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The
Civil Procedure Code, 1908
(Section 1 to 78)
[Act 5 of 1908 as amended up to Act 34 of 2019]1
[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:—
► Object and interpretation.—The Code of Civil Procedure, 1908 as its Preamble indicates, is
an Act to consolidate and amend the laws relating to the procedure of the courts of civil judicature.
No doubt it also deals with certain substantive rights. But as the Preamble vouchsafes, the object
essentially is to consolidate the law relating to civil procedure, Prem Lala Nahata v. Chandi Prasad
Sikaria, (2007) 2 SCC 551.
PRELIMINARY
1. Short title, commencement and extent.—(1) This Act may be cited as the
Code of Civil Procedure, 1908.
(2) It shall come into force on the first day of January, 1909.
2 [(3) It extends to3 the whole of India except—

(a) 4 [* * *]
(b) the State of Nagaland and the tribal areas:
Provided that the State Government concerned may, by notification in the Official
Gazette, extend the provisions of this Code or any of them to the whole or part of the
State of Nagaland or such tribal areas, as the case may be, with such supplemental,
incidental or consequential modifications as may be specified in the notification.
Explanation.—In this clause, “tribal areas” means the territories which, immediately
before the 21st day of January, 1972, were included in the tribal areas of Assam as
referred to in paragraph 20 of the Sixth Schedule to the Constitution.
(4) In relation to the Amindivi Islands,5 and the East Godavari, West Godavari and
Visakhapatnam Agencies in the State of Andhra Pradesh and the Union Territory of
Lakshadweep, the application of this Code shall be without prejudice to the application
of any rule or regulation for the time being in force in such Islands, Agencies or such
Union Territory, as the case may be, relating to the application of this Code.]
► Extent and applicability.—The Civil Procedure Code, 1908 applies to all proceedings in
courts of civil jurisdiction, subject to any special or local law or any special jurisdiction under any
other law for the time being in force. The main feature of the Code is its division into two parts. The
main body of the Code consists of sections which create jurisdiction while the rules indicate the
manner in which the jurisdiction is to be exercised, Vareed Jacob v. Sosamma Geevarghese,
(2004) 6 SCC 378.
► Original jurisdiction of Supreme Court.—Original jurisdiction of Supreme Court under
Article 131 of Constitution of India is not governed by procedure prescribed in CPC save and
except the procedure which has been expressly made applicable by Supreme Court Rules. A suit
under Article 131 cannot and ought not to be decided with very technical approach insofar as
pleadings and procedure are concerned, State of T.N. v. State of Kerala, (2014) 12 SCC 696.
► In backward areas.—CPC is not applicable to backward areas. Courts shall be guided by
spirit thereof only and not be bound by letter of CPC, Westarly Dkhar v. Sehekaya Lyngdoh,
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(2015) 4 SCC 292.
► Procedural Law.—Procedure is meant only to facilitate the administration of justice and not
to defeat the same, Banwari Lal v. Balbir Singh, (2016) 1 SCC 607.
2. Definitions.—In this Act, unless there is anything repugnant in the subject or
context,—
High Court Amendment
CALCUTTA.—In the opening words of the section add the words “and in the Rules
of practice and procedure of the Court of Small Causes of Calcutta framed under the
provision of Section 9 of the Presidency Small Cause Courts Act, 1882,” after the
words, “In this Act” and before the words “unless there is” Cal. Gaz. Pt. I, dt. 20-4-
1967.
(1) “Code” includes rules;
High Court Amendment
CALCUTTA.—In clause (1) add the words “and, in its application to Courts other
than the Court of Small Causes of Calcutta, means the Code of Civil Procedure,
1908; and, in its application to that Court, means the provisions of the Code of Civil
Procedure, 1908, as adapted, modified and extended by the provisions of
notifications issued from time to time under the provisions of Section 8 of that
Code” after the words “includes rules” Cal. Gaz. Pt I, dt. 20-4-1967.
(2) “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 6 [* * *] 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;
High Court Amendment
CALCUTTA.—In clause (2) insert a fullstop after “matters in controversy in the
suit”; substitute. “In Courts other than the Court of Small Causes of Calcutta it” for
“and” after “matters in controversy in the suit”; insert a semi-colon and the word
“and” in place of the fullstop after “preliminary or final” Cal. Gaz. Pt I, dt. 20-4-
1967.
► Preliminary and final decrees.—A preliminary decree is one which declares the rights and
liabilities of the parties leaving the actual result to be worked out in further proceedings. Then as a
result of the further inquiries conducted pursuant to the preliminary decree, the rights of the parties
are fully determined and a decree is passed in accordance with such determination which is final.
Both the decrees are in the same suit. Final decree may be said to become final in two ways: (i)
when the time for appeal has expired without any appeal being filed against the preliminary decree
or the matter has been decided by the highest Court; (ii) when, as regards the Court passing the
decree, the same stands completely disposed of. It is the latter sense that the word ‘decree’ is used
in Section 2(2) of CPC, Shanker Balwant Lokhande v. Chandrakant Shankar Lokhande, (1995) 3
SCC 413.
In certain situations, for the purpose of complete adjudication of the disputes between the parties
an appellate court may also take into consideration subsequent events after passing of the
preliminary decree, Satnam Singh v. Surendra Kaur, (2009) 2 SCC 562.
► Decree and order : Distinction.—A “decree” is defined in Section 2(2) CPC. It may partly
be preliminary and partly be final. The court with a view to determine whether an order passed by it
is a decree or not must take into consideration the pleadings of the parties and the proceedings
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leading up to the passing of an order. The circumstances under which an order had been made
would also be relevant.
For determining the question as to whether an order passed by court is a decree or not, it must
satisfy the following tests:
(i) There must be an adjudication
(ii) Such adjudication must have been given in a suit;
(iii) It must have determined the rights of the parties with regard to all or any of the matters in
nature; and
(iv) Such determination must be of a conclusive nature; and
(v) There must be a formal expression of such adjudication, S. Satnam Singh v. Surendra
Kaur, (2009) 2 SCC 562 : (2009) 1 SCC (Civ) 663.
► Decree.—A decree is defined in Section 2(2) CPC, 1908 to mean 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, Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC 724.
A decree may denote final adjudication between the parties and against which an appeal lies, but
only when a suit is completely disposed of, thereby a final decree would come into being. A decree
may be partly preliminary and partly final. Further, the distinction between “a final decree” and
“finality of a decree” is obvious. A decree whether preliminary or final is binding on the parties but
the same does not mean that all decrees would be final decrees. Section 2(2) CPC clearly shows as
to the nature of the decrees that the court may pass. For the purposes of construing the nature of
the decree one has to look to the terms thereof rather than speculate upon the court's intentions,
Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare, (2008) 8 SCC 198.
An ex parte decree is as good and effective as a decree passed after contest and would operate
as res judicata on the same principles as a decree passed after contest, unless the party
challenging the ex parte decree satisfies the court that such an ex parte decree was obtained by
fraud or collusion, Saroja v. Chinnusamy, (2007) 8 SCC 329.
Award passed by Lok Adalat shall be treated decree of Civil Court, United India Insurance Co.
Ltd. v. Master Imran Khan, AIR 2008 Del 26; Rajan Kakkar v. Vijaya Bank, AIR 2008 Delhi 17,
United India Insurance Co. Ltd. v. Muktamani Prem, AIR 2008 (NOC) 2616 (Ori).
An award passed under the Karnataka Co-operative Societies Act shall be deemed to be a
decree, Belguam District Central Co-operative Bank Ltd. v. Mahantesh Co-operative Credit
Society Ltd., AIR 2008 (NOC) 1953 : 2008 (3) AIR Kant R 318 (Kant) (DB).
► Order rejecting plaint.—An order rejecting a plaint under Order 7, Rule 11 CPC is a decree,
is appealable, revision does not lie, Abdul Rashid Rather v. Ghulam Ahmad Ganai, AIR 2011 J&K
29 (30, 31).
► Decisions which are not “decrees”.—An order dismissing a suit for non payment of costs
is essentially an order dismissing the suit for non prosecution, the order dismissing the suit for non
payment of costs is not a decree, Piaro Devi v. Anant Ram, AIR 2008 HP 107.
Order rejecting an application for condonation of delay is not a decree, dismissal of an appeal as
time barred is also not a decree, State of Rajasthan v. Rajpal Singh Chauhan, AIR 2011 Raj 101.
An order passed under Order 22, Rule 5 of the CPC being summary in nature, could not amount
to a decree, as contemplated under Section 2(2) of the CPC, Ashwani Kuamr v. Vidya, AIR 2007
All 105.
(3) “decree-holder” means any person in whose favour a decree has been passed
or an order capable of execution has been made;
(4) “district” means the local limits of the jurisdiction of a principal Civil Court of
original jurisdiction (hereinafter called a “District Court”), and includes the
local limits of the ordinary original civil jurisdiction of a High Court;
► Court.—CPC refers exclusively to the Civil Courts. In particular, CPC specifically refers to
the District Courts, the High Courts, and the Supreme Court and makes little, if any, reference to
other, quasi-judicial bodies, Ethiopian Airlines v. Ganesh Narain Saboo, (2011) 8 SCC 539 : (2011)
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4 SCC (Civ) 217.
7 [(5) “foreign court” means a Court situate outside India and not established or

continued by the authority of the Central Government;]

(6) “foreign judgment” means the judgment of a foreign Court;
(7) “Government Pleader” includes any officer appointed by the State
Government to perform all or any of the functions expressly imposed by this
Code on the Government Pleader and also any pleader acting under the
directions of the Government Pleader;
8 [(7-A) “High Court”,9 in relation to the Andaman and Nicobar Islands, means
the High Court in Calcutta;
(7-B) “India”, except in Sections 1, 29, 43, 44, 10 [44-A], 78, 79, 82, 83 and 87-
A, means the territory of India excluding the State of Jammu and Kashmir11 ;]
(8) “Judge” means the presiding officer of a Civil Court;
(9) “Judgment” means the statement given by the Judge of the grounds of a
decree or order;
► “Judgment”.—Notes taken by the Judges while hearing a case cannot be treated as final
views expressed by them on the case. They are meant only for the use of the Judges and cannot be
held to be a part of record “held” by the public authority. A draft judgment therefore, obviously
cannot be said to be information held by a public authority, Supreme Court of India v. Subhash
Chandra, AIR 2010 Del 159 (FB).
(10) “judgment-debtor” means any person against whom a decree has been
passed or an order capable of execution has been made;
(11) “legal representative” means a person who in law represents the estate of a
deceased person, and includes any person who inter-meddles with the estate
of the deceased and where a party sues or is sued in a representative
character the person on whom the estate devolves on the death of the party
so suing or sued;
► Legal representative.—“Legal representative” includes donee of suit property, Manovikas
Kendra Rehabilitation & Research Institute v. Prem Prakash Lodha, (2005) 7 SCC 224.
A legatee under a will intending to represent interest of estate of deceased testator held, is a
“illegal representative”, Suresh Kumar Bansal v. Krishna Bansal, (2010) 2 SCC 162 : (2010) 1 SCC
(Civ) 365.
In a claim petition under Motor Vehicles Act, award made in favour of married sisters of the
deceased was held valid, T.N. State Transport Corpn. Ltd. v. M. Shanthi, AIR 2011 Mad 118.
Married daughter of the deceased would inherit the estate of the deceased as such would be
legal representative under Section 166 of the Motor Vehicle Act, Joy Minocha v. Vijay Kumar, AIR
2011 Chh 166 (DB).
The word “legal representative” occurring in Section 166 of the MV Act, has the same meaning
as defined under Section 2(11) of CPC, Heeralal Giri v. Ramratan, AIR 2011 Chh 22.
The definition of word “legal representative” as provided under Section 2(11) of the Code is
inclusive in character and its scope is wide. It is not confined to a preferred class of heirs only but
also includes even intermeddlers, Yogendra Bhagata v. Prital Yadava, AIR 2009 Pat 168 (FB).
The expression “legal representative” as defined in Civil Procedure Code does not apply to claim
petitions filed under Motor Vehicles Act, P.N. Unni v. Baby John, AIR 2008 Ker 157 (DB).
Brother of the deceased was held his legal representative entitled to file claim petition for
compensation under Section 166 of the Motor Vehicle Act, Amna v. Royal Transport Services, AIR
2008 MP 213 (DB).
(12) “mesne profits” of property means those profits which the person in
wrongful possession of such property actually received or might with ordinary
diligence have received therefrom, together with interest on such profits, but
shall not include profits due to improvements made by the person in wrongful
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possession;
► Mesne profits—Entitlement to—Held, right to mesne profits presupposes a wrong whereas
a right to rent proceeds on basis of contract. In intermediate cases, where possession not wrongful
to begin with but assumes such character when unauthorisedly retained, owner not entitled to claim
mesne profits but only fair rent, Union of India v. Banwari Lal & Sons (P) Ltd., (2004) 5 SCC 304.
(13) “movable property” includes growing crops;
High Court Amendment
CALCUTTA.—In clause (13) insert the words “except in suits or proceedings in
the Court of Small Causes of Calcutta” after the words “growing crops”.
(14) “order” means the formal expression of any decision of a Civil Court which is
not a decree;
(15) “pleader” means any person entitled to appear and plead for another in
Court, and includes an advocate, a vakil and an attorney of a High Court;
(16) “prescribed” means prescribed by rules;
(17) “public officer” means a person falling under any of the following
descriptions, namely:—
(a) every Judge;
(b) every member of 12 [an All-India Service];
(c) every commissioned or gazetted officer in the military, 13 [naval or air]
forces of 14 [the Union] 15 [* * *] while serving under the Government;
(d) every officer of a Court of Justice whose duty it is, as such officer, to
investigate or report on any matter of law or fact, or to make, authenticate
or keep any document, or to take charge or dispose of any property, or to
execute any judicial process, or to administer any oath, or to interpret, or to
preserve order, in the Court, and every person especially authorised by a
Court of Justice to perform any of such duties;
(e) every person who holds any office by virtue of which he is empowered to
place or keep any person in confinement;
(f) every officer of the Government whose duty it is, as such officer, to prevent
offences, to give information of offences, to bring offenders to justice, or to
protect the public health, safety or convenience;
(g) every officer whose duty it is, as such officer, to take, receive, keep or
expend any property on behalf of the Government, or to make any survey,
assessment or contract on behalf of the Government, or to execute any
revenue process, or to investigate, or to report on, any matter affecting the
pecuniary interests of the Government, or to make, authenticate or keep
any document relating to the pecuniary interests of the Government, or to
prevent the infraction of any law for the protection of the pecuniary
interests of the Government; and
(h) every officer in the service or pay of the Government, or remunerated by
fees or commission for the performance of any public duty;
► Public officer.—Neither Bihar State Electricity Board would be “Government” nor would its
officers would be considered as “Public Officers” for the purpose of Section 80 CPC, the service of
notice upon the defendants was not required, Electricity Board, Bihar v. Binay Kumar Jha, AIR
2011 Pat 187.
(18) “rules” means rules and forms contained in the First Schedule or made
under Section 122 or Section 125;
High Court Amendment
CALCUTTA.—In clause (18) insert the words “in its application to Courts other
than the Court of Small Causes of Calcutta” after the word “rules” and before
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the words “means rules and forms”; and the words “of the Code of Civil
Procedure, 1908, and, in its application to that court means the ‘Rules of
Practice and Procedure of that Court’ made under Section 9 of the Presidency
Small Cause Courts Act, 1882, and includes the rules and forms contained in
the First Schedule of that Code which are made applicable to that court by
virtue of the provisions of Order LI of that schedule” after the words “Section
122 or Section 125”. Cal. Gaz. Pt. I, dt. 20-4-1967.
(19) “share in a corporation” shall be deemed to include stock, debenture stock,
debentures or bonds; and
(20) “signed”, save in the case of a judgment or decree, includes stamped.
(21) 16 [* * *]
3. Subordination of Courts.—For the purposes of this Code, the District Court is
subordinate to the High Court, and every Civil Court of a grade inferior to that of a
District Court and every Court of Small Causes is subordinate to the High Court and
District Court.
High Court Amendment
CALCUTTA.—Insert the words “and the Court of Small Causes of Calcutta” after the
words “District Court” and before the words “are subordinate to”; and the words “other
than the Court of Small Causes of Calcutta” after the words “Court of Small Causes”
and before the words “is subordinate”; substitute “are” for the word “is” before the
words “subordinate to the High Court, and every Civil Court”; Cal. Gaz. Pt. I, dt. 20-4-
1967.
► Scope and applicability.—Civil Courts are created under different Acts. They have their own
hierarchy. The necessarily are subordinate to the High Court. The appeals from their judgment will
lie before a superior court. The High Court is entitled to exercise its power of revision as also
superintendence over the said courts. For the aforementioned purpose, it must be borne in mind the
distinction between two types of courts viz. Civil Courts and the courts trying disputes of civil nature.
Only because a court or a tribunal is entitled to determine an issue involving civil nature, the same
by itself would not lead to the conclusion that it is a Civil Court, Nahar Industrial Enterprises Ltd. v.
Hong Kong and Shanghai Banking Corpn., (2009) 8 SCC 646 : (2009) 3 SCC (Civ) 48.
► Powers of District Court vis-à-vis High Court.—A District Court cannot be compared to a
High Court which has special powers by virtue of Letters Patent. The District Court does not get a
right to entertain a further appeal as it does not have “any law for the time being in force” which
permits such an appeal. In any event there are no provisions which permit a larger Bench of the
District Court to sit in appeal against an order passed by a smaller Bench of that court. Yet in the
High Court, even under Section 104 read with Order 43, Rule 1 CPC, a larger Bench can sit in
appeal against an order of a Single Judge. Section 104 CPC itself contemplates different rights of
appeals. Appeals saved by Section 104(1) can be filed, P.S. Sathappan v. Andhra Bank Ltd.,
(2004) 11 SCC 672.
4. Savings.—(1) In the absence of any specific provision to the contrary, nothing in
this Code shall be deemed to limit or otherwise affect any special or local law now in
force or any special jurisdiction or power conferred, or any special form of procedure
prescribed, by or under any other law for the time being in force.
(2) In particular and without prejudice to the generality of the proposition
contained in sub-section (1), nothing in this Code shall be deemed to limit or
otherwise affect any remedy which a landholder or landlord may have under any law
for the time being in force for the recovery of rent of agricultural land from the produce
of such land.
► Power of chartered High Courts to regulate their proceedings on the original side.—
Legislative history of, reviewed, Iridium India Telecom Ltd. v. Motorola Inc., (2005) 2 SCC 145.
► Special or local laws.—Special or local laws would remain functional only as long as there is
no specific provision to the contrary legislated by Parliament.
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The moment such a law comes into conflict with Central legislation it becomes inapplicable and is
deemed to be repeated. Under Section 4(1) CPC special or local laws are protected and not
affected in the absence of any specific provision to the contrary. In other words, special or local
laws would be functional till any specific provision to the contrary stands engrafted, Kulwant Kaur v.
Gurdial Singh Mann, (2001) 4 SCC 262.
► Section 4(1), “Specific provision to the contrary”, Meaning.—Special provision, as
distinct from general contained in CPC, must explicitly and not by implication indicate that special
law is to be affected. Sections 117, 120, 122, 125 and 129 CPC relating to High Court are general
provisions in context of Section 23 of Travancore-Cochin High Court Act, 1125 providing for
reference to third Judge in case of difference of opinion between two Judges forming Division
Bench, Pankajakshi v. Chandrika, (2016) 6 SCC 157 : (2016) 3 SCC (Civ) 105.
“Specific provision to the contrary”, must be contained in CPC itself and not in any other law,
Pankajakshi v. Chandrika, (2016) 6 SCC 157 : (2016) 3 SCC (Civ) 105.
5. Application of the Code to Revenue Courts.—(1) Where any Revenue Courts
are governed by the provisions of this Code in those matters of procedure upon which
any special enactment applicable to them is silent, the State Government 17 [* * *]
may, by notification in the Official Gazette, declare that any portions of those
provisions which are not expressly made applicable by this Code shall not apply to
those Courts, or shall only apply to them with such modifications as the State
Government 18 [* * *] may prescribe.
(2) “Revenue Court” in sub-section (1) means a Court having jurisdiction under any
local law to entertain suits or other proceedings relating to the rent, revenue or profits
of land used for agricultural purposes, but does not include a Civil Court having
original jurisdiction under this Code to try such suits or proceedings as being suits or
proceedings of a civil nature.
6. Pecuniary jurisdiction.—Save in so far as is otherwise expressly provided,
nothing herein contained shall operate to give any Court jurisdiction over suits the
amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of
its ordinary jurisdiction.
7. Provincial Small Cause Courts.—The following provisions shall not extend to
Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887), 19
[or under the Berar Small Cause Courts Law, 1905], or to Courts exercising the
jurisdiction of a Court of Small Causes 20 [under the said Act or Law], 21 [or to Courts in
22 [any part of India to which the said Act does not extend] exercising a corresponding

