Code of Civil Procedure, 1908 – Order 7 Rule 11 – Defendants cannot be permitted to take two contradictory stands before two different authorities/courts. AIR 2022 SC 1560 : JT 2022 (3) SC 372
Code of Civil Procedure 1908
THE CODE OF CIVIL PROCEDURE, 1908
ACT NO. 5 OF 1908 [21st March, 1908.]
An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature.
WHEREAS it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature : It is hereby enacted as follows : —
1. Short title, commencement and extent.
3. Subordination of Courts.
5. Application of the Code to Revenue Courts.
6. Pecuniary jurisdiction.
7. Provincial Small Cause Courts.
8. Presidency Small Cause Courts.
SUITS IN GENERAL
JURISDICTION OF THE COURTS AND RES JUDICATA
9. Courts to try all civil suits unless barred.
10. Stay of suit.
11. Res judicata.
12. Bar to further suit.
13. When foreign judgment not conclusive.
14. Presumption as to foreign judgments.
PLACE OF SUING
15. Court in which suits to be instituted.
16. Suits to be instituted where subject-matter situate.
17. Suits for immovable property situate within jurisdiction of different Courts.
18. Place of institution of suit where local limits of jurisdiction of Courts are uncertain.
19. Suits for compensation for wrongs to person or movables.
20. Other suits to be instituted where defendants reside or cause of action arises.
21. Objections to jurisdiction.
21A. Bar on suit to set aside decree on objection as to place of suing.
22. Power to transfer suits which may be instituted in more than one Court.
23. To what Court application lies.
24. General power of transfer and withdrawal.
25. Power of Supreme Court to transfer suits, etc.
INSTITUTION OF SUITS
26. Institution of suits.
SUMMONS AND DISCOVERY
27. Summons to defendants.
28. Service of summons where defendant resides in another State.
29. Service of foreign summonses.
30. Power to order discovery and the like.
31. Summons to witness.
32. Penalty for default.
JUDGMENT AND DECREE
33. Judgment and decree.
35A. Compensatory costs in respect of false or vexatious claims or defences.
35B. Costs for causing delay.
36. Application to orders.
37. Definition of Court which passed a decree.
COURTS BY WHICH DECREES MAY BE EXECUTED
38. Court by which decree may be executed.
39. Transfer of decree.
40. Transfer of decree to Court in another State.
41. Result of execution proceedings to be certified.
42. Powers of Court in executing transferred decree.
43. Execution of decrees passed by Civil Courts in places to which this Code does not extend.
44. Execution of decrees passed by Revenue Courts in places to which this Code does not extend.
44A. Execution of decrees passed by Courts in reciprocating territory.
45. Execution of decrees outside India.
QUESTIONS TO BE DETERMINED BY COURT EXECUTING DECREE
47. Questions to be determined by the Court executing decree.
LIMIT OF TIME FOR EXECUTION
TRANSFEREES AND LEGAL REPRESENTATIVES
50. Legal representative.
PROCEDURE IN EXECUTION
51. Powers of Court to enforce execution.
52. Enforcement of decree against legal representative.
53. Liability of ancestral property.
54. Partition of estate or separation of share.
ARREST AND DETENTION
55. Arrest and detention.
56. Prohibition of arrest or detention of women in execution of decree for money.
58. Detention and release.
59. Release on ground of illness.
60. Property liable to attachment and sale in execution of decree.
61. Partial exemption of agricultural produce.
62. Seizure of property in dwelling-house.
63. Property attached in execution of decrees of several Courts.
64. Private alienation of property after attachment to be void.
65. Purchaser’s title.
67. Power for State Government to make rules as to sales of land in execution of decrees for payment
DELEGATION TO COLLECTOR OF POWER TO EXECUTE DECREES AGAINST IMMOVABLE PROPERTY
DISTRIBUTION OF ASSETS
73. Proceeds of execution sale to be rateably distributed among decree-holders.
RESISTANCE TO EXECUTION
74. Resistance to execution.
75. Power of Court to issue commissions.
76. Commission to another Court.
77. Letter of request.
78. Commissions issued by foreign Courts.
SUITS IN PARTICULAR CASES
SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY
79. Suits by or against Government.
81. Exemption from arrest and personal appearance.
82. Execution of decree.
SUITS BY ALIENS AND BY OR AGAINST FOREIGN RULERS, AMBASSADORS AND ENVOYS
83. When aliens may sue.
84. When foreign States may sue.
85. Persons specially appointed by Government to prosecute or defend on behalf of foreign Rulers.
86. Suits against foreign Rulers, Ambassadors and Envoys.
87. Style of foreign Rulers as parties to suits.
87A. Definitions of “foreign State” and “Ruler”.
SUITS AGAINST RULERS OF FORMER INDIAN STATES
87B. Application of sections 85 and 86 to Rulers of former Indian States.
88. Where interpleader-suit may be instituted.
89. Settlement of disputes outside the Court.
90. Power to state case for opinion of Court.
PUBLIC NUISANCES AND OTHER WRONGFUL ACTS AFFECTING THE PUBLIC
91. Public nuisances and other wrongful acts affecting the public.
92. Public charities.
93. Exercise of powers of Advocate-General outside presidency-towns.
94. Supplemental proceedings.
95. Compensation for obtaining arrest, attachment or injunction on insufficient ground.
APPEALS FROM ORIGINAL DECREES
96. Appeal from original decree.
97. Appeal from final decree where no appeal from preliminary decree.
98. Decision where appeal heard by two or more Judges.
99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.
99A. No order under section 47 to be reversed or modified unless decision of the case is prejudicially affected.
APPEALS FROM APPELLATE DECREES
100. Second appeal.
100A. No further appeal in certain cases.
