STAGES IN THE SUIT FOR RECOVERY OF MONEY
Sl.
Stage Provision of Law
No.
1 Filing of Plaint Section 26 Order VII Rule 1 & 2
Institution of suits.
[(1)] Every suit shall be instituted by the presentation of a
plaint or in such other manner as may be prescribed.
[(2) In every plaint, facts shall be proved by affidavit.]
[Provided that such an affidavit shall be in the form and
manner as prescribed under Order VI of Rule 15A.]
Order VII Rule 1 of Code of Civil Procedure 1908
"Particulars to be contained in plaint"
The plaint shall contain the following particulars :-
(a) the name of the Court in which the suit is brought;
(b) the name, description and place of residence of the
plaintiff;
(c) the name, description and place of residence of the
defendant, so far as they can be ascertained;
(d) where the plaintiff or the defendant is a minor or a
person of unsound mind, a statement to that effect;
(e) the facts constituting the cause of action and when it
arose;
(f) the facts showing that the Court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set-off or relinquished
a portion of his claim, the amount so allowed or
relinquished; and
(i)a statement of the value of the subject-matter of the suit
for the purposes of jurisdiction and of court-fees, so far as
the case admits.
Order VII Rule 2 of Code of Civil Procedure 1908
"In money suits"
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Where the plaintiff seeks the recovery of money, the plaint
shall state the precise amount claimed:
But where the plaintiff sues for mesne profits, or for an
amount which will be found due to him on taking unsettled
accounts between him and the defendant, or for movables
in the possession of the defendant, or for debts of which the
value he cannot, after the exercise of reasonable diligence,
estimate, the plaint shall state approximately the amount or
value sued for.
After filing of the Plaint, it will be numbered (O.S
xyz/2020) and Court Hall will be allotted.
2 Issuance of Order V of the CPC deals with Issuance and Service of
summons Summons.
Section 27 of Code of Civil Procedure 1908 "Summons to
defendants"
Where a suit has been duly instituted, a summons may be
issued to the defendant to appear and answer the claim and
may be served in manner prescribed on such day not
beyond thirty days from date of the institution of the suit.
Section 28 of Code of Civil Procedure 1908 "Service of
summons where defendant resides in another State"
(1) A summons may be sent for service in another State to
such Court and in such manner as may be prescribed by
rules in force in that State.
(2) The Court to which such summons is sent shall, upon
receipt thereof, proceed as if it had been issued by such
Court and shall then return the summons to the Court of
issue together with the record (if any) of its proceedings
with regard thereto.
(3) Where the language of the summons sent for service in
another State is different from the language of the record
referred to in sub- section (2), a translation of the record,
(a) in Hindi, where the language of the Court issuing the
summons is Hindi, or
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(b) in Hindi or English where the language of such record is
other than Hindi or English, shall also be sent together with
the record sent under that sub-section
3 Appearance of Upon receiving the summons the defendant appears before
Parties the Court.
Order IX of the CPC provides for the appearance and
Parties and consequences for non-appearance.
"Parties to appear on day fixed in summons for defendant
to appear and answer"
On the day fixed in the summons for the defendant to
appear and answer, the parties shall be in attendance at the
Court-house in person or by their respective pleaders, and
the suit shall then be heard unless the hearing is adjourned
to a future day fixed by the Court.
4 Failure of Order IX Rule 6 provides for the consequence of non-
defendant to appearance of the Defendant
appear (Placing "Procedure when only plaintiff appears"
the defendant
ex-parte) (1) Where the plaintiff appears and the defendant does not
appear when the suit is called on for hearing, then-
(a) When summons duly served- if it is proved that the
summons was duly served, the Court may make an order
that the suit shall be heard ex parte;
(b) When summons not duly served- if it is not proved that
the summons was duly served, the Court shall direct a
second summons to be issued and served on the defendant;
(c) When summons served but not in due time- if it is
proved that the summons was served on the defendant, but
not in sufficient time to enable him, to appear and answer
on the day fixed in the summons, the Court shall postpone
the hearing of the suit to a future day to be fixed by the
Court, and shall direct notice of such day to be given to the
defendant.
(2) Where it is owing to the plaintiff's default that the
summons was not duly served or was not served in
sufficient time, the Court shall order the plaintiff to pay the
costs occasioned by the postponement.
5 Filing of Order VIII of CPC provides for Written Statement, Set-Off
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Advocates & IPR Consultants,
Gandhinagar, Bangalore. Page 3
Written and Counter-Claim
Statement by
the Defendant Rule 1.Written Statement.—The Defendant shall, within
thirty days from the date of service of summons on him,
present a written statement of his defence:
Provided that where the defendant fails to file the written
statement within the said period of thirty days, he shall
be allowed to file the same on such other day, as may be
specified by the Court, for reasons to be recorded in
writing,
but which shall not be later than ninety days from the date
of service of summons.
6 Framing of Order XIV Rule 1 of CPC provides for Framing of Issues.
Issues
Post filing of the written statement by the defendant, the
Court ascertains upon the material propositions of fact or of
law the parties are at variance and frame and record issues
on which the right decision of the case appears to depend.
7 Examination of Section 137 of the Indian Evidence Act, 1872 lays down the
witnesses following:
Examination-in-chief.—The examination of a witness by the
party who calls him shall be called his examination-in-chief.
Cross-examination.—The examination of a witness by the
adverse party shall be called his cross-examination.
Re-examination.—The examination of a witness,
subsequent to the cross-examination by the party who
called him, shall be called his re-examination.
Order XVIII Rule 4 of the CPC provides for recording of
evidence
8 Arguments After the completion of the recording of evidence of
witnesses, the Court fixes a date for Arguments by the
Parties.
Order XVIII Rule 3, 3-A, 3-B, 3-C and 3-D provides for
Arguments
9 Judgement and After the Court has applied its mind to the Arguments of
Decree both the Parties, it then fixes a date for Judgement.
Order XX deals with Judgement and Decree.
What is the difference between Judgement and Decree?
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Advocates & IPR Consultants,
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Section 33 deals with Judgement and Decree as under:
The Court, after the case has been heard, shall pronounce
judgment, and on such judgment a decree shall follow.
Section 2(9) defines judgment as “Judgment means the
statement given by a judge on the basis of a decree or
order.”
Section 2(2) states that: "decree" means the formal
expression of an adjudication which, so far as regards the
Court expressing it, conclusively determines the rights of
the parties with regard to all or any of the matters in
controversy in the suit and may be either preliminary or
final. It shall be deemed to include the rejection of a plaint
and the determination of any question within section 144,
but shall not include-
(a) any adjudication from which an appeal lies as an appeal
from an order, or
(b) any order of dismissal for default.
Explanation.-A decree is preliminary when further
proceedings have to be taken before the suit can be
completely disposed of. It is final when such adjudication
completely disposes of the suit. It may be partly
preliminary and partly final.
10 Execution of After obtaining a favourable decree, the Plaintiff should file
the decree an Execution Case to execute the Decree passed in the Civil
Suit.
The provisions pertaining to execution are dealt in Order
XXI of the CPC.
Note:
1) Please check the latest amendments of the provisions of law mentioned above.
2) The provisions of law referred above must be read with High Court Amendments.
3) In practical scenario where the recovery cases are uncontested, they proceed to
recording of evidence after placing the defendant ex-parte.
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Advocates & IPR Consultants,
Gandhinagar, Bangalore. Page 5