jurisdiction] that is to say,—

(a) so much of the body of the Code as relates to—
(i) suits excepted from the cognizance of a Court of Small Causes;
(ii) the execution of decrees in such suits;
(iii) the execution of decrees against immovable property; and
(b) the following sections, that is to say,—
Section 9,
Sections 91 and 92,
Sections 94 and 95 23 [so far as they authorise or relate to—
(i) orders for the attachment of immovable property,
(ii) injunctions,
(iii) the appointment of a receiver of immovable property, or
(iv) the interlocutory orders referred to in clause (e) of Section 94], and
Sections 96 to 112 and 115.
8. Presidency Small Cause Courts.—Save as provided in Sections 24, 38 to 41,
75, clauses (a), (b) and (c), 76, 24 [77, 157 and 158], and by the Presidency Small
Cause Courts Act, 1882 (15 of 1882), the provisions in the body of this Code shall not
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extend25 to any suit or proceeding in any Court of Small Causes established in the
towns of Calcutta, Madras and Bombay:
26
[Provided that—
(1) the High Courts of Judicature at Fort William, Madras and Bombay, as the
case may be, may from time to time, by notification in the Official Gazette,
direct27 that any such provisions not inconsistent with the express provisions
of the Presidency Small Cause Courts Act, 1882 (15 of 1882), and with such
modifications and adaptations as may be specified in the notification, shall
extend to suits or proceedings or any class of suits or proceedings in such
Court;
(2) all rules heretofore made by any of the said High Courts under Section 9 of
the Presidency Small Cause Courts Act, 1882 (15 of 1882) shall be deemed to
have been validly made.]
STATE AMENDMENTS
Gujarat.—In its application to the State of Gujarat, in Section 8 in the opening
para, after the words “Calcutta, Madras and Bombay”, insert the words “and in the city
of Ahmedabad”. [Vide Gujarat Act XIX of 1961 as amended by Gujarat Act XXXII of
1961, Section 21 and Schedule (w.e.f. 1-11-1961)].
PART I
SUITS IN GENERAL
Jurisdiction of the Courts and Res Judicata
9. Courts to try all civil suits unless barred.—The Courts shall (subject to the
provisions herein contained) have jurisdiction to try all suits of a civil nature excepting
suits of which their cognisance is either expressly or impliedly barred.
Explanation 28 [I].—A suit in which the right to property or to an office is contested
is a suit of a civil nature, notwithstanding that such right may depend entirely on the
decision of questions as to religious rites or ceremonies.
29
[Explanation II.—For the purposes of this section, it is immaterial whether or not
any fees are attached to the office referred to in Explanation I or whether or not such
office is attached to a particular place.]
► Nature and scope.—The law confers on every person an inherent right to bring a suit of civil
nature of one's choice, at one's peril, howsoever frivolous the claim may be, unless it is barred by a
statute, Abdul Gafur v. State of Uttarakhand, (2008) 10 SCC 97.
A decree passed without consideration of statutory provisions barring jurisdiction of Civil Court
must be subject to the orders of the appropriate authority in proceedings under the statute
concerned, Saraswatibai Trimbak Gaikwad v. Damodhar D. Motiwale, (2002) 4 SCC 481.
Bar against jurisdiction of Civil Court, not be inferred unless alternative remedy provided. Where
there is no express bar, but statutory provisions imply exclusion of jurisdiction, held, exclusion still
cannot be inferred unless the statute also provides an adequate and efficacious alternative remedy,
Dhruv Green Field Ltd. v. Hukam Singh, (2002) 6 SCC 416.
► Jurisdiction of civil court.—Jurisdiction of civil court is plenary in nature, unless the same is
ousted, expressly or by necessary implication, it will have jurisdiction to try all types of suits, Robust
Hotels (P) Ltd. v. EIH Ltd., (2017) 1 SCC 622.
Ouster of jurisdiction of civil court cannot be inferred readily. Thus, an arbitration clause in an
agreement excluding jurisdiction of civil court by virtue of Arbitration Act, has to be construed
strictly, Vimal Kishor Shah v. Jayesh Dinesh Shah, (2016) 8 SCC 788 : (2016) 4 SCC (Civ) 303.
► Premature suit.—Court has power to pass order regarding maintainability of premature suit
adjusting equities and satisfying ends of justice, as it may deem fit in its discretion. Conduct of
parties, explanation given by plaintiff, advantages or prejudice to either party, award of costs, the
utility of driving plaintiff to file a fresh suit, etc. are factors to be considered by court in exercise of
such discretion. Objection to premature suit to be promptly raised by defendant, and promptly
disposed of by court, in which case prejudice to plaintiff is least likely in case of dismissal of such
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suit. Such objection ought not to be permitted to be raised belatedly for in such a case, irreparable
prejudice to plaintiff could be caused thereby. However, court to weigh equities between parties and
decide whether such suit is to be dismissed even at a belated stage, Vithalbhai (P) Ltd. v. Union of
India, (2005) 4 SCC 315.
► Burden of proof.—Onus lies on party seeking ouster of Civil Court's jurisdiction,
Sahebgouda v. Ogeppa, (2003) 6 SCC 151.
Ouster of Civil Court's jurisdiction, heavy burden lies on the person asserting the ouster and
vesting of jurisdiction in some other court, tribunal or authority, Mahant Dooj Dass v. Udasin
Panchayati Bara Akhara, (2008) 12 SCC 181.
► Maintainability.—Maintainability of suit is question of law. All civil suits are maintainable
unless barred either by expression provision or by necessary implication of law. History of litigation
between parties and actions taken by them do not determine question of maintainability of suit, Jyoti
Ltd. v. Bharat J. Patel, (2015) 14 SCC 566.
Nature of question as to, and/or tenability of suit/action/proceedings are judicial in nature and
can be decided only by a judicial authority, M.K. Indrajeet Sinhji Cotton (P) Ltd. v. Narmada Cotton
Coop. Spg. Mills Ltd., (2016) 12 SCC 133.
Claim in respect of subject-matter not covered in suit, is not maintainable. Fresh suit has to be
filed in respect such subject-matter, if maintainable, Ram Dutt v. Dev Dutt, (2016) 6 SCC 718 :
(2016) 3 SCC (Civ) 476.
Dispute principally being as to succession to property, turning on question of legitimacy/legal
status of parties concerned as legal heirs of deceased person concerned could only be resolved
vide a civil suit, R. Kasthuri v. M. Kasthuri, (2018) 5 SCC 353.
► Leave to file another suit.—In any event, if a second suit was maintainable in terms of
Order 2, Rule 4 CPC no leave was required to be granted therefor. A Civil Court does not grant
leave to file another suit, Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600.
► Civil Court vis-á-vis Revenue Court—A suit for cancellation of sale deed in respect of
agricultural land where name of the party is entered in revenue record can be filed before the Civil
Court, the aggrieved party need not go to Revenue Court for the declaration of rights, Brijbala v.
Addl. District Judge, AIR 2013 NOC 255 (All).
► Civil Court vis-á-vis Criminal Court.—Dispute was about title to seized stolen goods,
between complainant and one of the prosecution witnesses. Appropriate forum and action for, held,
is suit in competent Civil Court and not in criminal proceedings relating to prosecution for the theft,
Thamanna Shivalingappa Teli v. State of Karnataka, (2005) 12 SCC 171.
► Wakf Tribunal.—Wakf Tribunal is not competent to entertain suit for eviction of tenant from
Wakf property, eviction proceedings can be decided by the Civil Court and not by Wakf Tribunal,
Waqf Masjid, Railway Station, Jwalapur v. Ashok Sethi, AIR 2011 UTR 68.
► Defamation Cases.—In absence of codified law for civil action, civil suit claiming damages
for defamation can be instituted under Section 9 CPC, unless there is any specific bar, by taking
recourse to Common Law of England which is continuing law in force in India by virtue of Article
372 of the Constitution, Subramanian Swamy v. Union of India, (2016) 7 SCC 221.
► Enforcement of Common Law right.—Common Law of England operates as law in force in
India by virtue of Article 372 of the Constitution, hence civil action for enforcement of Common Law
right for which there is no codified law in India, can be taken recourse to under Section 9 CPC,
1908, unless there is specific statutory bar in that regard, Subramanian Swamy v. Union of India,
(2016) 7 SCC 221.
► Powers and Duty of courts.—If a suit is barred by law, court is bound to take note of the
bar whether such question is raised by parties or not, Sasan Power Ltd. v. North American Coal
Corpn. (India) (P) Ltd., (2016) 10 SCC 813.
STATE AMENDMENTS
SECTION 9-A
Maharashtra.—In its application to the State of Maharashtra, the following Section
9-A shall be inserted:
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“9-A. Where at the hearing of application relating to interim relief in a suit, objection
to jurisdiction is taken, such issue to be decided by the Court as a preliminary issue.—
(1) Notwithstanding anything contained in this Code or any other law for the time
being in force, if, at the hearing of any application for granting or setting aside an
order granting any interim relief, whether by way of stay, injunction, appointment of a
receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to
entertain such suit is taken by any of the parties to the suit, the Court shall proceed to
determine at the hearing of such application the issue as to the jurisdiction as a
preliminary issue before granting or setting aside the order granting the interim relief.
Any such application shall be heard and disposed of by the Court as expeditiously as
possible and shall not in any case be adjourned to the hearing of suit.
(2) Notwithstanding anything contained in sub-section (1), at the hearing of any
such application, the Court may grant such interim relief as it may consider necessary,
pending determination by it of the preliminary issue as to the jurisdiction.” [Vide
Maharashtra Act No. 65 of 1977 (19-12-1977)].
► Section 9-A [as amended by CPC (Maharashtra Amendment) Act, 1977] and Order 14
Rule 2.—Section 9-A as introduced by the Maharashtra Amendment Act, is mandatory in nature,
including on issue of limitation. Word “jurisdiction” under Section 9-A wide enough to include the
issue of limitation, Foreshore Coop. Housing Society Ltd. v. Praveen D. Desai, (2015) 6 SCC 412.
► Section 9-A (as applicable in Maharashtra prior to its deletion in 2018) and Order 14
Rule 2.—As held by the three-Judge Bench in Nusli Neville Wadia, (2020) 6 SCC 557, under the
provisions of Section 9-A and Order 14 Rule 2, it is open to decide a preliminary issue only if it is
purely a question of law, and not a mixed question of law and fact requiring recording of evidence.
Thus, held, “jurisdiction” in Section 9-A does not include issue of limitation as the same involves
mixed questions of fact and law. Issue of limitation has to be considered along with other issues that
would arise for adjudication in the suit concerned, Shyam Madan Mohan Ruia v. Messer Holdings
Ltd., (2020) 5 SCC 252.
► Jurisdiction to entertain.—Objection as to jurisdiction to entertain suit, to be decided by the
court as a preliminary issue under Section 9-A [as inserted by CPC (Maharashtra Amendment) Act,
1977]. The word “jurisdiction” in Section 9-A, does not include issue of bar of limitation. The word
“jurisdiction” in Section 9-A is qualified with the expression “to entertain the suit”. Both the said
expressions when taken together give the meaning that court should have power or inherent
jurisdiction to receive suit for consideration on merits. Meaning to be given to “jurisdiction to
entertain” in Section 9-A is a narrow one as to maintainability. It is only the competence of the court
to receive a suit for adjudication which is covered under Section 9-A. In a case barred by limitation,
court possesses jurisdiction to decide that issue. Where court has no jurisdiction, it cannot decide
that issue on merits at all. Thus, question of limitation in no case can be said to be a question of
jurisdiction of court in the context of Section 9-A. Issue of limitation, therefore, cannot be decided
as a preliminary issue of jurisdiction under Section 9-A. Kamalakar Eknath Salunkhe, (2015) 7
SCC 321, held, is correctly decided and is affirmed. Foreshore Coop. Housing Society Ltd., (2015)
6 SCC 412 which took a contrary view, overruled, Nusli Neville Wadia v. Ivory Properties, (2020) 6
SCC 557.
► Comparative scope of Section 9-A [as inserted by CPC (Maharashtra Amendment) Act,
1977] and Order 14 Rule 2 (as amended w.e.f. 1-2-1977).—The scope of Section 9-A CPC is
different and limited as compared to Order 14 Rule 2 CPC. Under Section 9-A, only jurisdiction to
entertain has to be decided, where maintainability of suit is decided concerning jurisdiction of court
as a pure question of law at a preliminary stage. On the other hand, under Order 14 Rule 2 CPC,
issues of law as to (i) jurisdiction of court, or (ii) a bar to suit created by any law for the time being
in force, are to be decided as a preliminary issue. Scope of Section 9-A has been narrowed down
by legislature as compared to provisions of Order 14 Rule 2(2) by not including in Section 9-A
provisions as to “a bar created by any other law for the time being in force”. Further held, only a
pure question of law and not a mixed question of law and fact can be decided as a preliminary issue
both under Section 9-A and Order 14 Rule 2. Recording of evidence at that stage is impermissible,
Nusli Neville Wadia v. Ivory Properties, (2020) 6 SCC 557.
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► Comparative scope of Section 9-A [as inserted by CPC (Maharashtra Amendment) Act,
1977] and Order 7 Rule 11(d).—Under Order 7 Rule 11(d) CPC, plaint can be rejected on ground
of limitation where plaint averment itself indicates cause of action to be barred by limitation and no
further evidence is required to adjudicate the issue: The stage at which Order 7 Rule 11(d) has to be
applied, is at the threshold and scope of Section 9-A CPC is somewhat limited and different. Section
9-A is limited in its operation as to jurisdiction of court to entertain a suit. The question of limitation in
no case can be said to be a question of jurisdiction of court in the context of Section 9-A CPC,
Nusli Neville Wadia v. Ivory Properties, (2020) 6 SCC 557.
10. Stay of suit.—No Court shall proceed with the trial of any suit in which the
matter in issue is also directly and substantially in issue in a previously instituted suit
between the same parties, or between parties under whom they or any of them claim
litigating under the same title where such suit is pending in the same or any other
Court in India having jurisdiction to grant the relief claimed, or in any Court beyond
the limits of India established or continued by the Central Government and having like
jurisdiction, or before the Supreme Court.
Explanation.—The pendency of a suit in a foreign court does not preclude the Courts
in 30 [India] from trying a suit founded on the same cause of action.
► Object.—The object underlying Section 10 is to avoid two parallel trials on the same issue by
two courts of concurrent jurisdiction and to avoid recording of conflicting findings on issues which
are directly and substantially in issue in a previously instituted suit, National Institute of Mental
Health & Neuro Sciences v. C. Parmeshwara, (2005) 2 SCC 256.
Mere filing of an application under Section 10 CPC does not in any manner put an embargo on
the power of the court to examine the merits of the matter, Pukhraj D. Jain v. G. Gopalakrishna,
(2004) 7 SCC 251.
► Proceedings before Labour Court.—The language of Section 10 suggests that it is
referable to a suit instituted in the Civil Court and it cannot apply to proceedings of another nature
instituted under any other statute. The proceedings before the Labour Court cannot be equated with
the proceedings before a Civil Court. They are not courts of concurrent jurisdiction, National
Institute of Mental Health & Neuro Sciences v. C. Parmeshwara, (2005) 2 SCC 256.
► Writ proceedings.—The provisions of Section 10 CPC are not applicable to writ
proceedings, Harsh Vardhan Lodha etc. v. Institute of Chartered Accountants of India, AIR 2010
(NOC) 169 (Cal).
► Conditions.—For application of the provisions of Section 10 of the Code, it is further
required that the court in which the previous suit is pending is competent to grant the relief claimed.
The use of negative expression in Section 10, i.e. “no court shall proceed with the trial of any suit”
makes the provision mandatory and the court in which the subsequent suit has been filed is
prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the
Code are satisfied, Aspi Jal v. Khushroo Rustom Dadyburjor, (2013) 4 SCC 333 : (2013) 2 SCC
(Civ) 601.
► Two suits.—A proceeding for an interim measure under Section 9 of the Arbitration Act is
almost like an interlocutory application in a suit and hence such a proceeding cannot be construed
as a suit within the meaning of Section 10 of the Code of Civil Procedure. Therefore, Section 10 of
the Code of Civil Procedure is not applicable to proceedings under Section 9 of the Arbitration Act,
Sovereign Developers and Infrastructure Ltd. v. Paramount Vijetha Holding, AIR 2010 Kant 80.
Proceedings before the Debt Recovery Tribunal are not suit, as such can be stayed by the High
Court under Article 227 of the Constitution and not under Section 10 CPC, Jose Antony
Thottassery v. Anil Kuruvilla, Kattottil, AIR 2012 Ker 89.
► Matter in issue.—The key words in Section 10 are “the matter in issue is directly and
substantially in issue in the previously instituted suit”. The test for applicability of Section 10 of the
Code is whether on a final decision being reached in the previously instituted suit, such decision
would operate as res judicata in the subsequent suit, Aspi Jal v. Khushroo Rustom Dadyburjor,
(2013) 4 SCC 333 : (2013) 2 SCC (Civ) 601.
► Whether mandatory.—The use of negative expression in Section 10, i.e. “no court shall
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proceed with the trial of any suit” makes the provision mandatory and the court in which the
subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the
conditions laid down in Section 10 of the Code are satisfied, Aspi Jal v. Khushroo Rustom
Dadyburjor, (2013) 4 SCC 333 : (2013) 2 SCC (Civ) 601.
Held, Section 10 merely enacts a rule of procedure and decree passed in contravention thereof
not a nullity, Pukhraj D. Jain v. G. Gopalakrishna, (2004) 7 SCC 251.
11. Res judicata.—No Court shall try any suit or issue in which the matter directly
and substantially in issue has been directly and substantially in issue in a former suit
between the same parties, or between parties under whom they or any of them claim,
litigating under the same title, in a Court competent to try such subsequent suit or the
suit in which such issue has been subsequently raised, and has been heard and finally
decided by such Court.
Explanation I.—The expression “former suit” shall denote a suit which has been
decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II.—For the purposes of this section, the competence of a Court shall be
determined irrespective of any provisions as to a right of appeal from the decision of
such Court.
Explanation III.—The matter above referred to must in the former suit have been
alleged by one party and either denied or admitted, expressly or impliedly, by the
other.
Explanation IV.—Any matter which might and ought to have been made ground of
defence or attack in such former suit shall be deemed to have been a matter directly
and substantially in issue in such suit.
Explanation V.—Any relief claimed in the plaint, which is not expressly granted by
the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI.—Where persons litigate bona fide in respect of a public right or of a
private right claimed in common for themselves and others, all persons interested in
such right shall, for the purposes of this section, be deemed to claim under the
persons so litigating.
31 [Explanation VII.—The provisions of this section shall apply to a proceeding for the

