CPC, 1908: Modes of Execution

Reading time : 10 minutes

INTRODUCTION

The expression “execution” has not been characterized in the code. The articulation “execution” signifies authorization or usage or giving any impact to the judgment passed by the court of justice. It signifies the cycle for offering impact to the judgment of the court. It is the requirement of announcements and requests by the cycle of the court, to empower the decree-holder to understand the products of the declaration. The execution is finished when the judgment-debtor or decree-holder gets cash or other thing granted to him by the judgment.

For e.g., A record a suit against B for Rs 40,000 and gets an announcement against him. Here A is the decree-holder. B is the judgment-debtor, and the measure of Rs 40,000 is the judgment-obligation or the decretal sum. Since the declaration is passed against B, he will undoubtedly pay Rs 10,000 to A. Assume disregarding the declaration, B will not compensate the decretal sum to A, and A can recuperate the said sum from B by executing the announcement through the legal cycle.

CHOICE OF MODE OF EXECUTION

There is multiple choice of mode of execution as per Section 51 of The Code of Civil Procedure, 1908 (hereinafter CPC). This section lays down the court may on the application of the decree-holder subject to such conditions and limitation as may be prescribed the court may on the application of the decree-holder order execution of the decree.

According to Section 51, the mode of execution includes-

  • By delivering of any property specifically decreed. Property may be movable or immovable.
  • By arrest and detention
  • By sale of the property with or without the attachment of the property.
  • By appointing a receiver

CRITICAL ANALYSIS OF VARIOUS MODE OF EXECUTION

  • ARREST AND DETENTION

This is one of the various modes of executing a decree which deals under Section 55 of CPC. If the decree is for payment of money, it can be executed through the detention of the judgement-debtor. A judgement-debtor can be arrested at any point in time at any day during the execution of a decree. When the arrest happens, the judgement-debtor needs to be brought before the court, as soon as possible. The rule regarding making an arrest dictates that no residence house can be entered before dawn or after dusk. The house should not be broken unless the judgement-debtor is inside the house and avoiding anyone from coming inside and also refusing to come out.

If the amount is that the judgement-debtor need to pay to the decree-holder is less than Rs. 2000, then detention cannot take place. If the decree amount is more than Rs. 2000 but less than Rs. 5000, the period of detention shall not exceed 6 weeks. If the decree amount is more than Rs. 5000, the period of detention shall not exceed 3 months.

Section 56 of CPC provides an exception to this. As per section 56 of CPC, women cannot be arrested for the execution of the decree. Minors or a legal representative of the deceased judgment-debtor cannot be arrested for a money decree either. Other exceptions include judicial officers and members of legislative bodies.  

Also read:hindu marraige act

  • ATTACHMENT OF PROPERTY

Section 60 to 64 of CPC and Rules 41 to 57 of Order 21 deals with the subject of attachment of property. The decree can be executed through the application of the decree-holder by attachment and sale. It also provides the right to attach the property of the judgement-debtor to the decree-holder during execution proceedings. As per Section 64, the private alienation of property after the attachment is void.

Section 60(1) deals with which properties are liable to attachment and which are forgiven. Any property or part of property over which the judgement-debtor can arrange for his advantage is saleable regardless of whether it is movable or immovable. Land, goods, promissory notes, bonds, debts, banknotes & cheques, government securities are the few examples of the property which can be attached.

Section 61 deals where the judgement-debtor is an agriculturist and the quantum of attachment of agricultural product depends upon the quantum of the decretal amount.
Section 63 deals with the events of two courts have connected a similar property through various decree, then the higher court will take need over the subordinate court. Regardless of whether the further attachment of the property should be possible, relies on the valuation of the said property.

  • APPOINTMENT OF THE RECEIVER

Order 11 of the CPC includes the various provisions regarding the appointment of the receiver. The receiver should be an impartial person appointed by the court. The court will also fix appropriate compensation for the services provided by the receiver. The receiver has to manage to-

  • Protect the property
  • Take the rents and profits of the property
  • Disposal of rents and profits
  • Take care concerning the execution of reports
  • Use the power which is provided by the court, as per the court’s discretion

 There are various duties of the receiver, which provided in the CPC. They comprise-

  • Providing any security requested by the court
  • Submitting of accounts, which includes the forms and time intervals at which submissions need to occur as per the directions of the court
  • The receiver is held accountable for any loss that has occurred to the property, either by his wilful default or gross negligence
  • The receiver has to pay the amount which due to him, as the court states

The court can likewise some of the time attach and sell the property of the receiver to improve the misfortune happened as a result of him and can give the excess add up to the receiver in the wake of repaying the misfortune. The Collector can likewise be selected as a receiver when the property is land that is paying income to the Government or the land, in which the income has been allotted or reclaimed, the court can choose a Collector as the receiver with their consent.

  • PARTITION

Rule 18 of the Order 20 of the CPC deals with the decree in the suit for partition of property. At the point when the court passes the declaration for a segment of any mobile or ardent property and if there is any trouble in a segment the court can pass a primer decree which divides the various privileges of the property. At the point when the decree of partition identifies with the domain surveyed to the instalment of income to the Government, the partition can be made by the Collector or whatever other gazette official who is subordinate to the Collector and the gazette official must be delegated by the actual Collector.

