Cpc Tutorials

TUTORIALS THE CODE OF CIVIL PROCEDURE, 1908

URVASHI SRIVASTAVA, 7TH SEMESTER, FACULTY OF LAW, JAMIA MILLIA ISLAMIA

Tutorial 1: After hearing the final argument in a suit, the judge remarked “Mr. Counsel it appears you don’t have a good case”. Analyse these comments of the judge with specific reference through section 2(2) and 2(14) of CPC. Section 2(2) gives the definition of “decree” “decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include(a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. In order that a decision of the court may be a “decree”, the following elements must be present: i. ii. iii.

There must be an adjudication; Such adjudication must have been done in a suit; It must have determined the rights of the parties with regard to all or any of the

iv. v.

matters in controversy in the suit; Such determination must be of a conclusive nature; and There must be a formal expression of such adjudication.

Section 2(14) gives the definition of an ‘order’. It is the formal expression of any decision of a Civil Court which is not a decree. Now, analysing the section 2(2) and 2(14) of CPC. Comparing it with other given facts; it makes it very clear that it is neither a decree nor an order. It is not a decree because of the following reasons: a)

It is an informal comment by the judge, not fulfilling the 1st essential element;

b)

It does not determine any rights of the parties;

c)

It is not conclusive, i.e. thereby finally settling the suit.

Although it’s adjudication and is before the courts, yet it fails to fulfil the other essential ingredient necessary to make it a decree. It is neither an order because it is informal expression of the judge during a proceeding. Had it been an official statement it would have been an order.

Tutorial 2: Mr. X has taken wrongful possession of ‘Black Acre’. On the said trespass property a small Industrial unit has been setup. Mr. X started earning Rs. 5000 per month from the said industrial unit. From the same context and reference to definition of mesne profit of land; discuss and evaluate as to whether the profit made out of setting industry can be claimed by owner who is a lowly paid clerk and claimed that he would have earned huge profit by setting up sugar industry.

Section 2(12) of the CPC defines Mesne Profit of property as “those profits which the person in wrongful possession of such property actually received or night with ordinary diligence have received thereform, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession. Essential conditions that must be satisfied for claim of mesne profit are: 1.

Wrongful possession of property

2.

Trespasser received profit or might have received with his ordinary diligence

3.

Profit should not be out of improvement made by trespasser.

As per the fact Black acre is wrongfully possessed by X. He is earning profit out of the said property. These are satisfying the first two elements of mesne profit. But profit made were out of out of the setting of small industrial plant which was done by X and not by the owners. Therefore, the third condition is not fulfilled. Hence, owner cannot claim profit made by X from his plant as mesne profit. He can only claim such profit as in ordinary circumstances land (Black acre) would have fetched.

Tutorial 3: Discuss the philosophy of res judicata. A filed a litigation against B. The relief was to the effect that Black Acre belongs to plaintiff; B the defendant has been in unauthorised occupation of Black Acre and the said judgment should be directed to pay mesne profit. The court passed a decree in favour of plaintiff and against defendant, so far as ownership of Black Acre was concerned. However the judgment and decree is silent about payment of mesne profit. The plaintiff context and seek an advice of fresh suit could be filed claiming mesne profit. Guide him as a lawyer. The rule of res judicata is based on the maxim that no one ought to be troubled twice for one and the same cause and it is in the interest of the state that there should be an end of law suit. It is based on two principles. I. II.

Public policy; i.e. there should be an end to litigation; To avoid hardship on individual

Section 11 of CPC defines Res judicata as: “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. Essentials of res judicata are: I. II. III. IV.

Matter directly and substantially in issue are same in former and latter suit; Same parties, or litigating under same title or in same suit; Court trying former suit must be competent to try subsequent suit The matter must have been adjudicated.

As per the explanation III of section 11 which says that the matter must in former suit have been alleged by one party and either denied or admitted, expressly or impliedly by the other. Here plaintiff is advised not to file a subsequent suit because it would attract section 11 and principle of res judicata would become applicable.

Res judicata would become applicable in this case for the reason: 1. Matter directly and substantially in issue would be same i.e. claim of mesne profit 2. Parties are same 3. Court is competent in both cases 4. Matter is adjudicated. A had already claimed for mesne profit in former suit. Court was silent about it while passing a decree, i.e. impliedly denied his claim [explanation III of section 11] ‘A’ is advised not to file a fresh suit. It would render him nothing but waste of time. He is advised that he can file an appeal under section 96 of CPC if he is aggrieved by the judgment of court.