execution of a decree and references in this section to any suit, issue or former suit
shall be construed as references, respectively, to a proceeding for the execution of the
decree, question arising in such proceeding and a former proceeding for the execution
of that decree.
Explanation VIII.—An issue heard and finally decided by a court of limited
jurisdiction, competent to decide such issue, shall operate as res judicata in a
subsequent suit, notwithstanding that such court of limited jurisdiction was not
competent to try such subsequent suit or the suit in which such issue has been
subsequently raised.]
► Nature and Scope.—Vague, cryptic and casual order in former proceeding containing
finding that was neither directly in issue nor properly examined, cannot amount to res judicata, Ajay
Arjun Singh v. Sharadendu Tiwari, (2016) 6 SCC 576 : (2016) 3 SCC (Civ) 222.
Section 11 Explanation VI, held, not confined to cases covered by Order 1 Rule 8 but extends to
include any litigation in which, apart from Order 1 Rule 8 altogether, parties are entitled to represent
interested persons other than themselves (such as suit by next friend of deity on behalf of
deity/worshippers). Provisions of Order 1 Rule 8 do not control the applicability of Section 11 Expln.
VI, M. Siddiq (Ram Janmabhumi Temple 5J) v. Suresh Das, (2020) 1 SCC 1.
► Object.—The object and purport of the principle of res judicata as contended in Section 11
CPC is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or
of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which
was the subject-matter of lis stood determined by a competent court, no party thereafter can be
permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute book with a
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view to bring the litigation to an end so that the other side may not be put to harassment. The
doctrine of res judicata is conceived not only in larger public interest which requires that all litigation
must, sooner than later, come to an end but is also founded on equity, justice and good conscience,
Swamy Atmananda v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51.
► Extent and applicability.—Where previous suit was dismissed for non-joinder of parties by
giving liberty to plaintiff to file fresh suit and accordingly subsequent suit filed joining other
defendants also and claiming reliefs different from those claimed in previous suit, neither parties,
nor subject-matter nor relief claimed in two suits being the same, subsequent suit not barred by res
judicata, City Municipal Council, Bhalki v. Gurappa, (2016) 2 SCC 200 : (2016) 2 SCC (Civ) 59.
Where former suit for possession of entire property was based on a settlement deed, and,
subsequent suit for partition claiming plaintiff's share in property was based on her birth right, res
judicata not attracted, Nagabhushanammal v. C. Chandikeswaralingam, (2016) 4 SCC 434 : (2016)
2 SCC (Civ) 642.
When the claim in subsequent suit could not have been the subject-matter of settlement between
the parties, courts below, erroneously held that the suit was barred, Bharat Hydro Power Corpn.
Ltd. v. State of Assam, (2016) 12 SCC 598.
First application under Order 22 Rule 4 dismissed without adjudication on merits, subsequent
application under Order 1 Rule 10 not barred by res judicata, Pankajbhai Rameshbhai Zalavadiya
v. Jethabhai Kalabhai Zalavadiya, (2017) 9 SCC 700.
► Jurisdictional facts: Res judicata.—Principle of res judicata is not applicable in case of
decisions relating to jurisdictional facts, Sonepat Coop. Sugar Mills Ltd. v. Ajit Singh, (2005) 3 SCC
232 : 2005 SCC (L&S) 387.
► Generally.—The principle of res judicata envisages that a judgment of a court of concurrent
jurisdiction directly upon a point would create a bar as regards a plea, between the same parties in
some other matter in another court, where the said plea seeks to raise afresh the very point that was
determined in the earlier judgment, Swamy Atmananda v. Sri Ramakrishna Tapovanam, (2005) 10
SCC 51.
Issue of fact determined finally between the parties by a court of competent jurisdiction, held,
operates as res judicata when the same issue comes directly in question in subsequent
proceedings between the same parties, Amarendra Komalam v. Usha Sinha, (2005) 11 SCC 251.
Section 11 generally comes into play in relation to civil suits. But apart from the codified law, the
doctrine of res judicata or the principle of res judicata has been applied since long in various other
kinds of proceedings and situations by courts in England, Indian and other countries, Ramchandra
Dagdu Sonavane v. Vithu Hira Mahar, (2009) 10 SCC 273 : (2009) 4 SCC (Civ) 162.
While applying the principles of res judicata the court should not be hampered by any technical
rules of interpretation, M. Nagabhushana v. State of Karnataka, (2011) 3 SCC 408 : (2011) 1 SCC
(Civ) 733.
► Different stages of the same proceedings.—Principles of res judicata apply in different
stages of the same proceedings, Bhanu Kumar Jain v. Archana Kumar, (2005) 1 SCC 787; Chabbil
Das v. Pappu, (2006) 12 SCC 41.
The principle of res judicata applies as between two stages in the same litigation so that if an
issue has been decided at an earlier stage against a party, it cannot be allowed to be reagitated by
him at a subsequent stage in the same suit or proceedings. Here what is sought to be reagitated is
not really the order of remand but the order deciding a germane issue which was allowed to become
final at an earlier stage of the same suit, C.V. Rajendran v. N.M. Muhammed Kunhi, (2002) 7 SCC
447.
► Rent control proceedings.—Ground of bona fide need is a recurring cause of action as
such landlord is not precluded from filing fresh proceedings for eviction if on the date of the fresh
suit his requirement is bona fide, N.R. Narayan Swamy v. B. Francis Jagam, (2001) 6 SCC 473.
► Res judicata and Supreme Court Rules: Order 32, Rule 2.—The Supreme Court Rules are
not technical rules of procedure and are fundamental to the administration of justice in all courts,
based on the principle that there must be an end to litigation. Assuming that the principles of res
judicata are “law” within the meaning of Order 26, Rule 6(b) of the Rules, since the doctrine of res
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judicata is an “essential part of the rule of law”, it follows that if the issues raised in the suit are
barred by res judicata ex facie then the Supreme Court is required to reject the plaint in terms of
Order 23, Rule 6(b) of the Supreme Court Rules, State of Haryana v. State of Punjab, (2004) 12
SCC 673.
► Res judicata and Order 2, Rule 2.—The doctrine of res judicata differs from the principle
underlying Order 2, Rule 2 in that the former places emphasis on the plaintiff's duty to exhaust all
available grounds in support of his claim, while the latter requires the plaintiff to claim all reliefs
emanating from the same cause of action, Kunjan Nair Sivaraman Nair v. Narayanan Nair, (2004)
3 SCC 277.
Constructive res judicata deals with grounds of attack and defence which ought to have been
raised, but not raised, whereas Order 2, Rule 2 CPC relates to reliefs which ought to have been
claimed on the same cause of action but not claimed, Alka Gupta v. Narender Kumar Gupta, (2010)
10 SCC 141 : (2010) 4 SCC (Civ) 73.
► Res judicata and issue estoppel.—There is a distinction between “issue estoppel” and “res
judicata”. Res judicata debars a court from exercising its jurisdiction to determine the lis if it has
attained finality between the parties whereas the doctrine of issue estoppel is invoked against a
party. If an issue is decided against a party, the party would be estopped from raising the same in
the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz. estoppel
by accord. However, the doctrine of “issue estoppel” as also “cause of action estoppel” may both be
attracted. A cause of action estoppel arises where in two different proceedings identical issues are
raised, in which event, the latter proceeding between the same parties shall be dealt with similarly as
was done in the previous proceedings. In such an event the bar is absolute in relation to all points
decided save and except allegations of fraud and collusion, Bhanu Kumar Jain v. Archana Kumar,
(2005) 1 SCC 787.
► Competent court.—Finding on issue of title recorded by Small Cause Court does not
operates as res judicata and ultimately said issue has to be adjudicated upon by competent Civil
Court, Nirmal Jeet Singh Hoon v. Itriza Hussain, (2010) 14 SCC 564 : (2012) 1 SCC (Civ) 759.
Order passed without jurisdiction is a nullity thus held, cannot operate as res judicata, even if
such order attains finality in favour of some parties by virtue of not being appealed against, Union of
India v. Assn. of Unified Telecom Service Providers of India, (2011) 10 SCC 543.
Order without jurisdiction cannot constitute res judicata, Chandrabhai K. Bhoir v. Krishna Arjun
Bhoir, (2009) 2 SCC 315 : (2009) 1 SCC (Civ) 512.
The principle of res judicata would not apply where the judgment/order has been passed by a
court having no jurisdiction, Union of India v. Pramod Gupta, (2005) 12 SCC 1.
► Heard and finally decided.—The principle of res judicata would apply only when the lis was
inter partes and had attained finality in respect of the issues involved. The said principle will,
however, have no application inter alia in a case where the judgment and/or order had been passed
by a court having no jurisdiction therefor and/or in a case involving a pure question of law. It will also
have no application in a case where the judgment is not a speaking one, Union of India v. Pramod
Gupta, (2005) 12 SCC 1.
► Might and ought.—Condition of the matter having “been heard and finally decided” under
main Section 11 must be satisfied before Explanation IV can apply. Hence plea which might and
ought to have been taken in earlier suit or proceedings can be deemed to have been taken and
decided against the person raising the plea in the subsequent suit or proceeding only where there
had been final determination of rights of the parties in the earlier suit or proceeding, Konda
Lakshmana Bapuji v. Government of A.P., (2002) 3 SCC 258.
► Dismissal for default.—Dismissal of a suit for default does not operate as res judicata, fresh
suit for partition is not barred by res judicata, Vinod Kumar v. Lalit Kumar, AIR 2011 J&K 64.
► Dismissal in limine.—Where earlier writ petition was dismissed in limine, no issue was
framed nor decided, res judicata would not apply, would not bar subsequent writ petition which
raises very same issues, Association of the Residents of Mhow v. Union of India, AIR 2010 MP 40,
51 (DB).
► Res judicata and precedent.—For principles of res judicata to apply the lis and parties has
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to be the same. A binding precedent on the other hand arises when the court determines a certain
issue for a certain sets of facts but in a different lis. Then if the material facts match in a later case,
then, that issue stands determined for that later case though the lis and parties may be different.
Fida Hussain v. Moradabad Development Authority, (2011) 12 SCC 615 : (2012) 2 SCC (Civ) 762.
► Decision and not reasons res judicata.—Only ratio decidendi of a judgment would bar a
subsequent suit, Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas, (2008) 11 SCC
753.
► Industrial adjudication.—Res judicata applies to all litigations including industrial cases,
Management of M/s. Indian Aluminium Co. Ltd. v. S. Nagaiah, AIR 2009 (NOC) 2004.
► Habeas corpus petitions and res judicata.—The bar of res judicata or principles
analogous thereto would not apply to a writ of habeas corpus where the petitioner prays for setting
him at liberty, T.P. Moideen Koya v. State of Kerala, (2004) 8 SCC 106.
► Writ petitions and res judicata.—Res judicata is applicable to writ petitions, Ishwar Dutt v.
Collector (LA), (2005) 7 SCC 190.
► Change in statutory law.—Change in law subsequent thereto (repeal of statutory provision
on which said judgment/order based) does not take away the effect of the said judgment/order as
between the parties thereto, State of Maharashtra v. R.S. Bhonde, (2005) 6 SCC 751 : 2005 SCC
(L&S) 907.
► Applicability of doctrine of res judicata.—Suit by erstwhile owner/plaintiff challenging the
auction-sale concerned of its property and inter alia seeking declaration of ownership and
possession of the auctioned property is not maintainable when the issue pertaining to setting aside
of auction-sale between the same parties in respect of the same property was decided in earlier writ
proceedings. Triple requirement for the doctrine of res judicata to apply i.e. the claim in the earlier
litigation is between the same parties, the cause of action and the subject-matter is same or
identical, Andanur Kalamma v. Gangamma, (2018) 15 SCC 508.
► Res judicata—Non-applicability of.—Exceptions to the principle of res judicata qua issues
of law What are—Erroneous decisions on questions of law—When operate as res judicata in a
subsequent suit and when do not — Law on said question, surveyed in detail and summarized,
Canara Bank v. N.G. Subbaraya Setty, (2018) 16 SCC 228.
12. Bar to further suit.—Where a plaintiff is precluded by rules from instituting a
further suit in respect of any particular cause of action, he shall not be entitled to
institute a suit in respect of such cause of action in any Court to which this Code
applies.
13. When foreign judgment not conclusive.—A foreign judgment shall be
conclusive as to any matter thereby directly adjudicated upon between the same
parties or between parties under whom they or any of them claim litigating under the
same title except—
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect
view of international law or a refusal to recognise the law of 32 [India] in cases
in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to
natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in 33 [India].
► Presumption as to foreign judgment.—Indian court can examine whether tests laid down
under Sections 13 and 44-A CPC are satisfied, Bhavesh Jayanti Lakhani v. State of Maharashtra,
(2009) 9 SCC 551 : (2010) 1 SCC (Cri) 47.
► Burden of proof.—Burden of proving that foreign judgment is not on merits lies on party so
alleging, but in order to prove the point such party would not be expected to do the impossible by
leading evidence as to the state of mind of the Judge who passed the decree. Party would have to
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establish facts such as that the decree itself did not show that it was on merits; what the rules of the
court concerned were; the existence or otherwise of material before the court when the decree was
passed and the manner in which it was passed, International Woollen Mills v. Standard Wool
(U.K.) Ltd., (2001) 5 SCC 265.
► Effect of foreign judgment.—Judgment of foreign court affirming status and bona fides of
foreign couple for adopting an Indian child can be accepted under Section 13 CPC, International
Woollen Mills v. Standard Wool (U.K.) Ltd., (2001) 5 SCC 265.
► Conclusiveness of Foreign judgment, Extent.—Once an order or decree is obtained after
following due judicial process by giving reasonable notice and opportunity to all proper and
necessary parties to put forth their case, executing court cannot enquire into validity, legality or
otherwise of said judgment, Alcon Electronics (P) Ltd. v. Celem S.A. of France, (2017) 2 SCC 253.
A judgment is considered as judgment on merits when opportunity is extended to the parties to a
case to put forth their case, and court after considering rival submissions, gives its decision in the
form of an order or judgment, Alcon Electronics (P) Ltd. v. Celem S.A. of France, (2017) 2 SCC
253.
It is for the reciprocal advantage of courts of all nations to enforce foreign rights as far as
practicable. Recognition of substantive rights should not be defeated by some vague assumed
limitations of the court. When substantive rights are so bound up in a foreign remedy, refusal to
adopt the remedy would substantially deprive parties of their rights. Necessity of maintaining foreign
rights outweighs practical difficulties involved in applying the foreign remedy, Alcon Electronics (P)
Ltd. v. Celem S.A. of France, (2017) 2 SCC 253.
► Costs.—Although interest on costs is not available in India due to deletion of Section 35(3),
same does not mean that Indian courts cannot execute foreign decree for interest on costs. Right to
8% interest as per Judgments Act, 1838 of UK, being a substantive right, can be recognised and as
well as implemented in India, Alcon Electronics (P) Ltd. v. Celem S.A. of France, (2017) 2 SCC
253.
Costs imposed on the basis of indemnity are not a penalty or tax. Hence, Explanation 2 to
Section 44-A does not refer to costs as contemplated under Section 35. Also, nature of
compensatory costs under Section 35-A is different from “costs” dealt with in Section 35 as former
are limited to claims or defences of a party which are frivolous or vexatious. Further, bar on
imposing costs under Section 35-A(2), applies to Indian Courts with regard to imposition of costs in
respect of false or vexatious claims or defences, but not applicable to High Court of Justice in
England which is not governed by provisions of CPC, 1908, Alcon Electronics (P) Ltd. v. Celem
S.A. of France, (2017) 2 SCC 253.
14. Presumption as to foreign judgments.—The Court shall presume, upon the
production of any document purporting to be a certified copy of a foreign judgment,
that such judgment was pronounced by a Court of competent jurisdiction, unless the
contrary appears on the record; but such presumption may be displaced by proving
want of jurisdiction.
► Foreign judgment and res judicata.—Conflict of jurisdiction of Indian courts with jurisdiction
of foreign courts. Considerations involved in child custody matters. Interest and welfare of the minor
being paramount, a competent court in this country is entitled and indeed duty-bound to examine the
matter independently, taking the foreign judgment, if any, only as an input for its final adjudication,
Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 : (2011) 3 SCC (Civ) 396.
Place of Suing
15. Court in which suits to be instituted.—Every suit shall be instituted in the
Court of the lowest grade competent to try it.
► Objection as to jurisdiction.—An objection that the court, which has been approached by a
party, does not have the jurisdiction to deal with the subject-matter of the dispute is not akin to an
objection regarding territorial or pecuniary jurisdiction of the court. Objections on the ground of
territorial or pecuniary jurisdiction may not be entertained after issues have been settled, unless a
consequent failure of justice would ensue. The objection can, therefore, be waived, Hindustan
Petroleum Corporation Ltd v. Barun Sankar Chatterjee, AIR 2012 Cal 255 (259).
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► Suit for infringement of trade mark.—A suit for infringement of trade mark can be filed in
the Court of District Judge and not in any Court inferior to the Court of District Judge, Sanjay
Kumar alias Mallu v. Manoj Kumar Sahu, AIR 2008 (NOC) 2270 : 2008 (4) All LJ 360 (All) (DB).
16. Suits to be instituted where subject-matter situate.—Subject to the
pecuniary or other limitations prescribed by any law, suits—
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge
upon immovable property,
(d) for the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment,
shall be instituted in the Court within the local limits of whose jurisdiction the property
is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to,
immovable property held by or on behalf of the defendant may, where the relief
sought can be entirely obtained through his personal obedience, be instituted either in
the Court within the local limits of whose jurisdiction the property is situate, or in the
Court within the local limits of whose jurisdiction the defendant actually and
voluntarily resides, or carries on business, or personally works for gain.
Explanation.—In this section “property” means property situate in India.
► Nature and scope.—Suitor can choose any one of the forums, if he is entitled to maintain an
action in two different forums. He is entitled to maintain a suit before Civil Court, if its jurisdiction is
not barred, Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corpn., (2009) 8
SCC 646 : (2009) 3 SCC (Civ) 481.
Section 16 CPC recognises a well-established principle that actions against res or property
should be brought in the forum where such res is situate. A court within whose territorial jurisdiction
the property is not situated has no power to deal with and decide the rights or interests in such
property. A court has no jurisdiction over a dispute in which it cannot give an effective judgment,
Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC 791.
► Proviso.—The proviso to Section 16, no doubt, states that though the court cannot, in case of
immovable property situate beyond jurisdiction, grant a relief in rem still it can entertain a suit where
relief sought can be obtained through the personal obedience of the defendant. The proviso is
based on a well-known maxim “equity acts in personam”. The principle on which the maxim is based
is that the courts can grant relief in suits respecting immovable property situate abroad by enforcing
their judgments by process in personam i.e. by arrest of the defendant or by attachment of his
property. The proviso to Section 16 is an exception to the main part of the section which cannot be
interpreted or construed to enlarge the scope of the principal provision. It would apply only if the suit
falls within one of the categories specified in the main part of the section and the relief sought could
entirely be obtained by personal obedience of the defendant. In the instant case, the proviso had no
application, Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC 791.
17. Suits for immovable property situate within jurisdiction of different
Courts.—Where a suit is to obtain relief respecting, or compensation for wrong to,
immovable property situate within the jurisdiction of different Courts, the suit may be
instituted in any Court within the local limits of whose jurisdiction any portion of the
property is situate:
Provided that, in respect of the value of the subject-matter of the suit, the entire
claim is cognizable by such Court.
18. Place of institution of suit where local limits of jurisdiction of Courts are
uncertain.—(1) Where it is alleged to be uncertain within the local limits of the
jurisdiction of which of two or more Courts any immovable property is situate, any one
of those Courts may, if satisfied that there is ground for the alleged uncertainty, record
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a statement to that effect and thereupon proceed to entertain and dispose of any suit
relating to that property, and its decree in the suit shall have the same effect as if the
property were situate within the local limits of its jurisdiction:
Provided that the suit is one with respect to which the Court is competent as
regards the nature and value of the suit to exercise jurisdiction.
(2) Where a statement has not been recorded under sub-section (1), and an
objection is taken before an Appellate or Revisional Court that a decree or order in a
suit relating to such property was made by a Court not having jurisdiction where the
property is situate, the Appellate or Revisional Court shall not allow the objection
unless in its opinion there was, at the time of the institution of the suit, no reasonable
ground for uncertainty as to the Court having jurisdiction with respect thereto and
there has been a consequent failure of justice.
19. Suits for compensation for wrongs to person or movables.—Where a suit
is for compensation for wrong done to the person or to movable property, if the wrong
was done within the local limits of the jurisdiction of one Court and the defendant
resides, or carries on business, or personally works for gain, within the local limits of
the jurisdiction of another Court, the suit may be instituted at the option of the
plaintiff in either of the said Courts.
Illustrations
(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in
Delhi.
(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may
sue A either in Calcutta or in Delhi.
► Jurisdiction of Civil Courts.—Section 9 of the Code is an enforcement of fundamental
principle of a law laid down in the maxim ubi jus ibi remedium. A litigant, thus having a grievance of
a civil nature has a right to institute a civil suit in a competent Civil Court unless its cognizance is
either expressly or impliedly barred by any statute. Civil Courts can try all suits, unless barred by a
statute, either expressly or by necessary implication, Rajasthan SRTC v. Bal Mukund Bairwa (2),
(2009) 4 SCC 299 : (2009) 2 SCC (Civ) 138.
20. Other suits to be instituted where defendants reside or cause of action
arises.—Subject to the limitations aforesaid, every suit shall be instituted in a Court
within the local limits of whose jurisdiction—
(a) the defendant, or each of the defendants where there are more than one, at
the time of the commencement of the suit, actually and voluntarily resides, or
carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on
business, or personally works for gain, provided that in such case either the
leave of the Court is given, or the defendants who do not reside, or carry on
business, or personally work for gain, as aforesaid, acquiesce in such
institution; or
(c) the cause of action, wholly or in part, arises.
34
[* * *]
Explanation 35 [* * *].—A corporation shall be deemed to carry on business at its
sole or principal office in India or, in respect of any cause of action arising at any place
where it has also a subordinate office, at such place.
Illustrations
(a) A is a tradesman in Calcutta. B carries on business in Delhi. B, by his agent in
Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway
Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of
the goods either in Calcutta, where the cause of action has arisen, or in Delhi, where B
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carries on business.
(b) A resides at Simla, B at Calcutta and C at Delhi. A, B and C being together at
Benaras, B and C make a joint promissory note payable on demand, and deliver it to
A. A may sue B and C at Benaras, where the cause of action arose. He may also sue
them at Calcutta, where B resides, or at Delhi, where C resides, but in each of these
cases, if the non-resident defendant objects, the suit cannot proceed without the leave
of the Court.
► Nature and scope.—Section 20 of the Code is a residuary provision and covers those cases
not falling within the limitations of Sections 15 to 19. The opening words of the section, “subject to
the limitations aforesaid” are significant and make it abundantly clear that the section takes within its
sweep all personal actions. The suit related to specific performance of an agreement of immovable
property and for possession of plot. It was, therefore, covered by the main part of Section 16.
Neither the proviso to Section 16 would get attracted nor Section 20 (residuary provision) would
apply and hence the Delhi Court lacked inherent jurisdiction to entertain, deal with and decide the
cause, Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC 791.
► Object.—Section 20(c) CPC leaves no room for doubt that a suit would lie in a court within
the local limits of whose jurisdiction the cause of action has arisen, wholly or partly. Section 20 has
been designed to secure that justice might be brought as near as possible to every man's
hearthstone and that the defendant should not be put to the trouble and expense of travelling long
distance in order to defend himself, Laxman Prasad v. Prodigy Electronic Ltd., (2008) 1 SCC 618 :
(2008) 1 SCC (Civ) 367.
► Jurisdiction as to subject-matter.—Jurisdiction as to subject-matter, is totally distinct and
stands on a different footing. Where a court has no jurisdiction over the subject-matter of the suit by
reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or
matter. An order passed by a court having no jurisdiction is a nullity. Further, neither consent nor
waiver nor acquiescence can confer jurisdiction upon a court, otherwise incompetent to try the suit,
Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC 791; See also Subhash
Mahadevasa Habib v. Nemasa Ambasa Dharmadas, (2007) 13 SCC 650.
► Cause of action.—Cause of action comprises bundle of facts which are relevant for
determination of lis between parties, A.V.M. Sales Corpn. v. Anuradha Chemicals (P) Ltd., (2012)
2 SCC 315 : (2012) 1 SCC (Civ) 809.
The elements of a cause of action are: first, the breach of duty owing by one person to another
and; second, the damage resulting to the other from the breach, or the fact or combination of facts
which gives rise to a right to sue, SBI v. Ranjan Chemicals Ltd., (2007) 1 SCC 97.
Cause of action not only refers to the infringement but also the material facts on which the right
(alleged to be infringed) is founded. It has to be decided in each case whether the cause of action
wholly or in part arises at a particular place, Indian Performing Rights Society Ltd. v. Sanjay Dalia,
(2015) 10 SCC 161.
► Valid institution of suit: Effect of—subsequent event.—Territorial jurisdiction of the court
cannot be conferred on the basis of change of address subsequent to decision of the court.
Ordinarily, the rights and obligations of the parties are to be worked out with reference to the date of
institution of the suit. Determination in regard to maintainability of the suit, it is trite, must be made
with reference to the date of the institution of the suit. If a cause of action arises at a later date, a
fresh suit may lie but that would not mean that the suit which was not maintainable on the date of its
institution, unless an exceptional case is made out therefor can be held to have been validly
instituted, Mohannakumaran Nair v. Vijayakumaran Nair, (2007) 14 SCC 426.
21. Objections to jurisdiction.—36 [(1)] No objection as to the place of suing shall
be allowed by any Appellate or Revisional Court unless such objection was taken in the
Court of first instance at the earliest possible opportunity and in all cases where issues
are settled at or before such settlement, and unless there has been a consequent
failure of justice.
37 [(2) No objection as to the competence of a Court with reference to the pecuniary

limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless
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such objection was taken in the Court of first instance at the earliest possible
opportunity, and, in all cases where issues are settled, at or before such settlement,
and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the
local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court
unless such objection was taken in the executing Court at the earliest possible
opportunity, and unless there has been a consequent failure of justice.]
► Kinds of jurisdiction.—Where a court takes upon itself to exercise a jurisdiction it does not
possess, its decision amounts to nothing. A decree passed by a court having no jurisdiction is non
est and its invalidity can be set up whenever it is sought to be enforced as a foundation for a right,
even at the stage of execution or in collateral proceedings. A decree passed by a court without
jurisdiction is a coram non judice, Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC
791.
The jurisdiction of a court may be classified into several categories. The important categories
are: (i) territorial or local jurisdiction, (ii) pecuniary jurisdiction, and (iii) jurisdiction over the subject-
matter, Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC 791.
The Code of Civil Procedure has made a distinction between lack of inherent jurisdiction and
objection to territorial jurisdiction and pecuniary jurisdiction. Whereas an inherent lack of jurisdiction
may make a decree passed by that court one without jurisdiction or void in law, a decree passed by
a court lacking territorial jurisdiction or pecuniary jurisdiction does not automatically become void. At
best it is voidable in the sense that it could be challenged in appeal therefrom provided the
conditions of Section 21 CPC are satisfied, Subhash Mahadevasa Habib v. Nemasa Ambasa
Dharmadas, (2007) 13 SCC 650.
► Objection as to territorial jurisdiction.—Ordinarily an appellate court shall not, entertain an
appeal on the ground of lack of territorial jurisdiction on the part of the court below unless he has
been prejudiced thereby, Mantoo Sarkar v. Oriental Insurance Co. Ltd., (2009) 2 SCC 244 : (2009)
1 SCC (Civ) 482 : (2009) 1 SCC (Cri) 738.
So far as territorial and pecuniary jurisdiction are concerned, objection to such jurisdiction has
to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The
law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to
be taken at a subsequent stage, Harshad Chiman Lal Modi v. DLF Universal Ltd., (2005) 7 SCC
791; See also Subhash Mahadevasa Habib v. Nemasa Ambasa Dharmadas, (2007) 13 SCC 650.
38 [21-A. Bar on suit to set aside decree on objection as to place of suing.—

No suit shall lie challenging the validity of a decree passed in a former suit between
the same parties, or between the parties under whom they or any of them claim,
litigating under the same title, on any ground based on an objection as to the place of
suing.
Explanation.—The expression “former suit” means a suit which has been decided
prior to the decision in the suit in which the validity of the decree is questioned,
whether or not the previously decided suit was instituted prior to the suit in which the
validity of such decree is questioned.]
► Nature and scope.—Expression “objection as to place of suing” covers objection as to
pecuniary jurisdiction, Subhash Mahadevasa Habib v. Nemasa Ambasa Dharmadas, (2007) 13
SCC 650.
22. Power to transfer suits which may be instituted in more than one Court.
—Where a suit may be instituted in any one of two or more Courts and is instituted in
one of such Courts, any defendant, after notice to the other parties, may, at the
earliest possible opportunity and in all cases where issues are settled at or before such
settlement, apply to have the suit transferred to another Court, and the Court to which
such application is made, after considering the objections of the other parties (if any),
shall determine in which of the several Courts having jurisdiction the suit shall
proceed.
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► Transfer under inherent power.—Inherent power shall not be resorted to. Sections 22 to 25
being exhaustive of the power of transfer, inherent power of court can clearly not be invoked for
transfer, Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corpn., (2009) 8
SCC 646 : (2009) 3 SCC (Civ) 481.
23. To what Court application lies.—(1) Where the several Courts having
jurisdiction are subordinate to the same Appellate Court, an application under Section
22 shall be made to the Appellate Court.
(2) Where such Courts are subordinate to different Appellate Courts but to the
same High Court, the application shall be made to the said High Court.
(3) Where such Courts are subordinate to different High Courts, the application
shall be made to the High Court within the local limits of whose jurisdiction the Court
in which the suit is brought is situate.
► Relative scope.—The law relating to transfer of cases (suits, appeals and other proceedings)
is well settled. It is found in Sections 22 to 25 CPC and those provisions are exhaustive in nature.
Whereas Sections 22, 24 and 25 deal with power of transfer, Section 23 merely provides forum and
specified the court in which an application for transfer may be made. Section 23 is not a substantive
provision vesting power in a particular court to order transfer, Durgesh Sharma v. Jayshree, (2008)
9 SCC 648.
24. General power of transfer and withdrawal.—(1) On the application of any of
the parties and after notice to the parties and after hearing such of them as desired to
be heard, or of its own motion without such notice, the High Court or the District Court
may at any stage—
(a) transfer any suit, appeal or other proceeding pending before it for trial or
disposal to any Court subordinate to it and competent to try or dispose of the
same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court
subordinate to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and
competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from which it was
withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under sub-
section (1), the Court which 39 [is thereafter to try or dispose of such suit or
proceeding] may, subject to any special directions in the case of an order of transfer,
either retry it or proceed from the point at which it was transferred or withdrawn.
40
[(3) For the purposes of this section,—
(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate
to the District Court;
(b) “proceeding” includes a proceeding for the execution of a decree or order.]
(4) The Court trying any suit transferred or withdrawn under this section from a
Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of
Small Causes.
41 [(5) A suit or proceeding may be transferred under this section from a Court

which has no jurisdiction to try it.]