  • CROSS-DECREES AND CROSS-CLAIMS

The rules concerning the execution in cases of cross-decree mentioned in Rule 18 of Order 21 of the CPC. The application of cross decree can be executed by the court simultaneously when the applicants are made to the court in discrete suits for the instalment of two amounts of cash passed between similar parties in different circumstances, like, if the two sums are equivalent, at the point the fulfilment will be entered upon both decrees. There are likewise circumstances on the off chance that the two aggregates are inconsistent; at the point, it very well may be executed simply by the holder of the decree for the bigger total and for the sum which stays in the wake of deducting the lesser sum. This can’t be applied when the decree-holder in one of the suits is the judgement-debtor person in the other and each party records similar character in both the suits. E.g., if A holds a decree against B for Rs. 10,000. B holds a decree against A for the instalment of Rs. 10,000 all things considered then the decree can be executed simultaneously and can be fulfilled as the sum is equivalent.

The rules concerning the execution in cases of cross-claims mentioned in Rule 19 of Order 21 of the CPC. It is considered as a cross-claims when the application is made to the court for the execution of a decree under which two parties are qualified to recover amounts of cash from one another. There can be fulfilled when the sum is equivalent or of the sum is inconsistent executed might be just completed with the individual qualified for the higher claim. 

CONCLUSION

Order 21 of the CPC contains complex and thorough procedure for execution of decree and order, deal with the distinctive sort of circumstances and give possible cures not exclusively to the decree-holder and judgment-debtor yet additionally to the dissenters and third parties. Execution of decree is the last advance of usage and is the consequence of prosecution endeavors of the decree-holder. There are different strategies for the execution of a declaration under the CPC.  It is an obligation of the court to survey current realities of every single case and give proper help to the decree-holder immediately. The court needs to follow the procedure which is given compelled of the CPC prior to executing a decree and picking the proper mode of execution.

REFERENCES:

Author: Akshita, Chanakya National Law University, Patna.

Editor: Kanishka VaishEditor, LexLife India.

CPC, 1908: Inherent Powers of Court

Reading time : 10 minutes

Introduction

The term ‘inherent’ implies something that is continuing to exist in the form of being absolute, inseparable or essential. The inherent powers of the courts basically refer to those powers of the court, which are applied by the court to operate absolute justice between the justice seekers standing before it. It is the most significant aspect of the courts to deliver justice even in the absence of a separate or definite provision.

Important Provisions       

In context of inherent powers of the court, under this code, there are few provisions which carry great significance. Following are some of the relevant and important provisions under this code for the same:

  1. Section 148 – “Enlargement of time”
  2. Section 148A – “Right to lodge a caveat”
  3. Section 149 – “Power to make up deficiency of court-fees”
  4. Section 150 – “Transfer of business”
  5. Section 151 – “Saving of inherent powers of Court”
  6. Section 152 – “Amendment of judgments, decrees or orders”
  7. Section 153 – “General power to amend”
  8. Section 153A – “Power to amend decree or order where appeal is summarily dismissed”
  9. Section 153B – “Place of trial to be deemed to be open court”

Enlargement of Time

Enlargement of Time is mentioned in Section 148 of the Civil Procedure Code, 1908. The section states that, “Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, (not exceeding thirty days in total), even though the period originally fixed or granted may have expired”.

In easier terms, when a period is fixed for doing an act, the Court carries the power to stretch such period at a length of up to thirty days. This power is absolutely discretionary in nature.

Transfer of Business

Transfer of Business is mentioned in Section 150 of the Civil Procedure Code, 1908. The section states that, “Save as otherwise provided, where the business of any court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred”.

For example – if there are two courts – ‘Court1’ and ‘Court2’. When the business of Court 1 will get transferred to Court 2, then Court 2 will perform the same duties and exercise the same power and authority as Court1 according to the laws commanded or provided by the Code.

Payment of Court Fees

Payment of court fees or power to make up deficiency of court fees is mentioned in Section 149 of the Civil Procedure Code, 1908. The section states that, “Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance”.

Even after the expiry of the limitation period for filing of the lawsuit or appeal, this particular provision permits the Court to grant one of the concerned party to make up for the lack of court-fees due on a particular notice, appeal, etc.

End of Justice

The term end of justice is mentioned in Section 151 of the Code and was elaborated in the case of “Debendranath v. Satya Bala Daas” AIR 1950.  The judgment held that these three words are dignified words and according to jurist methodology, these are not just polite expressions.

Abuse of Process of Court

Section 151 of the Code says that, “Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ‘ends of justice’ or to prevent abuse of the process of the Court”. Abuse of the process of Court basically signifies that no act of the Court shall ever prejudice anyone or anything above anyone or anything (except according to the procedure established by the law).

The word “abuse” comes into highlight when the Court gets deviated from the ideal procedure and starts operating on a different method, for the purpose of doing an act which it is never expected to do. Such an act of the Court straightaway marks the failure of justice.


Limitations

The applicability of inherent powers of the Court certainly carries few limitations, which can be well comprehended from the following points:

  1. They can be applied only in the case, where there exists any kind of deficiency of a particular provision in the Code;
  2. They cannot be applied in cases of disputes with what has been unambiguously provided in the Code;
  3. They can be applied only in some infrequent or thin on the ground types of cases;
  4. While applying the said inherent powers, the Court is supposed to follow the procedure established by the law or the method provided by the legiature;
  5. The Courts can neither exercise jurisdiction in any manner, and nor can entrust in them by law;
  6. The Courts are supposed to abide by the very principle of Res Judicata, which implies, not to open those issues which have already been decided and concluded ultimately.
  7. The courts are supposed to pick a mediator to make an award afresh;
  8. The Courts should not forget the fact that, substantive rights of the parties can not be taken away in any case;
  9. The Courts are also supposed to make sure, to limit a party from taking proceedings in a court of law; and,
  10. To set apart such an order, that was valid at the moment of its issuance but is not valid now

Conclusion

The inherent powers of the Court under this Code are formulated in such a manner as to overcome those ambiguities which were obstructing the path of providing justice in some way or the other. Though, as we can understand that these powers are existing with certain limitations, but still the intention behind the application of these powers is evident enough i.e. to be absolutely impartial in delivering justice and in performing the duties as laid down in the procedure established by law and the method of operation as given by the legislature.

