The Code Of Civil Procedure,1908

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Law Commission Report

The Code Of Civil Procedure,1908

LAW COMMISSION % 01: INDIA

FIFTY-FOURTH ' REPORT

«ON '

THE CODE OF CIVIL
PROCEDURE, 1908

FEBRULAIWI Iefrzs

no. No. F.2(l)f'J='l--L.C..

P. B. GAJENDRAGADKAR

CHAIRMAN

LAW COMMISSION
Shastri Bhamm
New Delhi--1 10001
February 5, 1973

My dear Minister,

1 am forwarding herewith the Fifty-fourth Report of the Law
Commission on the Code of Civil Procedure, 1908. The circum-
stances in which the subject was taken up by the Commission and
the procedure adopted by it are ﬂesqribed in the ﬁrst few para-
graphs of the Report. T

With kind regards,

Yours sincerely,'

I-Ion'ble Shri H. R. Gokhale,
Minister of Law 3:: justice, '
Government of India.

Shastri Bhavan,

New Delhi.

L;3{n)229uo£LJ.u§3A--2{a;

B. GAJENDRAGADKAR'

UUNIENTH

Chapter l.----Intt0du0t0ry

Chapter 1-A-Main Objectives of the Reform . . " . .
I

Chapter 1-B----Ou.r apprmwh and principal rectlnmendations . .

Chapter 1-U----Extent of and application of the Gudh and dther pmliminmjry
mattem . . . . . . . . . . . .

Chapter 1-D«~4Suita in general. .

Chapter I-'E--Exe«:ution . . . . . . . . . .
Chapter I-F--«I.unid.eI.Lt&1Proceedinga

Chapter LG----Suits in pwrticular cases . .

Chapter 1-Hmspeoial proceedings

Chapter l-I---Supp1umenta.] proceedings . . . . . .. __
Chapter I-J-r-Appeals---.F1'.rBt and wound appeals I

Chapter 1-K--Appea.ls---Miscellaneous . . . . , . _ ,
Ghaptar 1-L----Reﬁare:me, Review ﬁnd. R_aevisi-um .. i - .. ..

Uhapter 1-M---Special provisions 1!E1.Btui]£g to beingthe Gnurt

of :4. Judicial Uommia-sioncr

:,s_;..

Gha-pterl-N---u-Rulea'.. .- .. _ .. .. .. ..
I Chapter 1-0--M".iacal1a.nenua . . . . . .- . . I . . _ ,

Chapter 1-I'--Parties to & suit _ . . -

Chapter 2-HFram:Le of the suit .. . . 7. i . . . . . ,

Qhapter 3----Recognised Agents and Plaadera . . r -. . . .

Uhaptér -1---Iustityution of suits . . i. . ' A . . . . . .

Chapter 5----Isaue and service of summers -

Ghrpter E----Pleadings

Ghapter '7-----Pla.i.t1_'t . .' . . __ . . ' . . . . . . . .

Chapter S---W'I'itten statement and act-UH . . . . . . I

.. i
Chapter 9-Appearance of parties and éonaeqnajcei non-appegranue
. E = I
Chapter 10---Exa.mina.tion of parties by the Court: . . . . . _
. r . I ;

Uhapter 11----Discovery and inspeution .. . . . . . .

I Chapter 12-Admissions . . . . _ .. ; . . . . . .

Pun:

17
13

35.

'10!)
114
1-19
120
122
I23
125
125
__I32
lat:
I41-1
1-L'?
1&5

-PAGES
Chapter 13-Pmduction of Documents ' . . . . . . - - 14:5
Chapter 14---Is31:e.3 . . . . . . . . . . . . . . 1:13
Chapter I6-----D1'sp0a.a1 of the suit at the hgn.11'.n,g .. . . . . 150
Chapter 16-S'u.m.mon1'.ug and attendance of nrtneaaas . . . . . . 151
Chapter 17--Adiournments . , . . . . . . . . . . . 157
Chapter 13--Hearing of the suit and exaninatpi-on of witnesses . . . . 160
Ghnptar 19--.-kﬂidavit-s . . . . . . . . . . . . 16-!
Chapter 20~--Judgm.ent. and Dental: . . . . . . . . .._ 185
Uhapter 21»-Execution .. . . .. f .. . . . . 1'73
Chapter 22._-Death, marriage and insolvency rug parties . . . . . . 123
Chapter 23----Withr1rawa.1 and. adjlit-ment nf suits . . . . . . .' :19_9
Uhapt-er 2-'L--Pa.yment into Court . . ' . . . . . . C . . 208
Chapter 21-25----S|3(2l.lI'i1;-}"'fI.II' cost; I . . ' I I . . . . . . . . ' 2&9
Chapter 26aU.)mmiaainns1ias11ed. by Court 5 . . . . . . . . 210
Chapter 27-Suits by or against Ghvemméxt . . . . . . 214

Chapter 2m_.suimim1viu' autahn - qua' tibnh hf law as to t.heinta1-prata.-
tion of the titu' nﬁag. .. . . .. . .

Chapter 28%-Suits by nr agaiiat . . C ' . . . . . . 223
Ulmptar29»-Suibsby and against Qorporhﬁoné '. . ' . . in
Chapter 30----Suits 1:5? or agaigst ﬁxing . . ' . f . . . . . . 235
Chapter 3l--<Suits by and against tfmueaaiaﬁaj xnpduton .. .. .. 220
'Chapter 32----Suits by and against iﬁnors ' . . r ' . . . . . . 237
Chapter 32-.-1--Suits boneerni11g thi rmiiy M Z . . . .. .. _ 234
Chapter 33----Suits by indigent ._'. ; . . _ . . . Q7
Ghaptsr 34----Suits on LInrtga.geB . . t I. . ' . . . . .\ _V 31'!
Chapter 35--«-Interpleader suits -' . . . . K . . . . '-
Ghaptor 36--Btatem.ent of case i . . . . X
Chapter 37--Summa.ry procedure ,1. . . . C , _ _ , 23
Chapter 3s--A:.-rest and attachment '. . .. 370
Chapter 3'9~---Injunctions and ntherlinterlh-cjrtnr_ﬁ_ iuldem . . . . 7275
Chapter 40----Eeaivers . . . . ' . . h . . . . . . 23.]

Clan-pt-er 41~--Appea,ls from original [leagues . . . . . , . . 331

Chapter 42--Appesa.Ia from appellate Lleureea . . . . . .
Chapter 4-3~---Appeals from ordsrs . . :4 LI . .
Chapter 4-1----Appeals by ind.ige-nt- persons

Chapter 'L5---.-'-Lppeula to the Stuprcme Court . . . . ' . .
Chapter 46---~Refere11ue

Ghapter 47---Re1riew . . . . V . . . . . .

Chapter 48---Miwe1I.a.neous

Chapter 49-----Glmrt-erczl High Ouurt-s

Chapter 5D----Pruvincial C-nurta of Small Canaan

Chapter 51--Presidency Courts ofSmaI1 Causes . .

Chapter 52---.Form=a

Chapter 53-Nead far Nabiunal Acadeany for Judioia1'I'n.ining
Ghapter 54--Gonc1uaion

APPENDIX

AppanI1ix---Queatinnnaire iaaueclhy tie Imp ..

PAGE:

303
313
315
313
317
320
321
322
323
324
327
337

339

CHAPTER1

INTRODUCTION

1.1. This Report deals with some aspects of revision of the Code
of Civil Procedure, 1908. The subject was considered -at length by
one of the previous Commissions, which duly forwarded to G0_ve_rn-
ment a detailed Report on the code.1IIn that Report,' the Commission
considered the Code at length, andithe mass of case-law 'that had
accumulated around the previous Code during half a century of its
life, the local amendments made in various provisions of the Code,
as well as the reforms introduced in other C0untries,--including, in

particular, the changes made in England in 1962 by way of revision. .

of the Rules of the Supreme Court;

It also took into account the ret-ommendations relevant to the
Code made in the Report on the Reforms of Judicial Administration."

1.2. A Bill intended to implement this Report -was duly intro-
duced in Parliament but the Bill lapsed. When the question of re-
introduction of the Bill arose, the Government of India considered
it proper to request the present Commission to examine the Code
afresh from the "basic angle of minimising costs and avoiding de-
lays in litigation and taking into account its revised terms of refe-
rence". C -

Scope of the Report I 'I

1.3. Accordingly, in this Repoi't,;t§s:e_15nrop0se=:tP examine the C_od__e_

from the angle of--- -
(1) minimising costs; ._
(2) avoiding delays in litiga1'.if_)n;.and

(3) the revised terms of reference of'this Commission, the '

of the directive primliplesg -

_.1.4. In this Report, we have not considered it necessary to deal
again with the matters dea1t;witl;'§,i1.: the earlier Report, except
where we disagreed with e rec mrdendations in the earlier Report
or considered it necessary M rei ' rate and emphasise particular re-
Commendations made therein. E ' a '.ligE1' of fact, -even the ques-
tion of costs and delaymwas cons d _ d. by the Commission at that
time also; however. as thatgﬂepbrt '
as we have been speciﬁcally req
are needed to avoid delayzand _
ings, . '

1. 271511 Report oftlua Law Uommilsion. -

2. It is hereafter referred to as the ca.rli'er:cod'e.-

3. 14th Report ofthe Law Commi sion. ' 5 _

-1. Low Minilt-er's letter .'To. F. 9)f73'-Q dated. 14-2-1972 to the Chairman of the Law

Commission.
5'. Tn 1961- I ~

most important of such terms being the implementation

s given long ago,' we shall----:
__;_--3.«cons1der what amendznents,
Jztiolmise costs in civil proceed-

? .

' have made a brief reference to

- a modiﬁcation, we have natural yr '

Radical amendments needed

1.5. At the outset, we should make it clear that in our view, at
least in certain respects, radical changes are required in the Code
in principle. M-* r

In the earlier Report,' it has been mentioned that 011 the
whole, the Code has worked smoothly {and satisfactorily, and the
Commission there had added that iii; had been 'very cautious' in
proposing radical changes. No doubt, 'daution has to be Exercised
before disturbing statutory provisions-.i of long standing. But we
think that caution should not iact as a constraint where the expen-
ses of procedure and the necessities Dﬁ the times require radical
changes.

Litigation when causing burden
1.6. As the Supreme Court has ohse1ived'--

"The principal function of courts :' d tribunals is to settle the
dispute between the gpartieis :1 thereby give a quietns to
the social frictions generated by the unresolved disputes.
As long as a litigation ,lasts,§tbe tension continues and
useful energies will be wasted. This is not all, Every
litigation means heaxéjar ﬁnahcidl -lburden to the parties."

Obviously, an expensive ptocediiral system is | Ielf-defeating
instrument of justice. T i

Refortns needed to be considered

1.7. It', therefore, reforms in pro e appear to be needed
reduce the burden on parties, a bhnijr ' trusted with the business
of law reform need not hmitate mt rhr their suitability,

- 1 ' i 1 . .

Course adopted with 1-eferoIlcelto'I§at%'«Co|le

1.8. The course which we ]1ave'qd ' ed with reference to the
recommendations made in theearlielr = eport may be stated here.
First, where we 'agree with the teen: i tions made in the earlier
Report. we have" not considered it ne é airy to deal with the matter,
except as stated below. Secon y,'r§:r ere: we agree with the earlier
recommendations, and also tonsiderti ssary to emphasise it, we
hi Third1y,_where we
oII'.Lt;s: 'agree with it subject" 'to

E" this Report, "and in_d.i-'
cated our own recommendatioﬁ, ."};'ourthl5r, on matters riot

w .
Ell

disagree with arj earlier recp e "

considered in the -earlier Repor or ' red to he discussed, we
have expressed our views -an « addt-tional amendments
wherever we thought necessary; ' i T

1. 27th Report, page 4-,, para 6. ; ;
2. Probhovati -.v. Pu-item Kour. .a..I.n. 1:122 s'.o. ism; km, (Hegde am.

1.9. Thus the position is that on matters falling within the ﬁrst
and second categories referred to above, the recommendations in
the earlier Report should be consulted. On matters falling within
the third category, the earlier recommendations should be taken as
superseded or modiﬁed (as the case may require) by our recom-
mendations. And, on matters falling within the fourth category, our
recommendations should be taken as supplementing those made in
the earlier Report. - .

Questionnaire - " M' ; i

1.10. We may mention here that when the subject was referred
to us, we had, in order to elicit o
questions which required consider ' ion, issued a questionnaire,' we
are grateful to all those who ih'ave;favoured us with their views in
response to the questionnaire, We have, wherever we consider it
necessary, referred in this Report; to the views expressed on the
relevsnt questions; but it is needless to add that the replies on every
question have received our most careful consideration.

- a
1. The Questionnaire wasissuefl in llprgsh,

inion on some of. thepirnportgpj.

'CHAPTER 1-A-1
MAIN OBIECIIVES OFZREFORM

Introductory

l--A.1. We deal in this Chapter with the main objectivies.-euf ¢1-95
form of the Code as envisaged -in this Report. ' '

Stages of procedure and cases of delay
1.A.2. We refer ﬁrst to delay. Thegstajes of procedure as provid-
ed in the Code are not numerous. But delay could occur becaus_e--«--
(1') the interval between the -stages becomes very long in a
particular case, or '
(ii) a particular stage of procedure itself consumes excessiye
time, or . - -'
(iii) extraneous factors present a_ particular stage from being

reached--for example, Where the suit has to await its turn
for a long period because of the' heavy ﬁle of the court.

1.A.3. Examples of all these ._ three types of delaylcould be fur-
nished. For example, if, between the issue of a summons to the de-
_fendant and his actual appearance in Courtian.interval of two months
'elapses because of obstacles in the selrticeﬁof summons, delay of the
ﬁrst type occurs.

Same is the case where frequent ad urnments are granted
without justiﬁcation..De1ay of the second" 3419 is illustrated by the
parties producing too many wit11esse_:_-3,. or Zcounsels unduly prolong-
ing the cross--examination of a = articulagri witness. An illustration
of the third type of delay is fu shed _,by_= e familiar situation of a
revision against an interlocutory-5 order, " ereby the next stage in
the logical sequence of the case is preve ted from being reached.

1.A.4. It will be our endeavour tojbeafr in mind these three as-
pects, while making concrete recommendations for amendment of
the Code. ' -

Expenses ,
1.A.5. We refer next to expense. The principal expenses of a
civil litigant in India are made up of--- "
(1) court fees;
(2) couns_e1's fee; 7
{3} expenses on witnesses;
('4) expenses for obtaining "copies off documents.

(5) personal expenses for attending 'court consulting counsel,
and the like;

(6) costs, when directed to -,be paid to the opposite party.
_ 1 ._ .; , - :

Various heads of expense

l.A.6. None of these items is governed' by the Code of Cif*:"i1.P1"0'
cedu1~e_ The first of them--cou1-.t__ iees--1s regulated by the Court
Fees Act, (or by the corresponding State law where a fulkﬁedged

state law has been enacted)» T
The second item is not, as between party and counsel, regulat-
ed by law. 4

The Third and fourth items .ére_regu1ated by rules made- by'

the High Courts. '
The ﬁfth is, in its very nature, elastic, So also is six'th'.'"

Court fees .

1.A.7. These items of expenditure are, thus, outside the Code.
but we think it proper tcrdeal here with the ﬁrst item----CUuI't fees-
since the matter is of great importance. This we have chosen towdo
notwithstanding the fact that Patliarnentfs legislative» competence
to-legislate on court_fees, is limited to Union Territories, as the
subject falls in the State'Lis.t..'

1.A.?. We may in thts connection mention that' in one of the
Reports of a previous Commission, the question of court fees has
been considered at length.

11A.3_;The recommendations in that Report regarding court
fees may be summarised 3as folgloxairpf

(1) It is one of the primal? dtlties of the State to pro1r.ride_ the
machinery for the administration pf justice and on principle it is
not proper for the State to charge §fees from suitors in courts.

(2) Even if court fees are charged, the revenue derived from
them should not 'exceed and cost of the administration of civil
justice. !

(3) The making of a proﬁt by the State from the administration
of justice is not justiﬁed. '

(4) Steps should be taken to reduce court fees so that the reve-
n_ue from it is sufﬁcient to cover the cost of the civil judicial estab-
lishment. Principles analogous to those applied in England_ should
be applied, to measure the cost of such establishment. The salaries
Of judicial ofﬁcers should be a _charge 011 the general tax-page;-_

(5) There should be a broad measure of equality in the scales
of court fees all over the country, There should also be a ﬁxed
maximum to the fee chargeable, '

(6) The rates of court feES.0I1jpe'l:iti0ns under A1-1;jc1e5 32 and
226 of the Constitution should be srery low, if not nominal,

(7) The fees which are now levied at various stages such as
the stamp to be afﬁxed on certiﬁedgcopies and exhibits and the like
should be abolished. -'

1. Constitution, Seventh Schedules, Stats List,Item3"......feea taken in nllouurtuxenpiz '

the Supreme Chart." _ _ E
2. 14th Report, Vol. 1, page 54?, its.
! I.

{8} When a case is disposed of or is compromised before the
actual ' hearing, half the court fee should be refunded to the
plaintiff.

(9) The Court fee payable in an appeal should be half the
amount levied in the trial court.

1.A.9. We would like to express here our broad agreement with
the approach adopted in the Report in respect of court fees, and
with the recommendations set out above.

IJir__ective principles

1.A.10. Our revised terms of reference require us to consider
the changes needed to bring laws in harmony with directive princi-
ples. Of the articles in the Constitution dealing with directive prin-
ciples, the article most relevant to the sphere of civil procedure is
that relating to social order,' which is as follows:--

"38. State to secure a social ow-derﬁor the promotion of welfare
of the -people--The Sta-te sha strive to promote the wel-
fare of the people by securing and protecting as eifec-
tively as it may, a social order in which justice, social,
economic and political, shall inform all the institutions of
the national life."

go have kept this in mind in making our recommendations in this
eport.

1. Article 38 of the Constitution.

Cnsernn 1-B

OUR. APPROACH AND PRINCIPAL RECOMMENDATIONS

Main objectives

1-B.l. Our main objectives in this Report, as already stated,'
will be two--fold------

{a) to consider the need for such major changes as could cut
down the delay; and expense of civil procedure, of course, to the
extent to which the delay or expense could be attributed to defects
in or deﬁciencies of the provisions in the Code of Civil Procedure.

(1)) to consider the need for such changes as are desirable in
order to implement 'the directive principles in Part 4 of the Con-
stitution.

Procedure, a means to justice

l.B.2. Any system of procedure must subserve the ends of Jus-
tice. Procedure is a means, and not an end. When the means assume
undue proininencc, and the end is lost sight of, or even sometimes
apt to be defeated in the process, citizens affected have a legitimate
right to complain. And it is the duty of the State to see that its
legal system does not leave scope for processes which are likely to
hinder or defeat justice. 5 '

Overhauling of entire procedure required

1.B.3. This does not, of course, mean that a total replacement of
the existing system of procedure by a new one, or such a radical
overhaul as would change its face entirely, is necessarily required,

1-BA. As Lord Kilbrandon has;observed-----

"The ship is well designed, fundamentally sound, and is for
most of the time on a correct course; what is wanted is an
overhaul and modernisation of the navigational inst;-u-
rnents, so that she is more§_easilry kept on that course. And
some of the officers are getting a bit e1derly--'I'his will
always be tr1:e"".

Means must be elfective

1--B.5. Since procedure is a means, and justice the end, the
means must be effective for realising the end. This requires that the
procedure must be simple. fair, effective, speedy and inexpensive
To spell out these requirements, we need; (a) an adequate organi-
sation of the courts' for the efficient distribution and despatch of
business; (requirements 011 effectiveness); (bi freedom from mere

I. See Chapter 1, Supra. ,
2. Lord Kilbrandon, other People's Law, (19%) pages 3-4.

technicalities at all stages {requirement of simplicity and speed);
{c) clear deﬁnition of issues {requirement of fairness); (d) wherever
possible, the elimination of any element of surprise at the trial ire'
quirement of fairness); (e) control and supervision by the C0111't Of
the progress o-f the proceedings (elfectiveness of the trial); (g)
eﬁective methods of execution (ultimate effectiveness of the trial);
and (h) a speedy and authoritative system Of appeal (requirement
of fairness, and substantial justice in the end). '

Impediments to justice not to be multiplied

1-B.6. As. Cardozo observed,' "a. system of procedure is pervert-
ed from its proper function when it_.multip1i-es impediments to
justice without the ivarrant of clear necessity."

The same idea has been expressed more recently by Chief Jus-
tice Warren," who aptly stated that---

"the orderly and expeditious processing of litigation is a right
which each of us should be able to ask of our judicial
system, no matter what our status in life or how meagre
or non-existent our resources may be. In the name of
human dignity We can ask no less, yet We must admit
that we are falling far short of our goal."

Secondary objectives of procedure

1.B.'?. Procedure, thus, exists for the sake of something else, for
the sake of the substantive lawf' This is its primary objective. But
procedure has many secondary objectives. It must give the parties
a feeling that they are being dealt' with fairly. It must serve the
cause of efﬁciency. And it must yield ﬁhal-and lasting adjudication.'

Iﬂeal system of procedure »

1-B.3. These objectives may sometimes come into conﬂict with
each other." In an imperfect world,' limits have to be put on the
length and am litude of an inquiry into truth. An ideal system of
procedure woud be one which could achieve these objectives to
the maximum extent practicable, and harmonise them to the extent
possible.

Importance of procedure to ordinary citizen
1-B.9. The importance of procedure to the ordinary man must
also be pointed out. As has been observed,"-

"It is from the practice and procedure of the courts--that is,
the way in which a case ls conducted, the facts discovered
from examination and crossaexamination and the like-
that the ordinary citizen, as litigant, witness, or even

I. Cardozo J. dissenting in Read 1: Allen, [1932] 236 U.':}. 191, 209.
2. Quoted in Sutherland, The Path of the Law from 1987 [I968]. page 216.

3. Hepburn, The Historical Development of Code Pleading, (1397). pages 19-20. cited in
Fleming, Civil Procedure (19%) page 2.

4. Fleming, Civil Procedure, {I965} page. 2.
5. Ibid. -
6. Final Report of the Everahod Com.I1.ittee'o|;1 Practice and I:"roce-dune. (1953), para. 1.

9
I
spectator, obtains his experience of our legal system; and
on that evidence he is lilrely to form his judgment on the

claim commonly made by Englishmen to excellence in
the administration of Justice."

Importance of Procedure

I-B.l0. Long ago, a writer, emphasising the importance or ad-
jective law, observed.'-

"Procedure should always be indeed the "handmaiden of
justice", its motto should be that of the Prince of Wales,
Ich dien. This cardinal fact is "Tidely admitted, but has
often been overlooked in practice."

But, to recognize that procedure exists primarily to implement
substantive right, does not detract from its importance. In an
ideal world where every one obeyed implicitly the commands of
substantive law, procedure would possess no importance.' Nor
would it be of much value where the time and the means and
the will to get the bottom of every dispute and grievance were all
unlimited.

1--B--II. At the same time, as an American writer has observed'---
of life, and limitations on the amount of human energy worth
spending on this one phase of human activity, all conspire to make
procedure of very great importance and also to give it functions
beyond that of serving substantive law"

Need for improvement

1-B.1l. At the same time, as an -American writer has bserved'--'
"The need for procedural improvement in the civil courts is
a subject of much current interest and effort on the part
of the organised American bar, as well as of the judicial
and other ofﬁcial agencies. It is fair to state that a steady
progress in the improvement in civil procedure is being
made. It is doubtful, however, whether any efforts at
reform, no matter how sincere or how long continued, can
reduce our civil procedure to that degree of simplicity
which the layman is likely to think it ought to have. The
situations which rules. of procedure are designed to meet
are in many cases rather complicated; and the framing of
'simple' rules to control complicated situations too often
results not in simplicity, but rather in uncertaint and
ambiguity, the resolving of awhich in turn entai s the
exercise of uncontrolled, and in procedural matters vir-
tually, unreviewable, discretion by the judge."

1-B12.
proach.

These are the principles which have guided our ap-

1. lfI0plJ_11'rn_. the Historical Developments of the Code Pleading, ( 1397}, 19, gt},
cited. In blaming, Civil Procedure, (1965) page 2.
2. See Fleming, Civil Procedure, -[I966] page 2.
'AL Meyers, the American Legal System. (1955). page 242.
Ll'B[D}2?.='JZtIofLJJaClA---3 '

..yl...

Important recommendation

1--B.13. We shall now refer to some of the important matters in
respect of which we have recomlnended an amendment of the law.

Res J udicata

1-B.14. One of the signiﬁcant provisions of the Code' relates. to
res judicctc. The provision in the Code on subject is, however, not
comprehensive enough to cover a few proceedings, and we have
considered it necessary to suggest an amendment in order to
extend its scope by an express provision to certain proceedings,

Further, the present requirement that the court whose judg-
ment is sought to be set up as res jndicata in the later suit should
have been competent to 'try the subsequent suit, creates difficulties
when a question which was decided by the previous court comes
up for decision before a later court of higher jurisdiction. We are
therefore recommending an amendment in the procedure in this
regard, under which a court of lower jurisdiction will, when such
a question comes up incidentally, be expected to refer the matter
to the District Court, so that the dial of the entire litigation before
a more competent court can be arranged. These amendments should
not be regarded as merely technical, because it is well-known that
the doctrine of res judicatc is laser! on the principles that there
ought to be a ﬁnality in litigation and that a person ought not to
be vexed with the same controversy twice.

Suits relating to public matters

1-B.15. While our recomrnendation regarding res judicatc and
certain other matters is intended to reduce delay, there is another
object of law reform which we have sought to achieve, namely,
modernisation and simpliﬁcation-"of the law, in proposing expansion
of the scope of suits relating to public matters. In the Code, there
are, at present, two main provisions' covering -suits relating to public
matters, namely, section 91 which deals with suits relating to public
nuisances, and section 92 which deals with su'1ts'rclating to public
trusts. As society advances and the life of the community becomes
more complex, the importance of injuries to the public (as contrasted
with injuries to private iniiividuals} increases. The relevance of
these phenomena is seen not only in the criminal law--we had
occasion to deal with this aspect in the ﬁeld of criminal law in one
of our Rep'orts,'--but also in the ﬁeld of civil law. Public nuisances
are familiar and well understood types of injuries to the public;
but there are other injuries to the public, and there ought to exist
a provision for enabling responsible persons to ﬁle suits for the re-
moval of public injuries of other kinds. It is from this point of
view that we are recommending an amendment of section 91, which
will widen its scope so as to cover all injuries to the public.