Tutorial 4:

Discuss the origin of Res Judicata. Do you perceive that Res Judicata is an essential philosophy in the seemless dispensation of Justice. Your response must be educated of the Decision of the SC in the case of M Nagabushana v/s. State of Karnataka 2011 3 SCC 408. The rule of Res Judicata has a very ancient history. It was well understood by the Hindu lawyers and Mohammedan jurists. It was known to the ancient Hindu Law as Purva Nyaya (former judgment). The basis of the doctrine of res judicata is public interest and not absolute justice. In the event of a wrong decision, “the suffering citizen must appeal to the law-giver and not to the lawyer”. Section 11 of the Code of Civil Procedure embodies the doctrine of res judicata or the rule of conclusiveness of a judgment, as to the points decided either of facts, or of law, or of fact and law, in every subsequent suit between the same parties.it enacts that once the matter is finally decided by a competent court, no party can be permitted to reopen it in a subsequent litigation. In the absence of such a rule there will be no end to litigation and the parties would be put to constant trouble, harassment and expenses. Section 11 of the Code of Civil Procedure reads thus: “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.” The doctrine of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than latter, come to an end. The principal is also founded on justice, equity and good conscience which require that a party who has once succeeded on an issue should not be harassed by multiplicity of proceedings involving the same issue. It hereby avoids vexatious litigation. M Nagabushana v/s. State of Karnataka,1 Appellant claims to be the owner of the land bearing of Thotadaguddadahalli Village, Bangalore North Taluk. The appellant alleged that the two plots of land were outside the 1 2011 3 SCC 408.

purview of the Framework Agreement (FWA) and notification issued under Sections 28(1) and 28(4) of Karnataka Industrial Areas Development Act (KIAD Act). While dismissing the writ petition, the learned Single Judge held that the acquisition proceedings in question were challenged by the writ petitioner, the appellant herein, in a previous writ petition No.46078/03 which was initially accepted and the acquisition proceedings were quashed. Then on appeal, the Division Bench (in writ appeal Nos.713/04 and 2210/04) reversed the judgment of the learned Single Judge. Thereafter, the Division Bench order was upheld before this Court and this Court approved the acquisition proceedings. Therefore, the writ petition, out of which this present appeal arises, purports to be an attempt to litigate once again, inter alia, on the ground that the aforesaid blocks of land were outside the purview of FWA dated 3.4.1997. The principles of Res Judicata are of universal application as it is based on two age old principles, namely, `interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be an end to litigation and the other principle is `nemo debet his ve ari, si constet curiae quod sit pro un aet eademn cause' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties. Principles of res judicata - Foundation of - History of doctrine, traced - Held, it is in the interest of State that there should be an end to litigation - No one ought to be vexed twice in a

litigation if it appears to court that it is for one and the same cause - Judgment of a proper trial by a competent court has to be treated as final and conclusive determination of issues involved in matter - In absence of such principles great oppression might be caused in pretext of law and there would be no end to litigation - Rich and malicious litigant will succeed in vexing his opponent by repetitive suits and actions resulting in weaker party to relinquish his rights - To prevent such anarchy doctrine of res judicata has been evolved - In present case, exemplary costs of Rs 10 lakhs imposed to deter such abuse of process, (2011) 3 SCC 408-D Arts. 136 and 226 - New plea - Impermissibility in view of principles of constructive res judicata - Appellant questioning land acquisition proceedings - Issues involved in the matter had already been decided by Supreme Court – Appellant raising a new plea that he was not aware that his lands were outside the purview of Framework Agreement (FWA) - Held, appellant never raised issue that his lands were outside purview of FWA in earlier writ proceedings - No sufficient explanation was offered for not raising that issue in earlier writ petitions - In view of applicability of principles of constructive res judicata, appellant not permitted to raise his new plea, (2011) 3 SCC 408-I.

Tutorial 5:

Discuss whether foreign judgments are conclusive and binding in India. Throw light on the decisions of the Supreme Court in cases of Ruchi Majoo v/s. Sanjeev Majoo 2011 6 SCC 479 as also Neerja Sarap v/s. Jayant Sarap 1994 6 SCC 461. “Foreign judgment” means a judgment of a foreign court. In other words, a foreign judgment means adjudication by a foreign court upon a matter before it. Thus, judgment delivered by courts in England, France, Germany, USA, etc. are foreign judgments. Section 13 and 14 enact the rule of res judicata in case of foreign judgments. These provisions embody the principle of private international law that a judgment delivered by a foreign court of competent jurisdiction can be enforced by an Indian Court and will operate as res judicata between the parties thereto except in cases mentioned in Section 13. 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 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 India. In other words foreign judgment is not conclusive as to any matter directly adjudicated upon, if one of the conditions specified in clauses (a) to (f) of Section 13 is satisfied and it will be open to a collateral attack. The judgment of a foreign court is enforced on the principle that where a court of competent jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy that claim. The rules of private international law of each State must in very nature of things differ, but by the comity of nations certain rules are recognised as common to civilised jurisdictions.