Author: Amrisha Dwivedi

Editor: Kanishka VaishEditor, LexLife India.

CPC, 1908: Appointment of Receiver

Reading time : 10 minutes

INTRODUCTION

A receiver plays an important role in helping the court in civil cases. The Receiver is known to be a court officer who supports the court before the court determines the case, to protect and maintain the subject matter of the suit. The court sometimes assumes that it is in the best interest of all parties to nominate a recipient to be responsible for the management of the subject. Movable or immovable property is usually the subject matter.

Just as a wise man takes care of his own personal property, the receiver is responsible for taking care of another’s property. He should obey the court’s instructions and failure to do so will make the court attach his property to recover the sum that is due to him.

WHO IS A RECEIVER?

The Receiver is an independent and impartial person under order 40 of the Civil Procedure Code, 1908 who is appointed by the court to administer, that is, to safeguard and maintain the disputed property involved in a lawsuit. He is not a representative of either of the parties to the action and is uniformly regarded as a court officer working in the interests of neither the plaintiff nor the defendant, but for the common purpose of the court and benefit of all parties involved.

OBJECTIVE OF APPOINTMENT OF RECEIVER

When a party in possession of the disputed property exhausts the property or causes irreparable damage to it, because the subject matter ceases to exist or its value is impacted, the entire object of the suit is defeated. Therefore, if the court considers that the disputed property must not be delegated to either party, pendente lite, the court shall designate a recipient to whom the security and maintenance of that property is entrusted. It is a form of temporary security given by the court to the parties making the request before the court adjudicates the matter.

ROLE OF A RECEIVER

The Receiver is regarded as a court officer and is the court’s extension. He is responsible for receiving disputed property or money provided by the court and managing such property or money until a decree is passed or the parties have compromised, or any other period considered appropriate by the court. Custodia legis, i.e. in the custody of the law, is considered to be the property or fund entrusted to the receiver. The Receiver has no authority other than what is entrusted to him during his appointment by the court.

APPOINTMENT OF RECEIVER

According to the Code of Civil Procedure, if it appears fair and convenient for the court to appoint such a recipient [section 51(d)], the court before whom the proceedings are pending may appoint the recipient. It is within the court’s discretionary authority to appoint the receiver. In a suit, for instance, a receiver can be appointed by the trial court. Whereas the appeal court can appoint a receiver. However, there is no absolute, arbitrary, or unregulated discretion. The phrase “just and convenient” does not mean that the appointment is based on the judge’s whims and fancies on any ground that stands against equity.

WHO CAN APPLY FOR RECEIVER?

the request for the appointment of a receiver is made by a claimant, but defendants may also file such an application. A third party is not authorized to file an application, but if he is involved in protecting and maintaining the land, he can also file an application after having secured the court’s permission.

PROCESS OF APPOINTMENT

Before naming a receiver, the Court must keep the following principles in mind:

  1. A receiver’s appointment is a discretionary power.
  2. To the complainant, it is a defensive relief. The aim is to safeguard and retain the disputed property until the court is awaiting the suit.
  3. Unless the plaintiff shows prima facie that he has a good argument against the defendant and it is more than probable that he will prevail in the action, a receiver should not be named.
  4. One of the most challenging remedies is the appointment of a receiver since it deprives the defendant of his right of ownership before the final decree. The court should not, therefore, appeal to it solely on the ground that it would do no harm. There should be strong concern that if the appointment of a recipient is postponed, there is a risk to the property, or the complainant will be in a worse position.
  5. And where there is a risk of mistake or injury should the court assign a recipient. It is also shown that the subject-matter is not in the hands of either party and that it is in the best interest of all parties to appoint a receiver to secure and retain the properties.
  6. The court should look at the actions of the party making the motion for a receiver’s appointment. The group should come to the court with clean hands and their actions should be such that this equal relief is not disenfranchised.

The process of appointment of receiver is:

The process of appointment of a receiver is provided by the courts in their individual court rules.

  1. Application for appointment shall be created in writing and shall be supported by official document.
  2. Receiver aside from the official receiver has got to provide security.
  3. The security is to lean to the satisfaction of the registrar.
  4. He has got to offer personal bonds with the amount of surety needed by the registrar the non-public bond are going to be double the number of annual rental worth of the property or the full worth of the property that the receiver goes to administer.
  5. Within per week of appointment, the receiver can ought to submit a report providing the main points relating to the property like inventory of property or books of account etc.
  6. The registrar can provide directions on wherever to speculate the cash received by the receiver from the property. Generally, such cash is submitted in scheduled banks or government bonds.

POWERS AND DUTIES OF A RECEIVER:

Powers:

Under order forty rule 1(d) powers of the receiver are provided as following:

  1. Collection of rents and profits arising out of the property.
  2. Application and disposal of such rents and profits.
  3. Execution of documents because the owner himself.
  4. To institute and defend the suit.
  5. Such powers because the court could reckon match.

