Civil Procedure Code: Suits, Pleadings, Interim Orders, Appeal, Review and Execution

What to remember

• The Code of Civil Procedure, 1908 is procedural law. It has a body of sections, and the First Schedule holds the Orders and Rules. Sections give the principles; Orders and Rules give the detailed steps.
• A civil suit moves in a fixed order: plaint, summons, written statement, issues, evidence, arguments, judgment and decree, then appeal, review or execution.
• Interim orders protect the right until the final decision. Temporary injunction, receiver, attachment before judgment and arrest before judgment are the main ones.

1. Basic concepts and definitions

• Suit: a civil proceeding begun by a plaint (Section 26).
• Decree (Section 2(2)): the formal expression of the adjudication that conclusively decides the rights of the parties on the matters in controversy. It may be preliminary (decides some rights, further steps remain) or final. A decree can be appealed.
• Order (Section 2(14)): the formal decision of a civil court that is not a decree. Orders are appealable only where the Code expressly allows (Section 104 and Order XLIII).
• Judgment (Section 2(9)): the statement of the grounds for a decree or order.
• Judgment-debtor and decree-holder: the person against whom a decree is passed and the person in whose favour it is passed.
• Mesne profits: profits which a person in wrongful possession of property actually received, or could have received with ordinary diligence.

2. Jurisdiction and bars

Pecuniary and territorial jurisdiction decide which court hears the suit. Subject-matter jurisdiction cannot be created by consent. Territorial and pecuniary objections must be raised at the earliest stage, or they are lost (Section 21).

3. Stages of a suit

• 1. Institution: by presenting a plaint (Order IV).
• 2. Plaint (Order VII): it must contain the name of the court, names and particulars of the parties, facts constituting the cause of action, jurisdiction facts, relief claimed and the valuation for court fee and jurisdiction. Rejection of plaint (Order VII Rule 11) happens when there is no cause of action, the relief is undervalued and not corrected, the plaint is insufficiently stamped and not corrected, or the suit is barred by law.
• 3. Summons (Order V, Section 27): issued to the defendant to appear and answer.
• 4. Written statement (Order VIII): to be filed within 30 days of service of summons; the court may extend the time but not beyond 90 days from service. Set-off (Rule 6) and counter-claim (Rule 6A) may be raised.
• 5. Appearance and default (Order IX): if the plaintiff does not appear, the suit may be dismissed (Rule 8); if the defendant does not appear, the court may proceed ex parte (Rule 6).
• 6. Examination of parties (Order X), discovery and inspection (Order XI), admissions (Order XII), production of documents (Order XIII).
• 7. Framing of issues (Order XIV): points of fact and law on which the parties disagree.
• 8. Summoning of witnesses (Order XVI) and hearing (Order XVIII): the plaintiff begins; evidence is by affidavit for examination-in-chief with cross-examination as allowed.
• 9. Adjournments (Order XVII): not more than three adjournments to a party during the hearing of a suit, and the reasons must be recorded.
• 10. Judgment and decree (Order XX): judgment is to be pronounced within 30 days of the end of the hearing, and in any case not later than 60 days. The decree follows, bearing costs and interest as ordered.

4. Pleadings (Order VI)

A pleading means a plaint or a written statement.

• Rule 2: it shall state material facts, not the evidence and not the law.
• Rule 4: particulars (for fraud, misrepresentation, breach of trust and the like) must be given in detail.
• Rule 14: each pleading is signed by the party or his pleader.
• Rule 15: each pleading must be verified at the foot by the party, stating which paragraphs are true to his own knowledge and which he believes true on information.
• Rule 17: amendment of pleadings is allowed at any stage for determining the real questions in controversy, but after the trial begins it is allowed only if due diligence is shown.
• A pleading may be struck out (Rule 16) if it is unnecessary, scandalous, frivolous, or may embarrass or delay a fair trial.

5. Interim orders

Interim orders are passed in a pending suit to prevent injustice before the final decision.