101. Second appeal on no other grounds.
102. No second appeal in certain cases.
103. Power of High Court to determine issue of fact.
APPEALS FROM ORDERS
104. Orders from which appeal lies.
105. Other orders.
106. What Courts to hear appeals.
GENERAL PROVISIONS RELATING TO APPEALS
107. Powers of Appellate Court.
108. Procedure in appeals from appellate decrees and orders.
APPEALS TO THE SUPREME COURT
109. When appeals lie to the Supreme Court.
REFERENCE, REVIEW AND REVISION
113. Reference to High Court.
SPECIAL PROVISIONS RELATING TO THE HIGH COURTS NOT BEING THE COURT OF A JUDICIAL COMMISSIONER
116. Part to apply only to certain High Courts.
117. Application of Code to High Courts.
118. Execution of decree before ascertainment of costs.
119. Unauthorised persons not to address Court.
120. Provisions not applicable to High Court in original civil jurisdiction.
121. Effect of rules in First Schedule.
122. Power of certain High Courts to make rules.
123. Constitution of Rule Committees in certain States.
124. Committee to report to High Court.
125. Power of other High Courts to make rules.
126. Rules to be subject to approval.
127. Publication of rules.
128. Matters for which rules may provide.
129. Power of High Courts to make rules as to their original Civil procedure.
130. Power of other High Courts to make rules as to matters other than procedure.
131. Publication of rules.
132. Exemption of certain women from personal appearance.
133. Exemption of other persons.
134. Arrest other than in execution of decree.
135. Exemption from arrest under civil process.
135A. Exemption of members of legislative bodies from arrest and detention under civil process.
136. Procedure where person to be arrested or property to be attached is out side district.
137. Language of subordinate Courts.
138. Power of High Court to require evidence to be recorded in English.
139. Oath on affidavit by whom to be administered.
140. Assessors in causes of salvage, etc.
141. Miscellaneous proceedings.
142. Orders and notices to be in writing.
144. Application for restitution.
145. Enforcement of liability of surety.
146. Proceedings by or against representatives.
147. Consent or agreement by persons under disability.
148. Enlargement of time.
148A. Right to lodge a caveat.
149. Power to make up deficiency of court-fees.
150. Transfer of business.
151. Saving of inherent powers of Court.
152. Amendment of judgments, decrees or orders.
153. General power to amend.
153A. Power to amend decree or order where appeal is summarily dismissed.
153B. Place of trial to be deemed to be open Court.
157. Continuance of orders under repealed enactments.
158. Reference to Code of Civil Procedure and other repealed enactments.
THE FIRST SCHEDULE
Parties to Suits
1. Who may be joined as plaintiffs.
2. Power of Court to order separate trials.
3. Who may be joined as defendants.
3A. Power to order separate trials where joinder of defendants may embarrass or delay trial.
4. Court may give judgment for or against one or more of joint parties.
5. Defendant need not be interested in all the relief claimed.
6. Joinder of parties liable on same contract.
7. When plaintiff in doubt from whom redress is to be sought.
8. One person may sue or defend on behalf of all in same interest.
8A. Power of Court to permit a person or body of persons to present opinion or to take part in the proceedings.
9. Misjoinder and nonjoinder.
10. Suit in name of wrong plaintiff.
Court may strike out or add parties.
Where defendant added, plaint to be amended.
10A. Power of Court to request any pleader to address it.
11. Conduct of suit.
12. Appearance of one of several plaintiffs or defendants for others.
13. Objections as to nonjoinder or misjoinder.
Frame of Suits
1. Frame of suit.
2. Suit to include the whole claim.
Relinquishment of part of claim.
Omission to sue for one of several reliefs.
3. Joinder of causes of action.
4. Only certain claims to be joined for recovery of immovable property.
5. Claims by or against executor, administrator or heir.
6. Power of Court to order separate trials.
7. Objections as to misjoinder.
Recognised Agents and Pleaders
1. Appearances, etc., may be in person, by recognised agent or by pleader.
2. Recognised agents.
3. Service of process on recognised agent.
4. Appointment of pleader.
5. Service of process on pleader.
6. Agent to accept service.
Appointment to be in writing and to be filed in Court.
Institution of Suits
1. Suit to be commenced by plaint.
2. Register of suits.
Issue and Service of Summons
Issue of summons
2. Copy of plaint annexed to summons.
3. Court may order defendant or plaintiff to appear in person.
4. No party to be ordered to appear in person unless resident within certain limits.
5. Summons to be either to settle issues or for final disposal.
6. Fixing day for appearance of defendant.
7. Summons to order defendant to produce documents relied on by him.
8. On issue of summons for final disposal, defendant to be directed to produce his witnesses.
Service of Summons
9. Delivery of summons by Court.
9A. Summons given to the plaintiff for service.
10. Mode of service.
11. Service on several defendants.
12. Service to be on defendant in person when practicable, or on his agent.
13. Service on agent by whom defendant carries on business.
14. Service on agent in charge in suits for immovable property.
15. Where service may be on an adult member of defendant’s family.
16. Person served to sign acknowledgement.
17. Procedure when defendant refuses to accept service, or cannot be found.
18. Endorsement of time and manner of service.
19. Examination of serving officer.
20. Substituted service.
Effect of substituted service.
Where service substituted, time for appearance to be fixed.
21. Service of summons where defendant resides within jurisdiction of another Court.
22. Service within presidency-towns of summons issued by Courts outside.
23. Duty of Court to which summons is sent.
24. Service on defendant in prison.
25. Service where defendant resides out of India and has no agent.
26. Service in foreign territory through Political Agent or Court.
26A. Summonses to be sent to officers of foreign countries.