Duties:

Under order forty rule (3), duties of a receiver area unit provided as follows:

  1. Furnish security to account for what he can receive from the property as financial gain.
  2. Submit accounts (half yearly) for such amount or kind as directed by the court. The account essentially includes the financial gain received and expenses incurred for the protection and preservation of the property.
  3. Pay the quantity thanks to the court.
  4. Take responsibility for any reduction within the price of the property attributable to the receiver’s willful negligence.
  5. Discharge the duties in person and may not delegate or assign any of the rights entrusted to him by the court.

The receiver needs to fulfill all the duties and responsibilities entrusted to him by the court. Otherwise, the court will act against him and create him in person answerable for any loss which could occur thanks to his negligence or willful failure to shield and preserve the property.

CONCLUSION

Thus, the receiver plays a crucial role whenever the court needs the receiver to manage the topic matter during a suit to safeguard and preserve it until the time, the court decrees the suit. The receiver is an official of the courts and therefore the material managed by him is in custody of the law. The court appoints a receiver once the court is of the opinion that neither of the party ought to manage the property until the time the matter is set. somebody will become a receiver provided they fulfil the wants set by the court. Courts have unconditional bound powers and responsibilities on the receiver that he ought to use to manage the property within the best manner potential. The receiver ought to watch out whereas creating a crucial call associated with the topic matter as he is in person chargeable for any harm thereto. He will ask for the permission of the court before creating such selections to be safe.

Author: Mythri Murali

Editor: Kanishka VaishEditor, LexLife India.

CPC, 1908: First Appeal

Reading time : 5 minutes

Introduction:

It is said that everyone deserves a second chance. In the very same manner, the Indian Judicial system also believes in the same after a judgement has been pronounced. This is done in the form of ‘Appeals’. Through this article, the readers would be able to understand the basics of the Appeal and the other revolving factors when it comes to the aggrieved party who isn’t satisfied by the decision pronounced.

What is an ‘Appeal’?

Appeal is a statutory right of an aggrieved person against any kind of decision passed by an inferior court in its due course of exercise of justice. It could also be termed as a remedial concept determined as an individual’s right to seek justice against an unjust decree/order via referring it to a Superior Court. Ironically, the term ‘appeal’ hasn’t been defined anywhere under Code of Civil Procedure (CPC). However, The Black’s Law Dictionary, while construing the concept of ‘appeal’ in its most original and natural sense, explains it as “the complaint to a superior court for an injustice done or error committed by an inferior one, whose judgment or decision the Court above is called upon to correct or reverse.[1]

The concept of Appeal is however covered under Section- 96 to 99A; 107 to 108 and Order – 41 of the Code of Civil Procedure, 1908 with appeals from original decrees known as first appeals and shall be thrown more light in the later part of the article. 

What are the essentials of appeal?

Since we have now understood the concept of appeal in very basic terms. However, it is of prime importance that the readers understand about the requisites of an appeal. Now as we have already established that an appeal is any kind of remedial action that has been undertaken by a higher court, where it agrees to consider the decision made by the court lower to it on the basis of facts and law(s) and then modify, reverse or confirm the decisions taken by the lower court and issue a fresh set of guidelines if the order has been reversed/modified. Now in order for these three things to happen, the three essentials are as follows:

  1. A decree passed by a judicial/administrative authority;
  2. An aggrieved person, not necessarily a party to the original proceeding; and
  3. A reviewing body instituted for the purposes of entertaining such appeals.

Right to/of Appeal:

Now when we talk about the Right of/to appeal, it is not that anyone and everyone could go and file an appeal, prima facie. However, this right has been granted only to the party aggrieved by the decision of the court or them who have a direct and adverse effect on them with respect to the judgement pronounced.  

In addition, an actual case or controversy must exist at the time of review. Issues that have become moot while the appeal is pending and cases that have been settled during that time are not reviewable.[2] The statutory nature of an appeal implies that it has to be specifically conferred by a statute along with the operative appellate machinery as opposed to the right to institute a suit, which is an inherent right. It is substantive in the sense that it has to be taken prospectively unless provided otherwise by any statute. This right could be waived off via an agreement, and if a party accepts the benefits under a decree, it can be estopped from challenging its legality. However, an appeal accrues to the law as found on the date of the institution of the original suit.[3]

One Right to/of Appeal:

It isn’t much of a mammoth task to understand the sub heading when it comes after the explanation of Right to Appeal. It has been clearly laid down under Section 96 of the Code of Civil Procedure, 1908, Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Cause, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees.

Difference between Suit and Appeal:

When the common mass talks about appeal, they often confuse appeal with suit. They almost treat them as if they are synonymous terms. However, suit and appeal are two different concepts altogether. Let us differentiate between them on two clear points:

The first point of differentiation being the cause or the action which led the common man towards this direction. In its primary sense, a suit is created when there is a cause and there are certain disputed issues on the basis of the law prevailing in the certain place. However, when we talk about appeal, an appeal is made if any party from the suit is not satisfied with the judgement pronounced by the court, more or less being the review of the suit and it connects the suit to the appeal. Hence, a suit creates a cause but an appeal doesn’t.

The second point of differentiation being the place of filing. A suit is filed in the lowest court in the respective hierarchy for the purpose of trial. However an appeal is filed in an appellate Court for the purpose of reviewing the decision(s) of the  inferior Court.

Who may Appeal?

1. Any party to the suit, who is adversely affected by the decree or the transferee of interest of such party has been adversely affected by the decree provided his name was entered into record of suit.