The three tests for a temporary injunction: a prima facie case, balance of convenience, and irreparable injury if the injunction is refused. An ex parte injunction can be given only for reasons recorded in writing, with the requirement that the order be communicated to the other side quickly.

Summary suits (Order XXXVII): a quick procedure for suits on bills, hundis, promissory notes and written contracts for a fixed sum. The defendant gets leave to defend only on a showing of a good defence.

6. Appeals

An appeal is a right created by statute, not a natural right.

Order XLI governs first appeals: the memorandum of appeal is filed with the decree copy; the appellate court may stay execution (Rule 5) on conditions; the appeal may be dismissed, the decree confirmed, varied or reversed, the case remanded (Rules 23 and 23A), or issues may be framed and sent for finding. Cross-objection can be filed by a respondent (Rule 22). The appellate court can also pass any decree or order which ought to have been made and pass such other decree as the case requires (Order XLI Rule 33).

Limitation for a first appeal is generally 30 days where the appeal lies to the District Court and 90 days where it lies to the High Court; for a second appeal it is 90 days; for an appeal against an order it is generally 30 days. Time spent in obtaining a copy of the judgment is excluded. Check the Limitation Act for exceptions.

7. Review, revision and reference

A review is not an appeal in disguise. It cannot reconsider the case on merits or correct a wrong view of law. A review application should be filed within 30 days of the decree. An application for review of an order refusing review is not allowed. Where a review is allowed, the matter is reheard. In revision, the High Court does not act as an appellate court and the power is supervisory.

8. Execution (Order XXI, Sections 36 to 74)

Execution is the process by which the decree-holder gets the fruit of the decree.

• Who executes: the court which passed the decree, or a court to which it is transferred (Section 39). Section 38 says the decree may be executed by the court that passed it or by the court to which it is sent.
• Section 47: all questions between the parties relating to execution, discharge or satisfaction of the decree are decided by the executing court and not by a separate suit.
• Section 51: the modes of execution:

1. Delivery of the property specifically decreed.

2. Attachment and sale (or sale without attachment) of property.

3. Arrest and detention in civil prison.

4. Appointment of a receiver.

5. Any other manner which the nature of the relief requires.

• Section 60: lists property that cannot be attached, such as the tools of an artisan, necessary wearing apparel, cooking vessels, a house of an agriculturist, wages up to a limit, and the like.
• Section 58: the maximum detention in civil prison is three months where the decree is for more than Rs 5,000 and six weeks where it is more than Rs 2,000 but not more than Rs 5,000. The judgment-debtor must be given a chance to show cause.
• Section 64: private transfer of attached property is void against claims under the attachment.
• Order XXI Rule 54: attachment of immovable property is by prohibitory order and by proclamation at the property.
• Sale: a proclamation of sale is made (Rule 66); the highest bidder deposits 25 percent immediately and the balance within 15 days (Rules 84 and 85). A sale can be set aside under Rules 89 to 91 for deposit or irregularity.
• Limitation for execution of a decree: 12 years from the date it becomes enforceable.
• Section 144: restitution; when a decree is reversed or varied, the party who benefited must restore what he gained.

9. Other useful provisions

• Costs (Sections 35, 35A and 35B): costs follow the event; compensatory costs for false or vexatious claims; costs for delay.
• Interest (Section 34): the court may award interest on the decretal amount.
• Suits by or against Government (Section 79, Order XXVII): the Government is sued through the State; notice under Section 80 is needed, with leave of the court for an urgent suit.
• Minors and persons of unsound mind (Order XXXII): a suit is filed by a next friend and defended by a guardian ad litem.
• Inherent powers (Section 151): used to do justice or prevent abuse of process, but not where the Code gives an express provision.
• Section 148: the court may enlarge a period it has fixed.