27. Service on civil public officer or on servant of railway company or local authority.
28. Service on soldiers. sailors or airmen.
29. Duty of person to whom summons is dilivered or sent for service.
30. Substitution of letter for summons.
2. Pleading to state material facts and not evidence.
3. Forms of pleading.
4. Particulars to be given where necessary.
6. Condition precedent.
8. Denial of contract.
9. Effect of document to be stated.
10. Malice, knowledge, etc.
12. Implied contract, or relation.
13. Presumptions of law.
14. Pleading to be signed.
14A. Address for service of notice.
15. Verification of pleadings.
16. Striking out pleadings.
17. Amendment of pleadings.
18. Failure to amend after order
1. Particulars to be contained in plaint.
2. In money suits.
3. Where the subject-matter of the suits immovable property.
4. When plaintiff sues as representative.
5. Defendant’s interest and liability to be shown.
6. Grounds of exemption from limitation law.
7. Relief to be specifically stated.
8. Relief founded on separate grounds.
9. Procedure on admitting plaint.
10. Return of plaint.
Procedure on returning plaint.
10A. Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return.
10B. Power of Appellate Court to transfer suit to the proper Court.
11. Rejection of plaint.
12. Procedure on rejecting plaint.
13. Where rejection of plaint does not preclude presentation of fresh plaint.
Documents relied on in Plaint
14.Production of document on which plaintiff sues or relies.
List of other documents.
16. Suits on lost negotiable instruments.
17. Production of shop-book.
Original entry to be marked and returned.
Written Statement, Set-off and Counter-Claim
1. Written statement.
1A. Duty of defendent to produce documents upon which relief is claimed or relief upon by him.
2. New facts must be specially pleaded.
3. Denial to be specific.
4. Evasive denial.
5. Specific denial.
6. Particulars of set-off to be given in written statement.
Effect of set-off.
6A. Counter-claim by defendant.
6B. Counter-claim to be stated.
6C. Exclusion of counter-claim.
6D. Effect of discountinuance of suit.
6E. Default of plaintiff to reply to counter-claim.
6F. Relief to defendant where counter-claim succeeds.
6G. Rules relating to written statement to apply.
7. Defence or set-off founded upon separate grounds.
8. New ground of defence.
9. Subsequent pleadings.
10. Procedure when party fails to present written statement called for by Court.
Appearance of Parties and Consequence of Non-Appearance
1. Parties to appear on day fixed in summons for defendant to appear and answer.
2. Dismissal of suit where summons not served in consequence of plaintiff’s failure to pay costs.
3. Where neither party appears, suit to be dismissed.
4. Plaintiff may bring fresh suit or Court may restore suit to file.
5. Dismissal of suit where plaintiff, after summons returned unserved, fails for one month to apply for fresh summons.
6. Procedure when only plaintiff appears.
When summons duly served.
When summons not duly served.
When summons served, but not in due time.
7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance.
8. Procedure where defendant only appears.
9. Decree against plaintiff by default bars fresh suit.
10. Procedure in case of non-attendance of one or more of several plaintiffs.
11. Procedure in case of non-attendance of one or more of several defendants.
12. Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person.
Setting aside decrees ex parte
13. Setting aside decree ex parte against defendant.
14. No decree to be set aside without notice to opposite party.
Examination of Parties by the Court
1. Ascertainment whether allegations in pleadings are admitted or denied.
1A. Direction of the court to opt for any one mode of alternative dispute resolution.
1B. Appearance before the conciliatory forum or authority.
1C. Appearance before the court consequent to the failure of efforts of conciliation.
2. Oral examination of party, or companion of party.
3. Substance of exmination to be written.
4. Consequence of refusal or inability of pleader to answer.
Discovery and Inspection
1. Discovery by interrogatories.
2. Particular interrogatories to be submitted.
3. Costs of interrogatories.
4. Form of interrogatories.
6. Objections to interrogatories by answer.
7. Setting aside and striking out interrogatories.
8. Affidavit in answer, filing.
9. Form of affidavit in answer.
10. No exception to be taken.
11. Order to answer or answer further.
12. Application for discovery of documents.
13. Affidavit of documents.
14. Production of documents.
15. Inspection of documents referred to in pleading or affidavits.
16. Notice to produce.
17. Time for inspection when notice given.
18. Order for inspection.
19. Verified copies.
20. Premature discovery.
21. Non-compliance with order for discovery.
22. Using answers to interrogatories at trial.
23. Order to apply to minors.
1. Notice of admission of case.
2. Notice to admit documents.
2A. Document to be deemed to be admitted if not denied after service of notice to admit documents.
3. Form of notice.
3A. Power of Court to record admission.
4. Notice to admit facts.
5. Form of admissions.
6. Judgment on admissions.
7. Affidavit of signature.
8. Notice to produce documents.
Production, Impounding And Return of Documents
1. Documents evidence to be produced at or before the settlement of issues.
3. Rejection of irrelevant or inadmissible documents.
4. Endorsements on documents admitted in evidence.
5. Endorsements on copies of admitted entries in books, accounts and records.
6. Endorsements on documents rejected as inadmissible in evidence.
7. Recording of admitted and return of rejected documents.
8. Court may order any document to be impounded.
9. Return of admitted documents.
10. Court may sent for papers from its own records or from other Courts.
11. Provisions as to documents applied to material objects.
Settlement of Issues And Determination of Suit on Issues of Law or on
Issues Agreed Upon
1. Framing of issues.
2. Court to pronounce judgment on all issues.
3. Materials from which issues may be framed.
4. Court may examine witnesses or documents before framing issues.
5. Power to amend, and strike out, issues.
6. Questions of fact or law may by, agreement be stated in form of issues.
7. Court, if satisfied that agreement was executed in good faith, may pronounce judgment.
Disposal of the Suit at the First Hearing
1. Parties not at issue.
2. One of several defendants not at issue.
3. Parties at issue.
4. Failure to produce evidence.
Summoning and Attendance of Witnesses
1. List of witnesses and summons to witnesses.
1A. Production of witnesses without summons.
