(2) Civil Court Cases 409 (A.P.) (A.P.) Civil Procedure code of 1908 as amended order 41, Rule 31 –

It is trite

proposition of law that the 1st appellate court, which happened to be the last court of fact, to analyse both oral and document any evidence afresh and arrive at an independent conclusion – the second appellate court is only concerned with the substantial question of law – there no chance for the second appellate Court to decide the second appeal in the of the gross misconduct of the Judge of 1st appellate court in not rendering the judgment in accordance with Order 41, Rule 31

CPC. This second appeal is filed against the judgment and decree dated. 15.02.2007, passed by the learned Additional District Judge, Fast Track Court No.II, Chennai – 1 in A.S.No.158 of 2004 reversing the judgment and decree dated. 31.03.2000 passed by the learned XI Assistant Judge, City Civil Court, Chennai in O.S.No.9251 of 1987. The learned Senior Counsel for the second appellants /

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defendants 1 and 2 herein invited the attention of this Court to paragraph Nos. 16 to 23 of the impugned judgment of the first appellate Court. I am fully satisfied that from line No.8 under paragraph No.16 of the judgment onwards till the fag end of paragraph no.22, verbatim word by word the first appellate Judge copied and reproduced, lifted and adopted the written arguments submitted by the plaintiff before the first appellate Court.In respect of issue no.1, which the learned judge ought to have termed it as point no.1, relating to the maintainability of the suit, he expressed his opinion that the suit was maintainable and even there the arguments or objections advanced on the side of the D1 and D2 have not been considered.

The oral evidence and the documentary evidence adduced by both sides

have not been discussed, as it ought to have been dealt with by the last court of fact. It is trite proposition of law that the first appellate court, which happened to be the last court of fact, to analyse both oral and documentary evidence afresh and arrive at an independent conclusion. In this case, the judgment of the first appellate Court, to say the least, is far from satisfactory, as the learned District Judge has totally ignored his responsibility to analyse the oral evidence and also the documentary evidence and arrived at the conclusion. (2009 (3) TLNJ 241 (Civil) Spur Tank Road Filling Station rep by its Partner and Another. Vs. F.Jayakumar & Another.)

Code of Civil Procedure (5 of 1908), Order 41, Rule 31 – Judgments of Appellate Court – Suit for specific performance – Non-execution of sale deed – Agreement of sale disputed – Seller denies execution of power of attorney for alienation of property – Trial Court decreed suit – High Court reverses judgment and decree of trial Court – Admission of signature on photocopy of power of attorney – Specific admission on execution of power of attorney by seller – Mere admissibility of document in evidence not indicative of its probative value – Independent assessment of evidence by appellate Court mandatory – Appellate Court to

proceed and decide in-appeal in adherence to Order 41, Rule 31 – Matter remitted back to be decided by High Court afresh. Indian Evidence Act (1 of 1872), Section 65 and 66 – Secondary evidence – Secondary evidence to be authenticated by foundational evidence – Secondary evidence in regard to contents of a document inadmissible unless non production of original accounted for – Mere admissibility of

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document not amounting to its proof. RA RATIONES TIONES DECIDENDI I. Mere admissibility of a document does not indicate its probative value. II. Appellate Courts are mandatorily required to make an independent assessment of the evidence on all important aspects and consider relevant points which arise for adjudication and proceed in adherence to the requirements of Order 41, Rule 31 of the Code of Civil Procedure. ((2011) ((2011) 4 MLJ 887 (SC) H. Siddiqui (dead) by Lrs. Vs A. Ramalingam) 2011-4-L.W. 805 H. Siddiqui (dead) by Lrs. Vs A. Ramalingam (Indian) Evidence Act ( 1872), Sections 65, 66 / Secondary Evidence, when admissible – Failure to produce original document has to be accounted for – Power of Attorney, Production of xerox copy in cross examination and admitted, by witness whether sufficient proof as secondary evidence, C.P.C., Order 41, Rule 31 / Duty of Appellate Court, Guidelines set out in Rule 31, how court has to proceed and decide the case, Specific performance / Xerox copy of Agreement, Admissibility, Admissibility, Mere admission of a document in evidence (in cross examination) does not amount to its proof – Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. Trial Court could not proceed in such an unwarranted manner for the reason that the respondent had merely admitted his signature on the photocopy of the power of attorney and did not admit the contents thereof. More so, the court should have borne in mind that admissibility of a document or contents thereof may not necessary lead to drawing any inference unless the contents thereof have some probative value. High Court failed to realise that it was deciding the First Appeal an that it had to be decided strictly in adherence with the provisions contained in Order 41, Rule 31 and once the issue of alleged power of attorney was also raised as is evident from the point (a) formulated by the High Court, the Court should not have proceeded to point (b) without dealing with the relevant issues involved in the case,