As has been rightly observed by a great jurist, “we are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home”; and we shall not brush aside foreign judicial process unless doing so “would violate some fundamental principle of justice, some prevalent conception of goods morals, some deep-rooted tradition of the common weal”. Ruchi Majoo v/s. Sanjeev Majoo,2 The present happens to be one such case where legal proceedings have engaged the parties in a bitter battle for the custody of their only child Kush, aged about 11 years born in America hence a citizen of that country by birth. These proceedings included an action filed by the father-Respondent in this appeal, before the American Court seeking divorce from the Respondent-wife and also custody of master Kush. An order passed by the Superior court of California, County of Ventura in America eventually led to the issue of a red corner notice based on allegations of child abduction leveled against the mother who like the father of the minor child is a person of Indian origin currently living with her parents in Delhi. The mother took refuge under an order dated 4th April, 2009 passed by the Addl. District Court at Delhi in a petition filed under Sections 7, 8, 10, 11 of the Guardians and Wards Act granting interim custody of the minor to her. Aggrieved by the said order the father of the minor filed a petition under Article 227 of the Constitution of India before the High Court of Delhi. By the order impugned in this appeal the High Court allowed that petition, set aside the order passed by the District Court and dismissed the custody case filed by the mother primarily on the ground that the Court at Delhi had no jurisdiction to entertain the same as the minor was not ordinarily residing at Delhi - a condition precedent for the Delhi Court to exercise jurisdiction. The High Court further held that all issues relating to the custody of child ought to be agitated and decided by the Court in America not only because that Court had already passed an order to that effect in favour of the father, but also because all the three parties namely, the parents of the minor and the minor himself were American citizens. The High Court buttressed its decision on the principle of comity of courts and certain observations made by this Court in some of the decided cases to which we shall presently refer. Neeraj Sarap v/s. Jain Sarap,3 2 2011 6 SCC 479. 3 1994 6 SCC 461.

These appeals directed against the interim order passed by theHigh Court in an appeal filed by Respondent 2 against rejection of an application for setting aside of an ex parte decree, raise an important issue as to how to protect the rights and interests of women who are deserted by non-resident Indians on decree of annulment obtained from foreign courts. The appellant M.A., B.Ed. daughter of a senior Air Force officer serving

as a teacher and

drawing salary of Rs 3000 was married to Respondent 1, a Doctorate in Computer Hardware and employed in United States, at the behest of her father- in-law approached through a common family friend. How Respondent I met the appellant at Delhi upon his own request then picked her from her aunt's place at Bombay before marriage is not necessary to be stated nor is it necessary to narrate that the marriage was performed with gusto befitting the status of both the families. The marriage was performed on 6-8-1989 and the appellant was taken for honeymoon to Goa for few days. Respondent I returned to America on 24-8-1989, wrote letters to appellant on 15-9-1989, 20-10-1989 and 14-11-1989 persuading her to give up her job and suggesting the various avenues for her career in America. Appellant believing all that tried for visa and ultimately resigned her job in November 1989. But from December things started getting cold. And when father of appellant wrote a letter in January 1990 to the respondent-husband about the sufferings of her daughter, it did not bring forth any favourable response and in June 1990 the respondent's brother came to Delhi and handed over two envelopes, one a petition for annulment of marriage in a USA court and another a letter from her father-in-law. But feasibility of a legislation safeguarding interests of women may be examined by incorporating such provisions as(1) No marriage between a NRI and an Indian woman which has taken place in India may be annulled by a foreign court; (2) Provision may be made for adequate alimony to the wife in the property of

the

husband both in India and abroad. (3)The decree granted by Indian courts may be made executable

in foreign courts both on

principle of comity and by entering into reciprocal agreements like Section 44-A of the Civil Procedure Code which makes a foreign decree executable as it would have been a decree passed by that court.

Tutorial 6: What is the doctrine of “equity acts in personam”. Also illustrate the places of suing in case of immovable property.