1-13-16. We need not deal elaborately with the scope of injuries
to the public that will becovered by the amended section, but we
may state, his way of illustration, that in the case of big frauds on

1. Section 11.
2. Sections 91-B2. .'
3. «ﬁt-h Report [Social and Economic ﬂﬁanoas).

consumers, whether they be consumers of goods, services or other
objects of consumption, it will be possible, under the amended
section, to bring a suit on behalf of the consuming _bod3f. Such _a
suit could appropriately be for declaration or for injunction It is
exiomatic that the existence of a suitable procedure facilitates the
pursuit of appropriate remedies; and this, in turn, also helps in the
clariﬁcation of substantive rules of law relating to the matters
which are the subject-matter of the remedies pursued. It could
even pave the way for legislative action. As an American writer'
has pointed out, constitutional litigation, even where unsuccessful
in the courts, may stimulatethe legislature to action. "All the major
social changes which have made America a ﬁner place to live have
their basis in fundamental constitutional litigation. Somebody had
to sue somebody before the legislature took long overdue act-ion".

l--B.1'i'. In respect of the right of second appeal, we recommend
an amendment which will reduce both expense and delay. The in-
creasing number of second appeals in the High Courts has added
to the arrears of the High Courts, with the result that appeals which
are more than ﬁve years old, come up for hearing today; but quite
apart from this aspect, the jurisdiction of the High Courts in second
appeal has, to a large extent, been wrongly invoked in order to seek
interference at the hands of the High Courts in respect of questions
which are really questions of fact. Questions of law are the only
questions which ought to be dealt with in second appeal. The role
of the High Court, as we conceive it, is not that of correcting
errors of fact in matters which come before it. Its proper role is of
maintaining and re-establishing unit rmity in matters of law, and
re-introducing certrainty, where none' ary, and of keeping the con-
tent of the law intelligible' and accessible by means of a binding
precedent. This is our approach, "and consistently with this approach,
we are recommending a.n amendment of section 100 which will
permit second appeals only on substantial uestions of law. We have
dealt with the broad features of our approac in the relevant chapter,
where we consider the question of amending section 100.

Revision

1--B.13. Analogous to the topic of second appeals is that of revi»
sional jurisdiction of the High Court under section 115 of the Code.
Controversies galore have, from time :to time, arisen as to the exact
scope of this jurisdiction; and it is well-l-tnown that some of the ex»
pressions which occur in the section,' "such as "case decided", "mate--
rial irregularity" and the like, -have oﬁered a fertile ﬁeld for the
Exercise Of 19331 ingenuity. But these 'expressions have also been the
cause of considerable delay in the administration of justice, and of
avoidable suffering to litigants, '

1- Y9-HH3-C01J_e. "_A Lawyer answers the -Toohnoci-eta" (August-September. 1969} 5 Trial
15 cited 111 "The New Public Inivarelli I.a.wyers" (1970) Yale Law Journal. 1069;
2- Ya-rlllacone, quoted in in, All He Wants to Save is the World, Sports Illustrated
31.1%)'-:59, at 24, cited in 'The New Public Interest Lawyers" (1970) Yale Law Journal
3. Section 115.

. L,.'B{D)229l\lofL-]'5tGA---3(a)

1-B-19. As Rangnekar, J'. observed' with reference to section 115-----

"Here a professional lawyer is sorely perplexed and bewildered by
the conﬂict of judicial decisions as to what is the meaning of the
expression "case which has been decided" in S. 115, Civil I-'. C. and
what is the meaning o-f Cl. (c) in that section when it is said that
the Court has acted in the exercise of its jurisdiction "illegall or
with material irregularity", and one can only express a pious ope
that the legislature may step in and say precisely what it means
and ﬁx the limits of revisional jurisdiction of the: High Courts, in
a manner intelligible even to a layman."

The ﬁrst two clauses (a) and (b) of S. 115 do not present any
diﬂiculty; it is the last clause that does.

1-B20. We have, after careful consideration, come to the con-
clusion that revisional jurisdiction exists solely for the purpose of
correcting manifest and serious injustice; and the correction of such
injustice is amply taken care of by the powers of High Courts under

section 227 of the Constitution. Any other matters decided by lower C

courts--even though the decision may appear to be erroneous-
should not be taken to the High Court in revision. {in this principle,
we are recommending the deletion of section 115.

Written Statements

143.21. Litigation cannot be properly conducted if the points
for determination are not properly presented to the Court. And, the

points for determination cannot be p operly presented if the court ' I

has not, before it, the case of each arty in a precise and concise
form. It is'on this philosophy that procedural codes require the
parties to ﬁle pleadings, and lay down elaborate requirements as to
the form and contents of pleadings, This may sound elementary;
but we are constrained to refer to these aspects, because we ﬁnd
that the rule which deals with the Written statement (defence) of
the defendant," leaves it to the discretion of the court to re uire the
defendant to ﬁle his defence. We areof the view that it s ould, in
every case, be obligatory for the defendant to ﬁle a written state-
ment, and that failure to do so should empower the court to pro--
nounce judgement against him. There are provisions on the subject
in the Code-0.8, r. 1 to 0.8, r. 10, but they are either incomplete
in their scope éir defective in their expression. We are recommend-
mg amendments to rernovethese defects.

Disposal of case on prelimimry issues

1-B.22. Considerableadelay is often caused by the tendency of
courts to avoid the decision of all the matters in issue in a suit.

-on the ground that the suit could be disposed of on a preliminary

p_oi1_1t. In such cases, when the decision of the trial court on the pre-
11m1113l'_.V Point ls reversed in appeal, the matter has ordinarily to
be remitted to the trial court again, with the result that the inquiry

1. am' cranes» v. onfoiazaz, A.I.R.. 1932 Bombay 534, 596.
2- Order 8, Rule 1.

into other issues commences after the expiry of a long period of time,
when documents might have been lost, the memory of witnesses
might have faded, and, in general, the grip of the judge over the
litigation would have been lessened.

We thin]; this should be avoided, and we are, therefore recom-
mending an amendment of the relevant rules, under which it would
be obligatory for the court to decide all issues, subject to certain
speciﬁed exceptions relating to jurisdiction and bar of suit.

Suits concerning the family

1-13.23. Litigation in the past, in India, has revolved mainly round
questions of property, Even where questions ooncernin personal
law and allied branches of the law were at issue, the indirect objec-
tive of the litigation was, in many cases, the establishment of pro-
prietary rights, for example, in suits for adoption and proceedings
as to guardianship. Litigation in future, is, however, likely to gain
new dimension. By way of this illustration, we may state that dis-
putes concerning the family will be brought with increasing fre-
quency into the arena of litigation.

1--B.24. In her remarkable work, The Century of the Child, Ellen
Key' quotes a dramatic work called The Lionfs Whelp:

"The next century will he the century: of the child, just as
this century has been the woman's century. When the
child gets his rights, morality will be perfected. Then
every man will know that he is bound to the life which
he has produced with 'other bounds, than those imposed
by society and the laws. You understand that man can-
not be released from his duty as father even iﬁ he travels
around the world; a kingdom can be given and taken
away, but not fatherhood".

l--B.25. We do not, in this Report, pause to consider whether
the traditional judicial machinery is an ideal system fol-the resolu-
tion of such disputes; but, so long as it remains the only machinery
available for the purpose, it should be so moulded as to enable and
encourage the judge, to perform more satisfactorily the duty of
adjudicating on these new types of disputes. This basic considera-
tion has encouraged us in recommending the insertion of a set of
new provisions' to deal with litigation involving matters concerning
the family.

1-B26. When courts encounter problems concerning the farnilg
in the context of conventional litigation, they tend to deal wit

them in a conventional way. This is. understandable. "The judge is,

above all, a skilled lawyer; a lifetime lived in the law has inculca-ted
in his its promises. its analytical techniques, its principles". To
correct this attitude in so far as litigation concerning the family is
concerned. a few amendments would, we think, be-desirable.
1-B27. The law is never more noblv applied then when it is
for the alleviation of the economic suffering 'of those who approach

Illllen Key, The Dent-u1",V of the Child, (1909), page 45, cited in Graham Parker, "Century
prrgr of the o11in**(19s7;a5 Canadian Bar Review, 741, 7-13. '

2. Order 32-A [proposed]. .
' 3. HJW. Arthur.';"DeveIopi.n,g Industrial (Iﬁsonship, (1987) 25 One. 381.' III!'-, 1'35. .815'.

'courts and to particular classes

its portals. The Code has a Chapter' dealing with suits by paupers.
We are recommending certain changes in this respect, which will,
we hope, irnproxi: its utility as a weapon in the ﬁght against poverty.
We may add ii at the question of the impact of law on poverty
deserves to be considered in a comprehensive manner.

1-B23. A few other matters relevant to poverty--the question
of legal aid and the question of court fees--are outside the scope
of the Code. The former is being considered by a separate Com-
mittee.' We have not, therefore, gone into these two aspects at length,
but even so, wherever a point concerning legal aid or court: fees

required serious attention, we have thought it appropriate to refer~\_

to it, and are making appropriate recommendations in the matter,
in the hope that the Union Government will be able to persuade
the State Governments to adopt these recomlnendations.

1-B-28-A. At present, in suits on mortgages, the Code' makes it
compulsory to have two decrees--prelia:n.inary and ﬁnal--whether the
suit be for foreclosure, redemption or sale. This makes the proce-
dure cumbersome, and almost invariably if two appeals are ﬁled
against two decrees in the same suit. We think that the procedure
could he made simpler by substituting one decree (corresponding,
broadly, to the present prelirriinary decree), and the rest of the
proceedings could be relegated to execution, Following this ap-
proach, we are recommending a recasting of the relevant provision
of order 34.

Summary procedure

1-B.28--B. To prevent unreasonable obstruction of a suit by a
defendant who has no defence the Code' has a Chapter providing for
summary procedure. The utility of this Chapter is obvious. The. ap-
plication of this Chapter is, however, limited to certain speciﬁed
suits. In order that greater use
may be made or this useful chaper, ;We are recommending
amendments in the relevant rules.- '

Delay caused by stay orders _ ,

1-B-29. The chronology of litigation under the Code 1B,_ 511 it!
here essentials, fairly simple. But ,; i'|:m£=ts clogged by a variety; of
hindrances. Examples of such hindr es are furnished, at the stage
of trial of a suit, by appeals and revisions aiainst what have come
to be known as 'interlocutory orders'. At t e stage of execution.
obstacles abound owing to stay orders obtained on one BTW-Tld 01'
another 'by taking recourse to miscellaneous appeals 01' ﬂPP'3315 f1'°m
orders or revisional applications. . o_ the delay caIJI_§Bd bf?'
such obstacles, we are recomrnenﬂi certain amendments in the
relevant rulesf We hope, that they ill advance the cause of expe-
dition, without undue hardship to liL grants.

1. Order 33. ,
2. Legal Aid Committee.
3. Order 9-1.
I. Order 3'7.
5. (ct) Order 41, rule 5;
{5} Order 21, rule 20;
(G1 0:-der'_39, rule 1.

certain '

-- 15

l--B-30. In one of the Chapters appearing towards the end of our
Report,' we have thought it necessary to discuss the problem of
training our junior judicial ofﬁcers and to make some important and
radical suggestions in that behalf, We ought to add that, though the
subject-matter of this Chapter is technically outside the scope or
our present inquiry and report, we are satisﬁed that it is our duty
with all the emphasis we can command, to earnestly appeal to the
Union Government to request the State Governments to take irn_me-
diate and suitable action in terms of our recommendations. We are
quite clear in our minds that the terms of service under which
junior judicial officers are employed and the fringe beneﬁts and
general amenities which are made available to them are wholly
unsatisfactory and meagre to a_ degree, and that they need to be
immediately improved if competent and capable lawyers have to be
attracted to the judicial career, It must be borne in mind that the
work which these junior judicial ofﬁcers discharge in their respec-
tive courts in small taluk towns is, in substance the foundation of
what is described as the Rule of Law. As Justice Holmes once ob-
served, the basis of the rule of law 'E laid down not necessarily in
important and sensational constitutional cases, but in small and
humble disputes between litigants who bring their causes to the
courts.

1-B-31. For efficient, satisfactory and expeditious administra-

tion of justice which would command public conﬁdence and
enjoy public respect, an enlightened, speedy, fair and pro-
gressive procedure is no doubt, essential; and that is

what we have attempted to do in our present report: But pro-
cedure alone will not solve the problem of accumulating arrears
which have assumed alarming proportions in all the courts in our
country. Procedure can hope to succeed in attacking this problem,
provided the Judges who preside over the courts are conscious of
their obligations to the community at large and exercise their po-
wers and discharge their functions determined to remove from the
administration of justice the widelyspread and somewhat justiﬁ-ed
complaint of delay, costs and unpredictability"-. It is our conﬁdent be-
lief that, in the context of today, and'_ having regard to the hopes and
aspirations of the common men and women in this country, the judi-
ciary can no longer be content to play merely the role of an umpire
and allow the adversary character of our litigation to proceed unin-
terrupted by the wise and judicious interventions from the judges
from time to time. Since, in our"view, the junior judiciary has to
plev a major role in_ the conduct of. the causes which are ﬁled 'ne-
fore them, we think it is of utmost importance to initiate theni into
the. philosophy of law and its major role in relation to the changing
society Besides, it is hardly necessary to emphasise that, in course
of time. District Judges and some of the High Court Judges we
drawn from this class of junior judicial officers. That is why we
have set out our thoughts in the last chapter and made rec-ommen.
datl°n9 Whid! We think might serve the purpose we have in mind.

__'_

1.58-eUhI.ptm-J53.

...,..

W ,i.m.,.....,,.. i...._".... .. _

1-28.32. "Training" has been described' as the "process of develop-
ing skills, habits, knowledge and attitudes in employees for the pur-
pose of increasing the effectiveness of employees in their present
positions, as well as preparing employees for future Govern-
ment positions". Judicial ofﬁcers have responsible and varied func-
tions to perform, and should receive adequate training before they
enter on their oi'ﬁce_ We have not in mind merely the inculcation of
professional skill and knowledge. Training must also aim at broaden-
ing' the mental horizons, values and attitudes" of the ofﬁcers, by in-
stilling the right mental attitudes on the question of judicial conduct.
This becomes relevant because the judge holds a pivotal posiﬁon,
and has a vast variety of discretionary functions which are vital in
the effective working of the law as an instrument of social justice.

1-B33. In every organisation, the training of employees, which
sets the tone and quality of the organisation, is useful. It is more
so in a career service,' with opportunities for successive promotions
to higher grades.

1-13.34. The detailed recommendations on the subject' will show
that when we speak of "training" we do not have in mind the organi-
sation of mere lectures. What we have in mind is the introduction of
judicial training at the initial stage. Case studies on particular events
in the life of litigation, which illustrate typical situations, would be
eminently suitable, because "a generalised understanding must
emerge from experience of the particular."

I - 1. William G. Torpey. Public Personnel Management, New York. {ll Van Nostrand Gom-
' pany, Inc.) (1953), page 154.

2. Of. I-I.V. Kamath, Principles and Techniques of Administration, Bharatiya. Vidya Bhutan,
Bombay-'i'. (1971) page 19.

B. Avashhi and Maheshwari, Public Adminhliratim (1986). Chapter 15', Education and
TI'aitI.1'.I1g, pages 3ll--3l5. ' It

I. See Chapter .

5,'; .C.ll'l.ChALtl1aI'i<sl,:."illt:i.n1inistri2itiv-e~Trs.ini1._r{1ig: Notes of Syllabus". Journal ofﬁdminish-a-

tion Overseas {London}. Vol 5, No. 3, J y 1966, pages 167-176, abstracted in Indian

Institute of Public Administration, New Delhi. Public Administration Abrhwti
[January 1967}, pages 5-6. '

CHAPTER 1-C

EXTENT OF AND APPLICATION OF THE CODE AND OTHER
PRELIMINARY MATTERS

Introductory

1-C.1. The extent and application of the Code and other pre1i-

minary matters are dealt with in sections 1 to 8 in the body of the
Code.

Section 1 and Laccadive Islands

1-C.2. There is one point to be considered regarding the territorial
extent of the Code. This relates to the Laccadive Islands.

In the earlier Report,' it was stated-

"Incidentally, it may be addded that the Administrator of
the Laccadive, Minicoy and Amin-divi Islands has, in his
suggestion relating to the Civil Procedure Code seI1t to the
Commission, suggested that sections 36 to 43 should, for
uniformity, extend also to Laccadive and Minicoy Islands.
(At present, they extend only to Amindivi Islands). This
has been accepted, and Order 34 also proposed to be ex-
tended to those Islands".

1-C.3. This was a very limited suggestion. we ﬁnd, however, that
by a Regulation," practically the who1eCode of Civil Procedure has
been extended to those Isl-ands. Having regard to the rather unde-
veloped condition of those islands, we suggest that Government

should reconsider the question how far the Code of Civil Procedure
should extend to these Islands.

1-CA1. From a letter' which the Commission has received from
the Member of Parliament representing the Islands, it would appear
that there are no lawyers in the Islands, and English knowing
people are few_ Facilities for prompt movement are also not availa-

ble, and a sophisticated Code of Procedure may not be quite ap-
propriate for these areas.

Similar observations were made in a judgment of the Kerala
High Court.'

We express no opinion on the point; but recommend that the
Government may have this aspect examined, after inquiring into

local conditions prevail' ' th I31 as, d -
whether the law shou1lin%a¢:nsimt1?3liﬂu=i1cl1. an consider the question

1. 2'fth Report. page 89, note on Section 1, paragraph {vi}.
2. Regulation 3 of 1935, effective from let October, 1987.
3. Letter of Shri RM'. Sayeed,-'M.P. t:o_'tho Law Commission, dated 20th April 1972

}é'):::BIfe.a'fViI9I&éKo(]i:v{aerT;.:a:;igal not others. Second Appeal No. 1119 of1960 dual.

1'!

CAPTER 1-]?

SUITS IN GENERAL
Introduction

1-D.1. Part I -of the Code deals with litigation in the simplest
case, from the time the plaintiﬁ decides to sue and has to select his
forum, to the time, when, having obtained a decree, he proceeds to
execute it. It assumes that the plaintiif is sane and adult, and neither

an indigent person, not a soldier etc. It also assumes that the defen-a_
dant is, similarly, sane and adult, and is not an indigent person, at '

soldier etc. Further, it assumes that the suit is not compromised,
and that, in the course of the litigation, neither party dies, becomes
insolvent, or otherwise assigns his interest in the subject matter of
the suit; and, most important of all, it assumes that the suit is not
delayed by reason of interlocutory appeals.

1-D.2, These assumptions explain the apparent simplicity of
sections 9 to 35-A, contained in this part of the Code. Moreover, most
of the important stages of the trial are left to be dealt with by rules
in the Orders contained in the First Schedule.

Section 2----Deﬁnition of "decree"
1-D-3. 560131011 3(3) deﬁnes the exptession "decree". In the Com-

mission's earlier Report' thequestion whether an order rejecting a
memorandum of appeal on the gijountlgof deﬁcit in court-fees should
be treated as a "decree", was considered. The Commission thought
that it would' not be convenient to inéert a provision on the subject
in the deﬁnition of "decree", as there 5is no speciﬁc provision in the
body of the Code or in the rules, relatin to rejection of a memomn.
duin of appeal (except Order 41,,_1'ule 3 1) and (2) which deal with
rejection on the ground of tertaln, formal defects).

Recommendation
1-D-4- We appreciate the diﬂicults felt by the previous Com-

mission, and have, after some discussion, come to the same con.'

clusion.

Section 9

had in the earlier REPDIT. Occasion "consider a question relating

to religious Dﬁices. Reviewing the tas law, on the subject, it stated
. 5 ' -

1--D.5. With reference to: section 9, the previous Commission'
the position as follows:--- i

"'33 Suits Tetatiﬂﬂ 150 Teligiﬂua 0191098 to which fees wretattached.
Such stats raise no diﬁiculty.
1. 27th Report, page 89, note on section 2(2).
2. ﬁlth Report, pogo: 90-91. note on Iooﬁonﬂ ,. .
! I8

(ii) Suits relating to relig-ious_oﬁ'ices to which fees are not at-
tached. These can be classiﬁed 1nto:---

(a) ofﬁces which are attached to a sacred spot;
(b) oﬁices which are not so attached.

(2) The Bomba High Court seems to have recognised E
distinction etween (ai and (b) above, and the I_na]o-
rity of the decisions' of the High Court allow a suit for
an oﬂiee under (a) above but not for an ofﬁce under
(13) above.

(3) The other High Courts do not seem to recognise this
distinction".

l--D.5. Its principal conclusion was thus expressed.'

"Since the distinction made between cases (a) and (b) is
not recognised by the majority of the High Courts, it is
unnecessary to amend the section".

1-D.7. It appears to us, however, that opportunity should be
taken of clarifying the position on the particular point about which
the Bombay view differs with that of other High Courts.

1-D.8. The general propositions stated below are not in doubt-

(1) A suit for a declaration of religious honours and privileges
simp1iciter'- will not lie in a civil court.

(2) But a suit to establish one.'s right to an oﬁice in a temple,
and to honours and privile esattached to the said office as
its remuneration or gperq sites, is maintainable in a civil
court.

(3) The essential condition for the existence of an office is that
the holder of the alleged office shall be under a legal ob-
ligation 1:0 discharge the duties attached to the said ofﬁce
and for the non--observanc'e of which he may be visited
with penalties. '

1-D.9. The controversy is only in relation to an oﬂice not at-
tached to a sacred spot and not carrying any fees. We may illustrate

the controversy b referrin to a Bomba case,' wher it

that a suit to estal':-Ilish a claim to performythe Urs cereﬁionigsagnldeig
manag-e the offerings can be entertained in a civil court, because
though the offerings may be unceriain and voluntary, still, when:
they are made_to a particular deity-, they are the propert of the
temple (or shrine) concerned, and can be the subject-mat r of a
civil suit. One of the reasons which the court gave in its judgment
is relevant to the present point, and may be quoted-

"Again. it is not in respect of what may be called an 'itine«
rary, right over a certain territory, such as formed the

1. Anumbarofoaselweraoited. '
2. Karim Khan 7 .KqiI' bub ,A..I.B. 1926 Born. 1151.

ﬂl

subjects of the suits in Madhusudan Paroct v Shan-
lcarccharya and Sayad Nuruclin v. Ahas. The present
suit is in regard to a religious oiﬁce attached to a shrine,
and if the distinction suggested by Mr. Mulla at page 2.2
of his cornrnentary for reconciling the decisions of this
High Court is justiﬁed, the suit is not barred".

1~D.1[}. This distinction, however, does not appear to have found
favour with the other High Courts.' In our view, the distinction is
unnecessary, and the law should be clariﬁed so as to override the
distinction made in some of the Bombay cases.

Though the controversy relates to religious offices, the clariﬁca-
tion has to apply to all oﬁices, in order to avoid the argument that
other offices are governed by any other rule.

1--D.11. Accordingly, we recommend that the following Explana-
tion should be inserted' below section 9:-

"Explanation 2.--For the purposes of explanation 1, it is im-
material whether fees are attached to the office or not,
and whether the oﬁice is attached to a particular place
or not".

Section 11 whether requires amendment in consequence of recom-_

mcndation for trial of all issues

1-13.12. It is being recommended' that a Court must decide all
issues, even if the case can be disposed of on a preliminary point.
This necessitates a change in the provisions as to appeal_ 'Whene
the decision on the preliminary issue is favourable to the defen-
dant, and the other issues are decided against' the defendant, then,
at present, he cannot appeal. This position is now proposed to he
changed.' It would appear that an -express amendment of section
11 is not necessary on this point.

1-13.13. With reference to the principle of res 'udioa.ta (section
11), the Commssion in its earlier Report' proposed its extension
to execution. Further, it stated'-

"A suggestion has been made, that an express provision
should be inserted extending. the principle of res judo,-am
not only to execution proceedings but to all independent
proceedings. It is considered unnecessary to make any spe-
ciﬁc provision of this nature and that, the matter should

' be left to be dealt with by the Court".

1. Sea references in 27th Report, pages 90-91.

2. Section 9, of Explanation, to be numbered Explanation l.
3. See discussion relating to Order 15, rule 219;.

4. See amendment to proposed section 96.

5. 27th Report, amendment proposed to a. 4'? f

0. 27th Report, page 91. note on .. 111

1--D.14. The Commission referred to another question in these'
words--"'l'he question whether an express provision should be made
to lay down the rule applicable in cases where cross-suits have been
ﬁled between the same parties and have been disposed of by two
judgments, has been examined. The point is, whether, it an appeal
is ﬁled from one judgment and is not ﬁled from the other judgment,
the matters decided in the other judgment become res judicctc. It
has been considered unnecessary to make a speciﬁc provision on this
point, as the matter should be dealt with by the courts according
to the facts,o:E each case."

1-D15. As regards the ﬁrst point (applicability of section 1_1 to
execution and independent proceedings), we are of the View that an
express provision is desirable. As regards the second point, there
is some uncertainty. We shall deal with it later.' -

1-D.16. We recommend, therefore, that the principle of res judi-
catc should be applied to the situations of proceedings in execution
and independent proceedings. .r

Recommendation to insert new section 11A

1-D.l7. Accordingly, the ioliowing new section is recommended-
"HA. The provisions of section 11 apply, as for as may be, to-
(a) proceeding in execution, and
(1)) civil proceedings other than suits."

Section 11 and competence to try subsequent suit

1-D18. Under Section 13, one of the conditions precedent far-

applying the bar of res judicutct against the trial of any suit or issue
is that the previous court must have been competent to try the
subsequent suit or the suit in which the issue is now raised. The
existence of this condition, to a certain extent, detracts from the
finality of judgments, and gives rise to a certain amount of multi-
plicity of proceedings. No doubt, the principle behind this condition
is a sound one, namely, that the decision of a court of limited juris-
diction ought not to be ﬁnal and binding on a court of unlimited
jurisdiction, in the circumstances in which the condition applies.
Nevertheless, it is true that if some method could be devised of
avoiding such multiplicity, the attempt would be worth the trouble.

We, therefore, set before ourselves the task of devising such a solu-,

tion. The result of our study and discussions is given be]_{)wr;_

'. 1'-D.l9. An Allahabads case of civil revision is-illustrative

"The question for consideration before the High 'Court was
whether the decision given by a Court of Small Causes in

. 2'7t]1 Report, page 91, note on section 11. -
For 5 review of the case law, see Mai. Lacfzhmi 1". Mr. Bmzii, A,I_]3._ 1927 L,f,_ 239 F3_
Narhari v. Sfmnllaar, {I950} 1 S.C.R. 1'54; A.I.R. 1953 ELC. 419.

See discussion as to O. 41, R. 33. -
. Hanan-rul Hag v. Hakim Mania. ALB. ism A11. 604 ms {1r.s.)' (Cece lawraviewhd)

wease-

a suit for arrears of rent will operate as res judicata, in a
suit ﬁled later in the court of Munsif for the recovery of
arrears of rent for a different period and for ejectment.