particularly, as to whether the power of attorney had been executed by the respondent in favour of his brother enabling him to alienate his share in the property. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the

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first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Courts below have not proceeded to adjudicate upon the case strictly in accordance with law – However, the judgment impugned cannot be sustained in the eyes of law. We remit the matter to the High Court setting aside its judgment and decree (impugned) and request the High Court to decide the same afresh in accordance with law, as explained hereinabove. (2011-4-L.W. (201 1-4-L.W. 805 H. Siddiqui (dead) by Lrs. Vs A. Ramalingam) Code of Civil Procedure (5 of 1908), Order 41 Rule 31 – Negotiable Instruments Act (26 of 1881), Section 118 – Suit for recovery of money – Suit

decreed by Courts below – Second Appeal – Held, Exhibit A-1/suit promissory note is supported by consideration and 1st defendant has executed Exhibit A1/promissory note – No misreading or misappreciation of evidence by Courts below in regard to presumption to be drawn as per Section 118 of Negotiable Instruments Act – Plaintiff has not established that suit loan taken by 1st defendant as joint family loan – 2nd defendant not liable to pay suit amount – Judgment and decree of lower Appellate Court not liable to be set aside for non-compliance with Order 41 Rule 31 CPC – Second appeal partly allowed. RATIO DECIDENDI: Even in the absence of necessary points for determination being framed or formulated by the First Appellate Court, the High Court in second appeal is empowered to look into the entire gamut of pleadings, oral and documentary evidence available on record and to arrive at an independent conclusion. ((2012) 3 MLJ 1228 Thangaraju Padaiyatchi and Anr Vs Sundararajan and Ors)

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Order 41 – Rule – 33

Civil Procedure Code, 1908, O.41.R.33 -Interest -Refusal by trial Court -Granted by first appellate Court in absence of an appeal or cross objections - Held, refusal of interest itself constitutes an independent and separable portion of decree, which requires to be appealed against and without which no relief could have been granted by lower appellate Court - In absence of an appeal or cross objections it cannot be said that plaintiff shall be entitled to relief of interest. (Appasani Veera Venkata Satyanarayana Murthy & Anr. Vs Chekka Veera Raja Rao & Ors.) 2005(1) Civil Court Cases 530 (A.P.) Civil Procedure Code, 1908, O.41.R.33 -Relief in respect of which no appeal is filed Can be granted if such relief has a direct and inseparable link with the other relief so that without which the latter relief could not have been granted. (Appasani Veera Venkata Satyanarayana Murthy & Anr. Vs Chekka Veera Raja Rao & Ors.) 2005(1) Civil Court Cases 530 (A.P.) Civil Procedure Code, 1908, O.41.Rr.33, 22 - Decree of specific performance Appeal against -Relief of possession in decree not granted -High Court in appeal however granted relief of possession without there being a cross objection filed by the plaintiff Relief of possession as granted by High Court set aside. (Shankar Popat Gaidhani Vs Hiraman Umaji More (Dead) by Lrs. & Ors.) 2003(1) Apex Court Judgments 633 (S.C.)