It is in the nature of equitable remedies that they generally operate against the person of the defendant, being enforceable by imprisonment for contempt. It is in this way that, as discussed above, equity could claim not to be interfering with the common law. The judgment at law in effect was binding on the whole world and equity intervened only against the individual defendant, who was prevented from enforcing his legal rights. Another feature of this principle is that equitable rights were not enforceable against everybody but could be defeated by the interest of the bona fi de purchaser. The in personam nature of the operation of equity also has specific relevance in relation to property and interests abroad. As a general rule, English courts will not entertain actions concerning title to foreign land. As Lord Campbell LC stated in Norris v Chambres,4 An English Court ought not to pronounce a decree, even in personam, which can have no specific operation without the intervention of a foreign Court, and which in the country where the lands to be charged by it lie would probably be treated as brutum fulmen [an empty threat]. The position is otherwise if the intended decree acts in personam, as equitable ones do, and also the defendant is within the reach of the English courts. As Lord Cottenham observed in ex parte Pollard (1840) Mont & Ch 239: contracts respecting lands in countries not within the jurisdiction of these courts . . . can only be enforced by proceedings in personam which courts of equity here are constantly in the habit of doing: not thereby in any respect interfering with the lex loci rei sitae. If indeed the law of the country where the land is situated should not permit or not enable the defendant to do what the court might otherwise think is right to decree, it would be useless and unjust to direct him to do the act; but when there is no such impediment the courts of this country, in the exercise of their jurisdiction over contracts made here, or in administering equities between parties residing here, act upon their own rules and are not influenced by any consideration of what the effect of such contract might be in the country where land is situate. The expression “place of suing” simply means the venue for trial and it has nothing to do with the competency of the court. Sections 16-18 deals with the suits relating to immovable property. Clauses (a) to (e) of section 16 deal with the following five kinds of suits, viz.: i. ii.

Suits for recovery of immovable property; Suits for partition of immovable property;

4 (1861) 3 De GF & J 583.

iii.

Suits for foreclosure, sale or redemption in case of mortgage of or charge upon

iv.

immovable property; Suits for determination of any other right to or interest in immovable property;

v.

and Suits for tort to immovable property.

These suits must be filed in the courts within the local limits of whose jurisdiction the property is situate. This is very clear and simple and does not create any difficulty. But what will happen if the property is situate within the jurisdiction of more than one court? Section 17 of the Code provides for the contingency. It says that where a suit is to obtain a relief respecting, or damage for torts to, immovable property situate within the jurisdiction of different courts, the suit can be filed in the courts within the local limits of whose jurisdiction any portion of the property is situate provided that the suit is within the pecuniary jurisdiction of such court. This provision is intended for the benefit of suitors and to prevent multiplicity of suits. A case may, however, arise where it is not possible to say with certainty that the property is situate within the jurisdiction of the one or the other of several courts. In such a case, one of these courts, if it is satisfied that there is such uncertainty, may after recording a statement to that effect proceed to entertain and dispose of the suit.5

Tutorial 7: A civil court passed a decree in cause of action which was prohibited by the statute or by a statute to adjudicate by the civil court. The said issue should have been adjudicated by the administrative tribunal. Analyse whether the executing court can go behind the decree to examine whether the decree is nullity or not. 5 Section 18.

Section 47 has been enacted for the beneficial purpose of checking needless litigation and provides a cheap, speedy and expeditious remedy by empowering the court executing a decree to determine all questions arising between the parties to the suit relating to the execution, discharge or satisfaction of the decree. Two things are to be noted. The questions in respect of which a separate suit is barred must be questions relating to the execution, discharge or satisfaction of the decree and the parties between whom the questions arise must be parties to the suit in which the decree was passed, or their representatives. Thus when a decree-holder takes in execution a property not included in the decree, the judgment-debtor has to proceed by an application under section 47 of the Code for recovery of such property and a separate suit for that purpose will not lie. If, however, a judgment-debtor or his legal representative objects to the execution of a decree on the ground that the decree is not valid, the question as to the validity of the decree is not one relating to the execution, discharge or satisfaction of the decree and cannot, therefore, be tried in execution proceedings under section 47. Such a question can only be tried in a regular suit brought for the purpose. The executing court has been given exclusive jurisdiction under this section as to all matters relating to the execution of a decree and as a general rule a separate suit has been barred. The executing court while passing a decree in terms of award should not go beyond what has been given in the award. There is no scope for the executing court to go beyond the award and grant interests for the post award period which was not granted in the award. It is unexceptionable that a court executing a decree cannot go behind the decree, it must take the decree according to its tenor, has no jurisdiction to widen its scope and is required to execute the decree as made.6 In a suit for restraining appellant from planting any tree on land in question, decree holder cannot seek execution of decree by way of removal of trees, even same could not also be directed by the executing court.7