1-13.20. The Court of Small Causes had no lkirisdiction to enter-
tmn the suit for ejectment and therefore, the latter suit had to be
ﬁled in the Court of Munsif. The dispute between the parties in the
Court of Small Causes was about the rate of rent, whether it was
Rs. 15 or Rs. 10 per month. The Judge ﬁxed it as Rs. 10 only. In the
subsequent suit, the plaintiff, while praying for ejectment, claimed
rent for the period preceding the second suit at Rs. 15 per month-
Therefore, the question arose whether the decision given by the
Judge of the Small Causes Court about the rate of rent will operate
as res judicata. Khare J. delivering the majority judgment, said that
one of the conditions under section 11 was that the former suit
should have been decided by a Court competent to try such subse-
quent suit. This condition has not been satisﬁed as the Court of
Small Causes is not competent to try a suit for ejectment. It was
contended by counsel for the applicants that the Court of Small
Causes is a court of exclusive jurisdiction and, therefore, the gene-
ral principles of res judicata will apply. It was also further contend-
ed that when general principles of res judicata will apply, the con-
dition that the courtdeciding the former proceeding must also be
competent to decide the subsequent suit has to be waived.'

1-D21. It was held that the Court of Small Causes was not to
be a Court of exclusive jurisdiction, but merely a court of preferen-
tial jurisdiction, in view of the scheme of the Provincial Small
Causes Courts Act and section 15, C.P.§~C. In the absence of a Court
of Small Causes, the Court of Munsif has the jurisdiction to enter-
tain and decide suits for the recovery, of rent. Therefore, the deci-
sion of the Small Causes Court will not bar re-agitation of the same
question in the subsequent suit, which the court of Small Causes
was not competent to try.

1-D22. Tripathi J. in his dissenting' iudgment, held that the
Court of Small Causes-exercises exclusive jurisdiction. Following a
Supreme Court case," he held that on? the general principles of res
judicata, a previous decision on a ,matter in controversy, decided
after full contest, will operate as res fittclaicata in a subsequent 1-egu.
lar suit irrespective of the fact whether the Court deciding the matter
foﬁnerly had or had not been competent to' decide the subsequent
suit, Therefore, Tripathi J. held that -'the decision of the Judge of
Small Causes Court operated as res judicata. '

1-D23. The Supreme Court' has considered the question whether
the word ''suit'' in section 11 can be liberally construed to mean even
a part of the suit. It was urged that if the competence of the earlier
court is going to be judged by reference to its competence to try
the entire suit as subsequently instituted, then in many cases where
1. RE)" Lakshmi Dctsi v. Bamzmali Sal, A.I.R. 19533.0. 33, relied on.
2. _G-uzata C-'Izand ('time Lei! v. State of Gujmut, A.I.B.. 1965 s.o. 1153.
3. Gutab Ba' v Hanplaool as, are; 19o2,sz;c. 251;. am.

the matter directly and substantially in issue had been tried bet-
ween the parties by the earlier court, it may have to be tried again
in a subsequent suit, because the earlier court had no jurisdiction
to tr ythe subsequent suit havng regard to its pecuniary jurdisdic--
tion and that this wohld be anomaolus. It was held--"The world
'suit' has not been deﬁned in the Code; but there can be little
doubt that in the context the plain and grammatical meaning of
the word would include the whole of the suit and not a part of the
suit, so that giving the Word 'suit' its ordinary meaning it would
.be ditﬁcult to accept the argument that a part of the suit or an issue
in a suit is intended to be covered by the said word in the material
clause. The argument that there should be ﬁnality of decisions and
that a person should not be vexed twice over with the same cause
can have no material bearing on the construction of the word 'suit'.
Besides, if considerations of anomaly are relevant it may be urged

in support of the literal construction of the word 'suit' that the'

ﬁnding recorded on a material issue by the court of the lowest
jurisdiction is intended not to bar the trial of the same issue in a
subsequent suit ﬁled before a court of unlimited jurisdiction. To
hold otherwise would itself introduce another kind of anomaly."

l--D.2-4. Therefore, the suggestion that the word 'suit' should be
liberally construed was not 'accepted. In other words, it is the whole
of the suit which should be within the competence of the court at
the earlier time, and not a part of it.

l-D25. Of course, if the earlier court was a court of exclusive
jurisdiction-----such as, a revenue court on matters within its compe-
tence---its decision would be res judicata.'

1-1126. The position is substantially the same in England in
this respect.

1.D.2?. Diplock L. J. explained the doctrine of res judicata' in
these terms----

"The doctrine of issue estoppel in civil proceedings is of
fairly recent and sporadic» development, though none the
worse for that. Although Hoystend v. Taxation Commissio-
ner did not purport to break new ground, it can be re-
garded as the starting point of the modern common law
doctrine, the application of which to different kinds of
civil actions is currently being worked out in the courts.
This doctrine, so far as it affects civil proceedings, may
be stated thus: aiparty to civil proceedings is not entitled
to make, as against the other party, an assertion whether
of fact or of the legal consequences of facts, the correct-
ness of which is an essential element in his cause of action
or defence, if the same assertion was an essential element
in his previous cause of action or defence in previous civil
proceedings between the same parties or their predeces-
sors in title and was found by a court of competent juris-
diction in such previous civil proceedings to be incorrect,

1. Bohoa-at Sing}; 7. Surat.-ij, ls..I.a. 1921 _ ._ (F.IB.). .
2. Mill: 7. Cooper (1967) 2 Lu E.B.. loo, _ot_{, not L.-I.).

unless further material which is relevant to the correct-
ness or incorrectness of the assertion and could not by
reasonable diligence have been adduced by that-_p='=11'l5.Y 111
the previous proceedings has since become available _to
him. Whatever may be said of other rules of law?to which
the label of 'estoppel' is attached, 'issue estoppel 15 not a
rule of evidence. True, subject to the qualiﬁcation which I
have stated, it has the effect of preventing the party '_es-
topped' from calling evidence 'to show that,tlie 'assertion
which is the subject of the 'issue estcppel is incorrect.
but this is because the existence of the issue estoppel re-
sults in there being no issue in the subsequent civil pro-
ceedings to which such evidence would be relevant. Issue
estoppel is a particular application of the general rule of
public policy that there should be ﬁnality in litigation."

1-D28. In the leading case of Duchess of Kingston', Degrey, C. J.
observed-

"From the variety of cases relative to judgments being given
in evidence in civil suits, these two deductions seem to
follow as generally true; ﬁrst, that the judgment of a
court of concurrent jurisdiction directly upon this point
is as a plea, a bar or -as evidence, conclusive, between the
same parties upon the same matter, directly in question
in an-other court; secondly, that the judgment of a court
of exclusive jurisdiction directly upon the point is in like
manner, conclusive upon the same matter, between the
same parties, coming in incidentally in question in ano-
ther court for a different purpose. But neither judgment
of a tribunal of concurrent or exclusive jurisdiction is
evidence of any matter which came collecterally in ques-
tion, though within their jurisdiction, nor of any matter
incidentally cognizable, nor of any matter to be inferred
by argument from "the judgment".

Lack of jurisdiction

1-D29, In order that estoppel by record may arise out of a En-
glish judgment, the court which pronounced the judgment must
have had jurisdiction to do so." The lack of jurisdiction deprives the
judgment of any effect, whether by estoppel or otherwise,' Thus, a
magistrate hearing a summons' for the expenses of making up a new
street,' or for trespass to land,' and having jurisdiction for that pm-_
pose, may dismiss the summons on the express ground (in the one

1 case) that the street was repairable by the inhabitants, or (in the other

i. T7IeD'u-o7IcasofKi'ngstoTi'acaae, {1776,'I'l83'E.R. rim, Cookie, Cases and sum-.5;
Evidence, (1963), pages 129, 130.

2. Cf. Rosenfeld v. ,3\"ewmcm, (1953) 2 All ER. 835 (U.A.}.
3. (in) Rogers v. wood, (1831), 2 B. cf: Ad. 245.

{6} Archbislioja of Dublin v. Lord Triannleatoil, (1849), 12 I. Eq. E. 152.
4. Under the Public Health Act, 1375.

.3. R. v. Hidcii,-ings, (1881) 6 Q.B.D. 300 [£11.]; followed in Scoot v. Laws, (1902) 38 L.T.

6. .»LG. for Trinidad and Tobago 1. sum, (rats) an. 515 {P.G.).

that the defendant had established a title to the pI'cipe1"13*'; 1311113
ihough such a ﬁndin% is embodied in _ the order as drawn up, 11:
creates no estoppel etween the parties, fDI"1't relates to a matter
which the magistrate had no j1.1I'1lSd1Ct1OI1_d1I'ECtly and immediate-
13; to adjudicate upon, being at most incidentally cognizable, so
far only as necessary to his decision on the actual question sub-
mitted'.

1--D.30. It appears that the problem is one which is inherent
in the co--existence of courts of limited and unlimited jurisdiction.
The problem, however, can be solved if a court of limited jurisdic-
tion is required to submit the case to the district court--whicl:i is
a court of unlimited jurisdiction--whe-never the former is satisﬁed
that the suit involves a. question of such a nature that if a suit had
been brought for relief based principally on that question, the court
would have been incompetent to try the suit. What we have stated
above may appear to be rather abstract, and we shall, therefore,
deal with the matter more elaborately.

1-D.31. If, for example, a court of Munsiff or a Junior Civil
Judge trying a suit for rent is faced with the question of title,
which, having regard to the value of the immovable property is
beyond his pecuniary jurisdiction, then he should stay the trial,
and refer the case to the district court, which will transfer the suit
to another court competent to decide the question of title.

Recommendation

1--D.32-. In the light of what is 'stated above, we recommend the
insertion of a new section as foi1ows:--

To insert new section 23 A.

"23Ai. (1) 'Where any court subordinate to the district Court
is sat1_s1'1ed that a suit pending before it and within its
Jurisdiction involves a question of the nature referred
to in sub-section (2), the determination of which is neces-
saiy for. the disposal of the case, the Court shall stay the
proceedings and submit the case, with a brief report ex.
plaining its nature, to the district Court.

(2) The question referred to in sub-section (1) is a question of
such a nature that if a suit had been brought for relief
based principally on that question, the Court would have
been incompetent to try the suit

(3) Where a case is submitted unde b t' 1
district Court. the district Court Slllglli, :fef:ef0iIi1ot(ic3a E, E:
parties and after hearing such of them as desire to be
heard-----

(a) transfer the suit for trial to any Court subordjnate

to it and competent to try the suit referred to in sub-
section (2), or '

(b) withdraw the suit to itself and try it

1. C'f.Doi.'er «,--. ciiM,{isie3,i Ex. D. 172 ﬁnagistrates' refusal toorifl - 4'
gﬂ(')d8.L1Il[lE1' the lletropolitan Police. Courts Act, 1839 {:2 am} 3 'print. "I ﬁr] ':BIE;e]-11;].-HZJJIEEE
adiiidieation on title which he [iasiiu jurisdiction to make); He Vito:-tr; Pgmm
(1894) 2. Q.B. 387 (LA. {refusal of receiving order no adjudication on the debt)-' tied
in King v. Henderso-n, (1898) _-\.C!. 720, P.G. at page 7.-.m_ "PP

LfB(I))229MofLJ8zCA

(4) 'Wherc- any suit has been transferred or withdrawn under
sub--section (3)-. the Court which thereafter tries such
suit may. subject to any special direction in the case of
an order of transfer, either.-re-try it or proceed from the
point at which it was transferred or withdrawn.

(5) For the purposes or this section, courts of Additional and
Assistant Judges shall be deemed to be subordinate to
the district Court. _

(6) The Court trying any suit transferred or withdrawn under
this section from a Court of Small Causes shall, for the
purposes of such suit, be deemed to be a Court of Small
Causes.

(7) The district Court shall cause a copy of such order to be
sent to the court by which the case is submitted".

Section 11--Explanation 2 . '

1~D.33. According to the Explanation 2 to section 11, for the pur-
poses of this section, the competence of a court shall be determined
irrespective of any provisions as to ajright of appeal from the deci-
sion of such Court. It is necessary to examine the back-ground of
this Explanation. .

1-D34. The reasons why the judgment of a court of record acts
as an estoppel are. that it is against public policy and oppresive
on the individual to re--agitate disptites which have been litigated
once for all to ﬁn.'ish.l

1-D.35. It has been stated in England" that "matrimonial cases
apart, a decision of an inferior court;-will operate as an estoppel in
the High Court. but the decision must be one from which there was
on appeal. ?

1.D.36. Again, it wfgs stated Savigny" that "everything that
should have the authority of res jadiouta is, and ought to be, subject
'E0 appeal," and reciprocally in appeal is not admissible on any point
not having the authority of res judica._u".

l--D.37_ The history of the second Explanation to section 11 is
interesting. Before 1908, there was aconﬂict of views in India on
the question whether a judgment froin which. no second appeal lay

to the High Court was res judicata. Spme High Courts held that the,

earlier suit operates as res judicuta, on the ground that requirement
of the section was satisﬁed when theiCourt deciding the ﬁrs; suit
was competent to try the subsequent suit, irrespective of the question
whether the earlier decision was 'or toes not"subject to the same
appeal. asthe decision in the subsequent suit would be, and that 3
dijfereizt interpretation would be straining the language of the 19.
gislature. Some High Courts, on thebther hand, took the opposite

I . Spencer Bower, Hes Jurlicuta, page 2 cited in Phipson, Manual of Law of Evidence, (1959)
page 84, 85. '

2. 1'.-'5-Tu:.?a{t V. t.-'0-iicfiu, [ISUIEJ ll App. Gas. 541 referred to in Gmgg on Evidence (1937:,
page 275. '

it:,'é::;:':.§f*'*""" War" ~'- use 7 em

E
1

view, and considered that the words "or jurisdiction.competent"
in the section admitted of the provisions of law relating to appelab1-
lity being considered in giving effect to the principle of estoppel
which the section is intended to enforce; and that, having regard
to the diiference in the grades of the Courts administering }ust1ce
in this country and the qualiﬁcations of Judges which differ greatly
it was better not to tie down, as far as possible, a court of 'higher
jurisdiction by the decisions of inferior Courts.'

1-D.38. The legislature, when it revised the Code in 1908, inserted
the second Explanation in section 11, and, in eﬁect, adopted the wider
view.

1-D39. The second Explanation was, thus, intended to remove
doubts arising in a particular class of cases as to the applicability
of the section, when judgment had been given in a suit against
which no appeal or no second appeal lay, and the question arose
whether such judgment could operate as res judicata.

1-D.-40. The eifect of the change made in 1908 is
by post 1908 cases, It is suﬂicient to .refer to one case.

1-D.-11. In an Allahabad case,' a suit had been brought to recover
damages on account of the fruit of a grove. The suit was dismissed
on the ground that the plaintiff had failed to prove his title to the
grove. There was no second a peal in the case, as the suit was one
of a nature oognizable by a urt of Small Causes.

It was held that a subsequent suit between the same parties for
the recovery of possession of the gI't_>!Ve and damages was barred by
res gudzcata. The fact that the previﬂvus decision was not subject to
second appeal was immaterial, in vie of second Explanation to see-
tion 11. '

Recommendation

1-D42. In view of the above background of the second Explana-
tion to_section 11, the Explanation should be retained,

Section 15:1 (pmposed)----0biecIions its to the pecuniaryjui-isdiction

1-D.-12A. It often haPP§I1S that the judgment of a Court which
has tried a suit is challenged in appelilor revision on the ground that
the Court had no pecuniaxz jurisdi Ton, that is to say, the Court
was not cornpetent to try t_ e suit halving regard to the value of the
subject matter of the suit. (The limits of pecuniary jurisdiction of
various courts are set out in the Civil Courts Act of the State con-
cerned). We are of the view that in; the interests of expedition the
Code of Civil Procedure should contain a provision, similar to that
contained in the section' relating'. to iobjections as to place of suing,
to the effect that objections as regards pecuniary jurisdiction should
be raised at the earliest opportunity,;_ and (even if so,taken) should
not prove fatal unless there has been-ea consequent failure of justice.

illustrated

1- 32-0 -4vm-s' Gourde" in N==dmmim1.(=1996II.Lr. 29 Mad. 195-199 (reviews cases).
2. MN-oeddi Lot 1. Jwala Proami, lﬂ LG. 406 (Allahabad) (Uhamier, J.).
.3 Section 21. '

Lyninymorusoa

Hts

While we recognise that there is a distinction between territorial
cornpetence and pecuniary competence, we have, attcr some discus-
sion, come to the conclusion that any theoretical basis that may exist
for the present position should he regarded as over--r1dden by the
paramount consideration of avoiding delay.

Recommendation

1-D.=12B. Accordingly. we recommend that the following section
should be inserted after section 15:-- l

"15A. No objection as to the competence of a court with 1-e3"e~
re-nce to the pecun-ia-ry limits of its jurisdiction shall he
allowed by any. appellate oi-"reins-tonal court unless such
objection was taken in the court of first instance at the
earliest possible opportunity and in all cases where issues
are settled at or before such. settlement and unless there
has been G, consequent failure of justice";

Section 20 and suits against the Government

1-DA3, The next section which we have to discuss is section 20,
which deals with forum. In connection with suits against the Gov-
ernment, questions of forum sometimes present difficulty, because the
Government has no "residence", and theouestion how far the Gov-
ernment can be said to "carry on, business" is one which, for_a long
time, engaged the attention of courts.' It will be more convenient,
from the practical point of view, if the place of the p1aintiﬁ's re5i_
dence is treated as a proper forum, in case of suits against the G0v~
ernrnent, in addition to the forum permitted under' the" existing
provisions. There will be no hardship to the Government.

1--D.=H:. In connection with the forum for suits against the Gov-
ernment. it would be of interest to note that in the.UaS..-A-., -the plain-
tiffés residence constitutes the forum. The relevant provision' is
as ollowsz -' 5 - " '-

"S. 1402. United State; as di2feiitlhnt--

(3) Any civil action a»§ain§t"theiiUnited 'Sta'tes'under suh-sec-
ticn (a) of section 1346 of- this title" may! be prosecuted only
in the judicial district zwhere the plaintiﬁ resides,

(b) Any civil action Oil a: tort claim against the United States
"under sub-section Ch} of 'se-ction_1346 of this title" may be
prosecuted only in" the judicial district where the plaintiif
resides or wherein the act .or omimion complained .of

occurred." _ I, . I

1. 27th Report, pages 94.95, note on saotion;1D,and suits against the Government.

2. 28 US. Code, 14052. ' v =: ' '

3. Title 23, a. 1346 (Is) of US. Code zrelatoa do vaﬁousisuits in the districtcourlss ofthe U 8
against the Government for money wrongfully collected as tax etc. The jurisdietio11'is'
concurrent with the Court of Claims. '

-1. Title 25, s. 1346 (in) ofU.S. - Code relates to Girl] Claims against the United States in the

district Court not exceeding 1|'I,*l'|0l.'| dollars, founded upon the Constitution, fedaml law
or regtilation, contract etc. _ __ I '

'E.-is

Recommendation

1--D.45. While it is not necessary to conﬁne the forum only to
the plainti1T's residence (as has been done in th_e_1"L11e in the U.S.A.
quoted above), that should constitute an additional ﬂorum. We.
therefore, recommend that the following clause should be inserted
in section 20-

"(bbj or, in the case of a suit against the Government, the
plaintiff, or any of the plaintiﬁs, if there be more than
one, resides, carries on business or personally Works for
gain."

Section 20----'Expla.nations

1-D46. There is another point concerning Section' 20 (forum for
suits other than those relating to immovable propertjrlu Broadly
speaking, under the section, the forum is the place where the defen-
dant actually and voluntarily resides, carries on business or per-
sonally works for gain, or where the cause of action arises in whole

or in Dgrt. There are two Explanations annexed to the section, quoted _

below:

"Explanation I_--Where a person has permanent dwelling at
one place, and also a temporary residence at another place.
he shall be deemed to reside at both places in respect of
any cause of action arising at the place where he has
'such temporary residence.

-Explanation II.----A corporation shall be deemed to carry on
business at its sole or principal office in India or, in res-
pect of any-cause, of action arising at any place where _it
has also a subordinate office, at such place."

1-D.-4?. Both the Explanations prime focie appear to be obscure
and redundant, and one of them suﬁers from a drafting ﬂaw also,
as iskshown below.

1--D.=-18. First. we discuss Explanation I. If a person has a perma-
nent dwelling and a temporary residence at different places, the ﬁrst
Explanation provides that 'he shail be deemed 'to reside' at both
places, in respect of any cause of action arising at the temporary
residence. Now, it isnot clear whether this_Explanation is intended
to expand. the scope of the main patt of the section or to limit the
scope of the main part of -the section. Under the main part, a suit
can be ﬁled either where the defendant "actually and voluntarily"
resides or carries: on business. or personally works for gain, or where
the cause of action arises in whole or in part. If the object of the
Explanation is to indicate that temporary residence is enough to give
jurisdiction. then the further requirement as to the cause of action
is not intelligible, because the place where the cause of action arises
is the proper forum even under the 'main part, and the Explanation
elves no additional forum. If, on the other hand, the object of the
Explanation is to give jurisdiction to the court of permanent dwell-
ing, even then the requirement as_ to cause of, action renders the
Explanation useless. ' "' " '

1-D49. There is also a drafting ﬂaw, inasmuch as while the main
part of the section is in terms of "actually and Voluntarily resides":
the ﬁction created by the Explanation extends only to "resides". in
other words, the Explanation is not in total harmony with the main
part.

I-D.50. If the object of the Explanation is to limit the operation ;

of the main part as regards a place of temporary residence. then the
Explanation fails to carry out that object clearly}, for, under .the"main
part. even a temporary residence would suﬁioé, and the Explanation
does not indicate in deﬁnite terms that a temporary 'residence shall
not suﬂice. 'i'

1-D.51. The Explanation could, no doubt. be made more intelliw

gible by removing the requirement of the cause of action, and by
providing that the place of permanent dwelling is also a place where
the defendant is deemed to "actually and voluntarily" reside etc.,

notwithstanding that the permanent dwelling place is not his actual '

residence. But, as a matter of policy, this is to be avoided. If the
permanent dwelling is an abandoned home and is a- "dwelling" only in
name. there is no reason why it should constitute a possible forum.
The only course left, therefore. is to delete the first Explanation,
because it is redundant as it stands now-, and cannot, by any modi-
ﬁcation, be made to perform a- useful function.

1-D52. We now turn to the secondiﬂxplanation. The ﬁrst part
of the Explanation is, no doubt, usefu.1,;since. where a corporation
has its main oﬁice at any place (in. -India), it is to be deemed to
carry on its business there, irrespectciveiof the nature of the work
that is actuallycarried on there. But _ latter part of the second
Explanation is otiose. If no part of the cause of action arises at the
place of the branch oﬁ-ice, the corporation. cannot. as the wording now
stands, be said to transact business at this piece.' In the presence of
clause (cl. the purpose of the second pert pt Explanation 2 is obscure.'
Where the suit is instituted at a plpcaj!-where a corporation has a
subordinate office, the °0urt cannot use with the requirement
that the cause of action must arise at ch a place.' If no part of
the cause of action arises at a branch; o e of the corporation, a suit
is not maintainable in the courtof that place.' The latter part of -the
second Explanation, therefore, serves noiuseful purpose.

1-D53. The matter was discussed at length in the earlier Report'
3150. but no change in the wording of tlie section was suggested.

1-D54. We are of the view that: asiregards Explanation 2, the
latter half should be deleted. There is, in our view, a case for pro-
viding, as a forum, the place 'where thpre is a subordinate office,
irrespective of the question whether It islfalsa the place of accrual of

l. Bknla 370.53? 1?. Empire of India Life Inaurtflce 011.. x§.I.R. 1943 L111. 56. 57, paragraph

16 (reviews cases].
2. Bharai Insurance Co. v. Waamdm, A.I.R. 1966 Nag 203. EH14, para 7 [reviews cameo).
3. Bkrmzl Iﬂsuraﬂoe Ca. V. Wrtsudeo, A.I.R. Iﬁﬂ Nig 203, 204, porn 8.
4. No-dimgarii Bank Ltd. v. Central Ban?! ofIndI'a_ LI1i.j:A LR. 1961 Ker. 50.
5. 27:11 Report. pages 92 to 94. note assessing ' i

E
s

the cause of action. The present restriction, as was stated in the
Nagpur case,' causes l'1aI'dShip_ (That case related to the business of
insurance, but the hardship is common to all cases dealing with
corporations).

1-D55. It was stated in the Nagpur case--

"It is much to be regretted that an insurance company should
not be amenable to the jurisdiction of the court at the
place where it maintains a subordinate ofﬁce irrespective
of any question about the accrual of cause of action. But
few policy holders realise the implications of the forms of
the contract prepared by the insurance companies which,
though operating all over the country by receiving pro--
posals and premiums through their various subordinate
offices, carefully undertake to pay?" only at the head office
situated in many cases far away from the policy holder
or his assignee or nominee."

1~D.56_ The observations, though made with reference to insu-
rance business, apply equally to corporations carrying on other busi-
ness also.

l--D.57. It may be noted that in the U.S.A. the rule applicable
[in federal courts) as to venue generally.' after providing that the
defendant's residence constitutes the forum in "non--diversitj;" cases,

' goes on to enact as fcllows:-----

"(c} A corporation may be sued in any judicial district in
which it is incorporated or licensed to do business, and
such judicial district shall be regarded as the residence of
such corporation for venue purposes.

(:1) An alien may be sued in anydistrict."

1--D.58. The suggestion made above cwould not, therefore, be
novel. .

I l-D59. The amendment suggested may appear to be giving a
very wide forum. But, in practice, the suit will be ﬁled only where
some relationship exists between the subordinate ofﬁce and the
plaintiff.

Recommendation
1--D.6[). In the result, our recommendation is as follows--

(al the ﬁrst Explanation to section 20 should be deleted;

(hi the second Explanation should be modiﬁed so as to read
as follows:--

"ExpIcmation--A corporation shall be deemed to carr7.r on busi-
ness at its sole or principal office in India and also at any place in
India: where it lips ti subordinate office.-"

1. saw Inaurcﬁcnﬁo. v.-17l"a-slziiiiao, A.I.B-.1956 nag. amtecl.
2. 2sU.s.oode1s31. : .5 . -

. ., ....... .
._».s.m:.,,-5'...

Section 20(c) and proposed Explanation 3 .

1-D.61. Under section 20(0), a suit can be ﬁled where the cause
of action arises wholly or in part. As a general rule, it is Well settled
that in the case of a suit on contract the cause of action arises in
part where the contract is to be performed. The place of performance
of a czuntract depends on the terms of the contract. The contract Act
has only one provision' as to place of performance which, however,
does not solve the problem of forum.

1-13.62. Now, in respect of payment of debts, a controversy as
to the place where the debt is to be repaid has arisen. So far as the
Code of Civil Procedure is concerned, this controversy has assumed
this form, namely,--how far is the English rule that the debtor must
find the creditor, to be invoked for the purpose of giving competence
to a court having jurisdiction at the place where the creditor resides
or carries on business? '

1-1163. The Calcutta" View is, that the English rule on the subject
{referred to above) applies to determine the forum. The Bombay
view" also is that the English rule applies.