2. Expenses of witness to be paid into Court on applying for summons.
Scale of expenses.
Expenses to be directly paid to witnesses.
3. Tender of expenses to witness.
4. Procedure where insufficient sum paid in.
Expenses of witnesses detained more than one day.
5. Time, place and purpose of attendance to be specified in summons.
6. Summons to produce document.
7. Power to require persons present in Court to give evidence or produce document.
7A. Summons given to party for service.
8. Summons how served.
9. Time for serving summons.
10. Procedure where witness fails to comply with summons.
11. If witness appears, attachment may be withdrawn.
12. Procedure if witness fails to appear.
13. Mode of attachment.
14. Court may of its own accord summon as witnesses strangers to suit.
15. Duty of persons summoned to give evidence or produce document.
16. When they may depart.
17. Application of rules 10 to 13.
18. Procedure where witness apprehended cannot give evidence or produce document.
19. No witness to be ordered to attend in person unless resident within certain limits.
20. Consequence of refusal of party to give evidence when called on by Court.
21. Rules as to witnesses to apply to parties summoned.
Attendance of Witnesses Confined or Detained in Prisons
2. Power to require attendance of prisoners to give evidence.
3. Expenses to be paid into Court.
4. Power of State Government to exclude certain persons from the operation of rule 2.
5. Officer in charge of prison to abstain from carrying out order in certain cases.
6. Prisoner to be brought to Court in custody.
7. Power to issue commission for examination of witness in prison.
1. Court may grant time and adjourn hearing.
Costs of adjournment.
2. Procedure if parties fail to appear on day fixed.
3. Court may proceed notwithstanding either party fails to produce evidence, etc.
Hearing of the Suit and Examination of Witnesses
1. Right to begin.
2. Statement and production of evidence.
3. Evidence where several issues.
3A. Party to appear before other witnesses.
4. Recording of evidence.
5. How evidence shall be taken in appealable cases.
6. When deposition to be interpreted.
7. Evidence under section 138.
8. Memorandum when evidence not taken down by judge.
9. When evidence may be taken in English.
10. Any particular question and answer may be taken down.
11. Questions objected to and allowed by Court.
12. Remarks on demeanour of witnesses.
13. Memorandum of evidence in unappealable cases.
15. Power to deal with evidence taken before another Judge.
16. Power to examine witness immediately.
17. Court may recall and examine witness.
18. Power of Court to inspect.
19. Power to get statements recorded on commission.
1. Power to order any point to be proved by affidavit.
2. Power to order attendance of deponent for cross-examination.
3. Matters to which affidavits shall be confined.
Judgment and Decree
1. Judgment when pronounced.
2. Power to pronounce judgment written by Judge’s predecessor.
3. Judgment to be signed.
4. Judgments of Small Cause Courts.
Judgments of other Courts.
5. Court to state its decision on each issue.
5A. Court to inform parties as to where an appeal lies in cases where parties are not represented by pleaders.
6. Contents of decree.
6A. Preparation of Decree.
6B. Copies of judgments when to be made available.
7. Date of decree.
8. Procedure where Judge has vacated office before signing decree.
9. Decree for recovery of immovable property.
10. Decree for delivery of movable property.
11. Decree may direct payment by instalments.
Order, after decree, for payment by instalments.
12. Decree for possession and mesne profits.
12A. Decree for specific performance of contract for the sale or lease of immovable property.
13. Decree in administration-suit.
14. Decree in pre-emption-suit.
15. Decree in suit for dissolution of partnership.
16. Decree in suit for account between principal and agent.
17. Special directions as to accounts.
18. Decree in suit for partition of property or separate possession of a share therein.
19. Decree when set-off or counter-claim is allowed.
Appeal from decree relating to set-off or counter-claim.
20. Certified copies of judgment and decree to be furnished.
1. Provisions relating to certain items.
2. Costs to be awarded in accordance with the rules made by High Court.
EXECUTION OF DECREES AND ORDERS
Payment under decree
1. Modes of paying money under decree.
2. Payment out of Court to decree-holder.
Courts executing decrees
3. Lands situate in more than one jurisdiction.
4. Transfer to Court of Small Causes.
5. Mode of transfer.
6. Procedure where Court desires that its own decree shall be executed by another Court.
7. Court receiving copies of decree, etc., to file same without proof.
8. Execution of decree or order by Court to which it is sent.
9. Execution by High court of decree transferred by other Court.
Application for execution
10. Application for execution.
11. Oral application.
11A. Application for arrest to state grounds.
12. Application for attachment of movable property not in judgment-debtor’s possession.
13. Application for attachment of immovable property to contain certain particulars.
14. Power to require certified extract from Collector’s register in certain cases.
15. Application for execution by joint decree-holder.
16. Application for execution by transferee of decree.
17. Procedure on receiving application for execution of decree.
18. Execution in case of cross-decrees.
19. Execution in case of cross-claims under same decree.
20. Cross-decrees and cross-claims in mortgage-suits.
21. Simultaneous execution.
22. Notice to show cause against execution in certain cases.
22A. Sale not to be set aside on the death of the judgment-debtor before the sale but after the service of the proclamation of sale.
23. Procedure after issue of notice.
Process for execution
24. Process for execution.
25. Endorsement on process.
Stay of execution
26. When Court may stay execution.
Power to require security from, or impose conditions upon, judgment-debtor.