2. An auction purchaser from an order in execution of a decree to set aside the same on the grounds of fraud.

3. Any person who is bound by the decree and decree would operate res judicata against him.[4]

Landmark Case Laws:

Some landmark case laws are:

  1. Sadhu Singh v. Dharam Dev, 1981.
  2. State of Bombay v. Supreme General Films and Exchange, 1960.
  3. Delhi Cloth and General Mills v. IT Commissioner, 1927.
  4. Kaleidoscope India Pvt. Ltd. v. Phoolan Devi, 1995.
  5. Veeraya v. Subbia Chaudhary, 1957.

Conclusion:

To conclude with, it won’t be wrong to say that the readers got the slight idea of the Appeal system and how the system of appeal differs from the system of suits. Now when we come to an end of it, it is important for the people to understand the hierarchy of the filing of the appeal and then proceeding ahead, accordingly.


[1] First Appeals under Code of Civil Procedure 1908, Mariya Paliwala, 17th January 2020

[2] https://legal-dictionary.thefreedictionary.com/Right+to+Appeal#:~:text=An%20appeal%20may%20be%20granted,certiorari%20by%20the%20Supreme%20Court.

[3] First Appeals under Code of Civil Procedure 1908, Mariya Paliwala, 17th January 2020

[4] http://www.legalserviceindia.com/article/l63-Appeals.html

Author: Abeer Tiwari

Editor: Kanishka Vaish, Editor, LexLife India.

Res Judicata under Section 11 of CPC ,1908

Reading time : 8 minutes

Introduction: Origin of Res Judicata

Res Judicata is enshrined under Section 11 of CPC,1908. The historical expedition of Res Judicata is quite intriguing and fascinating. At the outset, the Latin maxim was “Res Judicata pro veritate occipitur” and subsequently dwindled to “Res Judicata” over the years. English common law gave birth to Res Judicata, which was extracted through the overriding notion of consistency and Judicial economy and finality. From Common law, it expanded its roots in Code of Civil procedure (CPC),1908 which was eventually included in Indian Legal System. From CPC the doctrine also came into existence in the Administrative law and gradually it trudged towards other acts and statutes and they also embraced the Doctrine of Res Judicata. Under Roman Law, the defendant can successfully challenge a suit by the plaintiff via “ex capito res judicata” which means that “one decision and one suit is enough for any lone dispute”. 

Res Judicata is based on 3 Roman maxims:

  1. Interest republicae ut sit finis litium means it is in the best interest of the state that at some stage there should be an end to litigation.
  2. Namo debet lis vaxari pro eaderm causa means no person should be harassed for the same cause twice. 
  3. Re judicata pro veritate occipitur which means thatJudicial decision must be accepted as correct.

In Ancient Hindu Law and Muslim law, Res Judicata was known as Purva Nyaya which means former judgment.

Principle of Res Judicata

The principle of res judicata calls to fortify impartial administration of justice and honesty and to intercept the law from exploited. The principle of res judicata is applied when a litigant attempt to file a another subsequent lawsuit on the same matter, after receiveing a judgment in a previous case which has same parties. In numerous jurisdictions, this applies not only to specific concerned claims made during the first case but also to claims that could have been made during the same case.

Essentials of Res Judicata

Essentials of Res Judicata are as follows:

  1. A Judicial decision by competent court or tribunal,
  2. binding and final and
  3. Any Judicial decision based on merits.
  4. A fair chance of hearing
  5. Irrespective of whether the earlier decision was right or wrong is irrelevant.

Doctrine of Res Judicata

The Doctrine of Res Judicata comes under the ambit of Section 11 of CPC and it is also called as “rule of conclusiveness of judgment”. This Doctrine has been elaborated in the case of Satyadhyan Ghosal v. Deorajin Debi. In this case landlords made an appeal who obtained a decree for ejectment against the tenants named Deorajin Debi’s minor son and Deorajin Debi. However, the landlords were not able to get the possession in place soon after the decree was obtained. Then an application was made by tenant under the ambit of Section 28 of the Calcutta Thika Tenancy Act and allegedly claimed that they were Thika tenants. This application was combated by the landlords saying they did not fall under the cadre of Thika Tenants which is defined under the act. 

The tenants moved to the Calcutta High Court under CPC (Code of Civil Procedure). The court stuck to the principle of Res Judicata to achieve the decisiveness in litigation. The result came that the original court, and the higher court, can proceed with any future litigation on the basis that the foregoing decision was correct. 

Res Judicata and Res Subjudice

The doctrine of res judicata and res subjudice are distinct from each other –

  1.  Res subjudice applicable where no decision has been taken over a matter or when a matter that is pending trial whereas res judicata applicable to a matter arbitrated or adjudicated.
  2. Res subjudice forbids the trial of an undecided decision in a previous suit. In contrast, on the other hand, res judicata forbids the trial of a suit that has been pronounced in a former suit.

Res Judicata and Lis pendens

There is a difference between Les pendens and Res Judicata. Res judicata is applicable on more actions than one, on the other hand the doctrine of Lis pendens is applicable with the same suit during the pendency of which there is an alienation of the right, title and interest of one of the parties thereto.

Res Judicata and Stare Decisis

Res judicata means that the case has been decided already or a matter settled by a judgment or decision. Stare decisis, and Res Judicata are both related to the matters of arbitration(adjudication). Stare decisis lays its emphasis on legal principles, whereas res judicata emphasises on the judgment’s conclusiveness. Res judicata binds the parties whereas stare decisis sets off between strangers and bins the courts to take a contradictory view on the law that has been decided already. Stare decisis is more about legal principles whereas res judicata is related to controversy.