1-1164. The Punjab view' is that it does not.

1-D65. The Madras High Court' has held that the English maxim
has to be applied with the modiﬁcations pointed out judicially in
several cases. -

1-D66. In this state of case-law, it would be desirable to make
a clarification to the effect that, in the absence of a term in the
contract to the contrary. in a suit for recovery of money the cause
of action should be deemed to arise in part at the place where the
person to whom the money is due resides.

Recommendation

1--D.6'T. Accordingly we". recommend that the following Explana-
tion should be added as Explanation 3 to section 20-

"'Explo.na.tion 3-----In a suit for 'recooer1;=of money, based on
contract, the cause of crict-ion shall, in the absence of a.
term in the contract to the c0'ﬂ»tTﬂ?'.1.r. be deemed to arise
in mart at the place where the person to whom the money
is date ordimm'.l»u resides, carries on business or personally
works for' gain." .-

1. Flactinn 413, Indian Contract Act, l872-
2. my .s:as of Punjab v. As. Harm, 11.1.3. 1964, Cal. 418.
NJ) .£'_P_r", E-ngtimerinn Ca. V. U-nirm nf India, A.I.R.. 1966 S.('.. 259, 264. para. 9.
3. Bkarmnal v. Hrxlrfmuutmol, .-1.I.B,_l9.'iE Born. III, 112, para (Chagln. (L3. and Dixit C7,).
4. Ht'1'€6vlatGirtHzariIal 1'. Baijnaﬂi, A.I.R. 1950 Punj. -$50 (F.B.}.
5. at. rrgntatesha v. Mo. Ksmzapsg, A.Iia.- mi Mod. 201. 205.

. ._ -...__r-'.. .-

'33

Section 21 and execution

1--D.68. A1. present, section 21, which saves irregularities as to
local jurisdiction, deals only with objections as to the Place Of 3W"»:13f-
The section does not apply to execution proceedings, that 55 L0 539157,
where an attack is sought to he made on the validity of the execulto-n
proceedings themselves on the ground that they had been held in
the wrong couit. ,

1-D69. Now, the principle on which section 21 is based, nam_e1II,
that no objection as to the local jurisdiction of a court can be raised
except as provided in the section, has been held to apply to execu-
tion proceedings in a number of decisions. Thus, as has been noted
in the earlier Report,' it has been held that the defect of jurisdic-
tion arising by reason of the transfer of an area pending execution
proceedings, does not vitiate those proceedings, It has also been
held, that after sale, an application to set aside the sale 011 the
ground that the court had lost territorial jurisdiction. could not he
made, and that such objection, if not taken at the earliest oppor-
tunity, cannot be raised subsequently. F

1-D.'?0. The Commission, in its Report on the Code, also noted
that the only case taking an apparently contrary View was a Madras
one. The Commission, however, did not recommend any amend-
ment on the point, as it considered that no express provision was
necessary and that in most cases. courts would apply the principle
of section 21 to execution also.

Recommendation

1-D.'?'1. We have considered this question, and are of the View
that in order to avoid delay in execution, objections as to the terri-
torial competence of a court executing a decree. should be dis-
allowed. and that to achieve this purpose an express provision on

the subject should be inserted. Such an amendment would avoid-

the possibility of such objections being raised unnecessarily, The
following new section is accordingly recommended:

"'23A. No objection as to the competence of the exec-u.tin._q court
with reference to the local limits of its jurisdiction shall be allowed
by any appellate or reoisiorncl court unless such objection was taken
in the executing court at the earliest possible opportunity and un-
less there has been a consequent failure of justice."

Section 23-11 New

1-D.'?'2. We have suggested separately' a new section requiring
a court with limited jurisdiction to refer the case to the district
court in certain situations.

Accordingly, a new section as recommended there, may be in-
serted.

Section 24 and transfer from court not competent

1-D.73. On the oncstion whether section 24 anpliew: where the
transfer is from an incompetent court, a conflict of decision; has
arisen. '

1. 27th Report, pages 95.95, Noterriisection 21 and execution.
2. Sec discussion relating to section 11.

3-.1:

1--D.'?4. This is illustrated by a recent Andhra ease' The suit
was for a permanent injunction restraining the several defendants
from interfering with the plaintiffs enjoyment of properties men-
tioned in Schedules A, B 8: C of the plaint. The 'A' Schedule pro-
perties were in the Nizarnabad District, while 'B' and 'C' Schedules
properties were in the Gunter District. Defendants 1 to 4 were
resident in the Nizamabad District, while defendants 5 to G in the
Guntur District. A single suit was laid against all the defendants.
Defendant 4 ﬁled this application under section 24, for transfer of
this suit from the Guntur court to the Nizamabad court. alleging
that the suit had been" laid at Guntur with the only object of
harassing the defendant. Counsel for the plaintiff raised a prelimi-
nary objection that the application under section 24 was not main-
tainable, as the petitioner had raised an objection, regarding the
jurisdiction of the Court at Gunter. He contended that section 24

- authorised transfer of a case from one competent court to another -

competent Court, but not from a Court which had no jurisdiction
to entertain it.

It was held by the Andhra Pradesh High Court that "The lan-
guage of section 24, Civil Procedure Code is very wide, and there
are no restrictions or impediments in the way of the High Court
exercising the power of transfer merely' because there is a 'dispute
regarding jurisdiction."

1-D75. A similar View has been taken by some other High

Courts,' while some High Courts have taken a contrary view.'

1-13.75. It is obviously desirable to plarify the position. 'In our
opinion, it is better to adopt the wider view, in the interests of
expedition. 5

Recommendation

1-D.7'i'. Accordingly, we recommend that the following Explana-
tion should he added to section 24--- '

"Explanation-«A case may be transferred under this section
from a Court which has no iujisdictéon to try it." -

Section 24 and execution proceedings
1vD.'?8_ Section' 24 deals' with the transfer of cases. With refe-

rence to the applicability of this secti ' to execution proceedings,_

there is a controversy, which was cdnsi ered in the earlier Report
on the Code.' The Commission noted' ' the Calcutta High Court
had taken the view that execution pro ings are not covered,'

1. T. Red(l'y' 'IT. M. Rrso and others, A.I.'R. 1970 5.1'. 194.
2. (3.) Daﬁry V. Dula, A.I.R. I955 N£I.g.e-14; -
(L) ."I'oro1'1vL Due? 1:. Khunﬂi Dal, .A.I.R. 1934 All. 569.
3. fat) [Gangumal 7. Naﬂﬂ:rn'rsm, AIR. 1932 Bind 215;
my Krishnoji Rao 1?. Golmldos, a_.I.n. 1955 Nye. ns.
4. 1"i'th Report, pages 98-99, note on section 24 and execution proceedings.
3. Roﬂjii Kumor v. Cour Hori Mustagp. A.L'R.' 1954!} Cal. 177,
= I

. ...._.,._...u .

«cf-

by section 24. But other courts had taken a different view.' ES the
Commission added. _

1-D.'r'9. The Commission, however, considered a clariﬁcation un-
necessary, in View offthe decisions of other High Courts.

'1-13.80. We have, after a fresh examination of the subject, come
to the conclusion that a clariﬁcation is useful. We therefore, recom-
mend that the following explanation" should be added to section
24(l):-- I

"Explanationffn this section, 'proceeding' includes a proceed»
tug' for "execution."

Section 28 and summons sent to another court in another State.

1-DB1. In its earlier Report," the Commission noted that a sus-
gestion had been made that when a summon is sent for execution to
a court in another State, the return thereon should be. made or trans-
lated in English, so that the Court which issued the summons may
be able to understand the action taken on the summons. The Com-
mission was of the View that this matter could be dealt with by
appropriate provision in the General Civil Rules and Orders in
3:-rce in each State, without any amendment of the Civil Procedure

ode.

Recommendation

1-DB2. We, however, think it desirable to make a provision of
the above nature. Its utility is obvious. Accordingly, we recommend
that the following sub--section should be added in section 2B---

"{3} Where the language of the summons is diﬁerearit from the
language of the record referred to -in sub-section (2), a.
translation of the record in English shall also be sent to-
gether with the record sent under that su,b-section."

Section 35-]! (New) (Costs for delay occasioned by party)

l-D.83. It often happens that a partv. though successful in the
event, has been responsible for undue delay in respect _of
particular stages of litigation. It is but fair that such delay should
be taken into account while awarding costs. In order to elicit opinion
on the subject, we had put a question' in the Questionnaire as
follow:-- - '3

"1. Would you favour the insertion of a provision to the effect
that the court shall, whi1e,passi*,ng an order for costs, make
the party responsible for delay with reference to any step
in the litigation, pay the cost proportionate to that delay,
whatever may be the ultimate event of the suit."

I.{u-) Mohammad Hobilrultok V. Tikum. Uhrrrtd, A.I.R. 1925 All. 276.
HI] .-'Vasservdﬂji v. Kharaertji, I.L.R. 22 Burn. 7'73.
{0} Rojagopala 1!. Turuphtiu, I.L.R. -19 1-Tad. 7-16; A.I.R. 1926 Mad. -121 .
id] Fielding V. Jarﬂtidos at Son.-r, ALR. 1926, Lab. 485;
2. This is apart from the provision in sections 38, 39.
3. 27th Bcpnrt, page 99 note on section 28.
-1. Qnstion 1.

1--D.8=i:. This question has led to a sharp difference of opinion.
The replies received could be classiﬁed into three broad categories,
namely, (i) those favouring the suggested amendment, (ii) those op-
INSEC1 t0 it? and (iii) those accepting it in a modiﬁed form, e.g_ those
which would leave the matter to the discretion of the court rather
than insert a mandatory provision.

1-D.85. Opinion is almost equally divided between the ﬁrst two
categories, only a few replies favouring an amendment with a modi-
ﬁcation. Those who are in favour of the amendment posed in the
question, regard it as a desirable one in order to check dilatory tac-
tics. It has been stated that solvent parties often resort to that dila-
tory tactics to cripple the opposite party, or a party with a bad case
tries to delay the matter." It has further been pointed out that a good
slice of litigation is aimed at delaying the relief to which the oppo-
site party is entitled." One of the replies adds that the payment of
costs of adjournment should be made a condition precedent to the
taking of the next step in the litigation, i.e. the step for the purpose
of which the adjournment has been granted to the party against
whom the oosts are awarded.'

1-D86. The replies which are opposed to the suggested provision
base their opposition on a variety of grounds; for example, it has
been stated that such a provision would be unworkable and would
create confusion, and much time will be spent in assessing who was
responsible for a particular delay." It is also stated that since ad-
jot'-rnments are granted by a judicial order, it would not be correct
to make a mandatory provision of the nature contemplated.' One
of the replies adds' that the court hss, even now, a power to award
costs where the delay is due to frivolous application or due to a
deliberate omission or negligence in the prosecution of the action.
Lastly, it has been suggested that such a provision will not reduce
delay. Delay. it is stated, is caused by applications for adjournment
or applications for time to ﬁle affidavits and the like etc., and these
applications are dealt with by the court and separately provided for.

1-DB7. Some of the replies favour a modiﬁed amendment which
would, while drawing the attention of the court to the need to con-

sider this aspect, leave the matter to the discretion of the Court." -

1--D_88. The above general diﬂerence of opinion is reflected in
the replies received from the High Courts. Thus, some High Courts
favour the suggested amendment," some are opposed to it," while
in some of the High Courts, there is a diﬁerence of opinion among
the indwidual judgnges" of that High Court,

. No. If! (A Fltate Government}.
. No. 25 {A High Court Judge).
. NH. 23 (A High Court Judge}.
. 'X0. 28 [A High Court Judge).
. No. 11 [A High Court Judge].
S. No. IF': [A High Court Jukej.
. S. No. 12 {A High Court. Judge).
. S. No. 2% (A few High Court Judges).
3- Nos. 5 and 25.

10. S. Nos. 11, 12 and 16.

. 5, Nos. 16 and 28.

\12C.Ei'£i'ﬂC.Q

5°00-19°.'-"'?'F"!**'.""

5-:
I-1

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tut-t

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_P5£;4m:.'.a:'..,n5\..... . .-. .,.-i.. .

3'7

1.D.89. We have taken into consideration the opinions expres-
sed. We have come to the conclusion that while it may not be wise
to have a rigid provision, it would be useful to give a discretion to
the court to take into account such delay. This should at least have
the utility of fooussing attention on this, aspect.

Recommendation
1--D.90. Aocordingiy we recommend that the 'following, section
should be inserted in the Cod%

"35-B, The Court may, while passing an order for costs, make
the arty responsible for delay with reference to any step
-in t e litigation, 'pay the costs proportionate to thatdelay,
whatever may be the ultimate event of the suit." '

CHAPTER 1--E
EXECUTION

Introductory

1--E.1. In the body of the Code, sections 36 to "H5 deal with 'the
subject of execution of decrees and orders. Here again, the detailed
provisions are left to the rules. The important matters dealt with
in the body of the Code are:------

the Courts by which decrees will be executed, questions for
the court executing the decree, the modes of executing
decrees, conditions for arrest, the liability of legal repre-
sentatives, property exempt from attachment, and com-

petition between rival decree-«holders (rateahle distribu-_

tion).
Section 51 (c) Arrest in execution

1--E.2. Section 5l{c) of the;Code of Civil Procedure authorises
execution of a decree "by arrest and detention in prison". There are
certain limitations, however, on this mode of execution imposed
by several provisions, to be presently} noticed. The question to be
considered is, whether this mode of execution should be retained
on the statute book, particularly in View of the provision in the In-
ternational Covenant on Civil and Political Rights prohibiting
imprisonment for a more non-performance of contract.

Limitation on arrest in execution

1--E.3. The existing limitations applicable to execution by arrest
must be stated at the outset-
(a) First, a woman cannot be arrested in execution of a decree
for the payment of money.'
(13) Secondly, even in the I2_ase.of men, where the decree is
for the payment of money, its execution by detention in
prison is subject to important substantive safeguards.'

The proviso to section 51 is as follows:-- «

"Provided that, where the decree is for the payment of money,
execution by detention in prison shall not be ordered unless, after
giving the judgment-debtor an "opportunity of showing cause why
he should not be committed ttrprison,-the Court, for reasons record-
ed in writing is satisﬁed---

{a) that the judgment-debtor, the object or effect of
obstructing or delayingitlie execution of the decree_
(i) is likely to abscondor leave the local limits of the
jurisdiction of the Court, or

1. Section 56.
2. Section 51, proviso.
' as

:-3,.

1
i
5

'~._

(11) has, after the institution of the suit in which the
decree was passed dishonestly transferred, conceal-
ed, or removed any part of his property, or commit-
ted any other act of_ bad faith in relation to his
property or

(b) that the judgment-debtor has, or has had since the date
of the decree, means to pay the amount of the decree or
some substantial part' thereof and refuses or neglects or
has refused or neglected to pay the same, or

{c) that the decree is for a sum for which the judgment-
debtor was bound in a ﬁduciary capacity to account.

"Expltmation--In the calculation of the means of the judgment-
debtor for the purposes of clause (b), there shall be left out of ac-
count any property which, by or under any law or custom having

the force of law for the time being in force, is exempt from attach-p

ment in execution of the decree."
l

The proviso {With the Explanation) was inserted by the amend-
ment of 1936. Detention in civil prison cannot now be" ordered as a
matter of course, but only on fulﬁlment of the conditions in the
Proviso. The object behind the amendment, it has been stated, is
to protect indigent but honest debtors.' Corresponding alterations
in procedure were made (in 1936],--in Order 21, Rules 37 and 40.

(d) Finally, in certain special situations,' release of the judg-
ment-debtor already arrested can be ordered.

1-EA. Besides decrees for the payment of money' (including a
decree for payment of money as an alternative to some other relief),'
a decree for speciﬁc move-able property,' a decree for speciﬁc per-
formance,' and a decree for restitution of conjugal rights 91' injunc-
tion" can also be executed by arrest." '

_1--E.Eg. There are not many restrictions of importance applicable
to imprisonment 111 execution of decrees other than those for
money. . /

1. Detailed history of the Proviso is given later.
2. Order 21, Rules 37 to 40.
3. Sectionﬁ 55-59.

4. Order 21, Rule 30.
5. 0I'cIer2l,Ru_Ie so.
5. Order 21, Rule 31 {1}.
7. Order 21, Rule 31(1).

3. Order 21, Rule 31(1).

9. Order 21, Rule 32(1).

. ._.-.----...-p.

'Ilistory of the 1936 Amendment

1-15.6. History of the amendment of 1936 could be stated in
greater detail. The Bill was originally intended to protect indus-
trial workers on receipt of wages less than Rs. 100 a month from
arrest and imprisonment for a debt, as a result of the recommenda-
tions of the Royal Commission on Labour in India. But the Legis-
lature thought that the protection should be applied to all persons.
The statement of Objects and Reasons says':-----

"The Bill is the outcome of the recommendations of the
loyal Commission on Labour in India to the eﬁect that
in' the case of industrial workers in receipt of wages
less than Rs. 100 a month arrest and imprisonment for
debt should be abolished except where the debtor has
been proved to be able and unwilling to pay.

The bill seeks to amend the Civil Procedure Code of 1908
so as to protect honest debtors of all classes, and not of
the industrial worker class only. from detention in a
civil prison and to conﬁne such detention to debtors prov-
ed to be recalcitrant or fraudulent. It provides inter alto.

that no "order for execution by detention in prison shall '

be issued unless the debtor has been given opportunity
of showing cause why he should not be committed to
prison, and the Court is satisﬁed for the reasons recorded
in writing that (1) the debtor is likely to leave the local
limits of the jurisdiction of the Court, or has after the
institutionof the suit fradulently disposed of his property,
and (ii) that he is able to pay the amount of the decree
otherwise than from protected assets. (2) The Bill applies
to all judgment-debtors. After consultation "with local
Government, the Government of India decided that in
this matter there was no sufficient reason for restricting
the protection to small debtorsf'. '

Provision in International Covenant on Civil and Political rights

1-E.7. The question to be considered is whether any change is
needed in the present position. The first point is, whether the pro-
vision in the International Covenant on Civil and Political Rights,
which providesh»"No one shall be imprisoned merely on the ground
of inability to fulﬁl a contractual obligation" is violated by section

51.

1-E.8. This question was discussed in a Kerala case, where it
was held" that the International Covenant on Civil and Political
Rights does not have the force of Civil law. Individual citizens can-
not, therefore, complain about breach in Municipal Courts. Itwas
also held, that section 51(c) does not violate the above article.

I. Statement of Objects and l-teasona. G.P.C. Amenrlnient Bill, 1935--[Fabrudl-iv,"1935J.
2. International Covenant on Civil and Political Rights, Article 11.

3, 0,1'. Zmvier 17. Canara Bank L111. Ernakﬁld-m, (1959) Ker. L.T. 927. 932, (1989) Ker.L.l'~l.'.
'B61.

3'
-l...'-u-.-me-I-IIP' -.hq..,

r,,.,,..._...._,,.. .. .

"41

The High Court observed-

"As already indicated by me, this provision {provision in the
International Covenant} only interdicts imprisonment if
that is sought solely on the ground of inability to fulﬁl
the obligation.

"Section 51 also declares that if the debtor has no means to
pay, he cannot be arrested and detained. If he has, and
still refuses or neglects to honour his obligation, or if he
commits acts of bad faith, he incurs the liability to im-
prisonment under section 51 of the Code. but this does
not violate the mandate of Article 11. However, if he once
had the means but now has not, or if he has money now
on which there are other pressing claims, it is violative of
the spirit of Article 11 to arrest and conﬁne him in jail
so as to coerce him into payment. The construction of the
proviso to section 51 C.P.C. suggested by the Division
Bench of this Court in Francis v. Potai Central Bank
Ltd.' harmonises the noble objective of the International
Covenant and the provision in the Civil Procedure
Code."

We agree with this view.

Whether arrest should be abolished

1--E.9. The next quesltion is, whether there is a case apart from the
provision in the International Covenant for abolishing arrest in
execution of a decree.

'e Position in England

l--E.1D. In England, committal to prison for failure to pay a debt
ordered or adjudged to he paid he-s'recentl_v been abolished,' sub-
ject to some exceptions. The exceptions include all maintenance
orders and the speciﬁed Crown debts (income-tax, corporation tax,
capital gain tax, selective employment tax, national insurance, na-
tional health and industrial injuries contributions and Redundancy
Fund contributions). Even in these cases. the court may make an
attachment of earnings order, instead of an order for committal to
prison}

Position in the U.S.A.
1-E.l1. The position in. the U.S.A. has been thus' stated (while
discussing recovery of damages):

"In some of the States, in a very limited class of actions for
damages (of which the action for damages for personal in-
jury is the chief), the money judgment resulting may be

'1. Francis v.PhJa:'IC'e?'itraIBa1zl: Lot, [1959] K.L.J. 1036.

3. Sections ll and 12 read with 4th Schedule, Administration ofJ11stioe Act, 1970 {Chapter

31).

3. Sections 14(4) and 1-1(6), Administration of Justice Act, 1970.

4. Mayors, The American Legal System (1964), page 168.
LB{D}229'llrIoEI.JofC.-l--[5] 3

.. .--.. .......-.--.....-

eniorccti, if pruceeding,s a.ga;nst the property of the debtor
are ineP£ect,i=..~e, by the arrest and iniprisonment of the
judgment--debtor tor a limited period. in practice, owing
to technical provisiots which cannot here be set forth,
t.he not effect of this reinedy is ..o require the debtor to
lurnisli a bond that he will not, for the period mentioned,
leave the count:-y; ard unless he does so. and the judg-
ment Ct't:'Cil".t:r1' discovus the fact and succeeds in serving
certain papers upon the bandsnizztt before the debtor re-
turns to the ct.~ti:1trj;_, the credi=*>r gains nothirg. This
remedy is tei"rI:t-d 'execution against the person' and
is popularly knmrn as 'body cxecL1tion'."

Situation in section 51(1))

l-E12. Perhaps, it could be argued that imprisonment of the
judgment-debtor in the: situation in section 51, proviso. clause (11)
causes hardship. That C-iaitﬁe aoplies where the jt'-dgm-entrtiebtor
(i) has the means. and u-efrscs or neglects to pay. or (ii) has had the
means, and has refused or neglected. to pay. The essential condi-
tion in either case the p0SS€E~SlUt1 of means, coupled with con-
temporaneous faiitire of Iieglect to pay. Imprisonment, if it follows
in such cases, is not based on mere non--p."},.*rncnt, nor on mere in-
ubility to pay. but is conﬁned to cases where a person is able to pay
and dishtniicsthr makes default in payment.

l-E.l3. It will, thus. be seen that the provisions as to arrest do
not vioiate the ]}I'f1'.-'lSlt:!1 in t.]~.e international Covcn.ant. as they
are not based on mere or-1i--iii';'ilment of a contract. Further, even
apart from their cti!'.=sist£>.n(-_v with the Covenant. they are justiﬁable
on principle, because the condrct which attracts their operation is
dishonest Technically. no crime is committed. as there is no bodily
harm to the decree-holder or direct harm to society. But, to deprive
another person of his lawful clues when one has the means to pay
is. in the special situations to which section 51. proviso, is conﬁned.
ultimatel_\- causing harm to society, which suffers if an individual
member suﬁers by: reason of the dishonest conduct of another mem-
ber. ' '

Present law s11i'ﬁcient1_r restrictive

1E.l4. We are. thevref-ore. of the View that so far as the cases in
which arrest man he ordered are concerned. the law in India is
St1fiiCiEI1tl_V 1'E!St1"iCilV€.'. except in two respects. which we shall pre-
sently Eliscuss. This mode of execution should not, therefore, be
totall_v abolished.

The situations; me-ntinncd in the proviso to section 51 qrrhich
is the sect.ion dealing with arrest in execution of decrees for pay-
ment of mone}r--are those which indicate Fraud or clandestine de-
signs on the part of the judgment-debtor, Mere inability to per-
form the obligation to repay a loan (or other monetary obligation)
does not result in imprisonment. . '

--'nu -..__,

"L'*|.|._ pi L'.

-.41"-

453

1.E.l5. Irnprisonrnent is not to be ordered merely because, like
Shylock, the creditor saysl:

"I crave the law, the penalty and forfeit of my bond."

The law does recognise the principle that "M_erc_v is season-
ablo in the time of afllictiiin, as clouds of rain In the time of
drought'''.''''

- Two minor points concerning section 51

l--E.16. There are, liowevct, two minor points concerning Section
51 on which a clariﬁcation is needed.

Section 51, Proviso {a} and (11)

1,293.17. With reference to clause (a) of the proviso to section 51,
the words "or effect" (of obstructing or delaying execution) require
consideration, as they could be construed as preventing a departure
by the judgement--debtor from the local limits of the court even
for honest purposes. Removal of those words would increase the
burden of proof on the dccree--holder, One suggestion placed be-
fore us rvag tn make the 'p1'DVl5l0l'1 conditional 011 likelihood as t0
obstruction etc, so as to reduce the apparent harshness of the
present provision. This is on the assumption that in the context in
which the words "object or cﬁect" occur, met-is rec with reference
to "obstructing or delaying execution" is required. We have, after
some discussion_ decided that in clause (a). the words "without
Iauajfuz excuse" should be inserted before the words "leave the
local limits". This will protect genuine cases of departure for
honest purposes, In section 51. proviso (b) also. before the Words
"has refused or neglected", we recommend insertion of the words
"without lawful excuse". so as to avoid hardship in cases where a
person has spent up his money in bone ﬁde lawful objects and
therefore, could not pay the debt at the time when the refusal or
neglect is alleged to have occurred.

Recommendation

1--E.13. Accordingly, we recommend that section 51, proviso,
clauses (a) and (b) should be revised as follovvszw

"(al that the judgrnent--debtor. with the object or eﬁect of
obstructing or delaying the execution of the decree-

(i_) is likely to abscond or is without la,-uiful excuse, likely
to leave the local limits of the jurisdiction of the
Court. or

(ii) has, after the institution of the suit in which the de-
_cree was passed, dishonestlv transferred, concealed,
or removed any part of his property, or committed
any other act of bad faith in relation to his property,
or

7 l. lalerchant of Venice, Act 4-, Scene l.
'E, Eoclesiasticu.-4. 535. 20.

44%

(b) that the jud_;{ment--debt9r has. or has had since the date
of the decree. means to pay the amount of the decree or
some substantial part 1hereof and refuses or neglects or
has without ta'U.'Tf1ti. excuse refused or neglected to pay

the same, or".

Section 60(l)----prIJpert_v attachable or exempt from attachment

l--E.l9. Section 60(1) authorises, subject to certain exceptions,
the attachment and sale of the property of the judgment~debtor. In
the main paragraph of this. subsection, after enumerating property
liable to attachment a general principle is enunciated, where-
under_. broadly speaking, saleable property which belongs to the
judgment-debtor or over which he has a disposing power exercis--
able for his own beneﬁt, is attachable.