6 Century Textiles Industries Ltd. v. Deepak Jain (2009) 5 SCC 634. 7 Gurdev Singh v. Narayan Singh AIR 2008 SC 630.

An executing court cannot go behind the decree if the reliefs sought for by the plaintiffs appear to have been granted, there is no reason as to why the executing court shall deprive him from obtaining the fruits of the decree.8 Subsequent events should not be looked into by the executing court. An executing court cannot behind the decree, it has no jurisdiction to modify a decree, it must execute a decree as it is.9 Power and role of the executing court As a general rule, executing court cannot intervene in the decree passed by the Trial Court and has to execute as it is even if it seems to be a sick decree or trial court has not interpreted the law, yet it is a decree. Executing court can only intervene when a decree passed by the trial court is erroneous, illegal, dead or a decree which is in a nullity. In Sunder Dass v. Ram Prakash10, it was held that “Now the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any Court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing Court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing Court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all.” Shah J. in the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman11 has observed that “…for the purpose of determining whether the Court which passed the decree had 8 Haryana Vidyut Prasaran Nigam Ltd. v. Gulshan Lal (2009) 13 SCC 354. 9 Abdul Rehman Shora v. State of J&K (2009) 2 SCC 617. 10 AIR 1977 SC 1204. 11 AIR 1970 SC 1475.

jurisdiction to try the suit, it is necessary to determine facts on the decision of which the question depends, and the objection does not appear on the face of the record, the executing Court cannot enter upon and enquiry into those facts.” Executing Court can only interfere in cases which are in nullity and not otherwise as was also laid down in the case of Kiran Singh v. Chaman Paswan12 that “There was a fair and full hearing of the appeal by that Court; it gave its decision on the merits on a consideration of the entire evidence in the case, and no injustice is shown to have resulted in its disposal of the matter.” Essential Conditions of Applicability of S. 47: Questions arising between parties or their representatives to suit and relating to execution, discharge or satisfaction.—Section 47 will apply only where a dispute arises between the parties to the suit; it does not apply where the contest is between the parties to the suit and also a stranger. It is limited to cases where the satisfaction of the decree, as distinguished from the validity of the decree, is in question. As stated above, the two conditions for applicability of the section are: (1) that the question should relate to the execution, discharge or satisfaction of the decree and (2) that the question shall arise between the parties to the suit in which the decree was passed or their representatives. The section is mandatory and bars both a suit and a defence. The execution court has got duty to resolve the dispute whereby somebody claims to be representative of decree-holder’s interest and decree-holder disputes it. The revised definition of the term ‘decree’ does not include the determination of any question within section 47, C.P.C. Exceptions—Nullity or unexecutable decree: 1. If priniciples of natural justice is not followed. 2. Legal representation, cross-examination, inherent jurisdiction and change in law and its effects. Tutorial 8: One of the modes of executing a decree is arrest and detention of the judgement-debtor in a civil prison. The decree holder has an option to choose a mode for executing his 12 AIR 1954 SC 340.

decree and normally a court of law in the absence of special circumstances cannot compel him to invoke a particular mode of execution. Section 55 to 59 deal with arrest, detention and release from a civil prison of the judgement-debtor. Section 55: Arrest and Detention (1) If the judgement-debtor fails to satisfy a decree he can be send to civil prison or in any other place where such civil prison does not afford suitable accommodation. (2) State Govt. can issue notification in the Official Gazette and declare that any person or a class of persons will not be arrested in execution of a decree as his arrest could create in convenience to the public. (3) In case of execution of a decree for the payment of money the Court shall inform the judgement-debtor that he may apply to be declared as insolvent and if the judgement-debtor agrees to this then he may be discharged if there was no bad faith and would not be arrested. Procedure: • A judgement-debtor may be arrested at any time and on any day in execution of a decree. After his arrest, he must be brought before the Court as soon as practicable. • Arrest may be made at any point of time but not after sunset and not before sunrise. • For the purpose of making arrest, no dwelling house may be entered after sunset or before sunrise. Further, no outer door of a dwelling house may be broken open unless such dwelling house is in the accompany of the judgment-debtor and he refuses to prevents access thereto. • Again, where the room is in the actual occupancy of a Pardanashin woman who is not the judgement- debtor, reasonable time and facility should be given to her to withdraw there from. • No order to detention of the judgement-debtor shall be made where the decretal amount does not exceed rupees five hundred. No judgement-debtor may be arrested unless and until the decree holder pays into Court the subsistence allowance as fixed by the Court. Where the judgement-debtor pays the decretal amount and costs of arrest to the officer, he should be released at once.

Section 56: Where a decree if for the payment of money, a woman shall not be arrested in execution of the same as per provision of this Section. Section 57: A judgement-debtor shall not be arrested in execution of a decree unless and until the decree holder deposits into the Court, an amount fixed by the judge sufficient for the sake of subsistence of the judgement-debtor, from the time of his arrest until he can be brought before the Court. Section 58: Conditions of release of judgement-debtor: A judgement-debtor may be released from detention in the following circumstances(a) Premature release, (b) Release on the ground of illness. (a) Premature Release: A Judgement-debtor shall be released before the expiry of the period of detention on the following grounds: (i) (ii) (iii) (iv)

on the amount mentioned in the warrant being paid; or on the decree against him being otherwise fully satisfied; or on the request of the decree-holder; or On the omission by the decree-holder to pay subsistence allowance.