Exam traps

• Res sub judice vs res judicata: the first concerns a pending suit; the second a decided suit.
• Preliminary vs final decree: a preliminary decree leaves further proceedings.
• Decree vs order: a decree conclusively decides rights; an order does not and is appealable only as the Code allows.
• First vs second appeal: the first covers fact and law; the second only substantial questions of law.
• Review vs appeal: review goes to the same court; appeal goes to a higher court.
• Revision vs appeal: revision tests jurisdiction and material irregularity; it is not a re-hearing.
• Sections vs Orders: sections give principles; Orders hold the procedural rules.
• Section 47: execution questions are decided in execution, not by a fresh suit.

One-liners

• 1. The Code of Civil Procedure was passed in 1908.
• 2. Section 9 provides that civil courts try all civil suits unless barred.
• 3. Section 10 is res sub judice and Section 11 is res judicata.
• 4. A written statement is due in 30 days, extendable to 90.
• 5. Notice to Government under Section 80 is of two months.
• 6. Section 96 allows a first appeal.
• 7. Section 100 allows a second appeal on a substantial question of law.
• 8. Section 114 and Order XLVII deal with review.
• 9. Section 115 deals with revision.
• 10. Section 47 deals with questions in execution.
• 11. Order XXXIX provides for temporary injunctions.
• 12. Section 151 preserves the inherent powers of the court.

Practice questions

1. The Code of Civil Procedure was enacted in

   1. 1950
   2. 1908
   3. 1872
   4. 1973
   Answer

   B. 1908

   The Code is of 1908.

2. A civil suit is instituted by

   1. A charge sheet
   2. A complaint to police
   3. An FIR
   4. A plaint
   Answer

   D. A plaint

   A suit begins with a plaint.

3. Section 11 of the Code deals with

   1. Review
   2. Caveat
   3. Res judicata
   4. Res sub judice
   Answer

   C. Res judicata

   Section 11 bars retrial of a decided matter.

4. Section 10 of the Code deals with

   1. Res judicata
   2. Execution
   3. Costs
   4. Res sub judice
   Answer

   D. Res sub judice

   Section 10 stays a later suit on the same matter.

5. A written statement must ordinarily be filed within how many days of service of summons?

   1. 60
   2. 30
   3. 7
   4. 15
   Answer

   B. 30

   Thirty days, extendable up to 90.

6. The outer time limit for filing a written statement, with the court's extension, is

   1. 45 days
   2. 60 days
   3. 90 days
   4. 120 days
   Answer

   C. 90 days

   Order VIII Rule 1 permits extension up to 90 days.

7. Notice to Government before suing it under Section 80 is of

   1. Two months
   2. Six months
   3. One month
   4. 15 days
   Answer

   A. Two months

   Section 80 requires two months' notice.

8. A first appeal from a decree lies under

   1. Section 100
   2. Section 115
   3. Section 114
   4. Section 96
   Answer

   D. Section 96

   Section 96 provides the first appeal.

9. A second appeal lies to the High Court only on

   1. A substantial question of law
   2. Costs
   3. Questions of fact
   4. Any ground
   Answer

   A. A substantial question of law

   Section 100 limits second appeals.

10. Review of a decree is dealt with by

    1. Section 100
    2. Section 114 and Order XLVII
    3. Section 151
    4. Section 96
    Answer

    B. Section 114 and Order XLVII

    Review provisions are in Section 114 and Order XLVII.

11. Revision to the High Court is under

    1. Section 47
    2. Section 80
    3. Section 115
    4. Section 11
    Answer

    C. Section 115

    Section 115 gives revisional power.

12. Questions relating to execution and satisfaction of a decree are decided under

    1. Section 148A
    2. Section 47
    3. Section 89
    4. Section 9
    Answer

    B. Section 47

    Section 47 requires them to be decided by the executing court.

13. Inherent powers of civil courts are saved by

    1. Section 10
    2. Section 60
    3. Section 20
    4. Section 151
    Answer

    D. Section 151

    Section 151 saves inherent powers.

14. Settlement outside court, including arbitration and mediation, is provided in

    1. Section 144
    2. Section 80
    3. Section 89
    4. Section 96
    Answer

    C. Section 89

    Section 89 lists ADR modes.