Civil Procedure Code, 1908, O.41.R.33 -Appellate Court -Powers of -Adoption Parties abandoning issue of validity of adoption and accepting it as admitted fact

before trial Court -It is not open for appellate Court to invalidate said adoption by relying on absence of proof of custom to the contrary. (Sorawar Singh Vs Kan Mal) AIR 2003 Rajasthan 107

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Civil Procedure Code, 1908, O.41.R.33 -Subsequent events -Party must seek amendment of pleadings. (Om Prakash Gupta Vs Ranbir B.Goyal) AIR 2002 S.C. 665 Civil Procedure Code 1908 as amended, Order 41, Rule 33 – Suit for injunction dismissed by trial court as plaintiff not having prima facie title to suit property – the appellate court felt that plaintiff’s possession is sufficient to get decree of permanent injunction and decreed the suit – on second appeal by defendants in the High Court, it was held that when defendants disputed title of the plaintiff in respect of the suit properties he ought to have amended the plaint – sought declaration besides relief of injunction – view of the appellate court; that title to suit property need not be investigated in a suit for bare injunction in particular when averment tracing the title is not made, is held as incorrect – second Appeal allowed with direction. (2011 – 3 TLNJ 294 (Civil) Murugaiyan @ Subramanian and Ors vs Dhanasekaran) Civil Procedure Code, 1908, O.43.R.1, Ss.96, 104 -Suit for declaration and permanent injunction -Trial Court holding that suit in the present form not maintainable and that it has no jurisdiction to entertain the suit -Decree dismissing the suit drawn -Appeal lies u/s 96 -Section 104 & O.43.R.1 CPC not attracted. (Kishan Singh Vs M/s East India Cotton Manfg. Co.) AIR 2004 P&H 153 Civil Procedure Code, 1908, O.43.R.1 -Remand -Finding on issue which was not framed -Issue also not framed which arises in the case -Case remanded. (Manubhai Khandubhai Naik Vs Sumantrai Ranchhodji Naik) AIR 2004 Gujarat 73 Civil Procedure Code, 1908, O.43.R.1(u) -Remand -Appeal against -Appellant under an appeal U.O.43.R.1(u) is not entitled to agitate questions of facts -High Court can and should confine itself to such facts, conclusions and decisions which

have a bearing on the order of remand and cannot convass all the findings of facts arrived at by the Lower Appellate Court. (Narayanan Vs Kumaran & Ors.) 2004(1) Apex Court Judgments 366 (S.C.) : 2004(2) Civil Court Cases 315 (S.C.)

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Order - 47

Civil Procedure Code, 1908, O.47.R.1, O.9.R.13 -Exparte decree set aside against only that defendant who made the application -If aggrieved he can challenge the same in superior Court in appropriate proceedings -No mistake or error apparent on the face of record to correct it in a review application -No ground to interfere with dismissal of review petition -Revision petition dismissed. (Palakurthy Vs Noroju Manorama) 2003(2) Civil Court Cases 480 (A.P.) (A.P.) Civil Procedure Code, 1908, O.47.R.1 -Review -Application can be filed only by a party to the lis -Review application is not maintainable at the instance of a third party. (Bangalore Development Authority Vs P.Anjanappa) 2003(3) Civil Court Cases 23 (Karnataka) Civil Procedure Code, 1908, O.47.R.1 -Review -Insufficiently stamped and unregistered partition deed admitted in evidence for collateral purpose by Court without deciding he objection raised by other side -It is a mistake on the part of Court which is apparent on the face of record -Application for review is maintainable. (Bolleddula Lakshmi Devi Vs Bolleddula Papanna & Ors.) 2004(2) Civil Court Cases 253 (A.P.) Civil Procedure Code, 1908, O.47.R.1 -Review -Petition is not maintainable on a issue not agitated at the time of passing the impugned order. (Virendra Singh Kothari Vs State of Rajasthan) 2003(3) Civil Court Cases 208 (Rajasthan) Civil Procedure Code, 1908, O.47.R.1 -Review -Power can be exercised when there is error apparent on the face of record -An error which is not self evident and has to be detected by a process of reasoning cannot be said to be an error

apparent on the face of record justifying Court to exercise its power of review -If there is a clear distinction between an erroneous decision and an error apparent on face of record the first can be corrected by higher forum while the latter can only be corrected by exercise of review jurisdiction. (Delta Foundations & Constrictions Vs Kerala State Constructions Corporation Ltd.) 2003(2) Civil Court Cases 297