► Nature and scope.—Though normally while making an order of transfer, the court may not
enter into merits of the matter as it may affect the final outcome of the proceedings or cause
prejudice to one or the other side, the said order must reflect application of mind by the court and
the circumstances which weighed in taking the action. Power under Section 24, thus, cannot be
exercised ipse dixit. It must be exercised with due care, caution and circumspection, Kulwinder
Kaur v. Kandi Friends Education Trust, (2008) 3 SCC 659.
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It cannot be accepted that the right of transfer of a case being procedural in nature, should be
construed liberally. By reason thereof, substantive right of a party cannot be taken away. The rules
of procedures are intended to provide justice and not to defeat it and the court must bear in mind
that it would not cause injustice to any of the parties thereby, Nahar Industrial Enterprises Ltd. v.
Hong Kong and Shanghai Banking Corpn., (2009) 8 SCC 646 : (2009) 3 SCC (Civ) 481.
► Suo motu exercise.—Under Section 24 CPC, the High Court has jurisdiction to suo motu
withdraw a suit or appeal, pending in any court subordinate to it, to its file and adjudicate itself on
the issues involved therein and dispose of the same. Unless the High Court decides to transfer the
suit or the appeal, as the case may be, to some other court or the same court, it is obliged to try,
adjudicate and dispose of the same, Abdul Gafur v. State of Uttarakhand, (2008) 10 SCC 97.
► Notice.—Section 24 CPC merely confers discretionary power. A court acting under Section
24 CPC may or may not in its judicial discretion transfer a particular case. Section 24 does not
prescribe any ground for ordering the transfer of a case. In certain cases it may be ordered suo
motu and it may be done for administrative reasons, but when an application for transfer is made by
a party, the court is required to issue notice to the other side and hear the party before directing
transfer, Jitendra Singh v. Bhanu Kumari, (2009) 1 SCC 130 : (2009) 1 SCC (Civ) 48.
► Fair trial.—If the court feels that the plaintiff or the defendant is not likely to have a “fair trial”
in the court from which he seeks to transfer a case, it is not only the power, but the duty of the court
to transfer the case, Kulwinder Kaur v. Kandi Friends Education Trust, (2008) 3 SCC 659.
► Recording of reasons.—An order of transfer must reflect application of mind by the court
and the circumstances which weighed in taking the action, Kulwinder Kaur v. Kandi Friends
Education Trust, (2008) 3 SCC 659.
42
[25. Power of Supreme Court to transfer suits, etc.—(1) On the application of
a party, and after notice to the parties, and after hearing such of them as desire to be
heard, the Supreme Court may, at any stage, if satisfied that an order under this
section is expedient for the ends of justice, direct that any suit, appeal or other
proceeding be transferred from a High Court or other Civil Court in one State to a High
Court or other Civil Court in any other State.
(2) Every application under this section shall be made by a motion which shall be
supported by an affidavit.
(3) The Court to which such suit, appeal or other proceeding is transferred shall,
subject to any special directions in the order of transfer, either retry it or proceed from
the stage at which it was transferred to it.
(4) In dismissing any application under this section, the Supreme Court may, if it is
of opinion that the application was frivolous or vexatious, order the applicant to pay by
way of compensation to any person who has opposed the application such sum, not
exceeding two thousand rupees, as it considers appropriate in the circumstances of
the case.
(5) The law applicable to any suit, appeal or other proceeding transferred under this
section shall be the law which the Court in which the suit, appeal or other proceeding
was originally instituted ought to have applied to such suit, appeal or proceeding.]
► Nature and scope.—Section 25 is a self-contained code and comprises substantive as well
as procedural law allowing a party to move the court by an application and also empowers the court
to make an order of transfer of a case from a Civil Court in one State to a Civil Court in another
State. Sections 22 to 25 are exhaustive in nature. Whereas Sections 22, 24 and 25 deal with the
power of transfer of cases, Section 23 merely provides the forum and specifies the Court in which
application for transfer of case may be made. Section 23 is merely a procedural provision and not a
substantive one vesting power in a particular court to order transfer of case. Section 23, therefore,
must be read subject to Section 25, Durgesh Sharma v. Jayshree, (2008) 9 SCC 648.
► Grounds.—In deciding petition for transfer of matrimonial proceedings convenience of wife
is the prime consideration, Rajani Kishor Pardeshi v. Kishor Babulal Pardeshi, (2005) 12 SCC 237.
► Considerations.—Balance of convenience, or inconvenience to plaintiff or defendant or
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witness and reasonable apprehension in mind of litigant that he may not get justice in the court in
which suit is pending, DAV Boys Senior Secondary School v. DAV College Managing Committee,
(2010) 8 SCC 401 : (2010) 3 SCC (Civ) 386.
► Approach of court.—Leniency to ladies shown by court in such transfer matters often
misused and taken advantage of by women. So court is now required to consider each petition on
its merit, Anindita Das v. Srijit Das, (2006) 9 SCC 197.
► “Suits duly instituted”.—When statute requires filing of suit, it must be instituted only in
manner prescribed and in no other manner such as by filing original petition, Sinnamani v. G.
Vettivel, (2012) 5 SCC 759 : (2012) 3 SCC (Civ) 392.
Institution of Suits
26. Institution of suits.—43 [(1)] Every suit shall be instituted by the presentation
of a plaint or in such other manner as may be prescribed.
44
[(2) In every plaint, facts shall be proved by affidavit.]
► Events happening after institution of suit.—Rights of parties, get crystallised on the date
of commencement of litigation. Right to relief should be decided accordingly, Beg Raj Singh v. State
of U.P., (2003) 1 SCC 726.
Summons and Discovery
27. 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 45 [on such day not beyond thirty days from the date of the
institution of the suit].
► Summons to defendant to be served “on such day not beyond thirty days from the
date of the institution of the suit”.—The object of amendment is to prevent plaintiff delaying the
issuance of summons by not taking the steps necessary. If therefore plaintiff files process fee and
complete other formalities required within thirty days, there would have been sufficient compliance
with provisions of Section 27 even if court is unable or does not issue summons before the expiry of
30 days, Salem Advocate Bar Assn. v. Union of India, (2003) 1 SCC 49.
► Due service of summons.—Requirement as to mentioning of a specific “day, date, year and
time” in summons for defendant's appearance in court, as contained in statutory format of summons
prescribed in Appendix B CPC is mandatory. Any non-compliance with that requirement would
amount to a material infirmity rendering the summons as well as their service on defendants bad in
law. Summons in such a case cannot be held as duly served, Auto Cars v. Trimurti Cargo Movers
(P) Ltd., (2018) 15 SCC 166.
28. 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.
46 [(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
(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.]
47
[29. Service of foreign summonses.—Summonses and other processes issued
by—
(a) any Civil or Revenue Court established in any part of India to which the
provisions of this Code do not extend, or
(b) any Civil or Revenue Court established or continued by the authority of the
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Central Government outside India, or
(c) any other Civil or Revenue Court outside India to which the Central
Government has, by notification in the Official Gazette, declared the provisions
of this section to apply,
may be sent to the Courts in the territories to which this Code extends, and served as
if they were summonses issued by such Courts.]
30. Power to order discovery and the like.—Subject to such conditions and
limitations as may be prescribed, the Court may, at any time, either of its own motion
or on the application of any party,—
(a) make such orders as may be necessary or reasonable in all matters relating
to the delivery and answering of interrogatories, the admission of documents
and facts, and the discovery, inspection, production, impounding and return of
documents or other material objects producible as evidence;
(b) issue summonses to persons whose attendance is required either to give
evidence or to produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit.
High Court Amendment
CALCUTTA.—In clause (a) omit the words “delivery and answering of interrogatories,
the admission of documents and facts, and the discovery” after the words “matters
relating to” and before the word “inspection”. Cal. Gaz. Pt. I, dt. 20-4-1967.
► Nature and scope.—Court must give greater emphasis to the veracity of pleadings and
documents in order to ascertain the truth which is the foundation of justice. In civil cases,
adherence to Section 30 CPC would also help in ascertaining the truth, Maria Margarida Sequeira
Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370 : (2012) 3 SCC (Civ) 126.
31. Summons to witness.—The provisions in Sections 27, 28 and 29 shall apply
to summonses to give evidence or to produce documents or other material objects.
High Court Amendment
CALCUTTA.—Omit figure ‘27’ — Cal. Gaz. Pt. I, dt. 20-4-1967.
► Summons to witness.—The procedure that is prescribed for service of summons to
defendants in a suit is made applicable to witnesses also, under Section 31 of CPC. Where a party,
whether plaintiff or defendant, has secured the presence of witness by himself, but is not able to
ensure his presence subsequently, Section 31 of CPC, has no application. Taking out summons to
such witnesses would amount almost to a hybrid exercise, since the presence of the witness is
partly procured by the party himself, and for the remaining part he seeks the assistance of the
Court. The same is impermissible in law, Chukka Ramaiah v. Chejuru Bujjaiah, AIR 2010 AP 229.
32. Penalty for default.—The Court may compel the attendance of any person to
whom a summons has been issued under Section 30 and for that purpose may—
(a) issue a warrant for his arrest;
(b) attach and sell his property;
(c) impose a fine upon him not exceeding 48 [five thousand rupees];
(d) order him to furnish security for his appearance and in default commit him to
the civil prison.
High Court Amendment
In clause (b) insert the word “immovable” before the word “property” Cal. Gaz. Pt.
I, dt. 20-4-1967.
Judgment and Decree
33. Judgment and decree.—The Court, after the case has been heard, shall
pronounce Judgment, and on such Judgment a decree shall follow.
► Nature and scope.—Judgment must be construed upon reading the same as a whole.
Attending circumstances may also be taken into consideration. Direction issued by reason of a
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judgment should not be expanded, U.P. SRTC v. Commr. of Police (Traffic), (2009) 3 SCC 634 :
(2009) 2 SCC (Cri) 164.
A court of law must base its decision on appreciation of evidence brought on record by applying
correct legal principles. Surmises and conjectures alone cannot form basis of a judgment, Navanath
v. State of Maharashtra, (2009) 14 SCC 480 : (2009) 5 SCC (Civ) 417.
Judgment and decree granting relief with respect to property other than that described in plaint,
is unsustainable. More so when that property admittedly stood in the name of another person, who
was not party to suit nor was any relief claimed against him, Arulmigu Chokkanatha Swamy Koil
Trust v. Chandran, (2017) 3 SCC 702.
A mere concealment or non-disclosure of relevant facts without intent to deceive or a bald
allegation of fraud without proof and intent to deceive, would not render a decree obtained by a
party as fraudulent. Fraud must not merely be alleged but proved. It is only after evidence is led to
establish intent to deceive that a conclusion of fraud played on court could be arrived at, Harjas Rai
Makhija v. Pushparani Jain, (2017) 2 SCC 797.
► “Judgment”.—If a party thinks that the happenings in court have been wrongfully recorded
in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges,
to call the attention of the very judges who have made the record. That is the only way to have the
record corrected. Otherwise, the matter must necessarily end there and it would not be open to the
appellant to contend before the Supreme Court to the contrary, Roop Kumar v. Mohan Thedani,
(2003) 6 SCC 595; Ramesh Chand Daga v. Rameshwari Bai, (2005) 4 SCC 772; A.V.G.P.
Chettiar & Sons v. T. Palanisamy Gounder, (2002) 5 SCC 337.
Judgment must administer law according to the provisions of law. It is the bounden duty of
Judges to discern legislative intention in the process of adjudication. Justice administered according
to individual's whim, desire, inclination and notion of justice would lead to confusion, disorder and
chaos, Gurdev Kaur v. Kaki, (2007) 1 SCC 546.
The court while passing a judgment cannot take away the right of the successful party indirectly
which it cannot do directly, Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas, (2008)
11 SCC 753.
The judgment of a court should not be interpreted as a statute. The meaning of the words used in
a judgment must be found out from the backdrop of the fact of each case. The court while passing a
judgment cannot take away the right of the successful party indirectly which it cannot do directly.
The distinction between the decision of a court of law and a court of equity should also be kept in
mind, Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas, (2008) 11 SCC 753.
► Findings of fact recorded by Civil Court if binding in criminal in trial, or vice versa.—
The findings of fact recorded by the Civil Court do not have any bearing so far as the criminal case
is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases
it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt.
There is neither any statutory nor any legal principle that findings recorded by the court either in
civil or criminal proceedings shall be binding between the same parties while dealing with the same
subject-matter and both the cases have to be decided on the basis of the evidence adduced therein.
However, there may be cases where the provisions of Sections 41 to 43 of the Evidence Act, 1872,
dealing with the relevance of previous judgments in subsequent cases may be taken into
consideration, Kishan Singh v. Gurpal Singh, (2010) 8 SCC 775 : (2010) 3 SCC (Civ) 583.
► “Decree”.—Decree or holder of court is normally binding on parties to it unless it is shown to
be without jurisdiction or vitiated by fraud/collusion or avoidable on any legal ground. When a cause
of action is put in suit and it fructifies into a decree, the cause of action gets merged in the decree.
Therefore, the cause of action cannot be resurrected to examine whether that cause of action was
enforceable or the right claimed therein could be enforced, Som Dev v. Rati Ram, (2006) 10 SCC
788.
Decree passed by court of competent jurisdiction remains binding on the parties even if it is
challenged in appeal or revision, unless it is stayed by superior court or is rendered ineffective or
inoperative temporarily by superior court subject to the final decision. It merges with the decree of
superior court when the same attains finality, Thirunavukkarasu Mudaliar v. Gopal naidu, (2006) 12
SCC 390.
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It is not necessary that all clauses mentioned in the provisions under which the decree is passed
should be incorporated in the decree. While interpreting the decree, it must be read as if all the
provisions applicable at the time of passing of the decree are incorporated in the decree, Philomina
Jose v. Federal Bank Ltd., (2006) 2 SCC 608.
A decree is said to be a nullity if it is passed by a court having no inherent jurisdiction. Merely
because a court erroneously passes a decree or there is an error while passing the decree, the
decree cannot be called a nullity. The decree to be called a nullity is to be understood in the sense
that it is ultra vires the powers of the court passing the decree and not merely voidable decree,
Hiralal Moolchand Doshi v. Barot Raman Lal Ranchhoddas, (1993) 2 SCC 458, 464 : AIR 1993 SC
1449.
An illegal decree is a nullity which cannot be enforced, Ramnik Vallabhdas Madhvani v.
Taraben Pravinlal Madhvani, (2004) 1 SCC 497.
Judges must administer law according to the provisions of law. It is the bounden duty of Judges
to discern legislative intention in the process of adjudication. Justice administered according to
individual's whim, desire, inclination and notion of justice would lead to confusion, disorder and
chaos, Gurdev Kaur v. Kaki, (2007) 1 SCC 546.
Plea that suit cannot be dismissed on mere technical ground is not tenable. A conditional decree
is self-operative. Therefore, non-compliance with condition(s) led to automatic dismissal, P.R.
Yelumalai v. N.M. Ravi, (2015) 9 SCC 52 : (2015) 4 SCC (Civ) 309.
► Pleadings.—Decision on a premise that was not pleaded in plaint, not proper, Jharkhand
State Housing Board v. Anirudh Kumar Sahu, (2018) 18 SCC 330.
Interest
34. Interest.—(1) Where and in so far as a decree is for the payment of money,
the Court may, in the decree, order interest at such rate as the Court deems
reasonable to be paid on the principal sum adjudged, from the date of the suit to the
date of the decree, in addition to any interest adjudged on such principal sum for any
period prior to the institution of the suit, 49 [with further interest at such rate not
exceeding six per cent per annum as the Court deems reasonable on such principal
sum], from the date of the decree to the date of payment, or to such earlier date as
the Court thinks fit:
50
[Provided that where the liability in relation to the sum so adjudged had arisen
out of a commercial transaction, the rate of such further interest may exceed six per
cent per annum, but shall not exceed the contractual rate of interest or where there is
no contractual rate, the rate at which moneys are lent or advanced by nationalised
banks in relation to commercial transactions.
Explanation I.—In this sub-section, “nationalised bank” means a corresponding new
bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings)
Act, 1970 (5 of 1970).
Explanation II.—For the purposes of this section, a transaction is a commercial
transaction, if it is connected with the industry, trade or business of the party
incurring the liability.]
(2) Where such a decree is silent with respect to the payment of further interest 51
[on such principal sum] from the date of the decree to the date of payment or other
earlier date, the Court shall be deemed to have refused such interest, and a separate
suit therefor shall not lie.
► Nature and scope.—Section 34 is a general procedural provision. Its applicability or
inapplicability or extent of applicability would depend on the fact situation of each case, Central
Bank of India v. Ravindra, (2002) 1 SCC 367.
Section 34 CPC, as it stood before amendment by Act 104 of 1976, deals with the question of
interest in three stages. First is, interest prior to the date of institution of suit, the second stage is
interest from the date of institution of suit till the date of decree and the third stage is from the date
of decree till realisation of the decretal amount. About the first stage, Section 34 does not say
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anything while about the second stage it says that the interest to be awarded should be as
considered reasonable by the court. About the third stage i.e. from the date of decree till realisation,
the power of the court to award interest is circumscribed i.e. it cannot be more than 6% per annum,
Ramnik Vallabhdas Madhvani v. Taraben Pravinlal Madhvani, (2004) 1 SCC 497.
In dealing with civil suits, courts will have to follow the provisions of CPC in levying costs, Alka
Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141.
Section 34 does not apply to mortgage suits which are covered exclusively by Order 34, Rule 11,
N.M. Veerappa v. Canara Bank, (1998) 2 SCC 317.
► Interest under Consumer Protection Act.—Although the Consumer Protection Act does not
contain any provision for grant of interest, but on account of a catena of cases of the Supreme
Court that interest can still be awarded, taking recourse to Section 34 CPC, to do complete justice
between the parties. That principle is based upon justice, equity and good conscience, which would
certainly authorise the court to grant interest, otherwise, the very purpose of awarding compensation
to the appellant would be defeated. Accordingly, it was held that the respondent was liable to pay the
amount awarded by the State Commission to the appellant together with interest at the rate of 9%
per annum, from the date of filing of the complaint till it is actually paid, Rubi (Chandra) Dutta v.
United India Insurance Co. Ltd., (2011) 11 SCC 269 : (2011) 3 SCC (Civ) 658; Manalal
Prabhudayal v. Oriental Insurance Co. Ltd., (2009) 17 SCC 296 : (2011) 2 SCC (Civ) 376.
► Award of costs as compensation.—Award of costs as compensation is impermissible,
Shamsu Suhara Beevi v. G. Alex, (2004) 8 SCC 569.
► “Court” meaning of.—“Court” does not include arbitral tribunal. Hence Section 34
inapplicable to arbitration proceedings, Bhagawati Oxygen Ltd. v. Hindustan Copper Ltd., (2005) 6
SCC 462.
► Interest prior to filing suit.—It is well settled that interest prior to the date of filing of
suit/claim can be awarded (a) where the contract provides for payment of interest, or (b) where a
statute applicable to the transaction/liability provides for payment of interest, or (c) where the
interest is payable as per the provisions of the Interest Act, 1978, LIC v. S. Sindhu, (2006) 5 SCC
258.
► Interest on mesne profits.—Interest of mesne profits awarded on account of retention of
share of a co-owner in a property by other co-owners, Ramnik Vallabhdas Madhvani v. Taraben
Pravinlal Madhvani, (2004) 1 SCC 497.
► Interest on arrears of rent.—Interest on arrears of rent was awarded for entire period of
pendency of suit including period when plaint was returned to plaintiff for rectification of defects and
represented after long delay, Central Coop. Bank Ltd. v. S. Kamalaveni Sundaram, (2011) 1 SCC
790 : (2011) 1 SCC (Civ) 331.
► Future interest.—Future interest is not payable, in the absence of a specific direction of the
court to pay such interest is under Section 34(2) CPC, where a decree is silent as to payment of
further interest on the principal sum, it shall be deemed to have been refused, Kerala SEB v. Kurien
E. Kalathil, (2018) 4 SCC 793.
Costs
35. Costs.—(1) Subject to such conditions and limitations as may be prescribed,
and to the provisions of any law for the time being in force, the costs of and incident
to all suits shall be in the discretion of the Court, and the Court shall have full power
to determine by whom or out of what property and to what extent such costs are to be
paid, and to give all necessary directions for the purposes aforesaid. The fact that the
Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.
(2) Where the Court directs that any costs shall not follow the event, the Court shall
state its reasons in writing.
STATE AMENDMENTS
Union Territory of Jammu and Kashmir.—In its application to the Union Territory
of Jammu and Kashmir, in Section 35, in sub-section (1), omit “Commercial”. [Vide
S.O. 1123(E), dated 18-3-2020 (w.e.f. 18-3-2020)].
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Union Territory of Ladakh.—In its application to the Union Territory of Ladakh —
Same as UT of Jammu and Kashmir. [Vide S.O. 3774(E), dated 23-10-2020].
High Court Amendment
CALCUTTA.—Omit sub-section (2) Cal. Gaz. Pt I, dt. 20-4-1967.
► Nature and scope.—In consonance with the principles of equity, justice and good
conscience Judges should ensure that the legal process is not abused by the litigants in any
manner. The court should never permit a litigant to perpetuate illegality by abusing the legal process.
It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legal
process must be effectively curbed and the court must ensure that there is no wrongful,
unauthorised or unjust gain for anyone by the abuse of the process of the court. One way to curb
this tendency is to impose realistic costs, which the respondent or the defendant has in fact
incurred in order to defend himself in the legal proceedings, Indian Council for Enviro-Legal Action
v. Union of India, (2011) 8 SCC 161 : (2011) 4 SCC (Civ) 87.
► Object.—The provision for costs is intended to achieve the following goals:
It should act as deterrent to vexatious, frivolous and speculative litigations or defences. The
spectre of being made liable to pay actual costs should be such, as to make every litigant think twice
before putting forth a vexatious, frivolous or speculative claim or defence.
Costs should ensure that the provisions of CPC, the Evidence Act and other laws governing
procedure are scrupulously and strictly complied with and that parties do not adopt delaying tactics
or mislead the court.
Costs should provide adequate indemnity to the successful litigant for the expenditure incurred
by him for the litigation. This necessitates the award of actual costs of litigation as contrasted from
nominal or fixed or unrealistic costs.
The provision for costs should be an incentive for each litigant to adopt alternative dispute
resolution (ADR) processes and arrive at a settlement before the trial commences in most of the
cases.
The provisions relating to costs should not however obstruct access to courts and justice. Under
no circumstances the costs should be a deterrent, to a citizen with a genuine or bona fide claim, or
to any person belonging to the weaker sections whose rights have been affected, from approaching
the courts.
At present these goals are sought to be achieved mainly by Section 35, 35-A and 35-B read with
the relevant civil rules of practice relating to taxing of costs, Vinod Seth v. Devinder Bajaj, (2010) 8
SCC 1 : (2010) 3 SCC (Civ) 212.
► Costs under inherent powers.—When award of costs in civil litigation is governed and
regulated by Sections 34 and 35-A CPC, there is no question of exercising inherent power contrary
to the specific provisions, Ashok Kumar Mittal v. Ram Kumar Gupta, (2009) 2 SCC 656.
► Subject to such conditions and limitations as may be prescribed.—Though Section 35
does not impose a ceiling on costs that could be levied and gives discretion to court in the matter,
however, in awarding costs court cannot ignore any conditions or limitations in CPC or in any rules,
Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust, (2012) 1 SCC 455 : (2012) 1 SCC (Civ)
275.
35-A. Compensatory costs in respect of false or vexatious claims or
defences.—(1) If in any suit or other proceeding, including an execution proceeding
but excluding an appeal or a revision, any party objects to the claim or defence on the
ground that the claim or defence or any part of it is, as against the objector, false or
vexatious to the knowledge of the party by whom it has been put forward, and if
thereafter, as against the objector, such claim or defence is disallowed, abandoned or
withdrawn in whole or in part, the Court, if it so thinks fit, may, after recording its
reasons for holding such claim or defence to be false or vexatious, make an order for
the payment to the objector by the party by whom such claim or defence has been put
forward, of costs by way of compensation.
(2) No Court shall make any such order for the payment of an amount exceeding
three thousand rupees or exceeding the limits of its pecuniary jurisdiction, whichever
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amount is less:
Provided that where the pecuniary limits of the jurisdiction of any Court exercising
the jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts
Act, 1887 (9 of 1887) or under a corresponding law in force in any part of India to
which the said Act does not extend and not being a Court constituted under such Act
or law, are less than two hundred and fifty rupees, the High Court may empower such
Court to award as costs under this section any amount not exceeding two hundred and
fifty rupees and not exceeding those limits by more than one hundred rupees:
Provided, further, that the High Court may limit the amount which any Court or
class of Courts is empowered to award as costs under this section.
(3) No person against whom an order has been made under this section shall, by
reason thereof, be exempted from any criminal liability in respect of any claim or
defence made by him.
(4) The amount of any compensation awarded under this section in respect of a
false or vexatious claim or defence shall be taken into account in any subsequent suit
for damages or compensation in respect of such claim or defence.
STATE AMENDMENTS
Union Territory of Jammu and Kashmir.—In its application to the Union Territory
of Jammu and Kashmir, in Section 35-A, omit sub-section (2). [Vide S.O. 1123(E),
dated 18-3-2020 (w.e.f. 18-3-2020)].
Union Territory of Ladakh.—In its application to the Union Territory of Ladakh —
Same as UT of Jammu and Kashmir. [Vide S.O. 3774(E), dated 23-10-2020].
Uttar Pradesh.—(1) In its application to the State of Uttar Pradesh, in Section 35-
A, for the existing sub-section (1) the following shall be substituted:
“(1) If in any suit or other proceedings including proceedings in execution, but not
being an appeal or revision, the Court finds that the claim or defence or any part
thereof is false or vexatious to the knowledge of the party by whom it has been put
forward and if such claim or defence or such part is disallowed, abandoned or
withdrawn in whole or in part, the Court may, after recording its reasons for holding
such claim or defence to be false or vexatious, make an order for the payment to the
successful party of costs by way of compensation irrespective of the decisions on other
issues in the case.” [Vide U.P. Act 24 of 1954, Section 2 and Schedule, Item 5, Entry
1. (30-11-1954).]
(2) In Section 35-A, after sub-section (1), the following sub-section shall be
inserted, namely:—
“(1-A) The provisions of sub-section (1) shall mutatis mutandis apply to an appeal
where the appellate Court confirms the decision of the trial court and the trial court
has not awarded, or has awarded insufficient, compensatory cost under that sub-
section.” [Vide U.P. Act 57 of 1976, S. 2 (1-1-1977)].
52 [35-B. Costs for causing delay.—(1) If, on any date fixed for the hearing of a