The proviso to section 50(1) enumerates certain properties as
exempt from attachment. -

The exemptions are, for our ourposes, more important, and the
recommendations which we make for amendment of the law are
aimed primarily at the exemptions. Before dealing seviattm with
the exemptions. we think it necessary to consider the rationale of
the exemptions. such examination will help in determining the
area where an addition to, or expansion of, the present exemptions

is called for.

Principles behind the exceptions

1-E--l9A. What may. at ﬁrst sight, appear to be a heterogeneous
collection of exemptions, enumerated inan haphazard fashion in the
proviso to section 60(1). could be more easily understood if it is
borne in mind that the exemptions are attributable to one or more
of the following broad principles:--

(1) The p'rinc-iple of n.ecess'ity-«The item mentioned in
clause (at of the proviso is based on this principle.

(2) The principle of protecting the means of Iive1ihood--This
justifies the exemptions in clause (b), clause {c)' and
clause (dl. '

(3) The principle of Ieavinp money required for subsiste'nce----
This explains clauses (g), (h); (ii. (is), and (j) and (1),

(4) The principle of thri._ft--That the State should encourage
thrift is the principle behind. clause (let).

(5) The principle of non-transferabitity of the property-
Property which is not transferable by act of parties
should also not be attachable under legal process. This
principle justifies the exemptions in clauses (91. (fl. (ml
and (n). I

(E) The principle of hor'rnnn-_u with other Eaws--This princi-
ple accounts for the exemptions in clauses (c) and (p).

Us... Bndri crawrma 1". Inriérjf, 3.1.3. 1932 "All. gas.

.. _.:t.'¢.' gt

.......,.....,,' ....._ . . ...

.4?"

Lg.

We shall now proceed to consider the amendments needed
in the proviso.

Section 60(1) and houses of labourets and domestic servants

1--E.2{]. In our view, houses and buildings of labourers and do-
mestic servants should be exempt from attachment,' on the p-r1I1C1-
ple of necessity.

Recommendation as to section 60(1). proviso clause (0)

1-E.20A. Accordingly, we recommend that section 60(1), pro-
viso, clause (<2) should be revised as :'o11ows:--

"(cg houses and other buildings (with the materials and the
sites thereof and the land immediately appurtenant
thereto and necessary for their enjoyment) belonging to
an agriculturist, a labourer or a domest-ic servant, and
occupied by him."

Section 60(1) Proviso clause (i)

1+E.20B. Under section 60(1), proviso, clause (i), "salary to the
extent of the ﬁrst two hundred rupees", and onehalf of the remain-
der in execution of any decree other than a '-'decree for mainte-
nance", is exempt from attachment. There is a proviso which runs
as follows:--

"Provided that where such salary is salary of a servant of
the Government or a servant of railway company or
local authority, and the whole or any part of the portion
of such salary liable to attachment has been under
attachment, whether continuously or intermittently, ﬂor
a total period of twenty--four months, such portion shall
be exempt from attachment until the expiry of a further
period of twelve months and, where such attachment has
been made in execution of one'a'r1d the same degree, 511311
be ﬁnally exempt from attachment in execution of that
decree."

1-E21. T1990 points V.-'e1'e raised during our discussion on this
clause; First, whether the limit of rupees two hundred should be
increased' in View of the fall in the value of the rupee; and, second-
13;, whether the proviso should continue.

1-E22. The ﬁrst question requires a consideration of the his.
tory of the clause. The second requires an examination of the prin.
ciple behind the proviso.

1--E,23. As regards the ﬁrst question, it may be stated that the
amount originally exempt was twenty rupees. In 1923, it was I'ai5..
ed to forty rupees." Certain changes were made" in 193?, by which
the salary of private employees vt-as exempted to the extent of first

1. Compare section 60(1), preview
2. Amendment Act of 1923.
3, Code of Civil Procedure (_SE'CDI'l{1 Amendment) Act 9 of 1937.

.7 .._. .._.._...,_.. .._r

hundred rupees and one half the remainder; and as regards Public
olilcers etc. the same exemption was given, and in additwfl, 3 PW'
viso was added.

Clause (h) and (i), as they stood before the amendment of i
1937, e:-:~empted-----

(h) allowances (being less than salary) of any public Dﬁicel'
or of any servant of 51 Railway Company or local autho-
rity while absent from duty:

(i) The salary, or allowance equal to salary, of any such
public oﬁicer or servant as is referred to in clause (hi
while on duty. to the extent of forty rupees 11101111113' 1,
where the salary exceeded forty rupees, and did not ex-
ceed eighty rupees monthly. The beneﬁt of the clause
was not available to a private employee.

1--E.24. In 1937', for clauses (h) and (i), the following clauses
were substituted,----
"(hfl the wages of iabﬂurers or domestic servants, whether
payab]_e in mrme:,»' or in kind, and salary. to the extent of
the first hundred rupees and one-half the remainder of x
such Salary;
(1) the salarir of any public oﬂicer or of any servant of a
railway company or local authority to the extent of
the first hurdred rupees and one--half the remainder
of such salarjrw
Provided that, where the whole or any part of the portion of
such salary liable to attachment has been under attach-

ment whether continuously or intermittently for a total

period of twenty--four months, such portion shall be
exempt from attachment rntil the expiry of a further
period of twelve months and, where such attachment
has been made in execution of one and the same decree,
shall be ﬁnally exempt from a-ttachment in execution Qf
that decree."

1'E-35- 30319 drafting Changes were made in the clauses in
1943.1

1-E26. The amount exempted from attachment was raised in W
1963 to two hundred rupees.' in View of the merger of dearness '
allowance in pay after the Report of the Second Pay CO]'n1'niS5i0n_

yd-

1--E.27. We are of the view that the minimum amount exempt
should now be further increased, in View of the fall in the 73111,
of the rupee.

Recommendation to increasg the amotmt in clause (i)

1-E.2'i'. Accordingly, we recommend that the amount shouldbe
raised to two hundred and ﬁfty rupees: The net result will be. that

L Amcnrlment. Act. 5 of 1943.
9. ('ode of Civil Procedure {Amendment} Act (28 of 1983).

in case of persons who have a basic pay of -rupees two hundred and
fifty or less, the salary will he l,UL'c1L,l_'y' exempt, while, in other cases,
tne CX€'IT1ptlU1'. will aiso extend to o11c--naJi' ol. the remainder.

'i_E_23_ go [V-,_u~ as the second question is concerned, apparently,
the priiltlpie uI1(l'.j'L'lf,~'lIlg the p]'.'{'J\-'15.-0 seems to be that persons con-
cerned with the so-vereign tunctions of the State should receive
special protecuoti frorn attachment, so that the interests of the
State do not sutfet. Wliile the principle '11-'as understandable at a
time when the 1'1'..lI1".-t')EI' of Govemnient servants was small and the
activities of the State were also limited, its continuance in this
form at the piesent day is an anomaly.

Recommendation to delete the proviso, clause (i)

1--E.2.9. We, therefore, recommend that the proviso to clause (i)
should be deleted.

1--E.3[]. On the question whether the exemption from attachment
of wages includes bonus, 1'E~f."€31'l'.'. case--1aw throws some light.

I-E31. An e3.'i'l1'er }i'Ie.d:';1s case too}: the Vjev.-"' that bonus is not
so exempt. A conti-airy '.-'l&'.VV was taken by the lVl_Vsore High Court.'
And, in two recent It-iad1'as cases''--' also, bonus has been held to be
exempt. In the l\xlad:'as case. the Euflllllﬁlllll had attached the bonus
of the defendant, in ex;3cu'.ion of a mtiziey decree-. The High Court
reversed this Cleclsiori, l'1t.Ildi1?g that 'h0t'.i.I5. shrmld form part of the
wages."

In this case, it was also contended that the petitioner was a
mechanic, and therefore not a "labourer" within section 60(1), pro-
viso, Civil Procedure Code. As the question whether he was a
met_'h':.nic or a lE1b(1Lli'E1' had iiot been gone into by: the Court below,
the case was rem:.-nded to the Mun:iiﬁ"'s Couit, for fresh disposal.

1--E-32. Though the case-law, as it stands at present, does not
reveal a serious conﬂict, we think that it is better to clarify the
position.

Recommendation
1-E32. Accoi'dingly. we tectirninend the addition of the following
Explanation below sect'on 60(1), Proviso"u
"E.7:p-l.a:n.at~.'on---"Wa_t§es" includes bonus."

"E.I'p'lG.*1!1.i'-0?'!----:'Lﬂ.b-Z|1l.?'€??""i'Tl[.'t?.-!..'l'€S a skilled or .cemi--sk§l?.ed
labourer."

. Jsfu,-:1.-n-ztemleloii 1:. 1"iVa.r'uIi1m?':'i._. .-\,l',R.. I957 Yatl. T73 f_R2'1zn.'\awa.n1f J.}.

P. ,'\"a.ti'II.rlrrr.*-slit'. V, Da»<m's:IHz, LLLR. . 'Q59 i\i'_g.'r . 95 l:HC_E[le J_)_

. -7k':ri-sfma Jftw V. Th?-n't!ﬁJ'+'-'2-r.i!?ia1, A.I.T'.. 19"!) )Ia.cl1'aa I35.

. I.'r'ttiap1'»'-7:!" P5-'-'-":5 V. --'"~U*rI-rr'nru"-EH1? 'FII'o:'_. A I It .l9'i'.J Med. 440.

. Ft"-r.-_ i.=.-.ra 1:50..--. t". 7'?'-'tIt'n*'-'ﬁ:tMstJ-, '1 T.ll. |!I'.l] .'rI:itlI'=n' 13."; 'K--Elm': i.*I-2' !',.'.n2-'-'}7hi'l'..L P[..TI:ta' 1?.

'S'-wtzrm'nﬂ-Ifirlri I'i?:'.1..=', .5..1.Et-. I969 HI: '1. It '1
6. Suitable nuiulzuets will have to he _;_5i-.-'t-n to tie Explztiiiitioiia.

-'-rl -PDh'lIl'~5--'

Earlier recommendation as to Se0ﬁ0l1 50(1). PI'0Vl50 (1)

1-E33. The earlier Report' proposed amendment to Setyltiﬂ-T1
60(1), proviso, clause (1), to extend the existing proviso to private
salaries also. It was considered that there is no reason why the
exemption from repeated attachment, embodied in the proviso,
should not exten-:1'to private salaries. -

But in View of the reasons which we have stated above, it is
better to delete the proviso.

Section 30 and Policy of Life Insurance

1-E.3-I. An interesting point which fell to be considered' by
the previous Commission, in the earlier Report, related to grant-
ing exemption from attachment to policies of insurance. We quote

the relevant discussion from the Report----
"In the Law ComInission's Report on Insolvency Laws," in
the clause dealing with description of property of the
insolvent divisible amongst his creditors, a provision has

been proposed that policies of life insurance, etc, in

respect of the insolvent's own life shall not be comprised
in the property of the insolvent divisible among his credi-
tors (except to the extent of a charge on the policies in
respect of the amount of the premium paid on the poli-
cies during the two years preceding the insolvency). The
question whether an exemption from attachment in res-
pect of insurance policies should be given, either absolu-
tely or subject to a certain maximum, has been consider-
ed. It has been decided not to recommend any such
change. There are certain points of difference between
insolvency on the one hand and execution by a single
decree-holder on the other. In insolvency, the hypothesis
is that the debtor has not suﬂicient assets for meeting his
debts, and therefore {apart from the property speciﬁcally
exempted), everything else _goes for the satisfaction of
the creditors. Secondly, in insolvency the law has to
strike a balance
claims of the whole body of creditors, while that is not
so in the case of execution of a single deem-e_ T1111-djy, in
insolvency, the carrying on of business, the acquisition of
property and other economic activities by the insolvent
are subject to the control of the court, which is not the
case in execution." '

1--E.35. We have reconsidered the matter. This is not because
we found the reasoning given on the Report on the Code defective_
we regard it as cogent so far as it goes---but because the changed
social and political climate appeared to justify a rethinking on the
subject. In order to encourage thrift, the habit of life insurance
should be encouraged, and that consideration, in its turn, justiﬁe,

1. 27th Report, page 109, note on section 60, para. 2.
2. 27th Report, page 112, note on section BI] and policies of insurance.
3. 26th Report [Insolvency Laws), app. I, chug 45{1){},}_

between the debtor's needs and the.

ty-

.........»._..._._.. ..

5'3

a more liberal approach as regards exemption Of policies Of life
insurance from attacliment. No doubt, considerations justifying an
exemption have to be balanced against the legitimate claims of a
creditor who has taken all the trouble of obtaining a decree, and who
is engaged in the still more troublesome venture of executing it.
The less obstacles are placed in his way, the better, Nevertheless,
on the same principle on which moneys in certain provident funds
are exempt Irom attachment', there is a case for the exemption of
moneys due on a policy of life insurance. Further, we. do not think
that there should be any limit as to- the. maximum that is to be
exempt out of the amount due on the policy.

Recommendation to insert new clause (ka)

1-E36. We, accordingly, recommend that the following clause
should be added in the proviso to section 50(1).---

"(kai money payatde under :1 policy of life insu'rc_mce."
Section 60(1) Proviso and controlled tenancies

1--E.37. The question whether tenancies to which the Rent Con-
trol Act in force in the State concerned applies, should be exempt

.from attachment, was considered by the previous Commissionf A

provision exempting them from vesting in the Official Assignee on
insolvencv had been proposed in the Law Cornmissiorfs Report on
insolvency." But, as regards exemption from attachment, the Com-
mission took the view that the case' stood on a different footing,
and no change was, therefore, considered necessary on this point.

1--E.38. We have considered the matter further. By virtue of
provisions in the Rent Control laws, such tenancies usually become
incapable of assignment except under certain restrictions. The Bom-
bay Rent Control Act,' for example, provides:--

"15. (1) Notwithstanding anything contained in any law, (but
subject to any contract to the contrary) it shall not be
lawful after the coming into operation of this Act for
any tenant to sub-let the whole or any part of the pre-
mises let to him or to assign or transfer in any other
manner his interest therein:--

(Provided that the State Government may, by notiﬁcation
in the Oﬂicial Gazette, permit in any area the trans-
fer of interest in premises held under such leases or
class of leases and to such extent as may be speci-
ﬁed in the notiﬁcations)?'

1.E.3Q. We think that in order to prevent harassment to tenants,
an amendment in. section 60 also is called for in this respect, so as
to make them exempt.

. Section 6|) (1), Proviso 'cla-use {k).

. 27th Report, page 112, note on section 60 and tenancies.
. 26-tli Report, (Insolvency Laws}, App. 1, clause 43 (1).

. Section 15 (I). Bombay Rent-s etc. Control Act, 1947.

nhubaw

cu'

Recommcmilation to insert clause (kb)

1--l3_-lU. Accui--di11gl;:', we recommend mat the following clause
shoulu be added in the prDVi2~:o to section fi0(1}--
"(kin Lhe i*n,te:rc.s:.. of a lessee of a 1-eside-ntiioi buiidi.-ng to which
the pI'0'UiS1'0'H.3 of the law Teiatirig to coniml of rents and
(1:;{,':'J'm.?|'LOd(1f.i!Jr1-1 for the Lime being -in _f"m'ce up-plies."

section 35(1) and agricultural labourers

l~E.il. The exemption conferred on ag1'icultu1'ists by the sec-
iiurl Lc.g. SEC'l'.lUI1 (5LiLlJ(C)], should in our view, be extended to
3.gL'lC;.1ll.L.l1'c'ii 1abou1~c;'s (L:-:-. landless labourers} also.

Rccomiiicndation to insert Explanation

l--E.«l;.Acco1'dingiy, we recommend that the following Expla-
naiion should be 'inserted below section 60(1), proviso:

"'EJ."pl£LncLi'io1I.----F0-r the pur-poses of this section, the word

'ag?'icu{£uJ'i3.'.' shall include every person who depends

for his livelihood mainly on income from agricultural

land, whether as owner, tenant, partner or agricultural
labourer."

Section 60(1) and waiver of the exemption

1--E.=i3. Waiver of the right conferred by section 60 should, in
our view, he made inoperative. On this point, we are departing
from the approach adopted in the earlier ieportf
Rccommemilation to insert new sub-section (IA)

1--E.=i4. We, therefore, recommend the insertion of the follow-

ing sub-section, as sub section. (111), in section 60:----

"{1A) Notwiih-standing any other law for the time being in
force, an agreemen-L by which a: person agrees to wgige
the beneﬁt of any exemption under this section shall. be
void".

Section r(i3--Pro1Jerty attached in execution of decrees of several
Cou s

1-13.45. Section 63 is as follows:--

"E3. (1) Where pr:)pertj,r not in the custody of any Court is
under attachment in execution of decrees of more Courts
than one, the Cmxri which shall receive or realise such
property and shall determine any claim thereto and any
objection to the attachment 'thereof shall be the Court of
highest grade, or, where there is no difference in grade
between such Courts. the Court under whose decree the
pi-ooertt: was first aitached,

l. §I.L§.1':1-'mic n=Irn|v'r' will Iiarr in be given I:-.3 Hie Expl;1.na.t-inn.
2. '27il1I{epori',, page ll.

id.

oi'

(2) Nothing in this section shall be deemed to invalidate
any proceeding taken by a Court executing one of such
decrees."

l--E.-iii. In the earlier Reportf the Commission had to consider
the question as to the effect of section 63(2), (which provides that
nothing in the section shall be deemed to invalidate any "proceed-
ing taken by a court" executing one of the several decrees refer-
red to in the section}, on an order allowing a set--oﬂ' to a decree-
holder arction--purchaser. Does the expression "proceeding taken by
a Court" exclude the amount so allowed to he set off from rateable
distribution? The Commission noted that most High Courts" ""'
had answered the question in the negative, though the Calcutta
High Court' had taken a contrary view.

The Commission took the View that the expression "proceeding"
does not include such order, but did not consider a clariﬁcation to
be necessary.

Recommendation

1-E.-$7. We agree with the interpretation placed by the previous
Commission; but are of the View that a clariﬁcation is desirable,
in order to settle the controversgr. We recommend that the following
Explanation should he added below section 63(2)-

"Expianation-el-n. suh~sec*.r:ion (2) the expression 'proceeding'
taken by a Court does not include an order allowing, to
(1 decree-holder who has purchased ',oru.'Jpe?'t_u at sate held
in execution of a decree set oﬂ" for the purchase price
payable by him."

Section 64
1-E.48. Section 554 is as follows:--

"'64. Where an attachment has been made, any private trans-
fer or delivery of the property attached or of any inte-
rest therein and any p-ayment to the judgment--dehto1-
of any debt, dividend or other monies c-ontrarjgr to such
attachment, shalllbe void as against ali claims enforce-
able under the attachment.

;E:rplanation~--For the purpose of this section, claims enforce-
able under an attachment include claims for the rateable
distribution of assets."

There has been a conflict of decisions on the question whether
a transfer made after attendance in pursuance of an agreement
entered into before attachment is void. The Commission in its
Report on the Code,' considered this conflict; but was not inclined

. 27th Report, page 112, note on section 63.

. Hegraj 7. Oorjloa-ation of Madras, _-LI.R. 1936 Mad. 793', 793,

. Tbannuli 1*. Irish-naaa=n.m_:I,r, AIR. 1935 'Mad. 933. 994.

Hams Chandra v. Dig-amber, T.L.R. 1930 Born. 3; A.I.R_ 11160, Bin. 23!] (F_]._1.
Vishrnm Rn-m Ir.' The Bank of Bibar, A.I.R. 19-15 All. 29'!

. .~i.?zinI!-SI: 1'. _-'S-'ng1nv.i' Chandra, A.I.R. I937 Cal. 55, 55.

. 271211 Report, pagan 112-113 more on nation 34.

--:¢:.§:§s:o:«N.i---

_..._.. s,

,..x,,..,,.: .,._._......»v_ . _

to suggest a change. It noted that in the draft Report which had
been circulated {to State' Governments, High Courts etc.) for com-
ments, an exception was proposed to section 64 to the effect that
"Nothing in this section applies to any private transfer or delivery
of the property attached or of any interest therein, made in execu-
tion of any contract for such transfer or delivery entered into be-
fore the attachment." But, after careful consideration, the Commis-
sion decided not to make-.any such exception. The principal con-
sideration which weighed with the Commission was thus stated-

"A sweeping provision of this kind might be abused, and the
practice of bringing into existence agreements which are
really executed after attachment but are antedated to an
earlier date, might be encouraged by such exception."

The Commission also added---

"The decision as to how far such a transfer should be recog-
nised as valid by the Court would seem often to depend
on the equities of each case. Some of the decisions are
based on the speciﬁc provisions of Order 38, rule 10; a
few exhibit special features arising. out of the passing of
a decree for speciﬁc performance. So far as other situa-
tions are concerned, the equities of the case should, it is
considered be taken by the court into account."

1-EH19. We have carefully considered the matter. We agree that
a sweeping provision saving every transfer made in pursuance of
a pre--attachment agreement, mfght lead to ﬁctitious claims, as was:
noted by the previous Commission. But we think that a provision
of a limited character, applicable only where the agreement itself
is registered before the attachment, would be harmless. A transfer
in pursuance of such agreement should override the attachment, if
the agreement precedes the attachment.

Recommendation --

1-E50. We therefore, recommend that the following ﬁxception
be added below section 641-

"Exception--Nothing in this section applies to any private
transfer or delivery of the property attached or of any
interest therein, made in execution of am, contract for
such transfer or delivery entered into and registered be-
fore the attachmen ."

Section 66

1-E.51. Section 86 is as follower-

"SE. (1) No suit shall be maintained against any person claim-
ing title under a purchase certiﬁed by the Court in such
manner as may be prescribed on the ground that the
purchase was made on behalf of the plaintiff or on be-
half of someone through Whom the plaintiff claims.

{
".1

at .

........_..
i-n'-=-=- .

-J-V

(2) Nothing in this section shall bar a suit to obtain a dec-
laration that the name of any Pll1"ChH5E1' Ceruﬁed as
aforesaid was inserted in the certiﬁcate fraudulently or
without the consent of the real purchaser, or interfere with
the right of a third person to proceed against that DTDPETEY,
though ostensibly sold to the certiﬁed pu1"Ch35E'1"a 0n 'E39
ground that it is liable to satisfy a claim of such third
person against the real owner."

1.E.52. The earlier Report on the Code' contains this discussion
as to this section-- .

"A suggestion to the eﬁect that a "D-efence" based on Benami
should also be barred (just as a suit based on benalni is
barred) where the name of the Benamindar is entered in
the sale "'certii'1cate" has been considered. According to
this suggestion, where the real owner is in possession, and
the Benamidar whose name is entered in the sale certi-
ﬁcate sues him for possession, the real owner should be
barred from raising a defence that the plaintiff was only
a nominal purchaser. It has, however, been decided not
to extend section 66 to such cases."

Recommendation for amending section 66

1-13.53. We have considered this question carefully, and have
come to a different conclusion. In our opinion, it would be more
consistent with recent trends to bar such defence also. According-
ly, we recommend that in section 66(1). the following words should
be added at the end-

"cmd in any suit by a person. clai.ming title under a purchase
so certiﬁed. -no defence shall he pleaded on the ground
that the purchase was made on behalf of the defendant
or on behalf of sﬂmeone through whom the defendant
claims."

Section 73

1--E.54. With reference to section T3 of the Code, the case-law
as to the meaning of the expression "same judgment-debtor". was
examined in the earlier Report." and the result of the examination
revealed no need for amendment. We have examined the later
cases on the subject and, in our View also, there is no need to
amenji it.

1. 27th Report, page 113.
2. 27th Report, pages I13, I14, note on section 73.

CHAPTER 1-F
INCIDENTAL PROCEEDINGS

Introductory

1-F-1. Part 3, in the body of the Code {sections T5 to 78), deals
with "incidental proceedings".
Section 75

1--F.2. Section 75 deals with the issue of Commissions. We notice
that one matter relating to the section was discussed in the Report on
the Code,' namely--whether the court has power to issue a commis-
sion for making inventories of account books and other articles. We
see no reason why the Court should not have this power. In fact,
we wouid go further, and invest the Court with a general power to
issue commissions for the performance of all ministerial acts,

Apart from this general power, we are of the View that there
should be a speciﬁc provision empowering the cooitto issue com-
missions for conducting scientiﬁc inquiries, when such an inquiry
is needed for determination of any issue before the court. There
should also be a power to appoint commissioners to hold sales (other-
'than in execution).

Recommendation

1-F.'_'.A. To achieve the above object. we re-eemmend--
{i} an amendment of section '75, and
{iii} insertion of new" rules in Order 26.

The amendments will be as follows:--

Clauses (bb), (bbh) and (bbbb) may be inserted in section T5.
The section will then read as follows:--

"Subject to such conditions and limitations as may be
prescribed. the Court may issue a commission--(a)
and (b);

(tab) to hold a scientiﬁc inaiesrtgatton:

(bbb) to conduct sales of property which is in the custody
of the court pending the determination of the Suit
and which cannot be conveniently preserved;

(lobbb) to perform any ministeriral act;
Ifc)
(cl)

l. 2T1.h Report, page I13, note on section 75.
2. flrr.1e1' 36, Rule 10A and 1I!'Il3.

J-I'

. .._;,..,..-

Order 26, Rule 10A to 16C (proposed)

1-F_3_ to 1-F5. We also recommend that the f-zllowing new rules
may be inserted in Order 26----

"'1UA. (1) Where any question arising in a suit involves any
scientiﬁc investigation, which cannot in the opinion of the
court, conveniently be conducted before the court, the
Court may, if it thinks it necessary or expedient in the
interest of justice issue a commission to such person as
it thinks ﬁt, directing him to iUq11iI'e into such que-stioil
and report thereon to the court.

(2) The provisions of rule 10 of this Order shall. as far as
may be,' apply in relation to a commissioner appﬂiﬂicd
under this rule, as they apply in i-elzition to a comrnis--
sioner appointed under rule 9.

10B. (1) Where any question. arising in :1 suit involves the
performance of any ministerial act which cannot, in the
opinion of the court, conveniently be 1".-erforntcd hcfﬂre
the court. the court may. if it thinks it necessary or ex-
pedient in the interest of justice for reasons to be recorded,
issue a commission to such person .-is it thinks ﬁt, direct-
ing him to perform that act and report thereon to the
Court.

(2) The provisions of rule 10 of this Order shall, as far as
may be.' appiv in relation to a commissioner appointed
under this rule. as they apply in relation to a commis-
sioner appointed under rule 9.

10C. (1) Where, in any suit, it becomes necessary to seli any

movable property which is in the custodv of the court

pending the determination of the suit and which cannot

be conveniently preserved. the court may. if it thinks it

necessary or expedient in" the interest of justice, for rea-

_ sons to be recorded, issue a commission to such person

as it thinks ﬁt. directing him to cor:-_di:ct such sale, and
report thereon to the court.