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(Kerala) Civil Procedure Code, 1908, O.47.R.1 -Review -Scope of review is limited -Mere fact that another view is possible having regard to the material on record is not a ground for review -Error apparent on the face of record can only be corrected in review Matter cannot be reargued on merits and another order cannot be substituted in place of the order passed after hearing the parties. (Smt.Chinnamma & Ors. Vs R.Venkataswamy & Ors.) 2004(2) Civil Court Cases 376 (Karnataka) Civil Procedure Code, 1908, O.47.R.1 -Review -Scope of review is very limited and under the garb of review a party cannot be permitted to reopen the entire case. (Virendra Singh Kothari Vs State of Rajasthan) 2003(3) Civil Court Cases 208 (Rajasthan) Civil Procedure Code, 1908, O.47.R.1 -Review -Successive applications -Not barred if same are otherwise maintainable in law. (Jaya Chandra Mohapatra Vs Land Acquisition Officer, Rayagada) 2005(1) Civil Court Cases 508 (S.C.) : 2005(1) Apex Court Judgments 496 (S.C.) Civil Procedure Code, 1908, O.47.R.1 -Review -Against order closing evidence of defendant -Not a case of defendant in review application that new and important matter or evidence is discovered or that mistake or error apparent on face of record was evident -Dismissal of review application upheld as no jurisdiction error in said order.. (Punjab National Bank Vs V.P order V.P.Mehra) .Mehra) AIR 2004 Delhi 135 Civil Procedure Code, 1908, O.47.R.1 -Review -By a person not party thereto -Not maintainable. (Pujya Sindhi Panchayat Vs Prof.C.L.Mishra) AIR 2002 Rajasthan 274 .

CPC, O.47.R.1 - Mere erroneous decision per se does not permit Court to undertake review -Review jurisdiction can be exercised only on ground of error apparent on the face of record and not on any other ground. (Ahmedabad Electricity Co. Vs State of Gujarat) AIR 2003 Gujarat 157

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Civil Procedure Code, 1908, O.47.R.1 -Review -Must be heard by same Judge or Court -However, there are exceptions to this general principle -Order passed by District/Additional District Judge during pendency of trial -Can be reviewed by Civil Judge after case is transferred to his Court due to statutory change in pecuniary jurisdiction of Courts vesting same powers and jurisdiction. (Rajiv Lochan Vs Narender Nath) AIR 2004 Delhi 48 Civil Procedure Code, 1908, O.47.R.1 -Review -Not permissible on ground that Court has proceeded on wrong proposition of law -Review is also not permissible on ground that decision is erroneous on merits. (Dolat Industries Vs Krishna Oil Industries) AIR 2002 Gujarat 91 Civil Procedure Code, 1908, O.47.R.1 -Second review -Agreement to sell -Initially suit for injunction filed -By amendment of plaint relief of specific performance allowed -As plaint was beyond pecuniary jurisdiction of Court the same was ordered to be returned and presented in Court of competent jurisdiction within two months -Plaintiff kept quite for seven years -After seven years request for return of plaint allowed Revision thereagainst allowed by High Court -Plaintiff filed application in trial Court to treat the plaint as fresh one, which was rejected -In revision thereagainst High Court ordered trial Court to decide application afresh -Held, this in fact is an attempt of second review which cannot be permitted and earlier order cannot be set aside as earlier order had already attained finality. (K.G.Arumugham & Ors. Vs K.A.Chinnappan & Ors.) 2005(1) Apex Court Judgments 666 (S.C.) : 2005(2) Civil Court Cases 63 (S.C.) Civil Procedure Code, 1908, O.47.R.3 -Review -Application has to be in the form of an appeal, setting out various grounds for review as in the case of an appeal -When

review petition is not in proper form then petition to be returned for being presented in proper form as procedural errors or lapses by themselves are not a ground for dismissal of a petition -Petition cannot be dismissed merely on the ground that it is not in proper form. (Palakurthy Vs Noroju Manorama) 2003(2) Civil Court Cases 480 (A.P ( A.P.) .)

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Critical Analysis of the Case of Salem Advocates Bar Association v. Union of India.