suit or for taking any step therein, a party to the suit—

(a) fails to take the step which he was required by or under this Code to take on
that date, or
(b) obtains an adjournment for taking such step or for producing evidence or on
any other ground,
the Court may, for reasons to be recorded, make an order requiring such party to pay
to the other party such costs as would, in the opinion of the Court, be reasonably
sufficient to reimburse the other party in respect of the expenses incurred by him in
attending the Court on that date, and payment of such costs, on the date next
following the date of such order, shall be a condition precedent to the further
prosecution of—
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(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs,
(b) the defence by the defendant, where the defendant was ordered to pay such
costs.
Explanation.—Where separate defences have been raised by the defendants or
groups of defendants, payment of such costs shall be a condition precedent to the
further prosecution of the defence by such defendants or groups of defendants as
have been ordered by the Court to pay such costs.
(2) The costs, ordered to be paid under sub-section (1), shall not, if paid, be
included in the costs awarded in the decree passed in the suit; but, if such
costs are not paid, a separate order shall be drawn up indicating the amount
of such costs and the names and addresses of the persons by whom such
costs are payable and the order so drawn up shall be executable against such
persons.]
► Whether directory or mandatory.—The provisions of Section 35-B CPC are not mandatory
but are only directory. The Court may in the absence of the concerned party, or in the absence of
any plausible explanation for non payment of costs pass an order stopping the further prosecution of
the case by the defaulting party. However, the Court, in some circumstances, may not pass such an
order, Piaro Devi v. Anant Ram, AIR 2008 HP 107, 110.
► “Further prosecution”.—As regards the meaning of the words “further prosecution of the
suit” and “further prosecution of the defence” in Section 35-B if the legislature intended that the suit
should be dismissed in the event of non-payment of costs by the plaintiff, or that the defence should
be struck off and suit should be decreed in the event of non-payment of costs by the defendant, the
legislature would have said so. If the costs imposed under Section 35-B are not paid, the
consequences mentioned therein would follow. However Section 35-B cannot come in the way of the
court's general power to extend time under Section 148 CPC. Such extension can be granted only
in exceptional circumstances and by subjecting the defaulting party to further terms. No party can
routinely be given extension of time for payment of costs, having regard to the fact that such costs
under Section 35-B were itself levied for causing delay, Manohar Singh v. D.S. Sharma, (2010) 1
SCC 53 : (2010) 1 SCC (Civ) 7.
PART II
EXECUTION
General
53
[36. Application to orders.—The provisions of this Code relating to the
execution of decrees (including provisions relating to payment under a decree) shall,
so far as they are applicable, be deemed to apply to the execution of orders (including
payment under an order).]
High Court Amendment
CALCUTTA.—Insert the words “and of the Presidency Small Cause Courts Act, 1882”,
after the words “of this Code” and before the words “relating to”; and the words “and
except as therein otherwise provided”, after the words “are applicable” and before the
words “be deemed to”. Cal. Gaz. Pt. I, dt. 20-4-1967.
► Nature and scope.—Under Section 36 of the CPC, the provisions relating to execution of
decree, apply to the execution of orders also, Rohit Shekhar v. Narayan Dutt Tiwari, AIR 2012 Del
151 (156) (DB).
37. Definition of Court which passed a decree.—The expression “Court which
passed a decree”, or words to that effect, shall, in relation to the execution of decrees,
unless there is anything repugnant in the subject or context, be deemed to include,—
(a) where the decree to be executed has been passed in the exercise of appellate
jurisdiction, the Court of first instance, and
(b) where the Court of first instance has ceased to exist or to have jurisdiction to
execute it, the Court which, if the suit wherein the decree was passed was
instituted at the time of making the application for the execution of the
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decree, would have jurisdiction to try such suit.
54 [Explanation.—The Court of first instance does not cease to have jurisdiction to
execute a decree merely on the ground that after the institution of the suit wherein
the decree was passed or after the passing of the decree, any area has been
transferred from the jurisdiction of that Court to the jurisdiction of any other Court;
but in every such case, such other Court shall also have jurisdiction to execute the
decree, if at the time of making the application for execution of the decree it would
have jurisdiction to try the said suit.]
Courts by which Decrees may be executed
38. Court by which decree may be executed.—A decree may be executed either
by the Court which passed it, or by the Court to which it is sent for execution.
► Nature and scope.—An application for enforcement of arbitral award need not always be
filed before the District Court, an arbitral award can be filed before competent Civil Court having
territorial and pecuniary jurisdiction, Bhoomatha Para Boiled Rice & Oil Mill (M/s.) v. Maheshwari
Trading Co., AIR 2010 AP 137 (AP) (DB).
39. Transfer of decree.—(1) The Court which passed a decree may, on the
application of the decree-holder, send it for execution to another Court 55 [of competent
jurisdiction],—
(a) if the person against whom the decree is passed actually and voluntarily
resides or carries on business, or personally works for gain, within the local
limits of the jurisdiction of such other Court, or
(b) if such person has not property within the local limits of the jurisdiction of
the Court which passed the decree sufficient to satisfy such decree and has
property within the local limits of the jurisdiction of such other Court, or
(c) if the decree directs the sale or delivery of immovable property situate
outside the local limits of the jurisdiction of the Court which passed it, or
(d) if the Court which passed the decree considers for any other reason, which it
shall record in writing, that the decree should be executed by such other
Court.
(2) The Court which passed a decree may of its own motion send it for execution to
any subordinate court of competent jurisdiction.
56
[(3) For the purposes of this section, a Court shall be deemed to be a court of
competent jurisdiction if, at the time of making the application for the transfer of
decree to it, such Court would have jurisdiction to try the suit in which such decree
was passed.]
57 [(4) Nothing in this section shall be deemed to authorise the Court which passed

a decree to execute such decree against any person or property outside the local limits
of its jurisdiction.]
STATE AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in Section 39 for
sub-section (3), the following sub-section shall be substituted, namely:—
“(3) For the purposes of this section, a Court shall be deemed to be a Court of
competent jurisdiction if the amount or value of the subject-matter of the suit
wherein the decree was passed does not exceed the pecuniary limits, if any, of its
ordinary jurisdiction at the time of making the application for the transfer of decree
to it, notwithstanding that it had otherwise no jurisdiction to try the suit.” [Vide
U.P. Act 31 of 1978, S. 2, w.e.f. 1-8-1978.]
► Nature and scope.—Section 39 does not authorise the court to execute the decree outside
its jurisdiction, but it does not dilute the other provisions giving such power on compliance with the
conditions stipulated in those provisions. Thus, the provision, such as, Order 21, Rule 3 or Order 21,
Rule 48 which provide differently, would not be affected by Section 39(4) CPC, Salem Advocate
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Bar Assn. (2) v. Union of India, (2005) 6 SCC 344.
► Decree against property.—It is only the court in whose jurisdiction the property is situate
that can execute the decree. Section 39(4) as inserted by Act 22 of 2002 w.e.f. 1-7-2002 makes it
clear that it is no longer a matter of discretion for the court which passed the decree either to
proceed with the execution of the decree itself or to transfer it for execution to the court within
whose jurisdiction the property is situate, Mohit Bhargava v. Bharat Bhushan Bhargava, (2007) 4
SCC 795, 799—801.
► Legislative changes.—The words “competent jurisdiction” in sub-sections (1) and (3) have
been inserted by CPC (Amendment) Act 104 of 1976. Now it is clear that the transferee court must
have pecuniary competence to deal with the suit in which the decree was passed. Amount of the
decree is immaterial because pecuniary jurisdiction of a court is judged with reference to the nature
of the claim and not the nature of the relief decreed.
Section 39 does not authorise 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
provisions. Thus, the provisions, such as, Order 21, Rule 3 or Order 21, Rule 48 which provide
differently, would not be effected by Section 39(4) of the Code, (2005) 6 SCC 344, 365; (2007) 4
SCC 795.
40. Transfer of decree to Court in another State.—Where a decree is sent for
execution in another State, it shall be sent to such Court and executed in such manner
as may be prescribed by rules in force in that State.
41. Result of execution proceedings to be certified.—The Court to which a
decree is sent for execution shall certify to the Court which passed it the fact of such
execution, or where the former Court fails to execute the same the circumstances
attending such failure.
42. Powers of Court in executing transferred decree.—58 [(1)] The Court
executing a decree sent to it shall have the same powers in executing such decree as
if it had been passed by itself. All persons disobeying or obstructing the execution of
the decree shall be punishable by such Court in the same manner as if it had passed
the decree. And its order in executing such decree shall be subject to the same rules
in respect of appeal as if the decree had been passed by itself.
59
[(2) Without prejudice to the generality of the provisions of sub-section (1), the
powers of the Court under that sub-section shall include the following powers of the
Court which passed the decree, namely:—
(a) power to send the decree for execution to another Court under Section 39;
(b) power to execute the decree against the legal representative of the deceased
judgment-debtor under Section 50;
(c) power to order attachment of a decree.
(3) A Court passing an order in exercise of the powers specified in sub-section (2)
shall send a copy thereof to the Court which passed the decree.
(4) Nothing in this section shall be deemed to confer on the Court to which a decree
is sent for execution any of the following powers, namely:—
(a) power to order execution at the instance of the transferee of the decree;
(b) in the case of a decree passed against a firm, power to grant leave to execute
such decree against any person, other than such a person as is referred to in
clause (b), or clause (c), of sub-rule (1) of Rule 50 of Order XXI.]
STATE AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh, Section 42 shall
stand substituted as under and shall be deemed to have been substituted w.e.f. 2-12-
1968:
“42. Power of Court in executing transferred decree.—(1) The Court executing
a decree sent to it shall have the same powers in executing such decree as if it had
been passed by itself. All persons disobeying or obstructing the decree shall be
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punishable by such Court in the same manner as if it had passed the decree, and its
order in executing such decree shall be subject to the same rules in respect of appeal
as if the decree had been passed by itself.
(2) Without prejudice to the generality of the provisions of sub-section (1), the
powers of the Court under that sub-section shall include the following powers of the
Court which passed the decree namely:—
(a) power to send the decree for execution to another Court under Section 39;
(b) power to execute the decree against the legal representative of the deceased
judgment-debtor under Section 50;
(c) power to order attachment of a decree;
(d) power to decide any question relating to the bar of limitation to the
executability of the decree;
(e) power to record payment or adjustment under Rule 2 of Order XXI;
(f) power to order stay of execution under Rule 29 of Order XXI;
(g) in the case of a decree passed against a firm, power to grant leave to execute
such decree against any person other than a person as is referred to in clause (b)
or clause (c) of sub-rule (1) of Rule 50 of Order XXI.
(3) A Court passing an order in exercise of the powers specified in sub-section (2)
shall send a copy thereof to the Court which passed the decree.
(4) Nothing in this section shall be deemed to confer on the Court to which a decree
is sent for execution, the power to order execution at the instance of the transferee of
a decree.” [Vide U.P. Civil Laws (Amend.) Act, 1970 (14 of 1970), S. 2 (8-4-1970)].
60
[43. Execution of decrees passed by Civil Courts in places to which this
Code does not extend.—Any decree passed by any Civil Court established in any
part of India to which the provisions of this Code do not extend, or by any Court
established or continued by the authority of the Central Government outside India,
may, if it cannot be executed within the jurisdiction of the Court by which it was
passed, be executed in the manner herein provided within the jurisdiction of any Court
in the territories to which this Code extends.]
61 [44. Execution of decrees passed by Revenue Courts in places to which

this Code does not extend.—The State Government may, by notification in the
Official Gazette, declare that the decrees of any Revenue Court in any part of India to
which the provisions of this Code do not extend, or any class of such decrees, may be
executed in the State as if they had been passed by Courts in that State.]
62 [44-A. Execution of decrees passed by Courts in reciprocating territory.—

(1) Where a certified copy of a decree of any of the superior courts of 63 [* * *] any
reciprocating territory has been filed in a District Court, the decree may be executed in
64
[India] as if it had been passed by the District Court.
(2) Together with the certified copy of the decree shall be filed a certificate from
such superior court stating the extent, if any, to which the decree has been satisfied or
adjusted and such certificate shall, for the purposes of proceedings under this section,
be conclusive proof of the extent of such satisfaction or adjustment.
(3) The provisions of Section 47 shall as from the filing of the certified copy of the
decree apply to the proceedings of a District Court executing a decree under this
section, and the District Court shall refuse execution of any such decree, if it is shown
to the satisfaction of the court that the decree falls within any of the exceptions
specified in clauses (a) to (f) of Section 13.
65
[Explanation 1.—“Reciprocating territory” means any country or territory outside
India which the Central Government may, by notification in the Official Gazette,
declare to be a reciprocating territory for the purposes of this section; and “superior
courts”, with reference to any such territory, means such Courts as may be specified in
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the said notification.
Explanation 2.—“Decree” with reference to a superior court means any decree or
Judgment of such Court under which a sum of money is payable, not being a sum
payable in respect of taxes or other charges of a like nature or in respect of a fine or
other penalty, but shall in no case include an arbitration award, even if such an award
is enforceable as a decree or Judgment.]]
► Nature and scope.—Decree and judgment granted by foreign court can be said to be on
merits only if such court has considered the case on merits by looking into the evidence led by
plaintiff and documents proved before it, as per its rules, International Woollen Mills v. Standard
Wool (U.K.) Ltd., (2001) 5 SCC 265.
Section 44-A has been inserted to give effect to the policy contained in Foreign Judgments
(Reciprocal Enforcement) Act, 1933 by conferring an independent right on a foreign decree-holder
who obtained a decree from a court in reciprocating territory for enforcement of said decree/order
in India. For the purpose of Section 44-A, England is a reciprocating territory, Alcon Electronics
(P) Ltd. v. Celem S.A. of France, (2017) 2 SCC 253.
► Objection against decree.—Undoubtedly the burden of proving that the decree is not on
merits would be on the party alleging it. However, courts never expect impossible proofs. It would
never be possible for a party to lead evidence about the state of mind of the Judge who passed the
decree. Of Course, amongst other things, the party must show that the decree does not show that it
is on merits, if necessary the rules of that court, the existence or lack of existence of material before
the court when the decree was passed and the manner in which the decree is passed. All this has
been done in this case, International Woollen Mills v. Standard Wool (U.K.) Ltd., (2001) 5 SCC
265.
66 [45. Execution of decrees outside India.—So much of the foregoing sections of