(2) The provisions of rule 10 of this Order shall. as far as
ma': be.' appljtr in relation to a commissioner appointed
under this rule. as it applies in relation to a Commissioner
appointed" under rule 9.

(31 Every such sale shall be held, as far_as mac be in ac-
cordance with the procedure prescribed for sales of
nioxra-ble p1"0pei'l:r- in execu1':i.on of a decree."

1. F'rm'isn.=1nnci<ed in OM16-|' 25. I-tails 9 ma? be 1IWiDB€83FllT'_l' in re-;'=m'l to the new rule.

3. Section 75 to 'JP aineluiracl st-_mIr'nte]y,

Cnaprsn 1-G
SUITS IN PARTICULAR CASES

Introduction

1-GL1. Part 4 of the Code, sections 79 to 83, deals with "suits
in particular cases". These comprise-
(.a) suits by or against the Government or public officers in
their 'official capacity {sections 79 to 32);

(b) suits by aliens and by or against foreign rulers, ambassa-
dors and envoys (sections 33 to 87A);

(cl) interpleader suits (section 88). We shall deal with only
such of the provisions in this group as require change.

Section 81}

1-G-2. One of the most important sections in this part is sec-
tion 80. We fully concur with the recommendation made in the
earlier Report,' for the repeal of section 80.

Section 82

1-G-3. The previous Commission" considered section 82 at length'.
It noted that section 82, as it stands at. present, prescribes an elabo-
rate procedure which has to be followed before execution of a
decree can be ordered against the Government or a public servant
etc. The section contemplates the following stages:--- '

Ci} A time has to be speciﬁed in the decree itself for its
satisfaction; ' '

(ii) If a decree remains unsatisﬁed for the time speciﬁed, a
report has to be made by the court to the State Government;

(iii) After the report, the court must wait for a further period
of 3 months, and can issue execution only if the decree remains
unsatisﬁed for a further period of 3 months.

1-G-4. The previous Commission considered, that this elaborate
procedure is not necessary, and causes delay. The intermediate
report to the Government by the court-is a formality which should
lay down the period of waiting, instead of requiring the court to
ﬁx the period in each case. Power should be given to the court to
ﬁx a period in a particular case. Necessary changes had been pro-
posed.

1. 37th Report, pages 21-32 and 114-1 15.

2. 27th Report, page 115, note on section 82.

J'
1

4']

7*:
,3

.43

¢..a--Iv-aw

5'3

1--G-5. A power to extend the period was also considered de-
sirable, and provided for.

1-G-6. The Commission also! noted [that the words "such act

as aforesaid" in section 32 refer to an act purporting to he done by

a public oﬂicer in his ofﬁcial capacity, That was made clear.

1-G--?'. We agree with the above recommendations, but would like

. to add one minor provision to the eﬁect that the court will, within
3 months, send notice to the Government of the passing of the

decree, This is in our View desirable in order to give the Govern-

ment an opportunity to satisfy the decree, This requirement need
I not, of course, delay execution, as noncompliance with it, would
not eifect the validity of the execution,
Reommendatlon
1-G--3. Accordingly, we recommend that section 32 should be

revised as follows :--
Execution of decree against Government or public oﬁi-cer----
"82. (1) Where, in a suit by or against the Government, or

by or against a public oﬁicer in respect of any act'
purporting to be done by him, in his oﬁieial capacity, a
decree is passed against the Union of India or a State, or
as the case ma be, the public officer .... ..

"execution shelf not be issued on the decree unless it
remains unsatisﬁed for a period 0 three months, or such
other period as the Court may in a. particular case,
computed from the date of the decree.

(2) The provisions of subsection (1) shall ap ly in relation

-to an order or award as they apply in re ation to a (leo-
ree, if the order or award----

{a} is passed or made against the Union of India or a
public officer in respect of any such act as aforesaid,
whether by a Court or by any other authority, and

(b) is capable of being executed under the-provisions of
this Code or of any other law for the time being in
force as if _it were a decree,

The Court may, in its discretion from time to time,
enlarge the period specified in sub--section (1) or ﬁxed by
Court under that sub-section, even though the period so

speciﬁed orrﬁxed may have expired".
''(4) Where a. Court

ses any such decree as is referred to
in sub-section {1 it shalt, within a period of three
months from the date on which the decree is passed, send
an intimation to the Government pieader thereof of the
passing of the decree, but failure to give such intimation
shalt not affect the execution of the decree."

1. of." Section 32(1) and 32(2).
2. 0}. section 1is,o.P.o.
Lp2.:o22snorLJsca--s

i;..A.....,.

58-

1-G-9. Under section 86, a suit cannot be instituted against the
'Ruler of a foreign State' without the consent or the Central
Government. We "have had this section exaniined in deta" in View
of its importance and in view oﬁ the develogrnents that have taken
place in respect of immunity oi sovereign tates. A detailed study
was undertaken, but here we shall include only a brief summary
of the results of the study.

Principles

. 1-G-10. The principle of internqti _ _ law relevant to §oction 36
is that the 'Rulérof one State "has privilege to enter another
State, a privilege based on the existence of an immunity from the
jurisdiction of local courts} The irnmunity is sugg;es_f;_eg.,to have
been based on several principles:," a

(1) PM in parem non habet imperium---One sovereign _. ower
cannot exercise jurisdiction over another sovereign power, bu only
over interiors. . ' '

Reciprocity, or comity-----in return for a concession oi immu-
nity, other States make mutual concession of immunity within
their territory.' .

(iii) Uﬂéﬂfﬂfcﬁﬂrbfiitty-"A judments eta municipal court cannot

_ be enforced "against a'foreig'I_1_'j State oﬁgits Sovereigzi.

(iv) An implication from the cimimIetonces---Th.e pennission to

3 foreign State to function within b State or a foreign Sovereign to

gisit, signiﬁes a concession of from the jurisdiction of the
tate. - - - ,

(V) Policy---The merits u,-_F a 'dispute involving the transactions
or policy of a _foreign_ goyernment ought not be__ca_nvassed in the

= domestic courts _of another .

1-G-11. In a Bombay. cam." 1 ,3". 'While considering the

provisions of section 433 of the Code ¢_;E_1B_§2_ fvgrhigh corresponds to

peasant section 86), said _h,a1_:_ thjﬂlpriviie §"is _bas:_ed'8I1 "the ' nity
and independence of the Ruler, Id be e_n_d_'._31n red by ow-
ing any person to sue him at pl , and the po tical inconve-
nienee and complications which'=iwould:_;:esult".-This Vietyﬂhas been
-"approved by the Supreme Court'. 'E '

1. Browrtlie, Public International Law. (H103). page 27-1,, See aha 'Schooner Enhance 7.
.l£eFuddo'n. (1812}'iGre.m:h11ﬂ.

2. Et£tk!I,1ntIarnotio1.1;.e1Luw,'([email protected]:2ﬁ3§. ,
ea _ ' t9Lo:dri:rte:,thisi-'gate at. our limits. the imlnunityofa State-
U' : state amiﬂspmbiicof rum 1. a 'ill'e1'9"'et'G'ie.S'.A.."mid3a:I¥ qr England.
(1D52IA,.C.'5B2. ' = * - - ' ' ' - '
*- tst=:.9*'.Ww is;:itss%ssi-W W W M
5. PorLordDe1Iniﬂg£ﬁRafH3miaolav.Nizam qfﬂjniergbadﬁ {195733aI1E.B.4i1,-163. '
e. Glaanduial Kim-aiaalgii v. Atmd, 21 Born. :51, 271. 2'22. ' ' " ' '
1. Ali Akbar v. U..i.R., A.I.R. ma 8.0. :30. ;

4'
.

Position in England 1-G--12. The position in England on the subject has been stated as follows:

"In accordance with the maxim par in pin-em non habet im- perium, the English Courts are fully committed to the View that they will not exercise jurisdiction over the person or the property of a foreign sovereign state unless it is willing to submit" to pi'ocess."' However, from time to time. proposals have been made for the reform of the existing rules.' ' Practice in other countries--countries favouring restrictive immunity 143-13. The practice in other countries also varies. Some States make a distinction betweerr acts in the exercise of the sovereign power, i.e., jure imperii, and acts like a private person, iie. ijure gcstionisc' The immunity isallowied in the former case," but not in the latter. Examples of States which follow such practice are Austria, Belgium, Egypt, France, Greece, 'German Democratic Republic, Italy and Switzerland. In 'Canada, however, so far as non-con-unercipal acts are concerned, the English rule is followed. The position regarding commercial activities is undecided' Soviet "practice 1-G--14. The position in soviet Russia, as provided in' Fundamen- tals of Soviet Civil Procedure,' isithat a suit can:=be"ﬁled against a foreign country only with the cotiscirtg-oiithe country concerned. Re- garding diplomatic representativemgtheﬁr are subject -to:-the jurisdiction of Soviet courts in civil cases withintthe limits determined by the rules of international law -or .-atgteexnents with- the countries con- cerned. The principle of reciprocity is also followed.

For commercial activiti , e'x;:ep' maritime commerce, through a number of agreements, 1: e So 'ct a men has submitted its trade transactions to foreign jurisdictio , like _a private merchant.

1-G-15. In the U.S.A., a distinctidn is made between 'sovereign or public acts' and 'priuate=acts'-. "Immunity as 'oi! right is available only in the former case." '

1. Cheshire, Private rotemiiionsrroo-, (1971), . age as. See also the cm-isiana, (1933) an.

-135, and thodraﬁtzozu Mandi, (1,939) l.AllE I. 719.

2. Lauterpacht, "J_'urisd.ictiona1 Immunities or'14'oi~aign Eta, ", (195l)_2S 1j.~r,i;,1J,.i22o_ Lyons in (1956) 42 Grotius Society. GI "

3. Mann in (min) 2': Mod. L.n.._ 31. .

4. .Referc-lice rs. power: of Uity ofﬂla-ws,(1P£3) 3.0.3. 208 (Granada)! Flat'-u. Horitima Brown- 1339 dc Gibbs HA. 'I'. The Republic of ﬂiﬂﬂh 3-033": 5973; 593-5." faﬂﬁﬂda].

5. Section 61, Fﬁmdamcntsl of Soviet Civil Pmbudun, 330 also Gmyhbilﬂ; Soviet Public International law (1970), 1). W2. - --

u. Cardozo, 'Sovereign Immunity', unto in Eprr. -1.. 3. nos. I-.J'B(D}229l£o£|2JaiUA--6{a)- : I_-= ii 'It -

1-G-15A. In a statement of the policy' of the United States State Department, limiting sovereign immunity in a far more sweeping manner than ever before attempted, Professor Jack Bernard Tate,' Acting Legal Adviser to the Department of State, wrote:' "The Department of State has for some time had under con- sideration the only question whether the practice of the Government in granting immunity from suit to foreign Governments made parties defendant in the Courts of the United States without their consent should not be chang- ed. The Department has now reached the conclusion that such immunity should no longer be granted in certain types of cases .... .."' The type of cases excluded from immunity mainly concerned commercial transactions.

1-G--15B. llt may be noted that a few years ago, the subject of immunity of foreign States was fully discussed, and a project for its reform prepared, by the Institute of International law.' 1--G.16. With reference to their attitude in respect of the immu- nity of foreign States, the various countries may be broadly classi- ﬁed as follows---

(1) Countries accepting the classical or virtually absolute theory of sovereign immuntry----The classical or virtually absolute theory (of immunity} has generally been followed by most countries of the British Commonwealth, Czechos-

lovakia, Estonia and probably Poland.' Ap arently, the de- cisions of the courts of Brazil, Chile, ina, Hungary, Japan, Luxembourg, Norway and Portugal may also be deemed to support the classical theory of immunity;' but the decisions are scanty, and are anterior to the de- velopment of the restrictive theory. -

Countries probably accepting absolute immu-nit In Netherlands, Sweden and Argentina, constant refs?-eunoe to the distinction between public and private acts of the State indicate an intention to leave the way open for 3. possible application of the restrictive theory of immunity' if and when occasion arises.

{iii} Countries adopting the restrictive theory--Presently, the res- trictive theory (resting on the distinction between sovereign acts and other acts) is followed in Austria; Belgium, Egypt, France, Greece, Italy and Switzerland.

1. Letter oflviay 5, 1952, popuuay known as the "Tate letter".

2. Jack 13. Tate, {Associate Dean ofYale University Law School}. Department ofst. Bull. Vol. 26, p. 934, June 23, 1952, a. letter totlme Acting Attorney General.

3. See also cnsss reﬁeri-ed to in Starloe, International Law, (1972), page 2.55, foo-1-, mu 3_ and in Graig, International Law (1970), page 196, foort notes 7-3.

4. See also William W. Bishog Jr. ' ' New United States PD]-i027 limiting Sovereign Immunity"

(1953) 47 A.J.I.L. pp. 9 at seq.

5. Annual:-e as 1' Institute cle droid Intern|.tion.u.l{1952),VoL 1,, pp. 1-430 ibid, (1953), pp. 11:, 121. {Sir H. Loutcr. paqoht].

s. omig, International Law. (1912), pages $13. 219....

(ii) .

....-........._n_............ .

."-.-

|\' 61

(iv) Countries where position is ﬂuid--The position in England appears to be ﬂuid.

Lauterpachfs view 1-G.1'?. Lauterpacht has made certain suggestions,' for reform of the law. According to him, "In the ﬁrst instance, immunity must remain the rule with respect of the legislative acts of a sovereign State and of measures taken in pursuance thereof". "Secondly, there must be immunity from jurisdiction in respect of the executive and administrative acts of the foreign State within its territory". "Third- ly, the principle of immunity must continue with respect to contracts made with or by the foreign Starte except those concluded in the UK." "Fourthly, no action should lie or execution be levied against a foreign State contrary to the accepted principles of international law in the matter of diplomatic immunities".

Arguments against absolute immunity---The arguments advanced in support of restricted immunity are that the sovereign who en- gages in ordinary commerce should be held to have waived his im- munity, and that the tendency in municipal law is to lace the State and State corporations on an equal footing with o er legal persons.

Decision involving change of policy to be avoided 1-G.18. A decision to alter the scope of immunity involves de- licate matters of policy, and we do not think it proper to make re- commendations altering its scope.

Moreover, it is not possible to sayi with certainty how far the restrictive immunity will be adopted -(in substitution of unqualiﬁed immunity). in the near future, In this state of aifairs, an alteration in the policy behind these sections is not easy to recommend.

Recommendation for change In terminology 1-G.19. But one defect of section 86 should be remedied. Tliis defect lies in its over emphasis on the concept of the "Ruler" of a foreign State. Primarily, it is the State which ought to tie immune; the personnal immunity of the Euler, if any, ought to be secondary, at least in modern times. ' The Supreme Court has held that section 86 applies to all foreign States'---whether the form of Government be monarchial or not And this interpretation should now be carried out by primarily making "foreign States" immune. The immunity "for Rulers" may be, of course, preserved for exceptional cases. i

1. Luubarpaoht, "Jurisdictional Immunities" {I951} B.Y.B. I. L. 220, 237, 238.

2. AH Ab-bar V. U.tI.R. . ALB. 19$ B.C. 230.

.1. _..g or . ,... .:....

Recommendation relating to execution :1-G20, Another point relates to section 35(3);

el5B€ut1on,.against the property: of the Ruler of a foreign State. The Supreme Court has, with reference to this pI'DVi5i0I1, 0bSe1'W'-'d1',"

"The provision that a-_ decree passed against the Ruler of a foreign State shag not be 'executed against the property of such.Rule_r, ra _ er tends to show that what is exempted is',t_he separate property of the Ruler himself and not the property of the Ruler as the head of the State. A distinc- tign Elixliaédhe l:§txiveen the.prop5:1&tytb¢e}:>nt§1in%1todthe Eta:

o'wi_c-_e uerisreco 0 eea,an property belonging to the uler individually".

(in this point also; oppcrtunit-yxemaycbe taken to make the sec-_ 121011 more comprehensive, so as. to exempt the property of the State also. = I

-practice 1-G31. It may be stated that immunity" is conceded by the majo- rity of States' with~-respect 1n 1ne$I.Ero,s'~of execution directed. against the property of foreign states.' Position in England as to ex'ecutim1..

1.G.22.- In theocristtrw.' the: Heuspjuf Lords ruled that a writ -in rem. issued in Admiralty: against)»: V Q1! in' the control of as foreign .G_oy,emm_en_t~ior- pub1ie_ puI130ses;' impza process against-eths-.po& sessorymghts of a,Jore:gn- sg'ver¢i.gn.~ '_ a eondition of obtainingiJn- munity, it is suﬂicient if the fore' . rnment produces evidence showing "that its claim is not' . . _ usrmﬁnor on a"l:itIe, p1anifestl§;_pdefect_ive" '-7, It is I1ot,'boI.tn_d1:ogive a complete. proof pf 1ts.pmr'rietax3r or possessory'tit1£.; ; ' ' 1; 41:' urban 1r. U.'J..R. A.I.B. 1943 S20.

Thoruluiamslullystated us f'_n:|_m. ' ; P1-o],| -01" '. diotional Immunities of $50363: lBtgt:E1'ty_{t{951)ub°2%:.f3.Y.B.I.§ am

- E E ' Li' ' ' . _ g '- t~ ' "_M_¥'" I urn. b , J .1. . J .. I . _ .-1. (9) JIM grtgms suwitlaill (5) T1-'19 '5°F"*'1_'J'-713'-¢?'1n*_?1'J' of roaches oftlie. various. nrisiiistiou to wraragn immunity in Suclaritku1,'B uniﬁes and Trading ctirity (1931 page: 162--256. ;

{6} Enownlie, Public Intmnatlanni Law, 1135}: PO58 233- -- .'

4. Soreusen, Hague Racueil (1960) III. l'l'w"e6$iIie1'a that the practice is not anﬂlﬂently uniform to support a. customary rule. = ' 5. The chriaaim, (1935)-'A.C. 435.

B. $3.-Inc. v. Goaernmeﬁt of Republic ofIm3ama-in. (1955) AL'. 72:

'7. 0]'. Republic of Hamicc v. Homutln (135) 3%; 13,8. 30, . 1! V : !

- '! i 63 Position 'iii mine' other couhtrie as to eiceoenon 1--G.2& But a few countries apply the doctrine of restricted immu- nity' for acts jwre g_esti'onis at the stage of execution a'1so."_ Also there is acute controversy as to the exerription of foreign trading vessels.

Recoiﬁmendiition regarding' notice to prospective plaintiff 1--G.24. A suggestion made with the U.S.A. in mind may also be noted'---

"Now that the Department will have to make factual deter- minations in almost all cases; to -decide whether the acti- vity is 'sovereign' or 'private, in nature, it will have to estsblish- some procedureffor resolving these issues. All government procedure aﬁeeting private interests should provide for notice to the plaintiﬁ and a chance to be heard, at _least throughfs written; ar'gument. The need would be ﬁlled if the_(Dep'artme=nt, ;after receiving a request for a suggestion fror'n'_ an" "appropriate representative of the foreign gove'rnn1ent,~or"fo1- a ruling from the judge himself after determining that immunity: was prime. facts. justified, sent a registered letter to counsel for the other side. The letter should adgise him,9f the re. uest and oﬁfer him 3. chance to appear in'}i-erson or to e a brief within a limi- ted t'i"r'ne".

T1'iis'ai5 axis to be ii' useful? suggestion, and may be adopted, of course" 1i7'si'Ih"p1éi' form. ' new méndhti" ' ' biz"

1-G35." The following-i1'.eIi1'a':£t'o£_ section 86 is reeomniended, in order to carry out the limited amendments indicated above.

Suggested-re-draft of "36;('I)i:No foreign State be met! many Court otherwise oom- peteﬁt t0'.__E'}F..-th£'311i;t, TEE cﬂllsentoﬁ-thec Ce;1t!'aLGove1'n- ment-certiﬁeddn Writ-lnsg by §' to that nt:

Provided. that a_ person i :.§'s.:.a,-étgtrnantoof imm:ov_able property, sue without such consent as 1'esaid.ra.:fore:'.gn State; from which he holds or claims to hold the property?

1- 1 1-. (cs) Huutil:atoimmun_ityfa5r7qésta' ._t[.eaﬁ9ﬁi.I'_atHmt'-are 1; 374.; k1.1]- . 247-51. 2 -3,211 42 7' ' ' , LR. 1953,' Lu; _ Ahnupmreda ' Kull, "ﬁn. {I95 , ﬁr . um" I } 354:9' "W

(b)Reso1tioninAnnuai1-ed l,I.nnt.i954II,29ti, .«m.5;,_ arr ' v.r::s»omse Imam:-°:3m--.-ra2tr.1=. supp.-ens ﬁ-11$)"; ,5 -- H°'m°'b°'

2. ggoggfﬂélgian : v. Gian-'state. Int. L.R. {1_om,__;,;._ 2 -;'9','r_m_ a. new 151. Gudwn. {'19ﬁi}ﬁ7"Enrv. :Ia.'litIr':.éigﬁ'". "

. E K 64 (2) Such consent may be given with respect to a speciﬁed suit 01' to several speciﬁed suits or with respect to all suits of any speciﬁed class or classes, and may specify, 'in the case of any suit or class of suits, the Court in which the foreign State may be sued; but it shall not be given, unless it appears to the Central Government that the foreign State-----

(a) has instituted a suit in the court against the person de- siring to sue it, or (.b} by itself or another, trades within the local limits of the jurisdiction of the court, or

(c) is in possession of immovable property situated within those limits and is to be sued with reference to such pro- perty or for money charged thereon, or {d} has expressly or impliedlys waived the privilege accorded to it by this section.

"(3) Except with the consent of the Central Government certiﬁed in writing by a Secretary to the Government no decree shall be exe-

cuted against the property of any foreign State.

{4} The provisions of subsections (1), (2) and (3) shall apply in relation to---

(a) any Ruler of a foreign State:

(b) any ambassador or envoy of a-foreign State:

(a) any High Commissioner of a Commonwealth country; and (:1) any such member of the staff or retinue of a foreign State or of the Euler, ambassado or envoyi of a foreign State or of the High Commission-e of a Commonwealth country as the _Central Government may, by general or special order, gtgeglfy In thls behalf, as they apply in relation to El foreign a. e.

(5) The following persons shall not :-be arrested under this Code, rtomely-- = '

(a) any. Ruler of a foreign State;

(b) any ambassador or envoy of a foreign State;

{'33) any High Commissioner of a commonwealth country;

{:1} any such member of the stali of retinue of a foreign State or of the Ruler, ambassador or envoy of a foreign State or oi.' the High Commissioner of a Commonwealth country as $:m$;nit£a%hg°:§g';11:enf I1l1aY._ by general or special order, (5) Where a 'request is made to the iientral Government for the orttnt of any consent under this section, the Central Government shall E"-'9J'0'|'E refusing to accept the request in ijhole or in part' give tké person making the request a reasonable Oppﬂffﬂnitqu of being hea,,.d.._ Section 81-]! ' 1-G.9. Section [8713 has been already amended' ve 1:1 d is now conﬁned to f ' ' ' W mean Y' an ment 0'1' the Constiizauttiiliiliise 0 action ansmg before the commence"

1. The Ruler: of Indium States {Abolition of hi-rligq] get, 1971 Cusp-rm I-H SPECIAL PROCEINGS Introduction 1-I-I.l. Part of the Code, sections 89 to 93, deal with special pro- ceedings. " ' Section 91 (1) l--I-1.2. Section 91(1) authorises the. ﬁling of a suit in respect of a public nuisance by the Adyocate-General, or by two or more per- sons who have obtained the written consent of the Advocate-Gene- ral. It appears to us that the Advocate-General should not be troubl- ed with such questions. It is enough if the leave of the court is ob- tained.' In the comin years,' roblems of-pollution of water and air and the emergence 0 new unlmown hazards to health are likely to require considerable attention. And, until a full-ﬂedged environ- mental law takes shape, section 91 could serve a useful purpose in combating these kinds of nuisance.-

1-I-I.3. It also appears to us that the procedure allowed under this "section could be usefully' extended to wrongful acts other than pub-

lic nuisance which affectthe-éaublic. As illustrations of such wrong- ful acts, we may refer to frau ulent practices of traders, which harm consumers in general.

Recommenation 1-HA. Accordingly, we recommend that section 91 should be revised as follows:--

"(1) In the case of a public nuisance, or of any other wrongful act affecting the public, two or more persons, having ob-

tained the leave of the court, may institute a suit, though no special damage has been caused, for a declaration' and.- injunction or for such other-relief 'as may be appropriate to the circumstances of the case".

Section 92 _ 1-H.5. In the earlier Report,' attention was drawn to the legislg. tion _re-garding cy, gres undertalgen in England, and to the analogous provisions in the ombay Pubhc Trusts Act, 1950 (Bombay Act -29 of 1950), (which have been foll wed by certain other States also). Some diﬁiculties were felt in. England by virtue of the limited scope of the cy pres doctrine, under which the _court had power to direct the application of the income to another purpose only in certain spe- ciﬁed cases, for example, where the original object had failed.