(2005) 6 SCC 344

Facts of the Case

The present case Salem Advocate Bar Association v. Union of India[1] is basically an aftermath of the original case Salem Advocates Bar Association, Tamil Nadu. v. Union of India[2]. The Honorable Judges presiding over the case were Y.K. Sabharwal, D.M. Dharmadhikari and Tarun Chatterjee. The subject is basically related to Constitution and is a case of civil nature. In the former case there were certain amendments made to Code of Civil Procedure, 1908 by the Amendment Acts of 1999 and 2002.The following amendments were made: (i) In Section 26(2) and Order 6 Rule 15(4) of Code of Civil Procedure, 1908 in this the affidavit filed under Section 26(2) and Order 6 Rule 15(4) would not be evidence for purpose of trial. (ii) Written statement   – Order 8 Rules 1 and 10 of Code of Civil Procedure, 1908: There was a limitation for filing written statement. There was restriction regarding extension of time for filing written statement. It was held that the limitation provided under Rule 1 is only directory and finally Court empowered to extend time limit in

exceptional cases. (iii) Execution of decree   – Section 39 (4) and Order 21 Rules 3 and 48: Section 39 does not authorize the Court to execute decree outside its jurisdiction but it does not

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dilute other provisions giving such power on compliance of conditions stipulated therein. Order 21 Rules 3 and 48 would not be affected by Section 39(4). (iv) Sale of attached property   -- Sections 64 (1) and 64 (2) of Code of Civil Procedure, 1908: Sale of attached property on basis of registered contract such a sale is protected under Section 64(2).But the protection is available only to sale affected in pursuance of contract entered prior to attachment. Sale on basis of unregistered contract not protected under Section 64 (2). (v) Notice   – Section 80 of Code of Civil Procedure, 1908 – Central and State Governments directed to appoint an Officer in charge of replying notices received by it under Section 80 or under other similar provisions .In case notice has not been replied or reply is evasive and vague and has been sent without proper application of mind. Court shall ordinarily award heavy cost against Government and direct it to take appropriate action against concerned Officer including recovery of costs from him. (vi) Alternative Dispute Resolution  – – Section 89 of Code of Civil Procedure, 1908 and Sections 82 and 84 of Arbitration and Conciliation Act, 1996: Procedure for option to arbitration among four ADRs is not contemplated by Act of 1996.Under Sections 82 or 84 no application where parties agree to go for arbitration under Section 89.The act of 1996 would apply only from stage after reference and not before stage of reference if reference to arbitration made under Section 89 - Judge who makes reference not disqualified to try suit afterwards if no settlement is arrived at between parties.

The former case which created the abovementioned amendments was rejected by this Court but it was noticed in the judgment that modalities have to be formulated for the manner in which section 89 of the Code and, for that matter, the other provisions, which have been introduced by way of amendments, may have to be operated. For

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this purpose, a Committee headed by a former Judge of this Court and Chairman, Law Commission of India (Justice M. Jagannadha Rao) was constituted so as to ensure that the amendments become effective and result in quicker dispensation of justice. It was further observed that the Committee may consider devising a model case management formula as well as rules and regulations which should be followed while taking recourse to the Alternate Disputes Resolution (ADR) referred to in section 89. It was also observed that the model rules, with or without modification, which are formulated may be adopted by the High Courts concerned for giving effect to section 89(2)(d) of the Code. Further, it was observed that if any difficulties are felt in the working of the amendments, the same can be placed before the Committee which would consider the same and make necessary suggestions in its report. Issue involved in the Case :- Whether the amendments made in the Code of Civil

Procedure, 1908 by the Amendment Act Act of 1999 and 2000 were constitutionally valid? Judgement :- The report is in three parts. Report 1 contains the consideration of the

various grievances relating to amendments to the Code and the recommendations of the Committee. Report 2 contains the consideration of various points raised in connection with draft rules for ADR and mediation as envisaged by section 89 of the Code read with Order X Rule 1A, 1B and 1C. Report 3 contains a conceptual appraisal of case management.