this Part as empowers a Court to send a decree for execution to another Court shall be
construed as empowering a Court in any State to send a decree for execution to any
Court established 67 [* * *] by the authority of the Central Government 68 [outside
India] to which the State Government has by notification in the Official Gazette
declared this section to apply.]
STATE AMENDMENTS
SECTION 45-A
Pondicherry (Union Territory).—In its application to Union Territory of
Pondicherry after Section 45, insert the following:
“45-A. Execution of decrees, etc., passed or made before the commencement of
the Code in Pondicherry.—Any judgment, decree or order passed or made before
the commencement of this Code by any Civil Court in the Union Territory of
Pondicherry, shall, for the purpose of execution, be deemed to have been passed or
made under this Code:
Provided that nothing contained in this section shall be construed as extending
the period of limitation to which any proceeding in respect of such judgment,
decree or order may be subject.” [Vide Act 26 of 1968, Section 3(i) and Schedule,
Part II (w.e.f. 5-9-1968)].
46. Precepts.—(1) Upon the application of the decree-holder the Court which
passed the decree may, whenever it thinks fit, issue a precept to any other Court
which would be competent to execute such decree to attach any property belonging to
the judgment-debtor and specified in the precept.
(2) The Court to which a precept is sent shall proceed to attach the property in the
manner prescribed in regard to the attachment of property in execution of a decree:
Provided that no attachment under a precept shall continue for more than two
months unless the period of attachment is extended by an order of the Court which
passed the decree or unless before the determination of such attachment the decree
has been transferred to the Court by which the attachment has been made and the
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decree-holder has applied for an order for the sale of such property.
Questions to be determined by Court executing Decree
47. Questions to be determined by the Court executing decree.—(1) All
questions arising between the parties to the suit in which the decree was passed, or
their representatives, and relating to the execution, discharge or satisfaction of the
decree, shall be determined by the Court executing the decree and not by a separate
suit.
(2) 69 [* * *]
(3) Where a question arises as to whether any person is or is not the representative
of a party, such question shall, for the purposes of this section, be determined by the
Court.
70
[Explanation I.—For the purposes of this section, a plaintiff whose suit has been
dismissed and a defendant against whom a suit has been dismissed are parties to the
suit.
Explanation II.—(a) For the purposes of this section, a purchaser of property at a
sale in execution of a decree shall be deemed to be a party to the suit in which the
decree is passed; and
(b) all questions relating to the delivery of possession of such property to such
purchaser or his representative shall be deemed to be questions relating to the
execution, discharge or satisfaction of the decree within the meaning of this section.]
STATE AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in Section 47,
Explanation II inserted by the U.P. Civil Laws (Reforms and Amendment) Act, 1954
(U.P. Act 24 of 1954), shall be omitted.—U.P. Act 57 of 1976, S. 3 (1-1-1977).
► Nature and scope.—An application under Section 47 can be made at any stage after grant
of decree subject to the question of limitation. Objection sought to be filed under Section 47 by
appellant on ground that she was a bona fide purchaser of the property and was in possession,
Sushila Devi v. Ram Veer Singh, (2009) 16 SCC 244.
In execution proceedings, court may not be bothered with whether disobedience is wilful or not
and court is bound to execute decree irrespective of consequences, Kanwar Singh Saini v. High
Court of Delhi, (2012) 4 SCC 307 : (2012) 2 SCC (Cri) 423 : (2012) 2 SCC (Civ) 497.
► Stranger.—Where decree directs delivery only of symbolic possession by persons in
possession, other than the judgment-debtor, such persons are within their rights to object to
execution proceedings if attempts are made to physically dispossess them or other persons put into
possession by them, Ratan Lal Jain v. Uma Shankar Vyas, (2002) 2 SCC 656.
► Collusion.—Whether a decree has been obtained by collusion, such question did not and
could not have arisen before the executing court, Mohd. Masthan v. Society of Congregation of the
Bros. of the Sacred Heart, (2006) 9 SCC 344; see also Kumar Dhirendra Mullick v. Tivoli Park
Apartments (P) Ltd., (2005) 9 SCC 262.
► Powers of executing court.—Powers available under Section 47 CPC are quite different
and much narrower than those available in appeal/revision or review. Executing court can neither
travel behind decree nor sit in appeal over the same or pass any order jeopardising rights of parties
thereunder. Decree is unexecutable only on limited grounds where it suffers from jurisdictional
error/infirmity or is void and a nullity, apart from the ground that decree is incapable of execution
under the law, either because the same was passed in ignorance of such provision of law or law
was promulgated making a decree unexecutable after its passing. An erroneous decree cannot be
equalled with one which is a nullity, Brakewel Automotive Components (India) (P) Ltd. v. P.R.
Selvam Alagappan, (2017) 5 SCC 371.
► Power of executing court to award interest.—Executing court does not have power to
award interest if not mentioned in decree, State of Punjab v. Harvinder Singh, (2008) 3 SCC 394.
► Compromise decree.—A consent decree has been held to be a contract with the imprimatur
of the court superadded. It is something more than a mere contract and has the elements of both a
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command and a contract, Manish Mohan Sharma v. Ram Bahadur Thakur Ltd., (2006) 4 SCC 416.
► Objection to executability of decree.—Objection that decree is void or voidable can be
raised under Section 47, State of Orissa v. Ashok Transport Agency, (2002) 9 SCC 28.
► Construction of decree.—The executing court cannot go behind the decree of a court of
competent jurisdiction except in the decrees void ab initio without jurisdiction. It was not a case in
which the decree on the face of it was shown to be without jurisdiction, Darshan Singh v. State of
Punjab, (2007) 14 SCC 262.
The observations of the Court in Manku Narayana case, (1987) 2 SCC 335, that even if the two
portions of the decree are severable and merely because a portion of the decretal amount is
covered by the mortgage decree, the decree-holder, per force has to proceed against the
mortgaged property first are not based on any principle of law and/or reasons, and are contrary to
law. It, of course depends on the facts of each case how the composite decree is drawn up, State
Bank of India v. Indexport Registered, (1992) 3 SCC 159.
► Dismissal of execution application and res judicata.—The principles of constructive res
judicata will be applicable even in execution proceedings, Lagan Jute Machineries Co. Ltd. v.
Candlewood Holdings Ltd., (2007) 8 SCC 487.
► Limitation.—There is no limitation period prescribed for filing objection under Section 47,
Arun Lal v. Union of India, (2010) 14 SCC 384 : (2012) 1 SCC (Civ) 612.
► Limitations on exercise of power by executing court.—It cannot travel beyond scope of
decree/order. Any order passed by executing court by travelling beyond decree/order under
execution would render such orders as without jurisdiction, S. Bhaskaran v. Sebastian, (2019) 9
SCC 161.
► Objection to territorial jurisdiction of court.—Executing court has no jurisdiction to
entertain Objection raised before executing court under Section 47 as to validity of decree sought to
be executed on ground of lack of territorial jurisdiction of court which passed decree, Sneh Lata
Goel v. Pushplata, (2019) 3 SCC 594.
► Execution of award.—Execution of an award/decree can be only to the extent of what has
been awarded/decreed and not beyond the same. Moreover, what is awarded or decreed must be
independently capable of execution. Thus, arbitration award determining only the price of land
cannot be directed to be executed as suit for specific performance of agreement to sell the land,
with a direction for execution of a sale deed of the land in question. Moreover, such award
determining the price of land alone, could not be independently executed, Rajasthan Udyog v.
Hindustan Engineering & Industries Ltd., (2020) 6 SCC 660.
Limit of Time for Execution
48. Execution barred in certain cases.—71 [Repealed]
Transferees and Legal Representatives
49. Transferee.—Every transferee of a decree shall hold the same subject to the
equities (if any) which the judgment-debtor might have enforced against the original
decree-holder.
50. Legal representative.—(1) Where a judgment-debtor dies before the decree
has been fully satisfied, the holder of the decree may apply to the Court which passed
it to execute the same against the legal representative of the deceased.
(2) Where the decree is executed against such legal representative, he shall be
liable only to the extent of the property of the deceased which has come to his hands
and has not been duly disposed of; and, for the purpose of ascertaining such liability,
the Court executing the decree may, of its own motion or on the application of the
decree-holder, compel such legal representative to produce such accounts as it thinks
fit.
► Nature and Scope.—Section 50 CPC which is a specific provision with respect to execution
of decree against legal representatives, would be attracted read with Order 21 Rule 32 CPC. It is
apparent from Section 50 CPC that when a judgment-debtor dies before the decree has been
satisfied, it can be executed against legal representatives. Section 50 is not confined to a particular
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kind of decree. Decree for injunction can also be executed against legal representatives of the
deceased judgment-debtor. It is crystal clear from a perusal of Section 50(2) CPC that a decree for
permanent injunction can be executed against the judgment-debtor or his legal representatives,
Prabhakara Adiga v. Gowri, (2017) 4 SCC 97.
Procedure in Execution
51. Powers of Court to enforce execution.—Subject to such conditions and
limitations as may be prescribed, the Court may, on the application of the decree-
holder, order execution of the decree—
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by sale without attachment of any property;
(c) by arrest and detention in prison 72 [for such period not exceeding the period
specified in Section 58, where arrest and detention is permissible under that
section];
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may require:
73 [Provided that, where the decree is for the payment of money, execution by

detention in prison shall not be ordered unless, after giving the judgment-debtor an
opportunity of showing cause why he should not be committed to prison, the Court, for
reasons recorded in writing, is satisfied—
(a) that the judgment-debtor, with the object or effect of obstructing or delaying
the execution of the decree,—
(i) is likely to abscond or leave the local limits of the jurisdiction of the Court,
or
(ii) has, after the institution of the suit in which the decree was passed,
dishonestly transferred, concealed, or removed any part of his property, or
committed any other act of bad faith in relation to his property, or
(b) that the judgment-debtor has, or has had since the date of the decree, the
means to pay the amount of the decree or some substantial part thereof and
refuses or neglects or has refused or neglected to pay the same, or
(c) that the decree is for a sum for which the judgment-debtor was bound in a
fiduciary capacity to account.
Explanation.—In the calculation of the means of the judgment-debtor for the
purposes of clause (b), there shall be left out of account any property which, by or
under any law or custom having the force of law for the time being in force, is exempt
from attachment in execution of the decree.]
STATE AMENDMENTS
Uttar Pradesh.—In its application to the State of Uttar Pradesh, in Section 51,
after clause (b), the following shall be added as a new clause (bb):
“(bb) by transfer other than sale, by attachment or without attachment of any
property.” [Vide U.P. Act 24 of 1954, Section 2 and Schedule, Item 5, Entry 4
(w.e.f. 30-11-1954)].
High Court Amendment
CALCUTTA.—In clause (b) omit the words “or by sale without attachment” between
the words “sale” and “of any”.
In the proviso omit the words “for reasons recorded in writing” after the words “the
Court” and before the words “is satisfied”.
Add the proviso—
“Provided also that the Court of Small Causes of Calcutta shall have no power to
order execution of a decree by attachment and sale of immovable property or by
appointing a receiver in respect of such property.” Cal. Gaz. Pt. I, 20-4-1967.
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► Nature and scope.—Under the CPC there is no statutory provision against a number of
execution proceedings continuing concurrently. Section 51 of the Code gives an option to the
creditor, of enforcing the decree either against the person or the property of the debtor; and
nowhere it has been laid down that execution against the person of the debtor shall not be allowed
unless and until the decree-holder has exhausted his remedy against the property. By virtue of
Order 21 Rule 30 CPC also simultaneous execution both against the property and person of the
judgment-debtor is allowed. But still the discretion in the Court to order simultaneous execution must
be exercised in a judicious manner. (see Order 21, Rule 21). Though the proverbial law's delay is
more frequently and strikingly exemplified in execution proceedings then even in the initial dispute,
and as such, courts have to aid the creditor in realising the dues from the debtor but at the same
time in the special facts and circumstances of a particular case, the court can direct the decree-
holder or the creditor not to put any property on sale if by the mode already opted by the decree-
holder or the creditor, the amount due has been realised or likely to be realised without any further
delay, Shyam Singh v. Collector, Distt. Hamirpur, 1993 Supp (1) SCC 693.
Executing court exceeded its jurisdiction in directing promotion of respondent from a specific
date, Punjab SEB v. Ramesh Kumar Gupta, (2009) 16 SCC 307.
► By attachment and sale of property.—Amendment of attachment order to limit attachment
period to “six months” made in suit register by office note after 20 years without notice to judgment
creditor, allegedly on basis of some private clarification by the then Presiding Officer of court. Such
amendment is unauthorised and liable to be ignored, C.S. Mani v. B. Chinnasamy Naidu, (2010) 9
SCC 513 : (2010) 3 SCC (Civ) 869.
► Arrest and detention to enforce compliance.—Satisfaction of any one of the preconditions
is enough to order arrest and detention to enforce compliance with court order imposing financial
liability, Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470 : (2014) 3 SCC (Cri) 712.
52. Enforcement of decree against legal representative.—(1) Where a decree
is passed against a party as the legal representative of a deceased person, and the
decree is for the payment of money out of the property of the deceased, it may be
executed by the attachment and sale of any such property.
(2) Where no such property remains in the possession of the judgment-debtor and
he fails to satisfy the Court that he has duly applied such property of the deceased as
is proved to have come into his possession, the decree may be executed against the
judgment-debtor to the extent of the property in respect of which he has failed so to
satisfy the Court in the same manner as if the decree had been against him
personally.
53. Liability of ancestral property.—For the purposes of Section 50 and Section
52, property in the hands of a son or other descendant which is liable under Hindu law
for the payment of the debt of a deceased ancestor, in respect of which a decree has
been passed, shall be deemed to be property of the deceased which has come to the
hands of the son or other descendant as his legal representative.
54. Partition of estate or separation of share.—Where the decree is for the
partition of an undivided estate assessed to the payment of revenue to the
Government, or for the separate possession of a share of such an estate, the partition
of the estate or the separation of the share shall be made by the Collector or any
gazetted subordinate of the Collector deputed by him in this behalf, in accordance with
the law (if any) for the time being in force relating to the partition, or the separate
possession of shares, of such estates.
STATE AMENDMENTS
Karnataka.—In its application to the State of Karnataka, for Section 54, substitute
the following:
“54. Partition of estate or separation of share.—Where the decree is for the
partition of an undivided estate assessed to the payment of revenue to the
Government or for the separate possession of a share of such an estate, the
partition of the estate or the separation of the share of such an estate shall be made
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by the Court in accordance with the law if any, for the time being in force relating to
the partition or the separate possession of shares and if necessary on the report of a
revenue officer, not below the rank of Tahsildar or such other person as the Court
may appoint as Commissioner in that behalf.” [Vide Karnataka Act 36 of 1998, S. 2
(w.e.f. 1-2-2001).]
► Nature and scope.—Section 54 CPC in effect and substance confers a duty upon the court.
The said provision must be read in the context of Order 26, Rule 13 CPC and/or Section 51, Order
21, Rule 11 thereof, Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare, (2008) 8 SCC 198.
► Partition.—Partition is really a process by which joint enjoyment of the property is
transformed into an enjoyment severally. Each co-sharer has an antecedent title and therefore there
is no conferment of a new title, Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak, (2004) 3
SCC 376.
► “Shall be made by the Collector”.—Once a court passes a preliminary decree, it is the
duty of the court to ensure that the matter is referred to the Collector or a Commissioner for division
unless the parties themselves agree as to the manner of division. This duty in the normal course has
to be performed by the court itself as a continuation of the preliminary decree, Subh Karan Bubna
v. Sita Saran Bubna, (2009) 9 SCC 689 : (2009) 3 SCC (Civ) 820
► Preliminary decree in suit for partition.—Limitation period for preliminary decree for
partition: Preliminary decree for partition crystallises rights of parties seeking partition to the extent
declared and equities remain to be worked out in final decree proceedings. Till final decree is
passed, no question of limitation arises against right to claim partition as per preliminary decree. For
appointment of Commissioner no period of limitation is fixed and therefore, it is not barred by
limitation. Lis continues till preliminary decree culminates into final decree. Once parties effect
partition by metes and bounds, then there is no necessity of final decree proceedings, Venu v.
Ponnusamy Reddiar, (2018) 15 SCC 254.
Arrest and Detention
55. Arrest and detention.—(1) A judgment-debtor may be arrested in execution
of a decree at any hour and on any day, and shall, as soon as practicable, be brought
before the Court, and his detention may be in the civil prison of the district in which
the Court ordering the detention is situate, or, where such civil prison does not afford
suitable accommodation, in any other place which the State Government may appoint
for the detention of persons ordered by the Courts of such district to be detained:
Provided, firstly, that, for the purpose of making an arrest under this section, no
dwelling-house shall be entered after sunset and before sunrise:
Provided, secondly, that no outer door of a dwelling-house shall be broken open
unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses
or in any way prevents access thereto, but when the officer authorised to make the
arrest has duly gained access to any dwelling-house, he may break open the door of
any room in which he has reason to believe the judgment-debtor is to be found:
Provided, thirdly, that, if the room is in the actual occupancy of a woman who is not
the judgment-debtor and who according to the customs of the country does not
appear in public, the officer authorised to make the arrest shall give notice to her that
she is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw
and giving her reasonable facility for withdrawing, may enter the room for the purpose
of making the arrest:
Provided, fourthly, that, where the decree in execution of which a judgment-debtor
is arrested, is a decree for the payment of money and the judgment-debtor pays the
amount of the decree and the costs of the arrest to the officer arresting him, such
officer shall at once release him.
(2) The State Government may, by notification in the Official Gazette, declare that
any person or class of persons whose arrest might be attended with danger or
inconvenience to the public shall not be liable to arrest in execution of a decree
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otherwise than in accordance with such procedure as may be prescribed by the State
Government in this behalf.
(3) Where a judgment-debtor is arrested in execution of a decree for the payment
of money and brought before the Court, the Court shall inform him that he may apply
to be declared an insolvent, and that he 74 [may be discharged] if he has not
committed any act of bad faith regarding the subject of the application and if he
complies with the provisions of the law of insolvency for the time being in force.
(4) Where a judgment-debtor expresses his intention to apply to be declared an
insolvent and furnishes security, to the satisfaction of the Court, that he will within
one month so apply, and that he will appear, when called upon, in any proceeding
upon the application or upon the decree in execution of which he was arrested, the
Court 75 [may release] him from arrest, and, if he fails so to apply and to appear, the
Court may either direct the security to be realised or commit him to the civil prison in
execution of the decree.
High Court Amendment
CALCUTTA.—In clause (1) insert the words “Calcutta or” after the words “Civil prison
of” and before the words “the district in which”; and omit clauses (3) and (4), Cal.
Gaz. Pt. I, dt. 20-4-1967.
► Nature and scope.—The decree holder by examining himself disclosed about the assets of
the judgment-debtor which the judgment-debtor failed to rebut either by examining himself or any
other person or by producing any material, as such, it cannot be said that the judgment-debtor has
no means to discharge the decreetal amount, P. Bhaskar Rao v. K. Sreenivasa Rao, AIR 2013 AP
4 (6).
► Exemption from arrest.—Warrants of arrest could not be issued against judgment-debtor in
execution proceedings in land acquisition matter, State of Bihar v. Gauri Shankar Mishra, (2005)
11 SCC 500.
► Duty of court to inform judgment debtor to apply to be declared insolvent.—When a
judgment-debtor is arrested in execution of a decree for the payment of money and brought before
the court, the court shall inform him that he may apply to be declared an insolvent, and that he may
be discharged if he has not committed any act of bad faith regarding the subject of the application
and if he complies with the provisions of the law of insolvency for the time being in force, and if he
expresses his intention to apply to be declared as insolvent, he is required to furnish security. The
above situation arises only after arrest of the judgment debtor but not before that, P. Bhaskar Rao v.
K. Sreenivasa Rao, AIR 2013 AP 4 (6).
56. Prohibition of arrest or detention of women in execution of decree for
money.—Notwithstanding anything in this Part, the Court shall not order the arrest or
detention in the civil prison of a woman in execution of a decree for the payment of
money.
57. Subsistence allowance.—The State Government may fix scales, graduated
according to rank, race and nationality, of monthly allowances payable for the
subsistence of judgment-debtors.
High Court Amendment
CALCUTTA.—Substitute the words “The High Court may, subject to the approval of
the State Government” for “The State Government may”. Omit the word “monthly”
between the words “of and allowances”. Cal. Gaz. Pt. I, dt. 20-4-1967.
58. Detention and release.—(1) Every person detained in the civil prison in
execution of a decree shall be so detained,—
(a) where the decree is for the payment of a sum of money exceeding 76 [77 [five]
thousand rupees, for a period not exceeding three months, and,]
78 [(b) where the decree is for the payment of a sum of money exceeding two

thousand rupees, but not exceeding five thousand rupees, for a period not
exceeding six weeks:]
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Provided that he shall be released from such detention before the expiration of the
79[said period of detention]—
(i) on the amount mentioned in the warrant for his detention being paid to the
officer in charge of the civil prison, or
(ii) on the decree against him being otherwise fully satisfied, or
(iii) on the request of the person on whose application he has been so detained,
or
(iv) on the omission by the person, on whose application he has been so
detained, to pay subsistence allowance:
Provided, also, that he shall not be released from such detention under clause (ii) or
clause (iii), without the order of the Court.
80 [(1-A) For the removal of doubts, it is hereby declared that no order for detention

of the judgment-debtor in civil prison in execution of a decree for the payment of

money shall be made, where the total amount of the decree does not exceed 81 [two
thousand] rupees.]
(2) A judgment-debtor released from detention under this section shall not merely
by reason of his release be discharged from his debt, but he shall not be liable to be re
-arrested under the decree in execution of which he was detained in the civil prison.
High Court Amendment
CALCUTTA.—In sub-rule (1)—for the words “(a) where the decree is for the payment
of a sum of money exceeding fifty rupees, for a period of six months and, (b) in any
other case for a period of six weeks;” substitute “for a period not exceeding six
months”.
In the first proviso for the words “said period of six month or six weeks, as the case
may be” substitute “period fixed by the Court”. Cal. Gaz. Pt. I, dt. 20-4-1967.
59. Release on ground of illness.—(1) At any time after a warrant for the arrest
of a judgment-debtor has been issued the Court may cancel it on the ground of his
serious illness.
(2) Where a judgment-debtor has been arrested, the Court may release him if, in
its opinion, he is not in a fit state of health to be detained in the civil prison.
(3) Where a judgment-debtor has been committed to the civil prison, he may be
released therefrom—
(a) by the State Government, on the ground of the existence of any infectious or
contagious disease, or
(b) by the committing Court, or any Court to which that Court is subordinate, on
the ground of his suffering from any serious illness.
(4) A judgment-debtor released under this section may be rearrested, but the
period of his detention in the civil prison shall not in the aggregate exceed that
prescribed by Section 58.
Attachment
60. Property liable to attachment and sale in execution of decree.—(1) The
following property is liable to attachment and sale in execution of a decree, namely,
lands, houses or other buildings, goods, money, bank-notes, cheques, bills of
exchange, hundis, promissory notes, Government securities, bonds or other securities
for money, debts, shares in a corporation and save as hereinafter mentioned, all other
saleable property, movable or immovable, belonging to the judgment-debtor, or over
which, or the profits of which, he has a disposing power which he may exercise for his
own benefit, whether the same be held in the name of the judgment-debtor or by
another person in trust for him or on his behalf:
Provided that the following particulars shall not be liable to such attachment or sale,
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namely:—
(a) the necessary wearing-apparel, cooking vessels, beds and bedding of the
judgment-debtor, his wife and children, and such personal ornaments as, in
accordance with religious usage, cannot be parted with by any woman;
(b) tools of artisans, and, where the judgment-debtor is an agriculturist, his
implements of husbandry and such cattle and seed-grain as may, in the
opinion of the Court, be necessary to enable him to earn his livelihood as
such, and such portion of agricultural produce or of any class of agricultural
produce as may have been declared to be free from liability under the
provisions of the next following section;
(c) houses and other buildings (with the materials and the sites thereof and the
land immediately appurtenant thereto and necessary for their enjoyment)
belonging to 82 [an agriculturist or a labourer or a domestic servant] and
occupied by him;
(d) books of account;
(e) a mere right to sue for damages;
(f) any right of personal service;
(g) stipends and gratuities allowed to pensioners of the Government 83 [or of a
local authority or of any other employer], or payable out of any service family
pension fund notified in the Official Gazette by 84 [the Central Government or
the State Government] in this behalf, and political pensions;
85
[(h) the wages of labourers and domestic servants, whether payable in money
or in kind; 86 [* * *]
87 [(i) salary to the extent of 88 [the first 89 [ 90 [one thousand] rupees and two-

thirds of the remainder]] 91 [in execution of any decree other than a decree for
maintenance]:
92 [Provided that where any part of such portion of the salary as is liable to

attachment has been under attachment, whether continuously or

intermittently, for a total period of twenty-four months, such portion shall be
exempt from attachment until the expiry of a further period of twelve months,
and, where such attachment has been made in execution of one and the same
decree, shall, after the attachment has continued for a total period of twenty-
four months, be finally exempt from attachment in execution of that decree;]
93
[(ia) one-third of the salary in execution of any decree for maintenance];
94 [(j) the pay and allowances of persons to whom the Air Force Act, 1950 (45 of

1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of
1957), applies;]
(k) all compulsory deposits and other sums in or derived from any fund to which
the Provident Funds Act, 95 [1925] (19 of 1925), for the time being applies in
so far as they are declared by the said Act not to be liable to attachment;
96
[(ka) all deposits and other sums in or derived from any fund to which the
Public Provident Fund Act, 1968 (23 of 1968), for the time being applies, in so
far as they are declared by the said Act as not to be liable to attachment;
(kb) all moneys payable under a policy of insurance on the life of the judgment-
debtor;
(kc) the interest of a lessee of a residential building to which the provisions of
law for the time being in force relating to control of rents and accommodation
apply;]
97
[(l) any allowance forming part of the emoluments of any 98 [servant of the
Government] or of any servant of a railway company or local authority which
the 99 [appropriate Government] may by notification in the Official Gazette
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declare to be exempt from attachment, and any subsistence grant or
allowance made to 100 [any such servant] while under suspension;]
(m) an expectancy of succession by survivorship or other merely contingent or
possible right or interest;
(n) a right to future maintenance;
(o) any allowance declared by 101 [any Indian law] to be exempt from liability to
attachment or sale in execution of a decree; and
(p) where the judgment-debtor is a person liable for the payment of land-
revenue, any movable property which, under any law for the time being
applicable to him, is exempt from sale for the recovery of an arrear of such
revenue.
102 [Explanation I.—The moneys payable in relation to the matters mentioned in

clauses (g), (h), (i), (ia), (j), (l) and (o) are exempt from attachment or sale, whether
before or after they are actually payable, and, in the case of salary, the attachable
portion thereof is liable to attachment, whether before or after it is actually payable.]
[ [Explanation II.—In clauses (i) and (ia)], “salary” means the total monthly
103 104

emoluments, excluding any allowance declared exempt from attachment under the
provisions of clause (l), derived by a person from his employment whether on duty or
on leave.]
105 [Explanation 106 [III].—In clause (I) “appropriate Government” means—

(i) as respects any 107 [person] in the service of the Central Government, or any
servant of 108 [a Railway Administration] or of a cantonment authority or of the
port authority of a major port, the Central Government;
(ii) 109 [* * *]
(iii) as respects any other 110 [servant of the Government] or a servant of any
other 111 [* * *] local authority, the State Government.]
112 [Explanation IV.—For the purposes of this proviso, “wages” includes bonus, and

“labourer” includes a skilled, unskilled or semi-skilled labourer.