1. As to appeal against an order under section 91, see disaualion ro||.t' to aeoti. 104 pure. 1-K. 7. Inﬁu. mg on

2. 27th Report, page: 118 to 120 ,. note on-nation 92.7 as --

- -I -.

mlir of tl1e$11'°PE_I'15}'; 0: W: re W. I-I-L6. Now, there might be cases 'where it would be desirable to' alter the very purpose of application as mentioned in the trust instru- ments, because the original "objaI:!:Eh'ﬁe been adequately provided for by other means, or have ceased to rovide a suitable method of using the roper , or 'or useless or prejudicial to the pub 'c we are or are not substantially beneﬁcial to the class of persons for whom the endowment was intended oriigﬁlly;

1-H.'i'. In England, the Nathan Committee' went into great' detail in this question. The Committee wassatisﬁed that the most" urgent need was to enable the Charity Commissioners to give tiniely .tance to those trustees who were administering trusts "no longer adapted to 'm'od°ern cor1diti:bns".}i Bi_1'i_:ﬂ_e'tlie alteration oi! the' objects of charities' (where the objects 'cdn" s'til§"lJe eitehuted} could only be ilbnei by "a"; statutory polwerf tl'le'G'i'i1'i11't1iﬁt$ee reco'n'1mendEd~ su.ifa'b=le' egis -

atibnfegardirig cy' 1-H3. - :2 Charities Act,' has easriadout, to-'ai1srge the recommend t-Tons-"o_f the Nstl1§iif'Cou'_irni!.1iee'. Brieﬂy stated; under section 13 of that Act, theioriginﬁl of a chaviutble gift can be altered-i to ailow tlie'propel'tey'ifa be ' M eg;r_1is_es;'wiie1~ef'-thie=n1-ig1- nal purpose has been fulﬁlled or' _ o1rbe'catvned out"'aGui:d*dirI.g='h the directions and the Sp' ' 'c_I,'E e. _5, 'or provides theuse for part , (_ _ ,_ _' , _',_ _J;"a%*aildb1él53Hvirt'uIeTc'>!the siftzsnd-9thea:;Pro. Its"??? 70.3. ,,-1;: ssh. ' b'e'.usédJi'n conninction, or w ere the plurpdses Iaid;'dbwii'_t1i_ith 'f£ifeif'e'iice_']io an area which has ceased to be a uni _"o'r'a cIh§s'.of p'e';i's'_b1i's'.' has ceased to be suitable or where the original purfaases'ehsve li'ee:'rii ade- quately provided for by other means or ceased (as IIe%!'I1Il!lE5s"'dr harmfulito the comsmeitsi to--he is--her c.:h.aritab,1e er ceasedrto pro- vide a suitable and effective me %of using 'the jg-epp';t3.L;i.igiJgh1e by virtue of the gift. Thus, a failure of the original' purpose isnot, jnhvg; theyizy ';)ifb11}1ii'for"'_iéiJ"pi'8s.' ' . stvmto seem 56 and with sec-

'.'< .'. .' - '. :. I ' who lillldﬁ . ' Lﬂaﬁonf hawks! £il1_i;W:.E§D _o 1 Ant, re _ r on an appli alteration ofthe 'original-'.o'}j ' _ ' _. _ 'enia1:._Is provides that, if the court is of opinion that e " rrying out of such inten n or object is not wholly or partially e ient, practicab1e;""dE! "

L €01-E15 can sanction' an %-'L1H'-Ihlic or pioneer in -the public-' ~, the-courﬁm ilffieét the .; IJ1.'€ii-'4_¢3.:'1.%.':r.' 0!'? income 0!-the bi uzrsngrjsortions tﬁ'Be 2-__app11ed=-cur-1W3 t%"mrI*' 7 s 'orteligiosr-pnspuse::' *f1.'n:'1ti: gtiﬁei 'pre§:au$':c¢mmrg;,.5'~'1g-s¢Jgggde'l-U ;_ _ l " cbnsuered. s i "rra'een--- l r

- 1iérﬂ'llt:rf§p_i:?r$Vi5@d3'i-7' w-he'hthELe.w°'pnb' _ . - , . .. 7 V :. _'______ _ V'____ Hn._',_,;.

_ _ I J 7 I 5. I 1- . . .t_he_Dcmm.ltuu. the . ' ﬂlIilI1§.ia' Chniuhig 8-'l'llI?I'. pa:-fngrapln 299, alﬂfmﬂﬁ), . Id.' Tnﬂhﬂuﬁon 2'.' cﬁariueaﬁi, 1'mss'¢s';e 9 Ehi.. 235 15313.' 13.

3. Bombay Public Trust: got'. 1059.,'

4.Th Hind Ra]Jg1o' ' Endomnantl 'r-Z 060-32}, vtepm. $3 banish': 1-mmmapioa gotten 13.14, 4 5.

u.-_ i.-.'_. _ 3, .g.. a...

Ant. 1WO.Pbr _1aw_of- public tr-usts. - ' I 57"

1-H.11. The doctrine of (S3; pres can, even noﬁ'*?E5' 9% suitswinder aecaea 92. an -itp._isc9;;ei. ' _, imesurna. _ 4. ' "W by the rules of the English Law, as u'r'ir11'rJ111ocﬁﬁ'eii"t§jf' ufe;

1-H.I-2. We agree with i»tlie!'ah.o1Ie noeomu1andat.ian.,.Hqwever, it appears to-us that it wouldibe ﬂ&SillIlh1E.'i1ai make amendment regarding the-'scope. of cg! pus: etwithoux waiting -for .' revision of the 1 ' . i'. :I ' .

'l'-I'-I".l3. Wears, further, bf-'thewieiw that requiring leave of the Advocate-Gerieral replaced by, a provision requiring leaveoi the come» Obtaittiiig the leaves of the Advocate- General takes-time, and the saisiqeratiam he: takes into account can be taken '1nto'i'acco*zi1t"-ﬂy the-fs.'.ourtIas welzlwsinoe juris- diction under the section iaTves=I!i§d=*in pi-iniiipal civil'-court of ori- ginal jurisdiction, it can be expected that the discretionitdrgrant leave under the amended section w_i_ll__ _1;e exercised in _a responsible manner.' T " " ' ' 1-I-1.14. 'We notice 'thaf'in iii; $ifipiica'ti'on tn-p1iB1ic'*'trnstsi£h1ling within special laws or governed by 1c-ca1- lawec those! lawﬁeautum provisions substituting aid' _ -cnti procedure, regarding leave. An example inpoint is the pmVis1§1n- in tlie 1V§.kfs"lAct,ftfubtccH1elow:--

"55.(1) A suit Ito olitain anytiof thereliefs mentioned in sec-

tion: 14-. :E 'the;IE§31'gagas_' _.- ts, ;$_ p],g3_93 (XX :E 1393) 3.110 Jin.seqﬁ¢31n_92:oFt1l§e T ode of Civcii! Procedure, 1933 (Act if o 'tl39lli)e,'- relating" to '§ayF+waktrﬁ1ty;=no1§i;ith§tandlI'1tiig , 5:911, -£9111-ﬂ$ed' _s, ei -

tuted by the: B. d Pt'_@ aiaiﬁgbﬂlilgﬁfehvé or consent referred to in use Ac ;' ' (2) 'No suit s.obe.a.s;;t'§':iib.s:aies:$aasa.isi in sub-sec-» tion {1)l relating to a w i shall be instituted by any person 91 "- 0I'_-aIit11'D!"i*}*3 Mill?!-' iBoard~witl1out -the consent in' =' -or writing of theuB_anl6::.. If: ' - , -

' <1' '9 . i' ammo -aiat.!nn?-shell-:daiaui§ii:a1u11r}bs rcquil'erlrior the insti- tution of a suit against thrill:-duin rlq:IHt§'lJf~?an}r act pur- porting to he done by it in pursuance of this Act or of any rules-'0r'DI*d!rs<~ "" ' ' ' '-

' - -3-' =--* ;z. J--.',,; ;,'-5', 1-H 15. the ' '=-- " v2,',3s..1aid._d in such laws, need not be disturbed, it is our in on that the e nded scope (on seeuomscirsiiome apply aainnisi on

1. Srianlfsﬂlaﬂiﬁlﬁna M* mm _-,-_ 1-I-'3', wt...

2. A3 to IPPBBLEIOO section 101 null .-.. sa£tfeii"d5.'tﬁﬁm}'ﬁr1I*!§3i?i;9E9 "{:.i""m """"' .

Recommendation 1-H.1B. Accordingly, we recommend that section 92(1) should be revised as follows:---

"(1) In the case of any alleged breach of any express or con-

structive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is .. deemed necessary for the administration of any such trust, . . _ two or more persons having an interest in the trust and having obtﬁned the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court of orginal jurisdictic-n.or in any other Court em- powered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree.

[Rest as in existing section 92(1)].

1--H.17. We further recommend the insertion of the following new sub-section in section 92:-

"(3) The circumstances in which the original purposes of a charitable gift can be altered" to allow the property given or part of it to he applied cg pres shall be as tollows:--

(a] where the original purposes. in whole or in part- . (i) have been as far as may be fulﬁlled; or

(ii) cannot be carried out, ioroﬁnot according to the directions given and to the spirits the gift; or "(b) where the original urposes provide a use for part only of the property availa ' by virtue at the gift; or

(c) where the property available by virtue of the gift and other property applicable for similar purposes can be more effec-

tively used in conjunction, and to that end can suitably, re-

' 3,31'?-l 591318 had 10 the Spirit of the gift, be made applicable

- to common purposes; or - 2 '(all where the original purposes were laid down-

(il byirefﬂrence to an . which th in t has ' ceased to be "a uﬂitaf1§r'_ sonle otheei-npiziviiiosg, or Emce-

' (ii) bi reference to a class ofapersons or to an area which 113?, f°1"8'113"1'93!°1ls_IiIIco ceased to be suitable, regard P9133 hill'! 150 519 SP1?" 014110 Sift. or to be practicable in administering the gift; or " (El Where the original purposes, in whole or in part, have since ; they were laid down,--- ' or been adequately pyoynea, for by other_mea_ns; gr' _m_p ;:.a,,¢'..._...:.:' .5 ._,.4a.

,--1.-H

--!"-I-s..,.,;--...'.

''(ii} ceased, as being useless or harmful to the community or for other reasons, to be in law charitable. or

(iii) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the gift, regard being had to the spirit of the gift".

Section 93 1-H.18_ Section 93 provides for the exercise outside Presidency towns of powers conferred by sections 91-92 on the Advocate-Gene ral. In view of our recommendation' to substitute, in sections 91 and 92, the leave of the court in place of the sanction of the Advocate-Ge- neral, section 93 becomes unnecessary.

Recommendation 1-H.19. We, therefore, recommend that section 93 should be deleted.

1.su:nun-imunuaeoilinnn. ' CHAPTER _2.l-I sUPELﬁ;am$'rAL_ '1?8pcg1aDmGs Introductory 1-1.1. Part 6, sections 94 and 95, in the body of the Code, Sleals ..with- what has been described as,'.'su.g1emenl::l proceedings". These _proceedings are mainly concemed {u:it1Ii temporary relief. No change is-[needed in this Plart. ;

I ......- . Q. -

'~i;£.a=:iI~u=.u.''.- ;. - - :1' us:

-'- - -

| .

Jr Chapter 1-J AND SEQOND APPEALS Introductory 1-J.1. Part '1' of the Code, sections 96 to 112, deal with appeals _TWi_th certain exceptions of a minor' character, one appeal on facts as well as on law is allowed as "gt general "rule, and a- further appeal, on questions of law and on certain otherquestions is also allowed. In the ease of .ﬁ_rst appeal, the iorum of ,a%%e_al is left to be dealt with by the Civil Courts Act of each State'. Ea second' appeal lies al- ways to the High Court. The Code mainl creates the right of .3}? real. deals with the 3 isdi ion of . _e ellate Court, and pro- viﬁes for appellate roce ure., he rigli of appeal is dealt with in the ha y of the Code (._ art 7), .. d. the, be ers and prd.ce.dure of thesp- pellate courts are dealt with n the or er. " e ' ' ' a Section 5(1) _ 1-«T-2..Weaare recorrnnencling' the insertion of a provision to the . eﬁectifthat (with certain exceptions) a court must decide all issues, , e,ven _ , the suit can be dispe-Bed of .911 :a preliminary point. Where, in €9!1_ﬂ.>.TIIﬁt5" with sueh .a Prsvisien the qetirt decides all issu.es,.and the decree is in favour of a [person but the;-jiggling on some of the issues is adverse to him, he cannot, as the law stands at present, appeal against the adverse ﬁnd1_ng_ (Le: the ﬁnding on that _;'uugaud33'u:ed against him), and the ﬁnd is not' res judicata at least according to the new useallir taken. . has _ngw- tube; changed.

Recommendation W V nth Ef , f 1]. ' E 1 .

$0 141 $1 be ingerted hlgﬁléirl Secﬁinﬂggtlghjt e o pwirlg xp anation "Exp1an.ati0I2--' A. , rte.-asytieved; a ﬁnding of a court incor- p-mjeted in a gcree me from the decree in so for as it relates to that ﬁ ng, notwithstanding thﬂ bguuagon of the ﬁnd-my of_t_he Court on any other issue which is .,51t.'ﬁ9.l??¢~l§.fGt.dﬂe=§t#!t ojdhe sue; the decree; ."whoH.'y or at aeituzofaueur oI.tbutpn-:9". .. ' - ' -I ..Seeﬁ°e M (New) 1-J.4.App-eels' pe cases ﬁt 'b' - ' " ' I in 01!: 9eeeﬁ9ene;;e_...a:t£eﬂq"e? E he in mtmmer ',3! 5' .quésﬁ°"' "7. There is a suggestionthat front the judg|'nent§'----"of. Vlgwilﬁst courts of first instan an a al 1 1 -

sy,edfe:?tate§t.l°eet%g£:§tt a pee' the point of view of subject-matter, w erre e"amoun't or v ue ° e 1.es..*.t...e--r ..e*-m. ,

2. Qnuﬁon 72. _ '

11. 'l' r 1- '.f*- - . ' :;=-"'.-

r ........_...,.

subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not more than three thousand rupees [or such other sum as may be considered proper), and the decree or order does not involve directly or indirectly some claim or question respect- ing property of an amount or value; exceeding three thousand rupees (or such other sum as may be considered proper].

"The proposal is that in these [petty cases, the ﬁrst appeal should be allowed only if the appeal court certiﬁes that a question of law is involved, and the issue of such certiﬁcate should be decided either in chambers or in open court as the appeal court may think proper.

What are your views in the matter? Would you agree with the suggestion?". » I 1-.15. The majority of the replied on the question are opposed to the suggested restriction, but a minority favour it. After giving due weight to the views received, 'we h'._ave come to the conclusion-that no first appeal should lie in any suit of the nature cognizable by courts of Small Causes, when the amount or value of the subject- matter of the suit does not exceed three thousand rupees, except on a question of law. Our object in making this recommendation is to reduce appeals on facts in petty cases. In our opinion, some such restrictions are necessary in the interests of litigants themselves. They should not be encouraged to appeal on facts in petty cases of the nature mentioned above.

Recommendation 1-J.6. Accordingly, we recommend that the following sub-sec- tion should 'be inserted in section 96- "(4). No appeal shall he in any suit of the nature cognizabie by Courts of Small Causes, when the amount or value of the subject-matter of the 'suit does not exceed three thou.-

sands rupees, except an a question of low." ' Section!!! 1J.":'. Section 99, which, inter alia, saves irregularity in respect of misjoinder of parties or caums of action, does not apply to non- joinder. In the earlier Report,' the Commission exanﬁned the ques- tion whether "non-joinder" should be added in the section, as in Order 1, Rule 9. It, however. considered it unnecessary to do so, as---

(a) non-joinder of an essential fatal defect, and _ .' "(hr)" non-joinder of a proper; party would not, even now, entail part? should be regarded as a

- variation, etc., of a decree.

1-1.8. We agree that the corre"ct_'legal position is as was stated inthe above Report. ' " " ' ' . '

1."'2a.h Blport, 122, note on station at] '.'?':'!1'I£'r.'i\tF*-~.-

at "'-""""' - 1-~= by »q_ .

H 73 1-J,9. As was stated in a Madras case,' objections as to non- joinder, if taken at the earliest opportunity under Order 1, rule 13, fall under two classes.

"I. If it is absolutely necessary to have the absent party, he ought to he added unless the plaintiff refuses to add hirn When the suit should be dismissed. If the trial Court erroneously proceeds with the suit, without following either of these courses, the objection can be repeated in appeal, when again it may be disposed of only 111 the above said two ways. The present appeal falls under this heading.

2. If it is not a case of imperative necessity but only a matter of convenience or expediency, either the absent party may be added or the suit may be tried without him (Order 1, Rule 9). In such 3:

case, the objection, if repeated in appeal, may be dealt with simi- larly."

'1--J .10. In a later Madras case,' non--joinder of an essential party was, on the facts of the case, regarded as going to the jurisdiction of the Court, and the suit was dismissed. The earlier Madras case was not, however, cited," and the dismissal was ordered even though objection to non-joinder had not been taken in the trial court.

is was because it was found that the suit could not eﬁectively proceed in the absence of the parties who were not joined.

Recommendation 1-J .11. We are of the View that an express provision on the subject of non-joinder is desirable, and the position "should be the same as in the case of misvjoinder. At the same time, non-joinder of essential parties should not be included. Accordingly, we recommend that section 99 should be revised,' so as to read as follows:----

"Q9. No decree shall be reversed or substantially varied, nor shall any case be remanded in appeal, on account of any 1nis~joinder or non-joinder of parties or cause of action or any error, defect or irregularity in any proceeding in the suit not affecting the merits of the case or the jurisdiction of the court.

Provided that -nothing -in this section shall apply to non»-joinder of a necessary party."

Section 99A"

l--.l.12. As regards appeals against ﬁnal orders under section 4'7, we had included a question' in the Questionnaire as to adoption of the principle that "no such order shall be reversed or substantially .

carried, nor shall any case be remanded, in appeal on account of any error, defect or irregularity in any proceedings not affecting the merits of the case or the jurisdiction of the Court."

. stamnuga v. Snbbcyat, A.I.l-1.1922 ll-Ind. 317, 320 (Rameeam .1).

. Amircha.'IId' Nagiﬂdaa V. Rdoji Bllai, A_.I.R. 1930 Mad. 714,. 713. ' . Hhaﬂmﬂ-go v. S-abbayya, .A.I.R. 1922, Marl. 317 (supra).

. Similar amendment would be desirable in Order 1, Rule 9.

5. Question 10 L,lB(D]229Mof IJa.GA.--7 III-5;[x.'g>--u 7-1 1--J-13. Replies on this question generally favour the proposal, and we have come to the conclusion that it is desirable.

1-J.14. We, therefore, favour a provision of the nature suggested in the question referred to above, but after some discussion, we have decided to employ the wording "unless it has prejudicially affected the decision of the case." We further think that want of jurisdiction should also not matter, in this context.

1-J.15. Accordingly, we recommend the insertion of a new sec« tion ._ as follows:--

"BSA. N 0 order under section 4'?' shall be reversed or substan- tially varied, nor shall any case relating to such order be remanded, in appeal on account of any error, defect or irregularity in any proceedings relating to such order, unless such error, defect or irregularity has prejudicidlly affected the decision of the case".

Section 1(I{|'--Right of second appeal l-J.16. We now come to a very important question, which per- tains not to mere procedure but to a substantive right. This is the right of second appeal conferred by section 100.

1-J.16A. Any rational system of administration of civil law should recognise~----and it always does--thuit litigation in civil causes (as described in section 9 of the Code) should have two hearings on facts--oI1e by the trial Court and one by the Court of Appeal. That, in fac'£,8 héas been the scheme of the Code of Civil Procedure ever since 5 .

According to recognised principles of adrni-nistration of civil law, every litigant is entitled to take his cause before a second appel- late Court on a question of law, and this right also has always been recognised in our country. The two relevant provisions in which this right is recognised are section 100 of the Code and a Article 133 of the Constitution'. ' . ' Two categories of civil Iitigatlon l--J .17. Traditionally, civil litigation has been placed in two cate-, gories in our country. For convenience, we may refer. to the two categories as 'minor' and 'major'. In ourcountry, there is a hierarchy of the judiciary. beginning with Munsifs. or Civil Judges, Junior Division, followed by the Civil Judges tor Civil Judges Senior Divi- sion, (or corresponding officers) and district Judges and, above them, is the High Court. Formerly, above the High Courts in India, there used to be the Privy Council, but,, in 194?, the Federal Court took the place of the Privy Council and, since 1950, the Supreme Court is the highest Court in the country.

1, Article 133 has been recently amended.

»-~u:J--n...-:---

t»-

'35 Chronology of litigation instituted in lowest court l-J .18. The Code of Civil Procedure requires that all civil litiga- tion must be instituted in the court of the lowest jurisdiction. In- evitably, minor litigation begins its career in the Court of the Munslf or the Civil Judge, Junior Division. After he pronounces his';i11<lg- ment and a decree is drawn, an appeal lies either to the District Court or the Civil Judge (Senior Division) on whom appellate power has been conferred. The appeal to this Court is ﬁled under Order XLI. After the decision of the first appellate Court is pronounced and an appellate decree is drawn, the aggrieved party moves the High Court under section 100 of the Code and, broadly stated, such an ritggaeal has to be within the terms of clauses (a), (b) and (c) of section 1--J.l9. Major litigation begins its career in the Court of the Civil Judge or the Civil Judge (Senior Division) and, after the trial Court has pronounced its judgment and a decree has been drawn, the aggrieved party goes to the High Court in first appeal under Order XLI. After the High Court has pronounced its judgment and an appellate decree-«has been drawn up, the appeal used to go to the Privy Council, then to the Federal Court and now it goes to the Supreme Court under Article 133 or with a certiﬁcate under Article 136 of the Constitution. That, broadly stated, is the position of the hierarchy of the judiciary and, if - we may say so, the hierarchy of appeals contemplated by the procedural law.

Recommendation in Report on Article 133 1-J .20. Before we proceed to consider the changes which wewish _ to recommend in a-mending s. 100 of the Code, we ought to indicate brieﬂy the reasons why we recommended to the Union Government the amendment of Article 133 of the Constitution by our Report on the subject.' The Union Government has accepted our Report and Article 133 has accordingly been amended. The philosophy of this amendment is that High Courts in otsr country should ordinarily decide all questions of law pertaining to the interpretation of State legislation and their decisions on such 'points should be ﬁnal. If any of the provisions of State legislation-use material expressions or clauses which are common to other State legislations and there appears to be conflict in the views taken by different High Courts in regard to the interpretation~oi_E such expressions or clauses, the matter can legitimately be taken before the Supreme Court for resolving such conflict. Subject to such. cases, in ,a federal structure, it is legi- timate and natural that High Courts oi the State should be regarded as ﬁnal Courts of Appeal so far as the interpretation of State statutes is concerned. A 1-J.21. In regard to the interpretation of Central statutes, how- ever, the position is diﬁerent. A party aggrieved by the decision of the High Court in respect of any provision of the Central statute may be entitled to move the Supreme Court. provided the matter sought to be raised by him is not already concluded by a decision

1. 45th Report. -

LfB(Dj229Moi' IJ}('._fA--'I(a.) ' ?

-7 - .---vs»-s.p4U--I -

-. _...._,_t.,.,. ._. ._.... .. .

:<--:.-:e.Iunt.me------ei-i-.»--v 76 of the Supreme Court. In regard to the interpretation of l31"0V1'5l'?1'-5 of Central statutes, if there is a difference oi' opinion amongst I-Ilgh Courts, the case for moving the Supreme Court for resolving Such a dispute is all the stronger. It is in the light of this approach that we recommended to the Union Government to amend Artlcle 133 In a radical way; and. in doing so, we had emphasised the fact that the test of pecuniary valuation, which had been prescribed by the erstwhile Article 133. had no relevance to our approach in thls matter. The reference to the pecuniary valuation having now been deleted, it is conceivable that, even in regard to a case falling under a the minor litigation, a party may be entitled to go to the Supreme Court, provided. of course, the test prescribed by the amended Article 133 is satisﬁed. The words used in Article 133 of the Constitution re- quire that the point raised by the appellant should be a substantial point of general importance which. according to the High Court_ it is necessary for the Supreme Court to decide, Comniissiuufs approach to proper scope or second appeal 1-J22. It is in the light of the amended Article 133 that we pro- pose to approach the question about the scope of section 100 of the Code as it should be after it is amended. It would be noticed that clauses (a). (b) and {c} of section 104) to which we will presently refer, are, in a sense, very wide in effect. In fact. as we will have occasion to point out, clauses (b) and {C} have led to a plethora of conflicting judgments and it may be safely stated that ingenuity of the lawyers determined to seek admission for second appeals of their clients in the High Court. coupled with judicial subtlety which gene- rally believes that even an erroneous ﬁnding of fact does, on the ultimate analysis. lead to injustice. has unduly and unreasonably widened the horizon of section 100. His easy enough to understand ~ what a point of law is: but in dealing with second appeals, courts have devised and successfully adopted several other concepts. such as a mixed question of fact and law. a legal inference to be drawn from facts proved, and even the point that the case has not been 'properly approached by the courts below. This has created confu- sion in the minds of the public as to the legitimate scope of the second appeal under section 100 and has burdened the High Courts with an unnecessarily large number of second appeals.

Approach of High Court to second annual 1--J.23. The approach to second appeals has traditionally differed from High Court to High Court. and from Judge to Judge even in the same High Court. The Kerala Hitth Court, for instance admits second appeals, where the appellate court has reversed the ﬁndings of fact recorded by the trial court'; this position is prima facie difficult" to reconcile with the plain provisions of section 100. Even where such a position does not exist. it is not uncommon that iudges are more lenient in admitting second appeals where the courts below have recorded conflicting ﬁndings of fact.

I. See Kcrala amendment» to section 100.

2. See 27th Report, para. 123 and 14th Report Vol. I pages 3'77, 378, para. 25. 26.' Q,' 'r 7'?' This aspect of the matter has been noticed by several Committees and Commissions which dealt with the question of the growing arrears in the High Courts, substantially because of the indiscrimi- nate admission of second appeals and civil revision applications, and W9 will have to say something very radical later on. To anticipate our recommenadtion, we might say at this stage that we are recom-- mending' that section 115 of the Code, relating to revision, should be deleted.

Discussion in 141311 Report 1-.124. The Law Commission, in its Fourteenth Report,' referred to the problem posed by the unduly lenient admission of second appeals and observed that "having regard to the terms of section 10{l, an appeal should not be admitted merely because the appellant has shown that an arguable or prime Lacie valid point of law arises in the appeal, but that the Court has to be satisﬁed that the decision of the lower appellate Court on a point of law was erroneous and that in order to do justice between the appellant and the respondent, it is essential that a further hearing should be given to both the parties", The Commission thought that the existing alarming position of arrears could be met if it was recommended that the High Court should adopt the practice of "circulating the papers relating to second appeal to a judge outside the Court hours for the purpose of en- abling him to determine whether it should be admitted straight- away and notice issued to the respondent or whether the appeal should be posted for ca prelilninary hearing under Order XLI rule

11." The Commission further recommended that such a scrutiny should be made by a senior and experienced Judge.

1-J-25. The Commission also thought that a statutory require- ment should be made providing ithatt e Judge admitting the second appeal should state the P011113 or poin s of law which arise for con- sideration and enabling the High Court to admit a second appeal on speciﬁed points only and it should be provided by rules that where a second appeal is ﬁled, certiﬁed copies of the judgments of both the Courts below should accompany the memorandum of appeal and, if in any such appeal the appellant proposes to raise any question of the construction of a document, a true translation cg the document should also be ﬁled along with the memorandum o appeal. -

Arrears in High Courts 1-J--26. These recommendations, however, do not appear to have been implemented and the position of the arrears pending in the High Court, partly because of indiscriminate admission of second appeals and civil revision agaplication, grew from bad to worse. The Shah Comnﬁttee, which de_ t with this problem in 1972, has observ- ed that "it is necessarywto provide for a stricter and better scrutiny of second appeals and they should be made subject to special leave,

1. See recommendation relating to section 115.

2. 14th Report, Vol. 1. page 3911, para. 12.

1. :

instead of giving an absolute right of appeal limiting it to question oi' law." It reiterated the observations made by the Law Commis- sion in its Fourteenth, Report, and repeated its recommendation that the second appeals should be circulated to the Judges for reading outside the working hours of the court for determining the question whether the second appeals should be admitted straightaway and notice issued to the respondents or whether they should be placed for preliminary hearing under Order 41, rule 11.