Such release, however, does not discharge the judgement-debtor from his debt, but he cannot re-arrest on the same ground. (b) Release on the Ground of Illness: The Judgement-debtor may also be released by the Court or by the Government on the ground of illness. The provisions of Section 59 are based on purely humanitarian grounds. If the judgementdebtor is suffering from serious illness, the Court should release him so as to escape from the moral responsibility in case anything happens to him. Who cannot be arrested? The following classes of persons cannot be arrested or detained in civil prison,

(i) (ii) (iii)

A woman, Judicial officers, while going to preside in or returning from the Courts, The parties, their pleaders, mukhtars, revenue agents and recognised agents and their witnesses acting in obedience to a summons, while going to, or attending, or

(iv) (v)

returning from the Court, Members of legislative bodies; and Any person or class of persons, whose arrest according to the State Government

(vi)

might be attended with danger or inconvenience to the public. A judgement-debtor, where the decretal amount does not exceed Rs. 2000.

 

Tutorial 9: Discuss the rationale of the proviso to Section 60. Give illustration to support your contention.

A decree may also be executed on the application of the decree holder by attachment and sale or by sale without attachment of property. The code recognises the right of the decree-holder to attach the property of the judgment-debtor in execution proceeding and lays down the procedure to effect attachment. Sections 60 to 64 and Rules 41 to 57 of Order 21 deal with the attachment of property. Under Section 60 of the code, there are 9 kinds of properties which are liable to attachment and sale in execution of a decree. They are:1. Land 2. Goods 3. Cheques, bill of exchange, hundies and promissory notes 4. Houses or other buildings 5. Money and bank notes 6. Share in a corporation 7. Debts 8. Government securities, bonds and securities for money 9. All other saleable property, movable or immovable belonging to the judgment debtor or over which he can exercise for his own benefit. This Section 60 is however, not exhaustive. Object of attachment of property The primary object of the attachment of property is to give notice to the judgment-debtor not to be alienate the property to anyone as also to the general public not to purchase or in any other manner deal with the property of the judgment debtor attached in the execution proceedings. At the same time, it protects a judgment debtor by granting exemptions to certain property from attachment and sale. Proviso of Section 60 The proviso to sub-section (1) of Section 60 declares that the properties specified therein are exempt from attachment and sale in execution of a decree. The list enumerates certain property such as necessary wearing apparel cooking vessels, 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, tools of artisans, implements of husbandry, houses of agriculturists, wages, salaries pensions and gratuity, compulsory deposits, right to future maintenance etc. the exemptions listed in the proviso are cumulative and the judgment debtor may claim the benefit of more than one clause if he is qualified to do so. There was a conflict of judicial opinion as to whether a judgment-debtor can waive the benefit conferred on him by the proviso. One view was that since it was intended for the benefit of the judgment debtor he can waive it. Another view was that it was based on public policy and therefore cannot be waived by him. Rationale of proviso of Section 60 The proviso to Section 60 (1) is in the nature of an exception to the rule laid down in the main provision. It grants immunities to the properties enumerated therein declaring that they shall neither be attached nor sold. This has been done because certain items are required for the ordinary sustenance of life. For example necessary wearing apparel cannot be attached in the execution because there are certain apparels which cannot be separated from a person. Illustration Person A is having as many as 300 very expensive silk sarees, a decree of execution has been passed. Now the question arises whether these sarees can be attached in the decree of execution. The answer to this question is Yes. Because one of the main ingredient of the necessary wearing apparel is the necessity and the reasonableness of a certain item and the law has to keep a balance between the rich and the poor and has o execute the property accordingly. So, except a few reasonable number of sarees rest all can be attached in the execution. If a person is rich that doesn’t mean that he/she can keep the items as per their luxurious requirements but actually they will be keeping only those number of items which is a basic necessity. Tools of artisans can also not be attached. The term ‘tools’ occurring in section 60(1)(b) includes not only simple instruments but also complicated mechanical instruments used by artisans for purpose of their trade. Illustration