Report:- 1. Am Amendment endment inserting Sub-sectio Sub-section n (2) to Section 26 and Rule Rule 15(4) to Order VI Rule 15. Prior to insertion of aforesaid provisions, there was no requirement

of filing affidavit with the pleadings. These provisions now require the plaint to be accompanied by an affidavit as provided in Section 26(2) and the person verifying the pleadings to furnish an affidavit in support of the pleading [Order VI Rule 15(4)]. It was sought to be contended that the requirement of filing an affidavit is illegal and

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unnecessary in view of the existing requirement of verification of the pleadings. The affidavit required to be filed under amended Section 26(2) and Order VI Rule 15(4) of the Code has the effect of fixing additional responsibility on the deponent as to the truth of the facts stated in the pleadings. It is, however, made clear that such an affidavit would not be evidence for the purpose of the trial. Further, on amendment of the pleadings, a fresh affidavit shall have to be filed in consonance thereof. I.

Order VIII Rule 1 & 10.

Order VIII Rule 1, as amended by Act 46 of 1999 provides that the defendant shall within 30 days from the date of service of summons on him; present a written statement of his defence. The rigour of this provision was reduced by Amendment Act 22 of 2002 which enables the Court to extend time for filing written statement, on recording sufficient reasons therefore, but the extension can be maximum for 90 days. The question is whether the Court has any power or jurisdiction to extend the period beyond 90 days. The maximum period of 90 days to file written statement has been provided but the consequences on failure to file written statement within the said period have not been provided for in Order VIII Rule 1. The point for consideration is whether the provision providing for maximum period of ninety days is mandatory and, therefore, the Court is altogether powerless to extend the time even in an exceptionally hard case. It has been common practice for the parties to take long adjournments for filing written statements. The legislature with a view to curb this

practice and to avoid unnecessary delay and adjournments has provided for the maximum period within which the written statement is required to be filed. The mandatory or directory nature of Order VIII Rule 1 shall have to be determined by having regard to the object sought to be achieved by the amendment. It is, thus,

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necessary to find out the intention of the legislature. The consequences which may follow and whether the same were intended by the legislature have also to be kept in view. In Raza Buland Sugar Co. Ltd., Rampur v. The Municipal Board, Rampur[3] , a Constitution Bench of this Court held that the question whether a particular provision is mandatory or directory cannot be resolved by laying down any general rule and it would depend upon the facts of each case and for that purpose the object of the statute in making out the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory. The use of the word 'shall' in Order VIII Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. The object which is required to be served by this provision and its design and context in which it is enacted has to be ascertained. The use of the word 'shall' is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rules or procedure are hand-maid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. In construing this provision, support can also be had from Order VIII Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in relation to

the suit as it thinks fit. In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in

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Order VIII Rule 1. Clearly, therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII Rule 1. Section 39;

Section 39(1) of the Code provides that the Court which passed a decree may, on the application of the decree-holder send it for execution to another court of competent jurisdiction. By Act 22 of 2002, Section 39(4) has been inserted providing that nothing in the section shall be deemed to authorize the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction. The question is whether this newly added provision prohibits the executing court from executing a decree against a person or property outside its jurisdiction and whether this provision overrides Order XXI Rule 3 and Order XXI Rule 48 or whether these provisions continue to be an exception to Section 39(4) as was the legal position before the amendment. Order XXI Rule 3 provides that where immoveable property forms one estate or tenure situate within the local limits of the jurisdiction of two or more courts, any one of such courts may attach and sell the entire estate or tenure. Likewise, under Order XXI Rule 48, attachment of salary of a Government servant, Railway servant or servant of local authority can be made

by the court whether; the judgment-debtor or the disbursing officer is or is not within the local limits of the court's jurisdiction. Section 39 does not authorize the Court to execute the decree outside its jurisdiction but it does not dilute the other provisions giving such power on compliance of conditions stipulated in those

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provisions. Thus, the provisions, such as, Order XXI Rule 3 or Order XXI Rule 48 which provide differently, would not be affected by Section 39(4) of the Code.