27. Liability of judgment-debtor discharged.
28. Order of Court which passed decree or of appellate Court to be binding upon Court applied to.
29. Stay of execution pending suit between decree-holder and judgment-debtor.
Mode of execution
30. Decree for payment of money.
31. Decree for specific movable property.
32. Decree for specific performance for restitution of conjugal rights or for an injunction.
33. Discretion of Court in executing decrees for restitution of conjugal rights.
34. Decree for execution of document, or endorsement of negotiable instrument.
35. Decree for immovavle property.
36. Decree for delivery of immovable property when in occupancy of tenant.
Arrest and detention in the civil prison
37. Discretionary power to permit judgment-debtor to show cause against detention in prison.
38. Warrant for arrest to direct judgment-debtor to be brought up.
40. Proceedings on appearance of judgment-debtor in obedience to notice or after arrest.
Attachment of property
41. Examination of judgment-debtor as to his property.
42. Attachment in case of decree for rent or mesne profits or other matter, amount of which to be subsequently determined.
43. Attachment of movable property, other than agricultural produce, in possession of judgment-debtor.
43 A. Custody of movable property.
44. Attachment of agricultural produce.
45. Provisions as to agricultural produce under attachment.
46. Attachment of debt, share and other property not in possession of judgment-debtor.
46A. Notice to garnishee.
46B . Order against garnishee.
46C. Trial of disputed questions.
46D. Procedure where debt, belongs to third person.
46E. Order as regards third person.
46F. Payment by garnishee to be valid discharge.
46I. Application to negotiable instruments.
47. Attachment of share in movables.
48. Attachment of salary or allowances of servant of the Government or railway company or local authority.
48 A. Attachment of salary or allowances of private employees.
49. Attachment of partnership property.
50. Execution of decree against firm.
51. Attachment of negotiable instruments.
52. Attachment of property in custody of Court or public officer.
53. Attachment of decrees.
54. Attachment of immovable property.
55. Removal of attachment after satisfaction of decree.
56. Order for payment of coin or currency notes to party entitled under decree.
57. Determination of attachment.
Adjudication of claims and objections
58. Adjudication of claims to, or objections to attachment of property.
59. Stay of sale.
64. Power to order property attached to be sold and proceeds to be paid to person entitled.
65. Sales by whom conducted and how made.
66. Proclamation of sales by public auction.
67. Mode of making proclamation.
68. Time of sale.
69. Adjournment or stoppage of sale.
71. Defaulting purchaser answerable for loss on re-sale.
72. Decree-holder not to bid for or buy property without permission.
Where decree-holder purchases, amount of decree may be taken as payment.
72A. Mortgagee not to bid at sale without the leave of the Court.
73. Restriction on bidding or purchase by officers.
Sale of movable property
74. Sale of agricultural produce.
75. Special provisions relating to growing crops.
76. Negotiable instruments and shares in corporations.
77. Sale by public auction.
78. Irregularity not to vitiate sale, but any person injured may sue.
79. Delivery of movable property, debts and shares.
80. Transfer of negotiable instruments and shares.
81. Vesting order in case of other property.
Sale of immovable property.
82. What Courts may order sales.
83. Postponement of sale to enable judgment-debtor to raise amount of decree.
84. Deposit by purchaser and re-sale on default.
85. Time for payment in full of purchase-money.
86. Procedure in default of payment.
87. Notification on re-sale.
88. Bid of co-sharer to have preference.
89. Application to set aside sale on deposit.
90. Application to set aside sale on ground of irregularity or fraud.
91. Application by purchaser to set aside sale on ground of judgment-debtor having no saleable interest.
92. Sale when to become absolute or be set aside.
93. Return of purchase-money in certain cases.
94. Certificate to purchaser.
95. Delivery of property in occupancy of judgment-debtor.
96. Delivery of property in occupancy of tenant.
Resistance to delivery of possession to decree-holder or purchaser
97. Resistance or obstruction to possession of immovable property.
98. Orders after adjudication.
99. Dispossession by decree-holder or purchaser.
100. Order to be passed upon application complaining of dispossession.
101. Question to be determined.
102. Rules not applicable to transferee pendente lite.
103. Orders to be treated as decrees.
104. Order under rule 101 or rule 103 to be subject to the result of pending suit.
105. Hearing of application.
106. Setting aside orders passed ex parte, etc.
Death, Marriage and Insolvancy of Parties
1. No abatement by party’s death, if right to sue survives.
2. Procedure where one of several plaintiffs or defendants dies and right to sue survives.
3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.
4. Procedure in case of death of one of several defendants or of sole defendant.
4A. Procedure where there is no legal representative.
5. Determination of question as to legal representative.
6. No abatement by reason of death after hearing.
7. Suit not abated by marriage of female party.
8. When plaintiffs insolvency bars suit.
Procedure where assignee fails to continue suit or give security.
9. Effect of abatement or dismissal.
10. Procedure in case of assignment before final order in suit.
10A. Duty of pleader to communicate to Court death of a party.
11. Application of Order to appeals.
12. Application of Order to proceedings.
Withdrawal and Adjustment of Suits
1. Withdrawal of suit or abandonment of part of claim.
1A.When transposition of defendants as plaintiffs may be permitted.
2. Limitation law not affected by first suit.
3. Compromise of suit.
3A. Bar to suit.
3B. No agreement or compromise to be entered in a representative suit without leave of Court.
4. Proceedings in execution of decrees not affected.
Payment Into Court
1. Deposit by defendant of amount in satisfaction of claim.
2. Notice of deposit.
3. Interest on deposit not allowed to plaintiff after notice.
4. Procedure where plaintiff accepts deposit as satisfaction in part.
Procedure where he accepts it as satisfaction in full.