B, a goldsmith is an artisan because he is a handicraftsman who is engaged in one of the industrial arts of trade and makes a living by selling articles which he makes. Under Section 60(1)(b) the implements of husbandry of an agriculturist, his seed grains and cattle etc. cannot be attached. The object is to afford protection to the class of persons who engage themselves in the tilling of the soil and whose livelihood depends upon the proceeds derived from the tilling of the soil. It is not necessary that the person claiming the benefit of Section 60(1) of C.P.C must himself or herself actually cultivate the land, if he or she is still dependent upon the lands. Illustration The property of an agriculturist D has been executed under a decree. The son of the agriculturist D is studying in a reputed college in New Delhi. The only work of the agriculturist is the cultivation of land and this is how he earns his livelihood. Now the question arises can the minor son of the agriculturist claim a benefit under s. 60(1)(c) ? the answer is Yes because the agriculturist earns his livelihood upon the proceeds derived from the tilling of the soil and the son is dependent upon the land even if he himself is not cultivating the land so he can claim a benefit under this section. Section 60(1) (h) applies only to such labourers and domestic servants whose wages do not exceed the amount mentioned in clause (i) i.e. Rs. 400 per month. Wages include bonus and labours includes ‘skilled’, ‘unskilled’ or ‘semiskilled’ a ‘labourer’ is a person who earns his daily bread by personal manual labour or in occupations which require little or no art, skill or previous education. Illustration L a judgment debtor is a mason is residing in his own residential house. His residential house is attached in execution of a decree. Can he claim that his residential house is not liable to attachment and sale in execution of a decree? Yes, he is entitled to claim that his residential house is not liable to attachment and sale of a decree because a mason by virtue of work that he is doing can be termed as a skilled labourer and is entitled for the benefits of section 60(1) (c), read with explanation iv to proviso.

Relevant case laws

• Bindeshwari v. Banshilal In this case it was held that new bridal suit, new clothes for future purposes are necessary wearing apparel. • Khudabibi v. Collector Pressure Cooker is one of the necessary cooking vessel • Shaligram v. Sherpratap In this case Nagpur High Court held that tractor is not very important implement for the purpose of agriculture in its place even bullocks can be used. Hence, it is dispensable and can be attached in execution. To this decision even the Mp and the Madras High Court agreed. • Dwarka v. Meerut Municipality In this case Allahabad High Court held that tractors are indispensable and one of the basic implements of the agriculture and cannot be attached in execution. • Apanna v. Tangamma In this case it was held that Mangalsutra is a necessary ornament. • Ahmed Saeed v. Kanizak In this case it was held that sewing machine is a tool. • Bachubhai v. Lalita In this case it was held that even a child can be an agriculturist.

Conclusion The proviso to sub-section (1) of Section 60 declares that the properties specified therein sre exempt from attachment and sale in execution of decree. It is not open to judgment-debtor to waive the protection which section 60 C.P.C., gives him, and an agreement or compromise which has that effect is not enforceable in law and is therefore void. Protections are given to

those persons who are engaged in the cultivation and whose livelihood depends on it. The intention of the legislature is obviously to preserve and promote the efficient cultivation of the land, to encourage agriculture which is the main industry of this country. In that view of matter, there is no reason to deprive a person of the benefit and protection of this proviso. Protections under this proviso to section 60 has also been afforded to the labourers who earns his daily bread by personal manual labour so that he may not have to face any hardship. With regard to salary it is clarified that the attachable portion thereof is liable to attachment, whether before or after it is actually payable. Moreover, if any portion of attachable salary is already under attachment, for a total period of twenty four months, such portion also becomes exempt from attachment for a further period of twelve months. By the Amendment Act of 1976, new sub-section (1-A) has been inserted on the recommendation of the Law Commission. This new sub-section now specifically provides that any agreement to waive the benefit of any exemption under section 60 shall be void.

Tutorial 10: What are the essential postulates of the concept of notice under Section 80 of Civil Procedure Code?

In ordinary suits, i.e. suits between individuals and individuals, notice need not be given to the defendant by the plaintiff before filing a suit. Section 80 of the Code, however, declares that no suit shall be instituted against the Government or a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of: I.

In the case of a suit against the Central Government, except where it relates to a

II.

railway, a Secretary to that Government; In the case of a suit against the Central Government where it relates to a railway,

III.

the General Manager of that railway; In the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that

IV.

Government in that behalf; In the case of a suit against any other State Government, a Secretary to that

V.

Government or the Collector of the district; and In the case of a public officer, such public officer.

Object of Notice The primary object underlying Section 80 is to afford an opportunity to the Government or public officer to consider the legal position and to settle the claim put forward by the prospective plaintiff if the same appears to be just and proper.the legislative intention behind this section is that public money and time should not be wasted on unnecessary litigation and the Government and public Officers, should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigation. The purpose of law is advancement of justice. Essentials of Notice A notice under Section 80 should contain:I. II. III. IV.

Name, description and place of residence of the plaintiff. A statement of the cause of action. A statement of the relief claimed. Notice should have been delivered to or left at the office of the appropriate

V.

authority, and Plaint, (when the suit is instituted after the expiration of 2 months of serving notice) containing a statement that such a notice has been so delivered or left.

Failure to comply with these requirements will entail dismissal of the suit.