15. Temporary injunctions are governed by

    1. Order XXXIX
    2. Order VII
    3. Order XXI
    4. Order V
    Answer

    A. Order XXXIX

    Order XXXIX Rules 1 and 2.

16. Rejection of a plaint is provided in

    1. Order VII Rule 11
    2. Order XLI Rule 5
    3. Order XXI Rule 66
    4. Order IX Rule 13
    Answer

    A. Order VII Rule 11

    Order VII Rule 11 lists grounds.

17. Setting aside of an ex parte decree is provided in

    1. Order VI Rule 17
    2. Order VII Rule 11
    3. Order XXXIX Rule 2A
    4. Order IX Rule 13
    Answer

    D. Order IX Rule 13

    Order IX Rule 13 allows the defendant to apply.

18. Amendment of pleadings is governed by

    1. Order VI Rule 15
    2. Order VI Rule 17
    3. Order VII Rule 1
    4. Order XI Rule 1
    Answer

    B. Order VI Rule 17

    Rule 17 deals with amendment.

19. Verification of pleadings is provided in

    1. Order VI Rule 17
    2. Order X Rule 1
    3. Order VI Rule 15
    4. Order VIII Rule 6
    Answer

    C. Order VI Rule 15

    Rule 15 requires verification.

20. Which of the following is NOT a test for a temporary injunction?

    1. Decision of the appellate court
    2. Irreparable injury
    3. Prima facie case
    4. Balance of convenience
    Answer

    A. Decision of the appellate court

    The three tests are prima facie case, balance of convenience and irreparable injury.

21. How many adjournments may be granted to a party during the hearing of a suit under Order XVII?

    1. One
    2. Three
    3. Five
    4. No limit
    Answer

    B. Three

    Not more than three adjournments.

22. Summary suits are governed by

    1. Order XXXII
    2. Order XL
    3. Order XXI
    4. Order XXXVII
    Answer

    D. Order XXXVII

    Order XXXVII covers summary suits.

23. Attachment before judgment is provided in

    1. Order XLI Rule 5
    2. Order XXXIX Rule 1
    3. Order XXXVIII Rule 5
    4. Order XXI Rule 54
    Answer

    C. Order XXXVIII Rule 5

    Order XXXVIII Rule 5 provides for it.

24. A receiver is appointed under

    1. Order XL
    2. Order XII
    3. Order IV
    4. Order XXIII
    Answer

    A. Order XL

    Order XL deals with receivers.

25. Which is NOT a mode of execution under Section 51?

    1. Attachment and sale
    2. Appointment of receiver
    3. Arrest and detention
    4. Imprisonment for contempt in suit
    Answer

    D. Imprisonment for contempt in suit

    The listed modes do not include punishment for contempt.

26. Stay of execution of a decree under appeal is dealt with in

    1. Order XI Rule 12
    2. Order XLI Rule 5
    3. Order VII Rule 1
    4. Order IX Rule 6
    Answer

    B. Order XLI Rule 5

    Order XLI Rule 5 governs stay.

27. A highest bidder at an auction sale of immovable property must deposit immediately

    1. 50 percent
    2. The full price
    3. 25 percent
    4. 10 percent
    Answer

    C. 25 percent

    Order XXI Rule 84 requires 25 percent.

28. The balance of the purchase money in a court auction sale must be paid within

    1. 15 days
    2. 60 days
    3. 5 days
    4. 30 days
    Answer

    A. 15 days

    Order XXI Rule 85 gives 15 days.

29. Statement 1: Res judicata bars retrial of a matter already decided. Statement 2: Res sub judice applies to decided suits.

    1. 1 only
    2. 2 only
    3. Both 1 and 2
    4. Neither 1 nor 2
    Answer

    A. 1 only

    Res sub judice applies to pending suits.

30. Statement 1: A second appeal lies on any question of fact. Statement 2: A first appeal can be on facts and law.

    1. 1 only
    2. 2 only
    3. Both 1 and 2
    4. Neither 1 nor 2
    Answer

    B. 2 only

    Second appeals are limited to substantial questions of law.