4.Section.64(2)

Section 64(2) in the Code has been inserted by Amendment Act, 22 of 2002. Section 64, as it originally stood, has been renumbered as Section 64(1). Section 64(1), inter alia, provides that where an attachment has been made, any private transfer or delivery of property attached or of any interest therein contrary to such attachment shall be void as against all claims enforceable under the attachment. Sub-section (2) protects the aforesaid acts if made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment. The concept of registration has been introduced to prevent false and frivolous cases of contracts being set up with a view to defeat the attachments. If the contract is registered and there is subsequent attachment, any sale deed executed after attachment will be valid. If unregistered, the subsequent sale after attachment would not be valid. Such sale would not be protected. 19.

Section 80

Section 80 (1) of the Code requires prior notice of two months to be served on the Government as a condition for filing a suit except when there is urgency for interim order in which case the Court may not insist on the rigid rule of prior

notice. The two months period has been provided for so that the Government shall examine the claim put up in the notice and has sufficient time to send a suitable reply. The underlying object is to curtail the litigation. The object also is to curtail the area of dispute and controversy. Wherever the statutory provision

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requires service of notice as a condition precedent for filing of suit and prescribed period therefore, it is not only necessary for the governments or departments or other statutory bodies to send a reply to such a notice but it is further necessary to properly deal with all material points and issues raised in the notice. Proper reply can result in reduction of litigation between State and the citizens. There is no accountability in the Government, Central or State or the statutory authorities in violating the spirit spi rit and object of section 80 . Report II

The amendment brought into the code related to the Alternative Dispute Resolution Mechanism (Amendment 6) is provided in Report 2. 89.

Settlement of disputes outside the Court --

(1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and given them to the parties for their observations and after receiving the observations of the parties, the Court may reformulate the terms of a

possible

(a) Arbitration; (b) Conciliation;

settlement

and

refer

the

same

for--

(c) Judicial settlement including settlement through Lok Adalat; or (d) Mediation.

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(2) Where a di dispute spute has been referred-r eferred--

(a) For arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act; (b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of Sub-section (1) of Section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat; c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed. 1A. Direction of the court to opt for any one mode of alternative dispute resolution.-After recording the admissions and denials, the Court shall direct the parties to the suit to opt either mode of the settlement outside the Court as specified in Sub-section (1)

of section 89. On the option of the parties, the Court shall fix the date of appearance before such forum or authority as may ma y be opted by the parties. 1B. Appearance before the conciliatory forum or authority--Where a suit is referred

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under Rule 1A, the parties shall appear before such forum or authority for conciliation of the suit. 1C. Appearance before the Court consequent to the failure of efforts of conciliation-Where a suit is referred under Rule 1A and the presiding officer of conciliation forum or authority is satisfied that it would not be proper in the interest of justice to proceed with the matter further, then, it shall refer the matter again to the Court and direct the parties to appear before the Court on the th e date fixed by it." Some doubt as to a possible conflict has been expressed in view of use of the word 'may' in section 89 when it stipulates that 'the Court may reformulate the terms of a possible settlement and refer the same and use of the word 'shall' in Order X, Rule 1A when it states that 'the Court shall direct the parties to the suit to opt either mode of settlements outside the Court as specified in Sub-section (1) of section 89'.As can be seen from section 89, its first part uses the word 'shall' when it stipulates that the 'court shall formulate terms of settlement. The use of the word 'may' in later part of section 89 only relates to the aspect of reformulating the terms of a possible settlement. The intention of the legislature behind enacting section 89 is that where it appears to the Court that there exists element of a settlement which may be acceptable to the parties, they, at the instance of the court, shall be made to apply their mind so as to opt for one or the other of the four ADR methods mentioned in the Section and if the parties do not agree, the court shall refer them to one or other of the said modes. Section 89 uses both the word 'shall' and 'may' whereas Order X, Rule 1A uses the word 'shall' but on harmonious reading of these provisions it becomes clear that the use of the word 'may'

in section 89 only governs the aspect of reformulation of the terms of a possible settlement and its reference to one of ADR methods. One of the modes to which the dispute can be referred is 'Arbitration’. Section 89 (2) provides that where a dispute has been referred for Arbitration or Conciliation, the provisions of the Arbitration and