Security for costs
1. When security for costs may be required from plaintiff.
2. Effect of failure to furnish security.
Commissions to examine witnesses
1. Cases in which Court may issue commission to examine witness.
2. Order for commission.
3. Where witness resides within Court’s jurisdiction.
4. Persons for whose examination commission may issue.
4A. Commission for examination of any person resident within the local limits of the jurisdiction of the Court.
5. Commission or request to examine witness not within India.
6. Court to examine witness pursuant to commission.
7. Return of commission with depositions of witnesses.
8. When depositions may be read in evidence.
Commissions for local investigations
9. Commissions to make local investigations.
10. Procedure of Commissioner.
Report and depositions to be evidence in suit.
Commissioner may be examined in person.
Commissions for scientific investigation, performance of ministerial act and sale of movable property
10A. Commission for scientific investigation.
10B. Commission for performance of a ministerial act.
10C. Commission for the sale of movable property.
Commissions to examine accounts
11. Commission to examine or adjust accounts.
12. Court to give Commissioner necessary instructions.
Proceedings and report to be evidence.
Court may direct further inquiry.
Commissions to make partitions.
13. Commission to make partition of immovable property.
14. Procedure of Commissioner.
15. Expenses of commission to be paid into Court.
16. Powers of Commissioners.
16A. Questions objected to before the Commissioner.
17. Attendance and examination of witnesses before Commissioner.
18. Parties to appear before Commissioner.
18A. Application of Order to execution proceedings.
18B. Court to fix a time for return of Commission.
Commissions issued at the instance of Foreign Tribunals
19. Cases in which High Court may issue commission to examine witness.
20. Application for issue of commission.
21. To whom commission may be issued.
22. Issue, execution and return of commissions, and transmission of evidence to foreign Court.
Suits by or against the Government or Public Officers in their Official Capacity
1. Suits by or against Government.
2. Persons authorized to act for Government.
3. Plaints in suits by or against Government.
4. Agent for Government to receive process.
5. Fixing of day for appearance on behalf of Government.
5A. Government to be joined as a party in a suit against a public officer.
5B. Duty of Court in suits against the Government or a public officer to assist in arriving at a settlement.
6. Attendance of person able to answer questions relating to suit against Government.
7. Extension of time to enable public officer to make reference to Government.
8. Procedure in suits against public officer.
8A. No security to be required from Government or a public officer in certain cases.
8B. Definitions of “Government” “and” “Government pleader”.
Suits Involving a Substantial Question of Law as to the Interpretation of the Constitution or as to the validity of any Statutory Instrument
1. Notice to the Attorney General or the Advocate-General.
1A. Procedure in suits involving validity of any statutory instrument.
2. Court may add Government as party.
2A. Power of Court to add Government or other authority as a defendant in a suit relating to the validity of any statutory instrument.
4. Application of Order to appeals.
Suits by or against Military or Navalmen or Airmen
1. Officers, soldiers, sailors or airmen who cannot obtain leave may authorize any person to sue or defend for them.
2. Person so authorized may act personally or appoint pleader.
3. Service on person so authorized, or on his pleader, to be good service.
Suits by or Against Corporations
1. Subscription and verification of pleading.
2. Service on corporation.
3. Power to require personal attendance of officer of corporation.
Suits by or Against Firms and Persons carrying on Business in names other than their own
1. Suing of partners in name of firm.
2. Disclosure of partners’ names.
4. Right of suit on death of partner.
5. Notice in what capacity served.
6. Appearance of partners.
7. No appearance except by partners.
8. Appearance under protest.
9. Suits between co-partners.
10. Suit against person carrying on business in name other than his own.
Suits by or against Trustees, Executors and Administrators
1. Representation of beneficiaries in suits concerning property vested in trustees, etc.
2. Joinder of trustees, executors and administrators.
3. Husband of married executrix not to join.
Suits by or Against Minors and Persons of Unsound Mind
1. Minor to sue by next friend.
2. Where suit is instituted without next friend, plaint to be taken off the file.
2A. Security to be furnished by next friend when so ordered.
3. Guardian for the suit to be appointed by Court for minor defendant.
3A. Decree against minor not to be set aside unless prejudice has been caused to his interests.
4. Who may act as next friend or be appointed guardian for the suit.
5. Representation of minor by next friend or guardian for the suit.
6. Receipt by next friend or guardian for the suit of property under decree for minor.
7. Agreement or compromise by next friend or guardian for the suit.
8. Retirement of next friend.
9. Removal of next friend.
10. Stay of proceedings on removal, etc., of next friend.
11. Retirement, removal or death of guardian for the suit.
12. Course to be followed by minor plaintiff or applicant on attaining majority.
13. Where minor co-plaintiff attaining majority desires to repudiate suit.
14. Unreasonable or improper suit.
15. Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind.
Suits Relating to Matters Concerning the Family
1. Application of the Order.
2. Proceedings to be held in camera.
3. Duty of Court to make efforts for settlement.
4. Assistance of welfare expert.
5. Duty to inquire into facts.
6. “Family” meaning of.
Suits by Indigent Persons
1. Suits may be instituted by indigent persons.
1A. Inquiry into the means of an indigent person
2. Contents of application.
3. Presentation of application.
4. Examination of applicant.
If presented by agent, Court may order applicant to be examined by commission.
5. Rejection of application.
6. Notice of day for receiving evidence of applicant’s indigency.
7. Procedure at hearing.
8. Procedure if application admitted.
9. Withdrawal of permission to sue as an indigent person.
9A. Court to assign a pleader to an unrepresented indigent person.