Explanation V.—For the purposes of this proviso, the expression “agriculturist”
means a person who cultivates land personally and who depends for his livelihood
mainly on the income from agricultural land, whether as owner, tenant, partner or
agricultural labourer.
Explanation VI.—For the purposes of Explanation V, an agriculturist shall be
deemed to cultivate land personally, if he cultivates land—
(a) by his own labour, or
(b) by the labour of any member of his family, or
(c) by servants or labourers on wages payable in cash or in kind (not being as a
share of the produce), or both.]
113 [(1-A) Notwithstanding anything contained in any other law for the time being in

force, an agreement by which a person agrees to waive the benefit of any exemption
under this section shall be void.]
(2) Nothing in this section shall be deemed 114 [* * *] to exempt houses and other
buildings (with the materials and the sites thereof and the lands immediately
appurtenant thereto and necessary for their enjoyment) from attachment or sale in
execution of decrees for rent of any such house, building, site or land. 115 [* * *]
STATE AMENDMENTS
Andhra Pradesh.—(1) In its application to the Andhra area of the State of Andhra
Pradesh in clause (g) of the proviso to sub-section (1) of Section 60, the words “or of a
local authority” shall be inserted, after the words “stipends and gratuities allowed to
the pensioners of the Government” [Vide Code of Civil Procedure (Andhra Pradesh)
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(Andhra Area) Amendment Act (XXXIV of 1950). (w.e.f. 2-1-1951)].
Note.—The title of Madras Amendment Act (XXXIV of 1950) has been thus
amended by the Andhra Pradesh Act (IX of 1961).
(2) In its application to the whole of the State of Andhra Pradesh, in the proviso to
sub-section (1) of Section 60,—
A.(i) after clause (k) the following clause shall be inserted, namely:
“(kk) amounts payable under policies issued in pursuance of the Rules for the Andhra
Pradesh Government Life Insurance Department.”
(ii) after Explanation 2, the following Explanation shall be inserted, namely:
“Explanation 2-A.—Where any sum payable to a Government servant is exempt from
attachment, under the provisions of clause (kk), such sum shall remain exempt from
attachment notwithstanding the fact that owing to the death of the Government
servant it is payable to some other person”—Code of Civil Procedure (Andhra Pradesh)
(Telangana Area) Amendment Act (XI of 1953) (9-6-1953) originally the Code of Civil
Procedure (Hyderabad Amendment) Act (XI of 1953). This Act has been amended and
extended to the entire State of Andhra Pradesh by the Code of Civil Procedure (Andhra
Pradesh Unification and Amendment) Act (X of 1962). (7-4-1962).
B.(i) after clause (kk), the following clause shall be inserted, namely:—
“(kkk) amounts payable under the Andhra Pradesh State Employees' Family Benefit
Fund Rules”,
(ii) in Explanation 2-A, for the expression “clause (kk)”, the expression “clauses
(kk) and (kkk)” shall be substituted. [Vide A.P. Act 24 of 1979, S. 2. (w.e.f. 5-9-
1979)].
(3) In its application to the Telengana area of the State of Andhra Pradesh, in the
proviso to sub-section (i) of Section 60—
(i) after clause (g) the following clause shall be inserted, namely:
“(gg) pension granted or continued by the Central Government, the Government of Pre
-reorganisation Hyderabad State or any other State Government on account of past
services or present infirmities or as a compassionate allowance, and”;
(ii) in Explanation 2-A, for the word, brackets and letter “clause (kk)” the words,
brackets and letters “clause (gg) or clause (kk)” shall be substituted. [Vide
Andhra Pradesh Act (XVIII of 1953), originally the Code of Civil Procedure
(Hyderabad Second Amendment) Act (XVIII of 1953)].
Calcutta.—Add the provisos after sub-section (1) “Provided that nothing in this
section shall be taken as conferring on the Court of Small Causes of Calcutta, any
jurisdiction to attach and sell immovable property in execution of a decree”.
“Provided also that this section shall, so far as the Court mentioned in the last
preceding proviso is concerned, apply only to decrees obtained in suits instituted after
the 31st of May, 1937, and the law applicable to suits instituted up to that date shall
be the law which was heretofore in inforce that Court”. [Vide Cal. Gaz. Pt. I, dt. 20-4-
1967].
(Chandigarh) Union Territory.—In its application to Union Territory of
Chandigarh, amendments in the section are the same as in Punjab. [Vide Punjab
Reorganisation Act, 1966 (31 of 1966), Section 88 (1-11-1966)].
Delhi.—As in Punjab.
Gujarat.—In its application to the State of Gujarat, in sub-section (1) of Section
60—
(a) after clause (g) of the proviso, the following new clause shall be inserted,
namely:
“(gg) stipends and gratuities allowed to pensioners of a local authority.”
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(b) in Explanation 1, after the brackets and letter “(g)” the brackets and letters
“(gg)” shall be inserted [Vide Bombay Act 60 of 1948, Section 2 (30-11-1948)].
Himachal Pradesh.—(1) In its application to the State of Himachal Pradesh, in
Section 60, sub-section (1)—
(i) at the end of clause (c) add the following words, namely:
“or compensation paid for such houses and buildings (including compensation for the
materials and the sites and the lands referred to above) acquired for a public
purpose;” and;
(ii) after clause (c) insert the following, namely:—
“(cc) compensation paid for agricultural lands belonging to agriculturists and acquired
for a public purpose;” [Vide Code of Civil Procedure (Himachal Pradesh Amendment)
Act, 1956 (6 of 1956), Section 2 (w.e.f. 17-5-1956)].
(2) Same as in Punjab except that:—
(a) in sub-section (4) the words “as defined in Punjab Alienation of Land Act, 1900”
omitted;
(b) sub-section (5) omitted;
(c) sub-section (6) renumbered as sub-section (5). [Vide H.P. Act 31 of 1978, S. 21
(1-4-1979)].
Karnataka.—In its application to the State of Karnataka except Bellary district, in
the proviso to sub-section (1) after clause (p) the following clause shall be added,
namely:
“(pp) where the judgment-debtor is a servant of the State Government who has
insured his life under the rules in force relating to the official branch of the Mysore
Government Life Insurance Department,—
(1) in the case of insurance effected prior to the ninth day of May, 1911, the whole
of the bonus payable or paid thereunder to such servant, or in the event of his
death to his nominee or other person or persons entitled to such bonus under the
said rules; and
(2) in the case of insurance effected on or after the ninth day of May, 1911, and
such insurance is compulsory, then the bonus in respect of the compulsory
premia payable or paid to such servant, or in the event of his death to his
nominee or other person or persons entitled to such bonus under the said rules”.
[Vide Code of Civil Procedure (Mysore Amendment) Act (XIV of 1952) (with
effect from 1-4-1951)].
Kerala.—(1) In its application to the State of Kerala, in clause (g) of the proviso to
sub-section (1), after the words “stipends and gratuities allowed to pensioners of the
Government”, insert the words “or of a local authority”. [Vide Kerala Act 13 of 1957,
Section 3 (1-10-1958) (Repealed in Malabar Distt.)].
(2) After clause (g) insert the following:
“(gg) all moneys payable to the beneficiaries under the Family Benefit Scheme
for the employees of the Government of Kerala;” [Vide Kerala Act 1 of 1988, S. 2 (5
-1-1988)].
Maharashtra.—In its application to the State of Maharashtra, in Section 60 of the
principal Act, in sub-section (1), in the proviso—
(a) after clause (g), the following clause shall be inserted, namely:
“(gg) in the Hyderabad area of the State of Maharashtra, any pension granted or
continued by the Central Government or the Government of the former State of
Hyderabad or any other State Government, on account of past services or present
infirmities or as a compassionate allowance, which is not covered by clause (g);”
(b) after clause (kb), the following clause shall be inserted, namely:
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“(kbb) the amounts payable under the policies issued in pursuance of the Rules for the
Hyderabad State Life Insurance and Provident Fund, which are not covered under
clause (ka) or (kb).
Explanation.—Where any sum payable to a Government servant is exempt from
attachment under this clause or clause (gg) such sum shall remain exempt from
attachment, notwithstanding the fact that owing to the death of the Government
servant the sum is payable to some other person;” [Vide Mah. Act 65 of 1977, Section
6 (19-12-1977)].
Pondicherry (Union Territory).—In its application to Union Territory of
Pondicherry amendment in the section is the same as in Tamil Nadu. [Vide
Pondicherry (Extension of Laws) Act, 1968 (26 of 1968), Section 3(i) and Schedule,
Part II (w.e.f. 5-9-1968)].
Punjab, Haryana and Chandigarh.—In its application to the State of Punjab
including the Pepsu area thereof as it was immediately before the 1st November,
1956—
(a) In sub-section (1), in the proviso—
(i) in clause (c), for the words “occupied by him” the following words shall be
deemed to be substituted, viz.:
“not proved by the decree-holder to have been let out on rent or let to persons other
than his father, mother, wife, son, daughter, daughter-in-law, brother, sister or other
dependants or left vacant for a period of a year or more;”
(ii) after clause (c), the following clauses shall be deemed to be inserted, viz.:
“(cc) milch animals, whether in milk or in calf, kids, animals used for the purposes of
transport or draught cart and open spaces or enclosures belonging to an agriculturist
and required for use in case of need for tying cattle parking carts or stacking fodder or
manure;
(ccc) one main residential house and other buildings attached to it (with the material
and the sites thereof and the land immediately appurtenant thereto and necessary for
their enjoyment) belonging to a judgment-debtor other than an agriculturist and
occupied by him: Provided that the protection afforded by this clause shall not extend
to any property specifically charged with the debt sought to be recorded.”
(b) After sub-section (2), the following sub-section shall be deemed to be inserted,
viz.:
“(3) Notwithstanding any other law for the time being in force an agreement by
which a debtor agrees to waive any benefit of any exemption under this
section shall be void.
(4) For the purposes of this section the word ‘agriculturist’ shall include every
person whether as owner, tenant, partner or agricultural labourer who
depends for his livelihood mainly on income from agricultural land as defined
in the Punjab Alienation of Land Act, 1900.
(5) Every member of a tribe notified as agricultural under the Punjab Alienation
of Land Act, 1900, and every member of a scheduled caste shall be presumed
to be an agriculturist until the contrary is proved.
(6) No order for attachment shall be made unless the Court is satisfied that the
property sought to be attached is not exempt from attachment or sale.” [Vide
Punjab Relief of Indebtedness Act, VII of 1934, Section 35 (as amended by
Punjab Acts 12 of 1940 and 6 of 1942 (9-4-1934) and 44 of 1960) (30-12-
1960)].
Rajasthan.—In its application to the State of Rajasthan, in the Proviso to sub-
section (1) of Section 60—
(i) in clause (b), after the words “Agriculturist” the words “his milch cattle and
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those likely to calve within two years” shall be inserted. [Vide Rajasthan Act 19
of 1958 (18-4-1958)].
(ii) after clause (k) insert the following:
“(kk) moneys payable under Life Insurance Certificates issued in pursuance of the
Rajasthan Government Servants Insurance Rules, 1953”;
(iii) after Explanation 3 insert the following Explanation:
“Explanation 4.—Where any money payable to a Government servant of the State is
exempt from attachment under the provision contained in clause (kk), such money
shall remain exempt from the attachment notwithstanding the fact that owing to the
death of a Government servant it is payable to some other person.” [Vide Rajasthan
Act 16 of 1957, Section 2 (6-6-1957)].
Tamil Nadu.—In its application to the State of Tamil Nadu including the
Kanyakumari district and the Shencottah taluk of the Tirunelveli district, and the
added territories the amendment made in Section 60 is the same as that of Kerala
[Vide Code of Civil Procedure (Madras Amendment) Act, 1950 (XXXIV of 1950),
Section 2 (w.e.f. 2-1-1951) and Madras Act XXII of 1957, Section 3 (18-12-1957) and
Mad. (A.T.) A.L.O., 1961 (w.e.f. 1-4-1960)].
Uttar Pradesh.—In its application to the State of Uttar Pradesh, add the following
Explanation (1-A) after Explanation 1 in Section 60, sub-section (1):
“Explanation 1-A.—Particulars mentioned in clause (c) are exempt from sale in
execution of a decree whether passed before or after the commencement of the
Code of Civil Procedure (United Provinces) (Amendment) Act, 1948, for enforcement
of a mortgage or charge thereon.” [Vide Code of Civil Procedure (United Provinces)
(Amendment) Act, 1948 (U.P. Act 35 of 1948), Section 2 (28-8-1948)].
The following allowances payable to any public officer in the service of the U.P.
Government shall be exempt from attachment by order of a Court, namely:—
(i) All kinds of travelling allowances;
(ii) All kinds of conveyance allowances;
(iii) All allowances granted for meeting the cost of—
(a) uniform; and
(b) rations.
(iv) All allowances granted as compensation for higher cost of living in localities
considered by Government to be expensive localities including hill stations;
(v) All house rent allowances;
U.P. Government (Judicial Department) Notification No. 2156 VII-362, dt. 17-1-1941;
(vi) All allowances granted to provide relief against increased cost of living.—U.P.
Govt. (Judl) Deptt. Notification No. 2692/VII, dt. 15-7-1949.
► Houses occupied by agriculturist or labourer.—Agricultural implements like bulls and carts
of an agricultural coolie cannot be attached in execution of decree passed against him, Gajula
Naganna v. Ediga Lakshmi Devi, AIR 2008 (NOC) 884 (AP).
► Gratuity.—Amounts representing gratuity, the provident fund and other compulsory deposits,
which a Government servant is entitled to, are exempted from attachment until they are actually paid
to the Government servant who is entitled to on retirement or otherwise and the natures of the dues,
Gudapati Hanumaiajh v. Y. Lakshminarasamma, AIR 2009 AP 129, 133.
► Pension.—Retiral benefits such as pension and gratuity even when received by the retiree,
do not lose their character and continue to be covered by proviso (g) to Section 60(1).
► Stipends, gratuities and political pensions.—Retrial benefits are not liable for attachment
not only while they were with the employer concerned, but also when it passes to the hands of the
employee after retirement, since such benefits will not lose their character as retiral benefits entitling
them to be clothed with exemption under Section 60(1)(g) of CPC, K. Murugesan v. E. Ulaganathan,
AIR 2009 Mad 169, 170.
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61. Partial exemption of agricultural produce.—The State Government 116 [* *

*] may, by general or special order published in the Official Gazette, declare that such
portion of agricultural produce, or of any class of agricultural produce, as may appear
to the State Government to be necessary for the purpose of providing until the next
harvest for the due cultivation of the land and for the support of the judgment-debtor
and his family, shall, in the case of all agriculturists or of any class of agriculturists, be
exempted from liability to attachment or sale in execution of a decree.
62. Seizure of property in dwelling-house.—(1) No person executing any
process under this Code directing or authorising seizure of movable property shall
enter any dwelling-house after sunset and before sunrise.
(2) No outer door of a dwelling-house shall be broken open unless such dwelling-
house is in the occupancy of the judgment-debtor and he refuses or in any way
prevents access thereto, but when the person executing any such process has duly
gained access to any dwelling-house, he may break open the door of any room in
which he has reason to believe any such property to be.
(3) Where a room in a dwelling-house is in the actual occupancy of a woman who,
according to the customs of the country, does not appear in public, the person
executing the process shall give notice to such woman that she is at liberty to
withdraw; and, after allowing reasonable time for her to withdraw and giving her
reasonable facility for withdrawing, he may enter such room for the purpose of seizing
the property, using at the same time every precaution, consistent with these
provisions, to prevent its clandestine removal.
High Court Amendment
CALCUTTA.—In sub-rule (2) omit the words “unless such dwelling house is in the
occupancy of the judgment-debtor and he refuses or in any way prevents access
thereto”, after the words “be broken open” and before the words “but when the
person”.
Add the proviso after sub-rule (2)—
“Provided that the Court may, after service of such notice as it thinks proper,
direct the breaking open of an outer door of a dwelling-house in possession of the
judgment-debtor who prevents access thereto”. Cal. Gaz. Pt. I, dt. 20-4-1967.
63. Property attached in execution of decrees of several Courts.—(1) Where
property not in the custody of any Court is under attachment in execution of decrees
of more Courts than one, the Court which shall receive or realise such property and
shall determine any claim thereto and any objection to the attachment thereof shall be
the Court of highest grade, or, where there is no difference in grade between such
Courts, the Court under whose decree the property was first attached.
(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a
Court executing one of such decrees.
117 [Explanation.—For the purposes of sub-section (2), “proceeding taken by a

Court” does not include an order allowing, to a decree-holder who has purchased
property at a sale held in execution of a decree, set off to the extent of the purchase
price payable by him.]
High Court Amendment
CALCUTTA.—Add as sub-section (3)—
(3) “For the purposes of this section the Court of Small Causes of Calcutta shall be
deemed to be of the same grade as a district Court”. Cal. Gaz. Pt. I, dt. 20-4-1967.
64. Private alienation of property after attachment to be void.—118 [(1)]
Where an attachment has been made, any private transfer or delivery of the property
attached or of any interest therein and any payment to the judgment-debtor of any
debt, dividend or other monies contrary to such attachment, shall be void as against
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all claims enforceable under the attachment.
Explanation.—For the purposes of this section, claims enforceable under an
attachment include claims for the rateable distribution of assets.
119 [(2) Nothing in this section shall apply to any private transfer or delivery of the

property attached or of any interest therein, made in pursuance of any contract for
such transfer or delivery entered into and registered before the attachment.]
► Nature and scope.—Bona fide purchaser's right not to be affected by restitution
proceedings distinguished in situations where: (1) the court is considering an interim order on the
stay on such sale during pendency of main issues, and (2) sale consideration has been partly paid
and delivery has not been taken by the third party purchaser, Woods Beach Hotels Ltd. v. Mapusa
Urban Coop. Bank of Goa Ltd., (2009) 13 SCC 748.
► Nature and object.—The distinction between an incidental proceeding and a supplemental
proceeding is evident. Incidental power is to be exercised in aid to the final proceedings. In other
words an order passed in the incidental proceedings will have a direct bearing on the result of the
suit. Such proceedings which are in aid of the final proceedings cannot, thus, be held to be on a
par with supplemental proceedings which may not have anything to do with the ultimate result of the
suit. A supplemental proceeding is initiated with a view to prevent the ends of justice from being
defeated. Supplemental proceedings may not be taken recourse to in a routine manner but only
when an exigency of situation arises therefore. The orders passed in the supplemental proceedings
may sometimes cause hardships to the other side and, thus, are required to be taken recourse to
when it is necessary in the interest of justice and not otherwise. There are well-defined parameters
laid down by the court from time to time as regards the applicability of the supplemental
proceedings, G.L. Vijain v. K. Shankar, (2006) 13 SCC 136.
► Private transfer.—Private alienation of property after attachment is not permissible, Arvind
Kumar v. Uma Shanker, AIR 2009 (NOC) 2741 (All); (2009) 5 All LJ 358.
Sale
65. Purchaser's title.—Where immovable property is sold in execution of a decree
and such sale has become absolute, the property shall be deemed to have vested in
the purchaser from the time when the property is sold and not from the time when the
sale becomes absolute.
66. Suit against purchaser not maintainable on ground of purchase being on
behalf of plaintiff.—120 [Repealed]
NOTES ► The Statement of Objects and Reasons to the Benami Transactions
(Prohibition) Act, 1988 provides:
“To implement the recommendations of the Fifty-seventh Report of the Law
Commission on Benami Transactions, the President promulgated the Benami
Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988, on the
19th May, 1988.
2. The Ordinance provided that no suit, claim or action to enforce any right in
respect of any property held benami shall lie and no defence based on any right in
respect of any property held benami shall be allowed to any suit, claim or action. It,
however, made two exceptions regarding property held by a coparcener in a Hindu
undivided family for the benefit of the coparceners and property held by a trustee or
other person standing in a fiduciary capacity for the benefit of another person. It also
repealed Section 82 of the Indian Trusts Act, 1882, Section 66 of the Code of Civil
Procedure and Section 281-A of the Income Tax Act, 1961.
* * *”
67. Power for State Government to make rules as to sales of land in
execution of decrees for payment of money.—121 [(1)] The State Government 122 [*
* *] may, by notification in the Official Gazette, make rules for any local area imposing
conditions in respect of the sale of any class of interests in land in execution of decrees
for the payment of money, where such interests are so uncertain or undetermined as,
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in the opinion of the State Government, to make it impossible to fix their value.
123 [(2) When on the date on which this Code came into operation in any local area,

any special rules as to sale of land in execution of decrees were in force therein, the
State Government may, by notification in the Official Gazette, declare such rules to be
in force, or may 124 [* * *] by a like notification, modify the same.
Every notification issued in the exercise of the powers conferred by this sub-section
shall set out the rules so continued or modified.]
125 [(3) Every rule made under this section shall be laid, as soon as may be after it is

made, before the State Legislature.]

