Civil Procedure Code: A Comprehensive Guide to Key Provisions

Posted on May 17, 2024 in Law & Jurisprudence

Interpleader Suits

Section 88 of Order 35 deals with interpleader suits. In most cases, the dispute is between the plaintiff and the defendant. An interpleader suit is a suit in which the real dispute is not between the defendant and the plaintiff but between the defendants only, and the plaintiff is not really interested in the subject matter of the suit. Section 88 enacts that where two or more persons claim adversely to one another the same debt, sum of money, or other property, movable or immovable, from another person who does not claim any interest in it except the charges or costs and is ready to pay or deliver it to the rightful claimant, such person may file an interpleader suit.

The following conditions must be satisfied before an interpleader suit can be instituted:

  1. There must be some debt, sum of money, or other property movable or immovable in dispute.
  2. Two or more persons must be claiming it adversely to another.
  3. The person from whom such debt, money, or property is claimed must not be claiming an interest therein other than the charges and costs, and he must be ready to pay or deliver it to the rightful claimant.
  4. There must be no suit pending in which the rights of the rival claimants can be properly decided.

Summary Procedure or Summary Suit

Order 37 deals with summary suits. Summary suits can be instituted in the high courts, city civil courts, and courts of small causes. The following classes of suits can be instituted as summary suits:

  1. Suits upon the bill of exchange, hundles, and promissory notes.
  2. Suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant with or without interest, arising:
    1. On a written contract
    2. On the enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty or
    3. On a guarantee where the claim against the principal is in respect of a debt or liquidated demand only.

For the plaintiff to proceed as a summary suit, the plaint should contain the following particulars:

  1. A specific averment to the effect that the suit is filed under Order 35.
  2. No relief which does not fall within the ambit of this order has been claimed in the plaint.

Suit to Abate Public Nuisances

Section 91 deals with suits to abate public nuisances. In the case of a public nuisance or other wrongful acts affecting the public, a suit for a declaration and injunction or for such other relief may be instituted:

  1. By an advocate general
  2. By two or more persons with the leave of the court, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.

Appeals, References, Review, and Revisions

Appeals: Sections 96-112 and Orders 41-45

1. First Appeal (Appeal from Original Decree): Sections 96-99A, 107, and Order XLI

An appeal may be defined as the judicial examination of the decision of an inferior court by a higher court.

An appeal shall lie from an original decree passed ex parte. It shall not lie from a decree passed by the court with the consent of the parties.

Conditions:

  1. The subject matter of the appeal must be a decree.
  2. The party appealing must have been adversely affected by such determination.

Forms of Appeal (Rules 1-4):

  1. An appeal must be filed in the form of a memorandum.
  2. The memorandum of appeal must contain the grounds of objections to the decree.
  3. It must be signed by the appellant or his pleader.
  4. It must be presented to the court or to such officer as it appoints in that behalf.

Powers of Appellate Court:

Section 107 and Rule 23-29 and 33 of Order 41 specify its powers:

  1. Final determination
  2. Remand
  3. Frame issues and refer them for trial
  4. Additional evidence
  5. Modification of decree

Duties of Appellate Court:

It is under a duty to decide an appeal in accordance with the law after considering the evidence as a whole. The judgment of the appellate court must clearly show that it has applied its judicial mind to the appreciation of evidence.

2. Second Appeal:

An appeal shall lie to the high court under Section 100 from every decree passed in appeal by any court subordinate to the high court if the high court is satisfied that the case involves a substantial question of law.

The following are the principles underlying Section 100:

  1. The high court must be satisfied that the case involves a substantial question of law.
  2. The memorandum of appeal must precisely state the question.
  3. The high court formulates such a question.
  4. The appeal shall be heard only on that question.
  5. The respondent can argue that the case does not involve such a question.

3. Appeal from Order Section 104 Order 43

4. Appeals to Supreme Court:

An appeal shall lie to the Supreme Court if the high court certifies:

  1. The case involves a substantial question of law of general importance
  2. The opinion of the high court on the said question needs to be decided by the Supreme Court.

Conditions:

  1. Judgment, decree, or final order are to put an end to litigation between parties
  2. A substantial question of law of general importance must have been involved in the case.
  3. Needs to be decided by the Supreme Court.

Procedure of Hearing: Within 60 days of the ground of appeal.

5. Appeal by an Indigent Person

Any person entitled to prefer an appeal and is unable to pay the court fee required for the memorandum of appeal may prefer an application to file the appeal as an indigent person.

Reference: Section 113

When a subordinate court feels some doubt about a question of law, it can refer the case for the opinion of the high court.

Conditions:

  1. There must be a pending suit or appeal.
  2. A question of law must arise
  3. The court trying the suit or appeal or executing the decree must entertain a reasonable doubt on such a question.

Review:

to look once again in legal . review is re exmination of case by the same judge at certain situation

#right to lodge a caveat: sec148a and order liv deal with the right to lodge a caveat in subordinate court in state of kerala. If a application is expect to be made in a suit or proceeding instituded or about the bill instituted in a court a person claiming the right to appear before the court on hearing such application can lodge a caveat in the court. It shall be in the form prescribed in the appendix and shall be accombinied by vakalath in the form. The person who has lodged the caveat is know as caviator. After a caveat is lodged, if a application is filed in any suit or prceeding the court shall serve a notice of application on the caviator.

#inherant powers of court: sec151. Inherant powers come to the rescue in such unforseen circumstances. They are the powers specifically conferrened on the court by the code. They can be execised in the absence of express provisons in the court. It is a power inherant in the court by the vertuie of its duties to do justice before the parties before it. Ramchand vs dhanya raj.

#mesna profit: sec2(12) it means those profits which the persons in wrongful possesion of such property actually received or might be the ordinary deligence have reveived from the property together with interest with such profits. It shall not include profits made by the improvement by the persons in wrongful possesion. Ammukutty vs vishwanatha iyer.

#legal representative: sec2(11). He is a person who in law represnts a estate of a deceased person. It includes a. Any person who intermeddles with a estate of deceased. B. if a party sues or sued in a representative charather the person on whom estate devolves on the death of party so sueing or sued. Shankarapa vs daniel.