10. Costs where indigent person succeeds.
11. Procedure where indigent person fails.
11A. Procedure where indigent persons suit abates.
12. State Government may apply for payment of court-fees.
13. State Government to be deemed a party.
14. Recovery of amount of court-fees.
15. Refusal to allow applicant to sue as indigent person to bar subsequent application of like nature.
15A. Grant of time for payment of court-fee.
17. Defence by an indigent person.
18. Power of Government to provide for free legal services to indigent persons.
Suits Relating to Mortgages of Immovable Property
1. Parties to suits for foreclosure, sale and redemption.
2. Preliminary decree in foreclosure-suit.
3. Final decree in foreclosure-suit.
4. Preliminary decree in suit for sale.
Power to decree sale in foreclosure-suit.
5. Final decree in suit for sale.
6. Recovery of balance due on mortgage in suit for sale.
7. Preliminary decree in redemption suit.
8. Final decree in redemption suit.
8A. Recovery of balance due on mortgage in suit for redemption.
9. Decree where nothing is found due or where mortgagee has been overpaid.
10. Costs of mortgagee subsequent to decree.
10A. Power of Court to direct mortgagee to pay mesne profits.
11. Payment of interest.
12. Sale of property subject to prior mortgage.
13. Application of proceeds.
14. Suit for sale necessary for bringing mortgaged property to sale.
15. Mortgages by the deposit of title-deeds and charges.
1. Plaint in interpleader-suit.
2. Payment of thing claimed into Court.
3. Procedure where defendant is suing plaintiff.
4. Procedure at first hearing.
5. Agents and tenants may not institute interpleader-suits.
6. Charge for plaintiff’s costs.
1. Power to state case for Court’s opinion.
2. Where value of subject-matter must be stated.
3. Agreement to be filed and registered as suit.
4. Parties to be subject to Court’s jurisdiction.
5. Hearing and disposal of case.
6. No appeal from a decree passed under rule 5.
1. Courts and classes of suits to which the Order is to apply.
2. Institution of summary suits.
3. Procedure for the appearance of defendant.
4. Power to set aside decree.
5. Power to order bill, etc., to be deposited with officer of Court.
6. Recovery of cost of noting non-acceptance of dishonoured bill or note.
7. Procedure in suits.
Arrest and Attachment before Judgment
Arrest before Judgment
1. Where defendant may be called upon to furnish security for appearance.
3. Procedure on application by surety to be discharged.
4. Procedure where defendant fails to furnish security or find fresh security.
Attachment before Judgment
5. Where defendant may be called upon to furnish security for production of property.
6. Attachment where cause not shown or security not furnished.
7. Mode of making attachment.
8. Adjudication of claim to property attached before judgment.
9. Removal of attachment when security furnished or suit dismissed.
10. Attachment before judgment not to affect rights of strangers, nor bar decree-holder from applying for sale.
11. Property attached before judgment not to be re-attached in execution of decree.
11A. Provisions applicable to attachment.
12. Agricultural produce not attachable before judgment.
13. Small Cause Court not to attach immovable property.
Temporary Injunctions and Interlocutory Orders
1. Cases in which temporary injunction may be granted.
2. Injunction to restrain repetition or continuance of breach.
2A. Consequence of disobedience or breach of injunction.
3. Before granting injunction, Court to direct notice to opposite party.
3A. Court to dispose of application for injunction within thirty days.
4. Order for injunction may be discharged, varied or set aside.
5. Injunction to corporation binding on its officers.
6. Power to order interim sale.
7. Detention, preservation, inspection, etc., of subject-matter of suit.
8. Application for such orders to be after notice.
9. When party may be put in immediate possession of land the subject-matter of suit.
10. Deposit of money, etc., in Court.
Appointment of Receivers
1. Appointment of recievers.
4. Enforcement of receiver’s duties.
5. When Collector may be appointed receiver.
Appeals from original Decrees
1. Form of appeal.
What to accompany memorandum.
Contents of memorandum.
2. Grounds which may be taken in appeal.
3. Rejection or amendment of memorandum.
3A. Application for condonation of delay.
4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.
Stay of proceedings and of execution
5. Stay by Appellate Court.
Stay by Court which passed the decree.
6. Security in case of order for execution of decree appealed from.
8. Exercise of powers in appeal from order made in execution of decree.
Procedure on admission of appeal
9. Registry of memorandum of appeal.
Register of appeal.
10. Appellate Court may require appellant to furnish security for costs.
Where appellant resides out of India.
11. Power to dismiss appeal without sending notice to Lower Court.
11A. Time within which hearing under rule 11 should be concluded.
12. Day for hearing appeal.
13. Appellate Court to give notice to Court whose decree appealed from.
Transmission of papers to Appellate Court.
Copies of exhibits in Court whose decree appealed from.
14. Publication and service of notice of day for hearing appeal.
Appellate Court may itself cause notice to be served.
15. Contents of notice.
Procedure on hearing
16. Right to begin.
17. Dismissal of appeal for appellant’s default.
Hearing appeal ex parte.
18. Dismissal of appeal where notice not served in consequence of appellant’s failure to deposit costs.
19. Re-admission of appeal dismissed for default.
20. Power to adjourn hearing, and direct persons appearing interested to be made respondents.
21. Re-hearing on application of respondent against whom ex parte decree made.
22. Upon hearing respondent may object to decree as if he had preferred a separate appeal.
Form of objection and provisions applicable thereto.
23. Remand of case by Appellate Court.
23A. Remand in other cases.
24. Where evidence on record sufficient, Appellate Court may determine case finally.
25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.
26. Findings and evidence to be put on record.
Objections to finding.