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Conciliation Act, 1996 (for short '1996 Act') shall apply as if the proceedings for Arbitration or Conciliation were referred for settlement under the provisions of 1996 Act. Section 8 of the 1996 Act deals with the power to refer parties to Arbitration where there is arbitration agreement. As held in P. Anand Gajapathi Raju and Ors. v. P.V.G. Raju (Dead) and Ors.[4], 1996 Act governs a case where arbitration is agreed upon before or pending a suit by all the parties. The 1996 Act, however, does not contemplate a situation as in section 89 of the Code where the Court asks the parties to choose one or other ADRs including Arbitration and the parties choose Arbitration as their option. For the purposes of section 89 and Order X, Rule 1A, 1B and 1C, the relevant Sections in Part X of the Code enable the High Court to frame rules. 1996 Act in relation to Conciliation would apply only after the stage of reference to Conciliation. The 1996 Act does not deal with a situation where after suit is filed, the court requires a party to choose one or other ADRs including Conciliation. Thus, for Conciliation also rules can be made under Part X of the Code for purposes of procedure for opting for 'Conciliation' and upto the stage of reference to Conciliation. The 1996 Act comes into play only after the stage of reference upto the award. A doubt has been expressed in relation to Clause (d) of section 89 (2) of the Code on the question as to finalization of the terms of the compromise. The question is whether the terms of compromise are to be finalized by or before the mediator or by or before the court. It is evident that alt the four alternatives, namely, Arbitration, Conciliation, judicial settlement including in cluding settlement through Lok Adalat and mediation are meant to be the action of persons or institutions outside the Court and not before the Court. Order X, Rule 1C speaks of the 'Conciliation forum' referring back the dispute to the

Court. In fact, the court is not involved in the actual mediation/conciliation. Clause (d) of section 89(2) only means that when mediation succeeds and parties agree to the terms of settlement, the mediator will report to the court and the court, after giving notice and hearing the parties, 'effect' the compromise and pass a decree in accordance with the terms of settlement accepted by the parties. The Judge who

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makes the reference only considers the limited question as to whether there are reasonable grounds to expect that there will be settlement and on that ground he cannot be treated to be disqualified to try the suit afterwards if no settlement is arrived at between the parties. The question also is about the payment made and expenses to be incurred where the court compulsorily refers a matter for conciliation/mediation. Considering large number of responses received by the Committee to the draft rules it has suggested that in the event of such compulsory reference to conciliation/mediation procedures if expenditure on conciliation/mediation is borne by the government, it may encourage parties to come forward and make attempts at conciliation/mediation. On the other hand, if the parties feel that they have to incur extra expenditure for resorting to such ADR modes, it is likely to act as a deterrent for adopting adoptin g these methods. Report III

Report No. 3 deals with the Case Flow Management and Model Rules. The case management policy can yield remarkable results in achieving more disposals of the cases. Its mandate is for the Judge or an officer of the court to set a time-table and monitor a case from its initiation to its disposal. The Committee on survey of the progress made in other countries has come to a conclusion that the case management system has yielded exceedingly good results. Model Case Flow Management Rules have been separately dealt with for trial courts and first appellate subordinate courts and for High Courts. These draft Rules extensively deal with the various stages of the litigation. The High Courts can examine these Rules, discuss the matter and consider the question of adopting or making case law management and model rules with or

without modification, so that a step forward is taken to provide to the litigating public a fair, speedy and inexpensive justice.

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Conclusion

This case is a landmark case in the history of Indian Judiciary. This set of two cases, former one, laying down the amendments and the latter one providing a report on the amendment’s feasibility have laid own the foundation of providing quick, financially accessible and proper justice. This basically intends to reduce the number of suits filed in the courts every year. The case has been referred to in numerous cases of civil nature after the amendments by the Act of 1999 and 2002. Moreover, the model provided to be followed by the trial court is an easily practicable model and does show the ‘bright light of proper and speedy justice in the darkness of innumerable cases’. The rules provided in the model are appropriate for the system of Indian Judiciary and hence should be properly followed.

----------------------------------------------------------------------------------------------------------------[1] (2005) 6 SCC 344. [2] AIR AIR 2003 SC 189. [3] [1965] 1 SCR 970. [4] [2000] 2 SCR 684.

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