Waiver

Decree of Res Judicata is an appeal which party must waive. If a party doesn’t raise the appeal of res judicata, then the matter will be decided against him. An opposite party has to make the court aware of the adjudication of the matter in the previous suit. If the party fails to do so, then the matter is decided against him.

Conclusion

The Doctrine of Res Judicata can be apprehended as something that restricts either party to “move the clock back” during the proceedings’ pendency. The extent of res judicata is vast and includes many things that even include Public Interest Litigation. This doctrine can be applied outside the ambit of the Code of Civil Procedure and covers many areas related to people and society. The extend and the scope have broadened with the time and the Supreme Court has elongated the areas with its judgments.

Authors: Archit Singhvi

Editor: Kanishka Vaish, Editor, LexLife India.

Code of Civil Procedure, 1908: Place of Suing

Reading time : 8 minutes

Introduction

“Ubi Jus Ibi Remedium” which illustrates that where there is right there is a remedy.

A basic principle of the English law that has been adopted and made into the force by the Indian law. It implies that whenever a person’s personal rights have been violated or impeded or the person is prevented by the others from accessing the rights so pledged to him, some judicial tribunal must have the jurisdiction to adjudicate on the dispute and, as per the case, the rights so pledged should be reinstated or compensated. In order to recover the rights or claim damages or impairment sustained, the individual must approach the appropriate forum that does have the jurisdiction to adjudicate on the matter and grant the remedy requested. So, to deal with that matter, the forum should have jurisdiction. Jurisdiction typically indicates the jurisdiction or authority of the court of law to hear and evaluate a cause or an issue. In other phrases, jurisdiction implies the authority that a court should decide the matter before it or take cognizance of the matters submitted for its judgment in a formal manner.

“That before a court can indeed be held to only have jurisdiction to determine a particular issue it not only must have jurisdiction to try the suit brought but also must have the authority to implement the order pursued for.

Jurisdiction

Jurisdiction may be classified as the threshold of a judicial authority or the degree to which a court of law may take precedence over proceedings, lawsuits, appeals, etc.

According to Black Law’s dictionary, Jurisdiction means; “The competence of the court to decide on a dispute or issue a decree.”

In the “Hriday Nath Roy v. Ram Chandra” case, A Calcutta High Court judgement in 1921 sought to interpret the comprehension of the term ‘jurisdiction in meticulous detail.’ The Bench specified;

“A study of the cases in the books reveals several attempts to clarify the word ‘jurisdiction,’ defined as ‘the capacity to investigate and analyze substantive and procedural issues;’ the authority under which three judicial officers interpret and decide the purpose;’ the ability to hear and settle a legal dispute; The ability to hear and evaluate the subject-matter of the dispute between the parties to a lawsuit and to adjudicate or exercise certain judicial authority over them;’ the authority to hear, decide and impose a judgement on the issues before the Court;’ the authority or authority conferred on a Court by the Legislature to recognize and enforce cases between the parties and to make the judgments essential.”

Kind of Jurisdiction and place of suing (Sec 15-20)

Basically, there are three different types of jurisdictions on the grounds of which the place of prosecution may be established. These are,

  1. Pecuniary Jurisdiction
  2. Territorial Jurisdiction
  3. Subject-matter Jurisdiction

If the matter posted before the court by the litigant for proceedings, and the court has all of these (pecuniary, territorial and Subject-Matter) jurisdiction, only then that tribunal can prosecute the litigants’ disputes so presented. In the event that the court does not have any of the jurisdiction alluded to above and proceeds to try the suit, depending on the circumstances, it can either be considered an irregular exercise of jurisdiction or a lack of jurisdiction that could make the judgement invalid or voidable. 

Pecuniary Jurisdiction – Section 15

Pecuniary indicates ‘money-related’. Pecuniary jurisdiction seeks to decide whether a court of law can pursue the monetary value/amount of the case or complaint in dispute in cases and lawsuits. The code requires the case to be analyzed until the value of the suit reaches the court’s financial cap.

Now, the main question is, who should ascertain the valuation of the suit for the purpose of assessing the pecuniary jurisdiction of the court. In particular, it is the valuation done by the plaintiff is presumed for the purpose of assessing the pecuniary jurisdiction of the court, unless the court since the very face of the suit find it erroneous. Therefore, if the court determines that the evaluation performed by the plaintiff is not reliable, that is either undervalued or overvalued, the court will conduct the assessment and guide the party to approach the appropriate venue.

So, prima facie, it really is the valuation of the plaintiff in the complaint that decides the court’s jurisdiction and not the amount for which a decree may eventually be issued. Therefore, if the lowest grade court’s pecuniary jurisdiction is, assume, Rs.10, 000/- and the plaintiff filed a lawsuit for accounts wherein the plaintiff’s valuation of the suit it is within the court’s pecuniary jurisdiction, but the latter court finds that Rs.15, 000/- is due on taking the transactions, the court is not stripped of all its jurisdiction to pass a ruling for that sum.

Usually, in the lawsuit, a court may recognize a valuation of the plaintiff and proceed to determine the dispute on the merits on that basis, but that does not guarantee that the plaintiff is free to attach any arbitrary value to the complaint in all cases and to choose the court in which he wishes to file the complaint.

If it indicates to the court that, in order to escape the jurisdiction of the proper court, the valuation is wrongly rendered in the complaint, the court may require the plaintiff to show that the assessment is legitimate.