31. Statement 1: A review is filed in the same court. Statement 2: A review is a re-hearing of the whole case on merits.

    1. 1 only
    2. 2 only
    3. Both 1 and 2
    4. Neither 1 nor 2
    Answer

    A. 1 only

    A review is limited and is not a re-hearing on merits.

32. Statement 1: A decree conclusively decides rights. Statement 2: Every order is appealable.

    1. 1 only
    2. 2 only
    3. Both 1 and 2
    4. Neither 1 nor 2
    Answer

    A. 1 only

    Orders are appealable only where the Code allows.

33. Statement 1: A decree in favour of a party can be executed by the court that passed it. Statement 2: It can also be sent to another court for execution.

    1. 1 only
    2. 2 only
    3. Both 1 and 2
    4. Neither 1 nor 2
    Answer

    C. Both 1 and 2

    Both are correct.

34. Match the pair: Section 20 deals with

    1. Review
    2. Appeals
    3. Suits for immovable property
    4. Other suits, based on defendant's residence or cause of action
    Answer

    D. Other suits, based on defendant's residence or cause of action

    Section 20 is the residual provision for place of suing.

35. Match the pair: Section 16 deals with

    1. Costs
    2. Suits for immovable property
    3. Appeal
    4. Review
    Answer

    B. Suits for immovable property

    Suits for immovable property go to the court where it lies.

36. Match the pair: Section 144 deals with

    1. Costs
    2. Caveat
    3. Review
    4. Restitution
    Answer

    D. Restitution

    It restores what was gained under a reversed decree.

37. Match the pair: Order XXXII deals with suits by or against

    1. Foreign states
    2. The Government
    3. Minors and persons of unsound mind
    4. Corporations
    Answer

    C. Minors and persons of unsound mind

    Order XXXII covers minors and persons of unsound mind.

38. A defendant who does not appear after proper service may be

    1. Dismissed from the suit
    2. Declared a witness
    3. Arrested at once
    4. Proceeded against ex parte
    Answer

    D. Proceeded against ex parte

    Order IX Rule 6 allows ex parte proceedings.

39. A plaintiff fails to appear on the date fixed. The court may

    1. Convert it to a criminal case
    2. Refer it to the police
    3. Dismiss the suit under Order IX Rule 8
    4. Decree it for the plaintiff
    Answer

    C. Dismiss the suit under Order IX Rule 8

    Order IX Rule 8 allows dismissal for default.

40. A party expects that an opponent will file an application against him. He can protect himself by lodging a

    1. Writ
    2. Caveat
    3. Decree
    4. Counter-claim
    Answer

    B. Caveat

    Section 148A allows a caveat.

41. A decree-holder wants possession of immovable property decreed to him. The suitable mode of execution is

    1. Arrest and detention
    2. Appointment of a receiver for cash
    3. Attachment of wages
    4. Delivery of the property
    Answer

    D. Delivery of the property

    Delivery is the mode for specific property.

42. A defendant claims an amount owed to him by the plaintiff in the same suit as a defence. This is a

    1. Review
    2. Reference
    3. Set-off
    4. Caveat
    Answer

    C. Set-off

    Order VIII Rule 6 provides set-off.

43. A pleading may be struck out if it is

    1. Signed by the pleader
    2. Frivolous or scandalous
    3. Verified
    4. Short
    Answer

    B. Frivolous or scandalous

    Order VI Rule 16 allows striking out.

44. A party wants the High Court to correct a subordinate court's illegal assumption of jurisdiction. The best remedy under the Code is

    1. Second appeal under Section 100
    2. Caveat under Section 148A
    3. Revision under Section 115
    4. Review under Section 114
    Answer

    C. Revision under Section 115

    Revision lies for jurisdictional errors.

45. A consent decree passed by a court

    1. Is always void
    2. Can be appealed on merits as of right
    3. Is a criminal order
    4. Cannot be appealed under Section 96(3)
    Answer

    D. Cannot be appealed under Section 96(3)

    Section 96(3) bars appeal against a consent decree.