Determination of appeal.
26A. Order of remand to mention date of next hearing
27. Production of additional evidence in Appellate Court.
28. Mode of taking additional evidence.
29. Points to be defined and recorded.
Judgment in appeal
30. Judgment when and where pronounced.
31. Contents, date and signature of judgment.
32. What judgment may direct.
33. Power of Court of appeal.
34. Dissent to be recorded.
Decree in appeal
35. Date and contents of decree.
Judge dissenting from judgment need not sign decree.
36. Copies of judgment and decree to be furnished to parties.
37. Certified copy of decree to be sent to Court whose decree appealed from.
Appeals from Appellate Decrees
2. Power of Court to direct that the appeal be heard on the question formulated by it.
3. Application of rule 14 of Order XLI.
Appeals from Orders
1. Appeals from orders.
1A. Right to challenge non-appealable orders in appeal against decrees.
Appeals by Indigent Persons
1. Who may appeal as an indigent person.
2. Grant of time for payment of Court-fee.
3. Inquiry as to whether applicant is an indigent person.
Appeals to the Supreme Court
1. “Decree” defined.
2. Application to Court whose decree complained of.
3. Certificate as to value or fitness.
6. Effect of refusal of certificate.
7. Security and deposit required on grant of certificate.
8. Admission of appeal and procedure thereon.
9. Revocation of acceptance of security.
9A. Power to dispense with notices in case of deceased parties.
10. Power to order further security or payment.
11. Effect of failure to comply with order.
12. Refund of balance deposit.
13. Powers of Court pending appeal.
14. Increase of security found inadequate.
15. Procedure to enforce orders of the Supreme Court.
16. Appeal from order relating to execution.
1. Reference of question to High Court.
2. Court may pass decree contingent upon decision of High Court.
3. Judgment of High Court to be transmitted, and case disposed of accordingly.
4. Costs of reference to High Court.
4A. Reference to High Court under proviso to section 113.
5. Power to alter, etc., decree of Court making reference.
6. Power to refer to High Court questions as to jurisdiction in small causes.
7. Power to District Court to submit for revision proceedings had under mistake as to jurisdiction in small causes.
1. Application for review of judgment.
3. Form of applications for review.
4. Application where rejected.
Application where granted.
5. Application for review in Court consisting of two or more Judges.
6. Application where rejected.
7. Order of rejection not appealable.
Objections to order granting application.
8. Registry of application granted, and order for re-hearing.
9. Bar of certain applications.
1. Process to be served at expense of party issuing.
Costs of service.
2. Orders and notices how served.
3. Use of forms in appendices.
Chartered High Courts
1. Who may serve processes of High Court.
2. Saving in respect of Chartered High Courts.
3. Application of rules.
Provincial Small Cause Courts
1. Provincial Small Cause Courts.
Presidency Small Cause Courts
1. Presidency Small Cause Courts.
APPENDICES TO THE FIRST SCHEDULE
1. Titles of suits.
2. Description of parties in particular cases.
4. Written statements.
C.—DISCOVERY, INSPECTION AND ADMISSION.
G.—APPEAL, REFERENCE AND REVIEW.
Mesne Profits – the High Court has not at all considered the market rate as per the current potential of the suit property. The High Court has mechanically reduced the mesne profits to 50%. Even if the valuer’s report was for commercial use/commercial property, in that case also, the mesne profits could not have been reduced by 50%. AIR 2022 SC 1375 : JT 2022 (3) SC 124
Constitution of India – Article 227 – Scope of Jurisdiction – Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported.
Code of Civil Procedure, 1908 – S. 96, O. XLI R. 31 – There cannot be an automatic allowing of the appeal and quashing and setting aside the judgment and decree passed by the trial court without any further entering into the merits of the appeal and/or expressing anything on merits in the appeal on an impleadment of a party in an appeal.
Code of Civil Procedure, 1908 – Section 26 – Succession Act, 1925 – Section 295 – Whether decree is to be prepared in a probate case ? Whether a contentious proceeding referred under Section 295 of the Act, 1925 has same meaning as of a suit filed under Section 26 of the C.P.C. ? Whether a petition filed under Section 272 or Section 273 of the Act, 1925 can be treated to be a plaint and its presentation before the competent court can be treated to be presentation of a plaint so as to consider it to be a suit instituted under Section 26 r/w Order IV rule 1 CPC. ?
Will – A mere exclusion of either brother or sister per se would not create a suspicion unless it is surrounded by other circumstances creating an inference. In a case where a testatrix is accompanied by the sister of the beneficiary of the Will and the said document is attested by the brother, there is no room for any suspicion when both of them have not raised any issue.
Code of Civil Procedure 1908 – Order XXI – Execution – Provisions available to a judgment-debtor to stall execution – the case on hand is fit to be included in the syllabus of a law school as a study material for students to get equipped with the various provisions of the Code relating to execution.
Code of Civil Procedure, 1908 – Section 11, Order 14 Rules 1 & 2 – Res judicata – Whether can be decided as preliminary issue ? AIR 2021 SC 4523
Code of Civil Procedure, 1908 – Underlying object of Order VII Rule 11 of CPC is that when a plaint does not disclose a cause of action, the court would not permit the plaintiff to unnecessarily protract the proceedings. In such a case, it will be necessary to put an end to the sham litigation so that further judicial time is not wasted.
Code of Civil Procedure, 1908 – Order VII Rule 14 (3) – Commercial Courts Act, 2015 – Section 16 – Application for leave to produce on record additional documents – Disclosure and discovery of documents – Non filing of the additional documents on the ground of they being voluminous cannot be said to be a reasonable cause for non disclosure/filing along with plaint. AIR 2021 SC 4303