Case Law:

Kiran Singh and Others vs Chaman Paswan and Others (1954 AIR 340, 1955 SCR 117)

In the subordinate court, the plaintiff filed a petition comprising an amount of Rs 2950, but the court refused the lawsuit. Later, the High Court permitted his next appeal, but it directed him to pay the full amount of the deficit. The appellant challenged the dereliction of the district court’s ruling, but the High Court discarded the lawsuit. The Supreme Court later upheld the High Court’s decision to declare that the district court’s decision would not have been void.

Territorial Jurisdiction – Section 16-20

The geographical limits of a court’s authority are clearly demarcated and defined within this territorial or local jurisdiction. Beyond that geographical/territorial cap, it does not exercise authority. For instance, if a certain crime is committed in Madhya Pradesh, the case can be heard and resolved only by the courts of law within the boundaries of Madhya Pradesh.

Section – 16: Subject to the pecuniary or other restrictions prescribed by any statute, suits—suits to be initiated where the subject-matter bundles

(a) For the recovery of real estate both with and without rent or benefit,

(b) In respect of an immovable property division,

(c) For foreclosure, sale or reimbursement in the case of an immovable property mortgage or fee,

(d) For every other right to or interest in immovable property to be determined,

(e) For remuneration for immovable property misconduct,

(f) For the retrieval of movable property allegedly under distraction or intrusion, within the local limits within which jurisdiction the property is situated, the Court shall establish:

Provided that a lawsuit to obtain relief respecting, or compensation for, immovable property maintained by or on behalf of the respondent, may be instituted in either the Court inside the local limits of whose jurisdiction the property is situated, where the relief pursued can be fully obtained through his personal subservience, Or within the territorial limits in which jurisdiction the defendant currently and willingly lives, or carries on business, or operates for profit directly, in the Case.

Section – 17: Immovable property suits fall under the jurisdiction of multiple courts.

Where a lawsuit seeks relief from, or reimbursement for, immovable property situated within the jurisdiction of a separate Court, the lawsuit can be brought to any Court within the local limits of the jurisdiction of which any proportion of the property is stationed:

Provided that, as regards the importance of the subject-matter of the suit, the Court is aware of the entire allegation.

Case Law:

Harshad Chiman Lal Modi vs Dlf Universal & Anr (Appeal (civil) 2726 of 2000)

Section 16 was interpreted by the court as implying that the immovable property claim should be brought before the court. The court does not even have the authority to assess the rights of properties that are not located. However, if the opposing party agrees to try the suit in such a situation, the court will still pass a remedy.

Subject – Matter Jurisdiction

The subject matter can be portrayed as a court’s authority to comprehend and try cases relating to a particular category of subject matter. This implies, in other words, that some courts are prohibited from hearing cases of a certain essence.

Different courts were empowered to determine various types of lawsuits. There is no jurisdiction for certain courts to attract certain suits. For instance, a Court of Civil Judge cannot accommodate testamentary succession, divorce cases, probate proceedings, insolvency matters, etc. (Junior Division). In terms of subject matter, this is labelled jurisdiction.

Objection as to Jurisdiction – Section 21

  1. No challenge as to the position of proceedings shall be raised by any appeal or by the Revisional Court until such objection has been raised at the earliest opportunity by the Court of First Instance and in all cases where, at or before such settlement, proceedings have been raised or resolved and unless there has been a corresponding miscarriage of justice.
  2. No objection as to the jurisdiction of a Court of Appeal with respect to the pecuniary limits of its jurisdiction shall be presented by any Appellate or Revisional Court until such objection has been posed at the earliest possible opportunity in the Court of First Instance, except in all cases where matters have been concluded, at or before such conclusion, and unless there has been a corresponding miscarriage of justice.
  3. Any Appellate or Revisional Court shall not raise an exception as to the legitimacy of the executing Court with respect to the local limits of its jurisdiction, until such an opposition has been raised as early as possible by the executing Court and unless there has been a corresponding failure of justice.

It is a simple law that nullity is a decree of a tribunal without jurisdiction. Halsbury stated rightly;

“Where a court is without jurisdiction to take any particular action or substance because of some kind of restrictions imposed by the statute, charter or commission, although neither acquiesce nor even the express approval of the parties may bestow jurisdiction on the court or it may consent to the jurisdiction of the court if a requirement that lines the inner surface of the jurisdiction has not been accomplished or achieved.”

Case Law:Kiran Singh V. Chaman Paswan, (AIR 1954 SC 340)

This does not refer, however, to territorial or monetary authority. Where an error in the exercise of jurisdiction with regard to pecuniary or territorial jurisdiction is committed by the court, the judgement so rendered shall not be invalid and shall be treated as an irregular exercise of jurisdiction. No doubt, the party has the right to raise the question, but the same cannot be raised at all at the appeal stage at the earliest possible time and until the court has continued with the case and issued the decision. As observed in this particular case.

Case Law:Kiran Singh V. Chaman Paswan, (AIR 1954 SC 340)

This does not refer, however, to territorial or monetary authority. Where an error in the exercise of jurisdiction with regard to pecuniary or territorial jurisdiction is committed by the court, the judgement so rendered shall not be invalid and shall be treated as an irregular exercise of jurisdiction. No doubt, the party has the right to raise the question, but the same cannot be raised at all at the appeal stage at the earliest possible time and until the court has continued with the case and issued the decision. As observed in this particular case.