Statutory notice is not an empty formality. The object is to afford an opportunity to the Government or a public officer to reconsider the matter in the light of the settled legal position and take an appropriate decision in accordance with law. Such notice has, however, become an empty formality. The administration is often unresponsive and shows no courtesy even to intimate the aggrieved party why his claim is not accepted. The provisions of Section 80 are express, explicit and mandatory and admit no implications or exceptions. They are imperative in nature and must be strictly complied with. Notice under Section 80 is the first step in the litigation. No court can entertain a suit unless the notice is duly served under sub-section (1) of Section 80. If the section has done injustice, it is a matter which can be rectified by a legislature and not by a Court. In the case of State of A.P v. Gundugola Venkata,13 the Supreme Court has observed that, “the section is imperative and must undoubtedly be strictly construed; failure to serve a notice complying with the requirements of the statute will entail dismissal of the suit” In Salem Advocate Bar Association v. Union of India,14 the Supreme Court observed that Section 80(1) of the Code requires prior notice of two months to be served upon the Government as a condition for filing a suit except where there is urgency for interim order, in such case the Court may not insist on the rigid rule of the prior notice. The two months period has been provided so that the Government may examine the claim up in the notice and has sufficient time to send a suitable reply. The underlying object is to curtail the area of dispute and controversy.

Exception 1. Section 80(2) of the Code provides that a suit for obtaining an urgent or immediate relief against the Government or any Public officer in respect of any act purporting to have been done by such public officer in his official capacity may be instituted without serving any notice under Section 80. But, in such a case, the Court would not 13 AIR 1965 SC 11 at p. 15: (1964) 4SCR 945 14 AIR 2005 SC 3353

grant any relief unless the Government or the public officer, as the case may be, has been given a reasonable opportunity of showing cause in respect of the relief prayed for in the suit In Ghanshyam Dass v. Dominion of India, 15it was held that Section 80(2) provides that suit may be instituted with the leave of the Court for obtaining an “urgent or immediate relief” against the government/ public officer, without serving a notice. But in such a case, the Court shall not grant relief in the suit, except after giving to the Government/ public officer a reasonable opportunity of showing a cause in respect of the relief prayed for in the suit. However, the Courts have always deprecated such practice of granting urgent relief without issuing notice to the government. 2. Section 80(3) of the Code provides that the just claims of any person are not defeated on technical grounds merely or error in the notice or any irregularity in the service, of the notice, if the name, description and residence of the plaintiff has been so given in the notice as to enable the appropriate authority or public officer to identify the person serving the notice and the notice had been delivered or left at the office of the appropriate authority, and that the cause of action and the relief claimed have been substantially indicated in the notice. Construction of Notice The provision of Section 80 of the Code must be strictly complied with. But it cannot be overlooked that it is a procedural provision, machinery by which courts impart justice. A notice under this section, therefore, should not be construed in a pedantic manner divorced from common sense. The question has to be decided by reading the notice as a whole in a reasonable manner. If on such reading, the Court is satisfied that the plaintiff has shown to have given the necessary information which the statute requires him to give to the defendants, inconsequential defect or error is immaterial and it will not vitiate the notice. As observed by the Supreme Court, the provisions of the section are not intended to be used as traps against ignorant and illiterate persons. Illustration

15 AIR 1984 SC 1004

Where a notice under s. 80 given by the plaintiff’s father reached the concerned department of dominion of India and it was replied by not accepting the claim of the father of the plaintiff, but before instituting the suit the plaintiff’s father died, the suits by the legal heirs of the deceased without giving fresh notice under S. 80, CPC is maintainable and the notice by the deceased will ensure for the benefit of the legal heirs. Waiver of Notice Though issuance of a notice under Section 80 is mandatory and a condition precedent for the institution of a suit, the provision is merely procedural in nature and not a substantive one. It does not affect the jurisdiction of the Court. A notice under Section 80 is for the benefit of the Government or public officer to waive such benefit. The question whether, in fact, there is waiver or not would necessarily depend on the facts of each case and is liable to be tried by the same court if raised. If an amendment of plaint introduces a new cause of action then fresh notice is necessary. The right to such notice can be waived by the party for whose benefit it has been provided. This was held in the case of Bishandayal v. State of Orissa,16 Conclusion If we examine the scheme of the section it becomes obvious that the section has been enacted as a measure of public policy with the object of ensuring that before a suit is instituted against the Government or a public officer, the Government or the officer concerned is afforded an opportunity to scrutinise the claim in respect of which the suit is proposed to be filed and if it be found to be a just claim, to take immediate action and thereby avoid unnecessary litigation and save public time and money by settling the claim without driving the person who has issued the notice to institute the suit involving considerable expenditure and delay.

16 AIR 2001 SC 544 (549).