Delegation to Collector of Power to execute Decrees against Immovable Property
68. Power to prescribe rules for transferring to Collector execution of
certain decrees.—126 [Repealed]
69. Provisions of Third Schedule to apply.—127 [Repealed]
70. Rule of procedure.—128 [Repealed]
71. Collector deemed to be acting judicially.—129 [Repealed]
72. Where Court may authorize Collector to stay public sale of land.—130
[Repealed]
Distribution of Assets
73. Proceeds of execution-sale to be rateably distributed among decree-
holders.—(1) Where assets are held by a Court and more persons than one have,
before the receipt of such assets, made application to the Court for the execution of
decrees for the payment of money passed against the same judgment-debtor and
have not obtained satisfaction thereof, the assets, after deducting the costs of
realisation, shall be rateably distributed among all such persons:
Provided as follows:—
(a) where any property is sold subject to a mortgage or charge, the mortgagee or
incumbrancer shall not be entitled to share in any surplus arising from such
sale;
(b) where any property liable to be sold in execution of a decree is subject to a
mortgage or charge, the Court may, with the consent of the mortgagee or
incumbrancer, order that the property be sold free from the mortgage or
charge, giving to the mortgagee or incumbrancer the same interest in the
proceeds of the sale as he had in the property sold;
(c) where any immovable property is sold in execution of a decree ordering its
sale for the discharge of an incumbrance thereon, the proceeds of sale shall be
applied—
first, in defraying the expenses of the sale;
secondly, in discharging the amount due under the decree;
thirdly, in discharging the interest and principal monies due on subsequent
incumbrances (if any); and
fourthly, rateably among the holders of decrees for the payment of money
against the judgment-debtor, who have, prior to the sale of the property,
applied to the Court which passed the decree ordering such sale for
execution of such decrees, and have not obtained satisfaction thereof.
(2) Where all or any of the assets liable to be rateably distributed under this section
are paid to a person not entitled to receive the same, any person so entitled may sue
such person to compel him to refund the assets.
(3) Nothing in this section affects any right of the Government.
High Court Amendment
CALCUTTA.—Omit clause (c) of the proviso in sub-rule (1). Cal. Gaz. Pt. I, dt. 20-4-
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1967.
Resistance to Execution
74. Resistance to execution.—Where the Court is satisfied that the holder of a
decree for the possession of immovable property or that the purchaser of immovable
property sold in execution of a decree has been resisted or obstructed in obtaining
possession of the property by the judgment-debtor or some person on his behalf and
that such resistance or obstruction was without any just cause, the Court may, at the
instance of the decree-holder or purchaser, order the judgment-debtor or such other
person to be detained in the civil prison for a term which may extend to thirty days
and may further direct that the decree-holder or purchaser be put into possession of
the property.
High Court Amendment
CALCUTTA.—Omit the words “that the holder of a decree for the possession of
immovable property or” after the words “Court is satisfied”; and the word “immovable”
before “property”; insert the words “referred to in Section 28 of the Presidency Small
Cause Courts Act, 1882”, after the word “property” and before the words “sold in
execution” omit the words “decree-holder or” between the words “at the instance of
the” and “purchaser”; Omit the words “decree-holder or” between the words “direct
that the” and “purchaser”. Cal Gaz. Pt. I dt. 20-4-1967.
PART III
I NCIDENTAL PROCEEDINGS
Commissions
75. Power of Court to issue commissions.—Subject to such conditions and
limitations as may be prescribed, the Court may issue a commission—
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition;
131 [(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and
which is in the custody of the Court pending the determination of the suit;
(g) to perform any ministerial act.]
76. Commission to another Court.—(1) A commission for the examination of any
person may be issued to any Court (not being a High Court) situate in a State other
than the State in which the Court of issue is situate and having jurisdiction in the
place in which the person to be examined resides.
(2) Every Court receiving a commission for the examination of any person under
sub-section (1) shall examine him or cause him to be examined pursuant thereto, and
the commission, when it has been duly executed, shall be returned together with the
evidence taken under it to the Court from which it was issued, unless the order for
issuing the commission has otherwise directed, in which case the commission shall be
returned in terms of such order.
77. Letter of request.—In lieu of issuing a commission the Court may issue a
letter of request to examine a witness residing at any place not within India.
132 [78. Commissions issued by foreign Courts.—Subject to such conditions and

limitations as may be prescribed, the provisions as to the execution and return of

commissions for the examination of witnesses shall apply to commissions issued by or
at the instance of—
(a) Courts situate in any part of India to which the provisions of this Code do not
extend; or
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(b) Courts established or continued by the authority of the Central Government
outside India; or
(c) Courts of any State or country outside India.]
———
1. As amended upto Act 12 of 2012 (w.e.f. 1-7-2002).
2. Subs. by Act 104 of 1976, S. 2 (w.e.f. 1-2-1977).
3.
In its application to the State of Sikkim, except for Ss. 123 and 124, the Code has been extended to Sikkim —
See Gazatte of India, 18-10-1982, Pt. II, S. 3(ii), Extra., p. 2 and 1-9-1984 appointed as the date on which the
Code shall come into force in Sikkim — See Gazatte of India, 13-10-1984, Pt. II, S. 3(ii), Extra., p. 2.
This Act has been amended in its application to Assam by Assam Acts 2 of 1941 and 3 of 1953; to Tamil
Nadu by Madras Act 34 of 1950, Madras A.O. 1950, and Tamil Nadu Act 15 of 1970; to Punjab by Punjab Act
7 of 1934; to Uttar Pradesh by U.P. Acts 4 of 1925, 35 of 1948, 24 of 1954, 17 of 1970, 57 of 1976 and 31
of 1978; to Karnataka by Mysore Act 14 of 1955; to Kerala by Kerala Act 13 of 1957; to Rajasthan by
Rajasthan Act 19 of 1958; to Maharashtra by Maharashtra Act 22 of 1960 and 25 of 1970; it has been
extended to Berar by the Berar Laws Act, 1941 (4 of 1941) and by notification under Ss. 5 and 5-A of the
Schedule Districts Act, 1874 (14 of 1874), also to the following Scheduled Districts:—

(1) The district of Jalpaiguri, Cachar (excluding the North Cachar Hills), Goalpara (including the Eastern
Duars), Kamrup, Darrang, Nowgong (excluding the Mikir Hill Tracts) Sibsagar (excluding the Mikir Hill
Tracts) and Lakhimpur (excluding the Dibrugarh Frontier Tracts) : Gazette of India, 1909, Pt. 1, p. 5 and
ibid, 1914, Pt. I, p. 1690.

(2) The District of Darjeeling and the District of Hazaribagh, Ranchi, Palamau and Manbhum in Chota Nagpur :
Calcutta Gazette, 1909, Pt. I, p. 25 and Gazette of India, 1909, Pt. I, p. 33.

(3) The province of Kumaon and Garhwal and the Tarai Parganas (with modifications) : U.P. Gazette, 1909,
Pt. I, p. 3 and Gazette of India, 1909, Pt. I, p. 31.

(4) The Pargana of Jaunsar-Bawar in Dehradun and the Scheduled portion of the Mirzapur District : U.P.
Gazette, 1909, Pt. I, p. 4 and Gazette of India, 1909, Pt. I, p. 32.

(5) Coorg : Gazette of India, 1909, Pt. I, p. 32.

(6) Scheduled Districts in the Punjab : Gazette of India, 1909, Pt. I, p. 33.

(7) Sections 36 to 43 to all the Scheduled Districts in Madras, Gazette of India, 1909, Pt. I, p. 152.

(8) Scheduled Districts in the C.P., except so much as is already in force and so much as authorizes the
attachment and sale of immovable property in execution of a decree, not being a decree directing the
sale of such property : Gazette of India, 1909, Pt. I, p. 239.

(9) Ajmer-Merwara except Ss. 1 and 155 to 158 : Gazette of India, 1909, Pt. II, p. 480.

(10) Pargana Dhalbhum, the Municipality of Chaibassa in the Kolhan and the Porahat Estate in the District of
Singhbhum : Calcutta, Gazette of India, 1909, Pt. I, p. 453 and Gazette of India, 1909, Pt. I, p. 443.
Under S. 3(3)(a) of the Sonthal Parganas Settlement Regulation (3 of 1872), Ss. 38 to 42 and 156 and
Rules 4 to 9 in Order XXI in the First Schedule have been declared to be in force in the Sonthal Parganas and
the rest of the Code for the trial of suits referred to in S. 10 of the Sonthal Parganas Justice Regulation,
1893 (5 of 1893) : see Calcutta, Gazette, 1909, Pt. I, p. 45.
It has been declared to be in force in Panth Piploda by the Panth Piploda Laws Regulation, 1929 (1 of
1929), S. 2; in the Khondmals District by the Khondmals Laws Regulation, 1936 (4 of 1936), S. 3 and Sch.
and in the Angul District by the Angul Laws Regulation, 1936 (5 of 1936), S. 3 and Sch.
It has been extended to the District of Koraput and Gunjam Agency by Orissa Regulation, (5 of 1951) S. 2.
It has been extended to the State of Manipur (w.e.f. 1-1-1957) by Act 30 of 1950, S. 3 to the whole of
the Union Territory of Lakshadweep (w.e.f. 1-10-1967) by Regulation 8 of 1965, S. 3 and Sch. : to Goa,
Daman and Diu (w.e.f. 15-6-1966) by Act 30 of 1965, S. 3; to Dadra and Nagar Haveli (w.e.f. 1-7-1965) by
Reg. 6 of 1963, S. 2 and Sch. 1 and to the State of Sikkim (w.e.f. 1-9-1984), vide Notification No. S.O. 599
(E), dated 13-8-1984, Gazette of India, Extraordinary, Part II, S. 3.
4.The words “the State of Jammu and Kashmir” omitted by Act 34 of 2019, Ss. 95, 96 and Sch. V (w.e.f. 31-10-
2019).
5.L.M. & A. Islands (Laws) Regulation, 1965 (8 of 1965) and L.M.A. Islands (Civil Courts) Regulation, 1965 (9 of
1965) are in force in that territory. These islands now form part of Lakshadweep Union Territory — See Act 34 of
1973 (1-11-1973).
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6. The words and figures “Section 47 or” omitted by Act 104 of 1976, S. 3 (w.e.f. 1-2-1977).
7. Subs. by Act 2 of 1951, S. 4.
8. Ins. by Act 2 of 1951, S. 4.
9. Ins. by Repealing and Amending Act, 1953 (42 of 1953), Sch. III, S. 1 (23-12-1953).
10. Ins. by Act 42 of 1953, S. 4 and Sch. III.

Now made applicable in the Union Territory of Jammu and Kashmir. [Vide S.O. 1123(E), dt. 18-3-2020 (w.e.f.
11.

18-3-2020)].

Union Territory of Ladakh.—In its application to the Union Territory of Ladakh — Same as UT of Jammu and
Kashmir. [Vide S.O. 3774(E), dated 23-10-2020].
12. Subs. by Act 104 of 1976, S. 3 (w.e.f. 1-2-1977).

13. Subs. by Act 35 of 1934, S. 2 and Sch., for “or naval”.

14.
Subs. by the A.O. 1950, for “His Majesty”.
15. The words “including His Majesty's Indian Marine Service” omitted by Act 35 of 1934, S. 2.
16. Cl. (21) ins. by the A.O. 1950 and omitted by Act 2 of 1951, S. 4. Prior to omission it read as:
“(21) ‘State’ means a Part A State or a Part C State, and ‘States’ means all the territories for the time
being comprised within Part A States and Part C States.”
17. The words “with the previous sanction of the G.G. in C.” omitted by Act 38 of 1920, S. 2 and Sch. I, Part I.
18. The words “with the sanction aforesaid” omitted by Act 38 of 1920, S. 2 and Sch. 1, Pt. I.
19.
Ins. by Act 4 of 1941, S. 2 and Sch. III.
20. Subs. by Act 4 of 1941, S. 2 and Sch. III, for “under that Act”.
21. Ins. by Act 2 of 1951, S. 5.
22.
Subs. by A.L.O. (No. 2) 1956 for “Part B States”.
23. Subs. by Act 1 of 1926, S. 3, for “so far as they relate to injunctions and interlocutory orders”.
24. Subs. by Act 104 of 1976, S. 4 (w.e.f. 1-2-1977).

25.Sections 2, 3, 10 to 14, 28 to 37, 42 to 53, 55 to 60, 62 to 64, 73, 74, 78 to 85, 87, 88, 94, 95, 132 to 136,
139, 141 to 149, 151 and 153, as amended up to 1-1-1965 extended to all suits and proceedings in the Court of
Small Causes, Calcutta subject to certain modifications and adaptations — See Calcutta Gazatte, 20-4-1967, Pt.
I, p. 757.
26. Added by Act 1 of 1914, S. 2.
27. For instance of such direction, see the Calcutta Gazette, 1910, Pt. I, p. 814 and dt. 20-4-1967.
28. Existing Explanation renumbered as Explanation I vide Act 104 of 1976, S. 5 (w.e.f. 1-2-1977).
29. Ins. by Act 104 of 1976, S. 5 (w.e.f. 1-2-1977).
30.
Subs. by Act 2 of 1951, S. 3, for “the States”.
31. Ins. by Act 104 of 1976, S. 6 (w.e.f. 1-2-1977).
32. Subs. by Act 2 of 1951, S. 3, for “the States”.
33. Subs. by Act 2 of 1951, S. 3, for “the States”.
34. Omitted by Act 104 of 1976, S. 7 (w.e.f. 1-2-1977). Prior to omission it read as:
“Explanation I.—Where a person has a permanent dwelling at one place and also a temporary residence at
another place, he shall be deemed to reside at both places in respect of any cause of action arising at the
place where he has such temporary residence.”
35. The figure “II” omitted by Act 104 of 1976, S. 7 (w.e.f. 1-2-1977).
36. Renumbered as sub-section (1) by Act 104 of 1976, S. 8 (w.e.f. 1-2-1977).
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37. Ins. by Act 104 of 1976, S. 8 (w.e.f. 1-2-1977).

38. Ins. by Act 104 of 1976, S. 9 (w.e.f. 1-2-1977).

39. Subs. by Act 104 of 1976, S. 10 (w.e.f. 1-2-1977).

40. Subs. by Act 104 of 1976, S. 10 (w.e.f. 1-2-1977).
41. Ins. by Act 104 of 1976, S. 10 (w.e.f. 1-2-1977).

42. Subs. by Act 104 of 1976, S. 11 (w.e.f. 1-2-1977).

43. Section 26 renumbered as sub-section (1) by Act 46 of 1999, S. 2 (w.e.f. 1-7-2002).
44. Ins. by Act 46 of 1999, S. 2 (w.e.f. 1-7-2002).

45. Ins. by Act 46 of 1999, S. 3 (w.e.f. 1-7-2002).

46. Ins. by Act 104 of 1976, S. 12 (w.e.f. 1-5-1977).
47. Subs. by Act 2 of 1951, S. 6.

48. Subs. for “five hundred rupees” by Act 46 of 1999, S. 4 (w.e.f. 1-7-2002).
49. Subs. by Act 66 of 1956, S. 2.
50. Added by Act 104 of 1976, S. 13 (w.e.f. 1-7-1977).
51.
Subs. by Act 66 of 1956, S. 2.
52. Ins. by Act 104 of 1976, S. 15 (w.e.f. 1-2-1977).
53. Subs. by Act 104 of 1976, S. 16 (w.e.f. 1-2-1977).
54.
Ins. by Act 104 of 1976, S. 17 (w.e.f. 1-2-1977).
55. Ins. by Act 104 of 1976, S. 18 (w.e.f. 1-2-1977).
56. Ins. by Act 104 of 1976, S. 18 (w.e.f. 1-2-1977).
57.
Ins. by Act 22 of 2002, S. 2 (w.e.f. 1-7-2002).
58. Renumbered as sub-section (1) by Act 104 of 1976, S. 19 (w.e.f. 1-2-1977).
59. Ins. by Act 104 of 1976, S. 19 (w.e.f. 1-2-1977).
60.
Subs. by Act 2 of 1951, S. 8.
61. Subs. by Act 2 of 1951, S. 9.
62.
Ins. by Act 8 of 1937, S. 2.
63.
The words “the United Kingdom or” omitted by Act 71 of 1952, S. 2.
64. Subs. by Act 2 of 1951, S. 3, for “the States”.
65. Subs. by Act 71 of 1952, S. 2, for Explanations 1 to 3.
66.
Subs. by the A.O. 1937.
67.
The words “or continued” omitted by the A.O. 1948.
68. Subs. by the A.O. 1950, for “in any Indian State”.
69.
Omitted by Act 104 of 1976, S. 20 (w.e.f. 1-2-1977). Prior to omission it read as:
“(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this
section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-
fees.”
70. Subs. by Act 104 of 1976, S. 20 (w.e.f. 1-2-1977).
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71.
Repealed by Act 36 of 1963, S. 28 (w.e.f. 1-1-1964). Prior to repeal it read as:
“48. Execution barred in certain cases.—(1) Where an application to execute a decree not being a decree
granting an injunction has been made, no order for the execution of the same decree shall be made upon any
fresh application presented after the expiration of twelve years from—

(a) the date of the decree sought to be executed; or

(b) where the decree or any subsequent order directs any payment of money or the delivery of any property
to be made at a certain date or at recurring periods, the date of the default in making the payment or
delivery in respect of which the applicant seeks to execute the decree.
(2) Nothing in this section shall be deemed—

(a) to preclude the Court from ordering the execution of a decree upon an application presented after the
expiration of the said term of twelve years, where the judgment-debtor has, by fraud or force prevented
the execution of the decree at some time within twelve years immediately before the date of the
application; or

(b) to limit or otherwise affect the operation of Article 180 of the second schedule to the Indian Limitation
Act, 1877 (15 of 1877).”
72. Ins. by Act 104 of 1976, S. 21 (w.e.f. 1-2-1977).
73. Ins. by Act 21 of 1936, S. 2.
74.
Subs. by Act 3 of 1921, S. 2, for the words “will be discharged”.
75. Subs. by Act 3 of 1921, S. 2, for “shall release”.
76. Subs. by Act 104 of 1976, S. 22 (w.e.f. 1-2-1977).
77.
Subs. for “one” by Act 46 of 1999, S. 5 (w.e.f. 1-7-2002).
78. Subs. by Act 46 of 1999, S. 5 (w.e.f. 1-7-2002).
79. Subs. by Act 104 of 1976, S. 22 (w.e.f. 1-2-1977).
80.
Ins. by Act 104 of 1976, S. 22 (w.e.f. 1-2-1977).
81. Subs. for “five hundred” by Act 46 of 1999, S. 5 (w.e.f. 1-7-2002).
82.
Subs. by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
83.
Ins. by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
84.
Subs. by the A.O. 1937, for “the G.G. in C.”
85.Subs. by Act 9 of 1937, S. 2, for the former clauses (h) and (i). The amendments made by that section have
no effect in respect of any proceedings arising out of a suit instituted before 1st June, 1937; see Act 9 of 1937,
S. 3.

The words “and salary, to the extent of the first hundred rupees and one-half the remainder of such salary”
86.

omitted by Act 5 of 1943, S. 2.

87. Subs. by Act 5 of 1943, S. 2, for the former clause and proviso.
88.
Subs. by Act 26 of 1963, S. 2, for “the first hundred rupees”.
89.
Subs. by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
90. Subs. for “four hundred” by Act 46 of 1999, S. 6 (w.e.f. 1-7-2002).
91. Ins. by Act 66 of 1956, S. 6.
92. Subs. by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
93.
Ins. by Act 66 of 1956, S. 6.
94. Subs. by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
95. Subs. by Act 9 of 1937, S. 2, for “1897”.
96. Ins. by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
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97. Subs. by Act 9 of 1937, S. 2.

98. Subs. by Act 5 of 1943, S. 2, for “public officer”.

99. Subs. by the A.O. 1937, for “G.G. in C.”

100. Subs. by Act 5 of 1943, S. 2, for “any such officer or servant”.
101. Subs. by the A.O. 1937, for “any law passed under the Indian Councils Acts, 1861 and 1892”.
102.
Subs. by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
103. Ins. by S. 2, Act 9 of 1937.
104. Subs. by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
105.
Ins. by the A.O. 1937.
106.
Subs. by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
107. Subs. by Act 5 of 1943, S. 2 for “public officer”.
108.
Subs. by the A.O. 1950, for “a Federal Railway”.
109.
Cl. (ii) omitted by the A.O. 1948. Prior to omission it read as:
“(ii) as respect any person employed in connection with the exercise of the functions of the Crown in its
relations with Indian States, the Crown Representative; and”
110.
Subs. by Act 5 of 1943, S. 2 for “public officer”.
111.
The words “railway or” omitted by the A.O. 1950.
112. Ins. by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
113.
Ins. by Act 104 of 1976, S. 23 (w.e.f. 1-2-1977).
114.
The letter and brackets “(a)”, the word “or” and cl. (b) repealed by Act 10 of 1914, S. 3 and Sch. II.
115. The letter and brackets “(a)”, the word “or” and cl. (b) repealed by Act 10 of 1914, S. 3 and Sch. II.
116. The words “with the previous sanction of the G.G. in C.” omitted by Act 38 of 1920, S. 2 and Sch. I, Pt. I.
117. Ins. by Act 104 of 1976, S. 24 (w.e.f. 1-2-1977).
118.
Section 64 renumbered as sub-section (1) by Act 22 of 2002, S. 3 (w.e.f. 1-7-2002).
119. Ins. by Act 22 of 2002, S. 3 (w.e.f. 1-7-2002).

Repealed by the Benami Transactions (Prohibition) Act, 1988 (45 of 1988) S. 7 (w.e.f. 19-5-1988). Prior to
120.

repeal it read as:

“66. Suit against purchaser not maintainable on ground of purchase being of behalf of plaintiff.—(1) No suit
shall be maintained against any person claming title under a purchase certified by the Court in such manner
as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of
some one through whom the plaintiff claims.
(2) Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified
as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser or
interfere with the right of a third person to proceed against that property, though ostensibly sold to the
certified purchaser, on the ground that it is liable to satisfy a claim of such third person against the real
owner.”
121. Section 67 renumbered as sub-sec. (1) of that section by Act 1 of 1914, S. 3.
122.
The words “with the previous sanction of the G.G. in C.” omitted by Act 38 of 1920, S. 2 and Sch. I, Pt. I.
123. Added by Act 1 of 1914, S. 3.
124. The words “with the previous sanction of the G.G. in C.” omitted by Act 38 of 1920, S. 2 and Sch. I, Pt. I.
125. Ins. by Act 20 of 1983, S. 2 and Sch. (w.e.f. 15-3-1984).
126. Repealed by Act 66 of 1956, S. 7. Prior to repeal it read as:
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“68. Power to prescribe rules for transferring to Collector execution of certain decrees.—The State
Government may declare, by notification in the local official Gazette that in any local area the execution of
decrees in cases in which a Court has ordered any immoveable property to be sold, or the execution of any
particular kind of such decrees, or the execution of decrees ordering the sale of any particular kind of, or
interest in, immoveable property, shall be transferred to the Collector.”
127. Repealed by Act 66 of 1956, S. 7. Prior to repeal it read as:
“69. Provisions of Third Schedule to apply.—The Provisions set forth in the Third Schedule shall apply to all
cases in which the execution of a decree has been transferred under the last preceding section.”
128. Repealed by Act 66 of 1956, S. 7. Prior to repeal it read as:
“70. Rule of procedure.—(1) The Local Government may make rules consistent with the aforesaid
provisions—

(a) for the transmission of the decree from the Court to the Collector, and for regulating, the procedure of
the Collector and his subordinates in executing the same and for retransmitting the decree from the
Collector to the Court;

(b) conferring upon the Collector or any gazetted subordinate of the Collector all or any of the powers which
the Court might exercise in the execution of the decree if the execution thereof had not been transferred
to the Collector;

(c ) providing for orders made by the Collector or any gazetted subordinate of the Collector, or orders made
on appeal with respect to such orders, being subject to appeal to, and revision by, superior revenue-
authorities as nearly as may be as the orders made by the Court, or orders made on appeal with respect
to such orders would be subject to appeal to, and revision by, appellate or revisional Courts under this
Code or other law for the time being in force if the decree had not been transferred to the Collector.
(2) Jurisdiction of Civil Courts barred—A power conferred by rules made under sub-section (1) upon the
Collector or any gazetted subordinate of the Collector, or upon any appellate or revisional authority, shall not
he exercisable by the Court or by any Court in exercise of any appellate or revisional Jurisdiction which it has
with respect to decrees or orders of the Court.”
129. Repealed by Act 66 of 1956, S. 7. Prior to repeal it read as:
“71. Collector deemed to be acting judicially.—In executing a decree transferred to the Collector under
Section 68 the Collector and his subordinates shall be deemed to be acting judicially.”

130. Repealed by Act 66 of 1956, S. 7. Prior to repeal it read as:

“72. Where Court may authorize Collector to stay public sale of land.—(1) Where in any local area in which
no declaration under Section 68 is in force the property attached consists of land or of a share in land and
the Collector represents to the Court that the public sale of the land or share is objectionable and that
satisfaction of the decree may be made within a reasonable period by a temporary alienation of the land or
share the Court may authorize the Collector to provide for such: satisfaction in the manner re-commended by
him instead of proceeding to a sale of the land or share.
(2) In every such case the provisions of Sections 69 to 71 and of any rules made in pursuance thereof shall
apply so far as they are applicable.”
131.
Ins. by Act 104 of 1976, S. 26 (w.e.f. 1-2-1977).
132. Subs. by Act 2 of 1951, S. 11 for the former section.

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