Conclusion

The notion of the place of suing is very essential as it helps to establish the jurisdiction of each court. This allows the plaintiff to file a complaint. It saves the court’s time in deciding the court’s jurisdiction. The civil court is competent to investigate whether the court and quasi-judicial or legal executive bodies have acted within their jurisdiction. It can be presumed that section 9 deals essentially with the problem of the jurisdiction of the civil court to consider a matter. The civil court has jurisdiction to consider a civil lawsuit, except where the notification is explicitly prohibited or banned by substantial action.

Author : Avnip Sharma

Editor: Kanishka Vaish, Editor, LexLife India.

Intellectual Property Law regarding Quia Timet Injunctions

Reading time: 8 minutes.

 “A stitch in time saves nine.”

As the Black’s Law Dictionary goes to define an injunction; it can be understood as nothing but a prohibitive writ issued by the court asking a defendant or his servants or agents or any other person so authorised, to either do or not to do a certain act which is unjust and inequitable and whose happening/ non-happening might result as injurious for the plaintiff.

Indian jurisdiction recognizes injunction in the simplest of it forms which can be classified as:

  1. Temporary injunction
  2. Permanent/ Perpetual injunction

Temporary injunction has been discussed under Section 94 and 95 read along with Order XXXIX of the Code of Civil Procedure (“CPC”). Similarly, permanent injunction has been covered under Sections 37 and 38 of the Specific Relief Act, 1963.

One such unique kind of injunction is the Quia timet injunction which literally translates to, ‘because he fears.’ This simply means that the plaintiff files such an injunction in the court of law because he fears that the defendant might in future cause some harm and infringe his rights. Hence, in such a case the Court is required to first assess whether or not a cause of action has arisen in favour of the Plaintiff, and then go ahead with deciding the injunctive relief. Quia timet injunction is in the nature of a permanent injunction. For instance, in intellectual property rights, the defendant is prevented from launching such a product or service till the time the term of the Plaintiff’s patent expires.

Also read: IPR Laws in India

Gee explains the jargon as: a quia timet injunction is the one where no kind of an actionable wrong has taken place and such an injunction is awarded in order to prevent the very occurrence of an actionable wrong, or to prevent repetition of an actionable wrong. In a landmark 2012 English case a quia timet injunction was granted as the Plaintiff had brought up an action for the removal of trees even though no actual damage had occurred. As the facts of the case made it pretty evident that upon the growth of the roots of the tree, the property would face huge loss, therefore the roots needed to be removed.

Pearson J. held that there are two ingredients that need to be fulfilled for a Quia timet injunction to be granted:

  1. In case no actual damage has been proved, then the proof of imminent and substantial danger needs to be established; and
  2. The damage must be shown to be irreparable, because if that is not done then the Court shall have no reason to believe that delay in remedy might lead to any damage to the plaintiff.  

Pearson J. concluded by saying that the damage should be of such a nature that it would become impossible for the Plaintiff to protect himself from the damage that might occur in future.

There are a variety of factors which ought to be considered while assessing the first essential:

  • What actions, if any were taken by the Plaintiff to ensure that the infringement does not take place;
  •  Whether or not the attitude of the defendant points to the fact that he might commit such an infringement; whether adequate steps have been taken to prevent the action despite which a certain degree of threat persists and most importantly whether awarding of interim injunction along with the damages would be an effective remedy equivalent to the anticipated harm.
  • The duration between the application for relief and the threatened infringement may be relevant;
  • Where the acts leading to future damage have already been committed, it is to be considered whether it is possible that the defendant’s intentions were less significant than the natural and probable consequences of their act.

Indian courts and quia timet injunction

Indian courts have over the years accepted the application of quia timet injunction and borrowed understanding of the principle from various English judgements. However, they still remain sceptical while granting the same to the Plaintiffs, fearful of the fact that the Plaintiffs don’t always approach the Courts with clean hands. Quia timet injunctions have primarily been granted in intellectual property matters especially trademark and patent.

So far, Indian courts have not had a systematic approach in determining the exact standard for establishing the proof of imminent danger before awarding a quia timet injunction. It has been observed that quia timet actions in India came into the lime light after the denial of interim reliefs based on application of equitable factors like those of irreparable damage or presence of public interest.

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Conclusion

From the above parameters it can be deduced that there doesn’t exist any straight jacket formulae for determining what can amount to proof of imminent danger in a patent case. Mere indicators such as regulatory approvals, marketing approvals, and silence on launch plans by generic or mere allegations of clinical trials cannot be sufficient to prove the presence of imminent danger. The rationale that trademarks do not have an expiry period makes it easy for us to conclude that even in trademark matters the degree of threat of future damage instances can be ascertained conclusively, as the Defendant would clearly have no intention of waiting. As we all know, with great power comes greater responsibility; which is what the judicial system in India needs to realise for this particular principle of law.

Before granting a quia timet injunction it is the Author’s firm belief, that the Courts need to have a standard test for determining the imminent threat in future and restrict its application before they are highly misused. Having said that, we cannot undermine the reasonableness the Courts have adopted until now to grant a quia timet injunctions, considering the newness of this concept to the Indian courts. Primarily pharmaceutical companies are the one’s approaching Courts with a quia timet action suit, for instance Novartis was awarded the injunction successfully against Bajaj healthcare, Cadila healthcare, Alembic Pharmaceutical’s and Glenmark Generics.  

Authors: Stuti Mandhotra, student of School of Law, UPES, Dehradun and Advocate Avijit Sharma.

Editor: Astha Garg, Junior Editor, LexLife India.