View of High Court Arrears Committee 1-J-2T. The High Court Arrears Committee was quite clear in its view that the primary cause of the accumulation of arrears in the High Courts is the laxity with which second appeals are ad- mitted without serious scrutiny in the light of the provisions of section 100 of the Code. -

View of some Judges 1-J .28. As we have already indicated'. some Judges in the High _ Courts honestly believe that, if they are satisﬁed that, in any second appeal brought before them evidence less been grossly misap eciated \ either by the lower appellate court or by both the Courts be ow, it is their duty to interfere, because they seem to feel that a decree follow- ing upon a gross misappreciation 'of evidence involves injustice and it is the duty of the High Court to retires" such injustice. However laud- able and commendable such an approa _h may ethically claim to be, it overlooks the fact that courts adrnirﬁater justice according to law; and. where limits have been prescribed for the exercise of the High Court's powers under section 100, "in trying to redress injustice by interfering with questions of fact, the Court, in effect, is violating the express provisions of section 100 'itself. In this connection, we may quote two judgments of the Sup-_t'en1e Court where this aspect of the matter has been emphatically brought out.

Privy Council case _ 1-J-28A. Before doing so, however, it would be relevant to recall that, as early as 1890, the Judicial Comrnittee of the Privy Council' stated that there is no jurisdiction to entertain a second appeal on , the ground of an erroneous finding of fact, however gross or inexcus- able the error may seem to be. and they added a note of Warn- ing that no Court in India has power to add to, or enlarge, the grounds speciﬁed in section 100. r Supreme Court cases a 1-J-29. Reverting, then, to the -two: juxlgments of the Supreme Court, in M. Ramaprpo v. M. Boj_iopﬂa', S11 reme Court was deal- ing with an appeal by special leave wh e the igh Court of Andhra Pradesh had interfered with the ﬁndinggof fact recorded by the ap- pellate Court which, in turn, had itselgf reversed the trial Court's

1. Para. 1-J32, srtpra.

2. Met. Darya Glaowdfarain v. Jawahm' Singh, (lti_E_lJ) 17 LA. 122 (P11).

3. M. amappa v. .11. Boﬁrtppat, (1963) sioun, art.

ﬁr "'1- 79 hnding on the same question of fact. In setting aside the decree of the second appellate Court, the Supreme Court observed:

"It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the ﬁndings of fact recorded by courts of fact; but on such occasions it is necessary to remember that what is administered in courts is justice according to law a1;d considerations of fair play and equity however im- portant they may he, must yield to clear and express provisions of the law. If in reaching its decisions in second anpeals, the High Court contravenes the express provi- sions of section 100, it would inevitably introduce ,in such decisions an element of disconcerting unpredictabilityi which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid".

1-J-30. Similarly in Deity Petra-bhimmoswamy v. S. Hanymeyya and others,' the Supreme Court was dealing with an ap eal by special leave against the judgment and decree oi the High ourt of Madras set'-ing aside the judgment and decree of the District Judge, Guntur, whtch had conﬁrmed the judgment and decree of the Sub- ordinate J 'idge, Guntur_ Reversing the decision of the High Court, the Supreme Court observed that,' notwithstanding the clear and authoritative pronouncement of the,Privy Council on the limits and the scope of the High Court's jurisdiction under section 100 Civil Procedure Code. "some learned Judges of the High Courts are dispos- ing of Second Appeals as if the were first appeals. This introduces, apart from the act that the igh Court assumes and exercises a jurisdiction which it does not possess, a gambling element in the liti- gation and confusion in the mindof the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under s. 100, Civil Proce- dure Code. We have, therefore, nog alternative but to set aside the learned Judge of the High Court had no jurisdiction to interfere in second appeal with the ﬁndings of fact given by the first appellate Court based upon an appreciation of the relevant evidence.' We have deliberately =referred to these two decisions of the Supreme Court to emphasise the "point that, notwithstanding the recommendations made by the Committees and Commissions in the past, and notvvithstanriing the words of caution and warning au- ihoritativeiy pronounced by the Supreme Court, High Courts do sometimes unwittingly or ,even deliberately enlarge the scope of their jurisdiction under section 100 in ursuance of what they honestly regard as "the requirenients of iris ice", ' Search for absolute truth-' to be 1-J-31. at this stage. it may be permissible to point' out that a search for absolute truth in the administration of justice, however laudable, must in the very naturel of things he put under some reasonable restraint. In other words, a search for truth has to be l. Deity Pattabhiramoaunzmy v. S. Hanymcgvyo, A.I.li.. 1959 S.0.|57.

reconciled with the doctrine of ﬁnality. Cynics have sometimes said that, if appeals are provided against the judgments pronounced by the highest Court in the country, a fair percentage of the decisions cf the highest Court may be reversed. Indeed, some critics, embit- tered by their 1.'..Y]:)E1'iBI1I:!e in litigation, have gone to the extent oi' suggesting that. if the same appeal is placed before two different Benches of the same High Court or the Supreme Court, it is not altogether impossihic that different verdicts may be rendered. That is what has given rise to the saying which is current at the Bar that the correct judgment is one against which no appeal lies.

1-J-32. We are referring to this aspect of the matter only to emphasise the point that, in the interests of the litigants themselves, it may not be unreasonable to draw a line 'in respect of the two dl-ﬁerent categories. of litigation where procedure will say at a certain stage that questions of fact have been decided by lower courts and the matter should be allowed to rest where it lies without any further appel. This may sound somewhat harsh to an individual litigant; but, in the larger interest of the administration of justice, this view seems to us to be juristically sound and pragmatically wise. It is in the light of this basic approach that we will n3.v proceed to consider the three clauses of/section 100 and deal elabo- rately with all the point which ultimately lead to the recommenda- tion which we propo;-e tcrmake to amend section 100 of the Code of Civil Procedure in a radical way.

Average litigant usually exhausted by the stage of first appeal 14-33. The average litigant is exhausted by the time he has travelled to the court of. ﬁrst appeal, and too often a wealthy liti- gant, (such as, a Corporation), may well be in a position to carry appeals to a point where the ﬁnancial resources of the opposite party are practically exhausted, No one can deny that courts shouid be readily accessible to the people; and when litigation is embarked upon, there shoul.-3 be a remedy againsterroneous decisions. But this right of appeal should be within a reasonable limit, and within the tontrol oi the resources of the litigants.

Present law considered in detail 1-J-34. Bearing in mind these broad principles we proceed to consider in detail the presentrlaw on the subject of second appeals.

Section 100 1-J-35. The relm.-ant section' of the Code provides---

"I00. Seesmd appeol--(l) Sﬁlve ghere otherwise ex ressly p;'o- vide in the body of is ode 'or by any ot er law or the time being in fOI('i[.':é an appeal shall lie to the High Court from every-- ree gassed in appeal _ any Court subordinate to a High _ou.rt, on any of thehlrollove lng grounds, namely:

(a) the decision being contrary to law or to some usage having the force. of law;

1 . Section 100.

'ii.

p-..¢.'...,.,.._. m_...,~.,,....

'V *'*'~z S1 (Io) the'c'.ecision having failed to deterrriine some material issue of law or usage having the force of law;

(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits."

(2) An appeal may lie under this section from an appellate decree passed ex parte.

Main principle----Finality of decision on facts 1-J-36. This section was enacted for the express purpose of securing some measure of ﬁnality in cases where the balance of evi- dence--verbal and documentary arose for decision.' It is, therefore, appropriate to consider how far the section (as interpreted judicially) is faithful to this object.

Clause (a) and (b)--Meaning of 'law' 1-J-37. Clauses {a} and (h) of the section are simple in appear- ance. A second appeal lies under clause (a)- where the decision of the lower appellate court is "contrary to law". The term 'law' in clause (3), of course, is not limited in its meaning to statute law; it means general law?

As regards, clause (13), which is not often invoked, the position would be the same.

1-J~38. But the simplicity of these clauses is deceptive, as will be apparent from the cases which we shall discuss later.

Clause (c) , 1-J-39. As regards clause (c), the Privy Council found it as "not perhaps altogether happily expressed." Read widely, it may con- vert the High Court into a Court of ﬁrst appeal, because all that it requires is a substantial error or defect in procedure which might possibly have affected the decision on merits.

Case law on interpretation' of section l{|{I--What are questions of law 1-J-40. We shall ﬁrst take up the meaning of the phrase 'law' in clauses (a) and (lb). The ﬂood of case-law on what are questions of fact open to interference in second appeal, shows that many questions of fact have been held to be questions of law. At one extreme are cases which hold that the question whether a transac- tion is 'benami' or ﬁctitious or bcma ﬁclc, or was vitiated by undue inﬂuence; or whether there was reasonable and probable cause for a prosecution; or whether there was negligence; or whether there was partition; is a question of fact.

1. Nafur Ghamzm Pat. v. slmtm, (1913) 45 1.3. 133; I.L.R. -16 Cal. 189 [R0,]

2. Ram. Gopal v. Shahhaion, (1893) I.L.R. 20 Cal. 93 (P.C.)

3. Dwrga Ckowdhmﬂi 1T. Jawakir Siwgki, (1391) I.L.R. 13 Cal. 23, 30 {P.C.J (Lord lirI.a.on.a.ght.en.) .

1-J-41. These ruliiigs emphasise that a court of Second appeal is not competent to entertain questions as to the soundness of a ﬁnding of facts by the courts below} A second appeal can only lie on one or uther of the grounds speciﬁed in the present section,"

and emphasis on this fundamental principle has brought out several aspects. , 1-J42. For example, a Judge to whom a memorandum of= second appeal is presented for admission is entitled to consider whether any of the grounds speciﬁed in this section exist and app] to the case, and if they do not, to reject the appeal summarily." T e limitations as to the power of the court imposed by sections 100 and 101 in a second appeal ought to be attended to, and an appellant ought not to be allowed to question the ﬁnding of the ﬁrst appellate court upon a matter of fact." Nothing can be clearer than the declaration in the Civil Procedure Code that no second appeal will lie. except on the grounds speciﬁed in section 100. There is no jurisdiction to entertain a second appeal on the ground of an erroneous ﬁnding of fact, however gross or Lnexcusable the error may seem to be.' Cases where "no evidence" raise questions of law 1-.T--43. But, at the other end, are cases which hold that a second appeal will lie where there is, as an English lawyer would express it, "no evidence to go to the jury", because "that would not raise a question of fact such as arises upon the issue itself, but a question of law for the consideration of the Judge."

1-J-44. Thus, where the question in a suit was whether the de- fendant was bound by a mortgage executed by his mother, and it was held that he was, the Privy Council held that the ﬁnding was substantially one of law, and that it was, therefore, open to question in second appeal, The Privy Council observed-

"the facts found (by the lower appellate court) need not be questioned. It is the soundness of the conclusions from them that is in question, and this is a matter of law?"

1-J45. As stated by the Privy Council in another case,' "the proper legal effect of 3 proved fact is essentially _a question of law", and the High Court is, therefore, entitled to Interfere in second appea . .

1. ram Gupta} v. Shoksfuulon, (1392? I.L.R. so cal. 93, 99.100 (R0,).

2. Lachmail v. Poem, (1339) I.'L.R. .16 Cal. 753, (P.C.).

3. R-udr Prasad v. Baij Nat}: {I393} I.L.R. 15 ﬁll. 367. 4.01:9-rtiasi Ulrtmder v. Ezfohendranoﬂz, (1890) I.LlB.. 17 Cal. 291. 2'98, [P.G.}I (Sir Richard no .

Darya Ckowdfo-am' v. Jswoliiir Siﬂgit, (1391) I_._L.R. 18 Cal. 23, 30 (P.C.] (Lord Ma._cI':agh- en . ' ' -

6. .-lmmgamanjari v. Tripura Sundari, {IBSTJ I.L.R.. 17 Cal. 740, 747 (R0,) (Lord Watson], '7. Ram Gopal V. Shokslztmi, (1893} I.L.R. 20 Cal. 93, 98, 19 LA. 223, 232 {P.C'-.} S. (0.) Nofar Chandra Pa! '9'. -'ikukur, U918} 45 LA. 183, 137; I.L.R.--16 Cal, 189, 195; A.I.R.. 1913 RC. 92;

U1] Dlzumzai v. .-'LI-95$ Sag-azr, (1927), 54 I. A. 1'38, A.I.R. 1927 P.C. 102; {(3} G;-%1ra;7Ginn£ng are. Go. V. ﬁfolilal Hirabkdi etc. Go. (1936) 63 LA. l-10; A.I.R I930 M. 83 Mixed questions of fact and law 1-J-46. No doubt, discussing the true scope of the above observa- tions, the Supreme Court has pointed out' that there is a distinction between a pure question of fact, and a mixed question of law and fact, and the observations aforesaid had reference to the latter, and not to the former."

1-J-47. But even that leaves ample scope for interference. For example, it has been held by the Supreme Court* that whether the dodictatioii of a temple is to the public or is private is a mixed question of law and fact, because its decision must "depend on the application of legal concepts of a public and private endowment to the facts found."

1-J-48. So also, the question whether a property is ancestral or not,' or the question whether, when a roiyat purchased the interest of the proprietor, there is a merger of the two interests,' is a mixed one of fact and law. Though a second appeal does not lie from a ﬁnding of fact, yet where a legal conclusion is drawn from the find- ing, a second appeal will lie on the ground that the legal conclusion was erroneous.

1--J--49. Thus, the question whether possession is adverse or not is often one of simple fact, but it 'may also be a question of law or a mixed question of law and fact. 'Where the question of adverse possession is one of simple fact, no second appeal will lie; but a second appeal will lie from a ﬁnding as to adverse possession when such ﬁnding is a mixed question of law and fact, depending upon ghe proper legal conclusion to be drawn from the ﬁndings as to simple acts.

Concurrent ﬁndings of faet 1-.150. In general, concurrent ﬁndings of fact are not disturbed by the High Court in second appeal. But this rule is sujbect to the operation of the express grounds of second appeal enumerated in section 100. x

1. Skri Meenakahé Mills v. C-'.I.T. (1956) S.G.R«. 691; A.I.R. 1957 53.0. 49. E3. 54, Para. 13. I9, 20 [Case under the Income-tax Act}.

2. See also Welt Mohammad v. Md. Baksﬁ, A.I.R. 1930 RC. 9], 93, {reviews cases on S. 100 ' (Sir Benode Hitter].

. Deofri No-ndaii v. Jlfural-idltar{1956], S.C.R. '156;A.I.R. 1957 so. 133, I36, para. 4. oops: some v. Ujagar Singh. (1955), 1 son. as; A.I.R. 1954 s.o.§ 579, 530, pm. 7. . Jyoiiah Thalcwr v. Temleant Jha, A.I.R. 1953 so. 605, am, para 22.

[til Looms-shwar V. Mcmowzrr, (1892) I.L.E. 19 Cal. 253, 19 LA. 18; {P.(}.) [5] Bdrm V. a5'y-ems Charon. A.I.R. 1922 Cal. 54, (0) Ram Clea-ndra 1'. Asa. Ram, A.I.R. 1937 All. 429;

[d] Jan-rﬂesramo V. Appolaz-in-oust', .-l..I.R. 1954 Med. 772, 779, Pure 23; to aim of.=1.P. 'U'. K. Faitm es. s.I.B.. 19;: AP. 513.

_mf.?I¢l-'L63 (K 84 Basic Principle departed from 1-J-51. It appears to us that the wide language of section 100, and the somewhat liberal interpretation placed judicially on it, have practically resulted in giving a goodbye to the basic principle' that on questions of fact, decisions of the Courts of ﬁrst instance should be final, subject to one appeal.

Proper role of High Court 1--J-52. This situation necessitates a restatement of the proper role of the High Court, We state below what, in our view, is its proper role.

High Court not an ordinary Court of last resort 1-J-53. Standing as it does at the apex of a hierarchy, the High Court is no ordinary court of last resort. Its special position does not ﬁt easily into the well-worn epigram that trial courts search for truth and appellate courts search for error.

1-J-54. This is our basic approach to the role of the High Court. We do not conceive of second appeals as "yet another dice in the gamble."

1--.T-55. There should be one authoritative and digniﬁed tribunal in various appellate matters3 to give decisions which are recognised as binding all over the State, and which keep alive the immense unity of the law.

Litigants to be discouraged from persistent appeals 1-J-56. The question could perhaps be asked, why the litigant who wishes to have justice from the highest Court of the State should be denied the opportunity to do so, at least where there is a flaw in the conclusion on facts reached by the trial Court or by the Court of first appeal.

1-J-57. Our answer to this would be, that even litigants have to be protected against too persistent a pursuit of their goal of perfectly satisfactory justice. An unqualiﬁed right of ﬁrst appeal may be neces- sary for the satisfaction of the defeated litigant; but a wide right of second appeal is more in the nature of a luxury.

1-.158. The rationale behind allowing a second appeal on a ques- tion of law is. that there ought to be some tribunal having a jurisdic- tion that will enable it to maintain, and, where necessary! J/~e--establisl1, uniformity throughout the State on important legal issues, so that within the area of the State, the law, in so far as it is not enacted law, should be laid down, or capable of being laid down, by one court whose rulings will be binding on all courts, tribunals and authorities within the area over which it has jurisdiction. This is implicit in any legal system where the higher courts have authority to make binding decisions on question of law.

]. Flee "Main principle, etc." supra.

2. cf. Lord Birkenhead's description of the Privy Council, (1927) B3 L.J, 304.

..:. .i. -

1-,.

1' 4 85 Justilication for appeal on question of law 1-J .59. When a case involves a substantial point of law, the ge- neral interest of society in the predictability of the law clearly neces- sitates a system of appeals from courts of ﬁrst instance to a central appeal court.

As has been observed.' "The real justification for appeals on ques- tions of this sort is not so much that the law laid down by the appeal court is likely to be superior to that laid down by a lower court as that there should be a final rule laid down which binds all future courts and so facilitates the prediction of the law. In such a case the individual litigants are sacriﬁced, with some justiﬁcation, on the altar of law-making, and must ﬁnd such consolation as they can in the monument of a leading case".

1--.l.6U. There is, in our view, no justiﬁcation for allowing second appeal on question of fact. and we should specifically state that pro- cedural defects of the nature mentioned in clause (c) of section 100 cannot constitute a sufﬁcient basis for invoking appellate jurisdiction in second appeal, unless they raise substantial questions of law-.

View of previous Commissions and of High Court Arrears Committee 1--.l .61. We are aware that in 1958, a previous Law Commission examined' the matter in detail, and, after Weighing the arguments ad- vanced in favour of curtailment of the right, did not recommend any restriction on the right to ﬁle a second appeal under section 100. The matter was again considered in'the earlier Report on the Code." In that Report, agreement was expressed with the previous Commis- sion's conclusion that "considering the conditions in this country, there is not much scope for curtailing the right of appeal".

1--J.62. We are also conscious that recently the High Courts' _Committee,' which analysed in detail the causes of arrears {includ- ing arrears of second appeals), did not recommend any change in the scope of second appeal. It observed that "the primary cause of the accumulation is the laxity with which second appeals are admit- ted Without Scrutiny in the light of the provisions of section 100, Civil Procedure Code".

Re-cxanlination of position necessary I 1-J.63_ We do not mean any disrespect to these bodies when we say that the matter requires reexamination, and that there is justi- ﬁcation for considering the scope for modification of the right of se. cond appeal. This justiﬁcation is derived not only from the spectacle of mounting arrears in the High Courts, but also from certain basic issues, which We shall discuss in due course. In that discussion, expe- rience of the practical operation of the various clauses of section 100 will naturally occupy an important place. -

:_.""' p...

. Dniiglas Payne, "Appeals on Questions of Fact." (19.15!) Current Local Problem. 131 I83. "

2. 14th Report [was].

3. 27th Report. [lllﬁ-4].

4. Report of the High C'-ourt"s Arrears GoD1mitbe,!_l972.

Question included in the Questionnaire \_ 1-J .64. Having regard to the above considerations it appeared to us when we made a preliminary study of the subject that there should be some limitation on the right of second appeal to the High Court.

1-.1265 In order to elicit informed opinion on the subject, we had, in our questionnaire on the Code, -:put a question' as follows:--

"8. Do you agree that a second appeal should be allowed only if a substantial question of law is involved?' Replies on the Questionnaire analysed 1--J.66. The suggestion put forth in the query has received mixed reception. Some of the High Courts" and some of the individual Judges of two High Courts," have favoured it. as also one State Gov- ernment' and one member of the Bar." On the other hand, some High Courts"" and individual Judges of few Courts,' have opposed it. Al- most all Bar Associations that have replied to this question, are against" it.

1-J.6'?. The replies favouring the amendment have not consi- dered it necessary to give explicit reasons.

1-J.68_ In the replies opposing it", various reasons have been ad- vanced. It has been stated, for example' that gross misappreciation of evidence ought to be provided for. One High Court" which has opposed the suggested amendment, has stated that the expression "substantial" will raise controversy. A Judge of another High Court"

has stated, that ordinarily, a second appeal is admitted only if the question is not decided at the highest, and has been wrongly decided by the first appellate court.

1--J.Ei9. Another High Court Judge," who is also opposed to any amendment, has stated that the law should be uniform in all dis- tricts. ' . Question 8.

S. No. 5; S. No. II; S. No. 12; S. No. 25.

. No. 28 and S. No. 16.

. No. 10.

No. 19.

. No. 14.

. (rt) 8. No. I5;

{M S. No. 16;

(r-.] S. No. 28.

(£1) 3. NO. 1;

(D) S. No. 6; S. No. 20;

-(.3) S. No. 21; S. No. 26.

9. S. No. 2 (An Advocate).

10. S. No. 14.

ll. S.Nu. 15.

12. S. No. 23. _ M 9" "?'P':"."."""

moan:

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1-J.'r'i]. One High Court Judge'. favou1's.t0i:al_ 311011131011 Of 5'3C°nd appeals, with enlargement of revisional ]L1I'lSCl1Ct10l'1 to correct errors of law.

Commission's conclusions arrived at after considering the replies 1-J .71. It is needless to state that in coming to our final conclu- sions on the subject. we have given the utmost consideration to the replies received on the Questionnaire. Limitations on scope of second appeal desirable 1-172. Having considered the matter in all its aspects, we have come to the conclusion that the right of second appeal should be con- ﬁned to cases where-

(i) a question of law is involved; and

(ii) the question of law so involved is substantial.

1--J.'T3. The mere fact that a question of fact has been wrongly de- cided by the Court of ﬁrst appeal, should not, in our view, constitute '-1 ground for second appeal" The justiﬁcation for second appeal is to rest solely on the criteria which we have just now referred to.

Again, the mere fact that a ﬁnding of fact is supposed to be per- verse or manifestly unjust, will not." under our proposal justify ad- mission of a second appeal. But the appeal would be admissible if a question of law--whether the question relates to substance, procedure or evidence--has been wrongly decided.

Status and calibre of ﬁnal Court of appeal a vital consideration 1-.l.'i'4. Since we are retaining the right of second appeal with the above modiﬁcation, the query may be raised why the litigant who, before coming to the High Court, has had one right of an ap- peal before a subordinate court), should have the right of two aup- peals on questions of law. In other words, why a multiplicity of ap- peals should be allowed. Now, it is to be remembered that in any legal system which recognises the binding force of precedent, the status and calibre of the ﬁnal appellate court on questions of law is vital. This consideration over--balances the consideration of mul- tiplicity of appeals.

It is obvious that the numerous subordinate courts in the dis- tricts cannot be final arbiters on questions of law. If the law is to be uniformly interpreted and applied, questions of law must be de- cided lay the highest Court in the State whose decisions are binding on all subordinate courts.

If the right of second appeal is so abridged as to remove ques-"

Lions of law from the High Court. it would create a situation where- in a number of subordinate courts will decide differently questions of law, and their decisions will stand. Such a situation would be um. satisfactory.

'I. S. No. 25.

2. This is with reference to the point raised in S. No. 15.

3. This is with reference to the point raised in No. 17 and S. No. 23.

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1-175. The subordinate appellate courts functioning in the dis- tricts are not superior courts of record, and their interpretations of law are not binding on other courts. In fact, ordinarily, subordinate:

courts in one district are not even aware of the pronouncements of other courts in other districts (except when a point of law is declared by the High Court in appeal). It is section 1[][] which enables the High Court to function as the author, distributor and clearing house of pro- nouncements of law for the beneﬁt of all subordinate courts.

The interpretation of the law by the High Court is (subject to the law declared by the Supreme Court) binding on all subordinate courts. It is, therefore, essential for uniformity that every error of law, raising a substantial question is promptly rectified by the High Court by a correct pronouncement of the law.

Some points raised in the replies considered 1-J.'f6. In one of the replies' received on our questionnaire, an apprehension has been expressed that the use of the expression "substantial" (with reference to the question of law) will equate the right of appeal to the High Court to that of appeal to the Sup- reme Court. We shall de-al with this point later."

Nature of the question of law regarded as appropriate for second appeal 1--J.7T. We shall indicate very broadly the nature of the ques- tions of law which we regard as appropriate for submission to the High Court under section 100 as we propose to revise.

First--and the most important of all is the consideration of uni- formity throughout the State. It is obvious that on questions of law uniformity must be maintained. In so far as interpretation of enacted laws having State---wise importance is concerned, it is the task of the judiciary to maintain the unity and the High Court, as the highest tribunal at the State level, should continue to have the ultimate authority to establish unity by resolving or avoiding the possibility of different views in lower courts.

Secondly, apart from questions of interpretation of enacted law which falls in the category mentioned above, there arise other questions of law. The uncodiﬁed law constitutes a fertile ground for such questions, as also general principles of construction of statutes. The law of torts. and so much of the personal law as has not yet been codiﬁed, furnish examples.

Thirdly, there may be points already decided by the High Court which may, nevertheless, appear to require further consideration. Not unoften, on a question of law on which there has already been a pronouncement by the High Court, one comes to take the view that the matter is capable of further consideration at the hands of the High Court. To illustrate the cases which may fall in this category, there may be a judgment of the High Court which contains observa- tions that are ambiguous, and the ambiguity should be removed by Clariﬁcation. There may be conﬂicting decisions of Divisions Benches

1. S. No. 14.

2. See "Distribution in tw f 1; Sn ramp Co rt r] f the High Court" infra. een "OPE D appeal 0 p u an acopeo appaal ta " -n . - ..

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V 89 decision of the High Court which of a High Court, There may be a _ in view or subsequent pronoun- seems to require re-consideration, cements of the Supreme Court.

1--.I.'i'3. An analogous situation would arise when there has been a diiierence of opinion among the judges of the High Court Bench on a question of law, and the usual avenues of settling the diﬁeren- ces within the High Court have not been exhausted, so that the ques- tion is one of such difficulty that it ought to be allowed to be submit- ted for decision by a fuller Bench.

1-J.T9. Lastly, even apart from questions falling within the speci- ﬁc categories enumerated above, there remain questions of law of which the High Court should take cognizance, questions falling within this reS'1dua1'y category, though not easy of deﬁnition in the abstract, can be recognised when they arise in practice.

Wide scope for appellate jurisdiction not contemplated 1-J.8k]_ We should add that we do not visualise such a wide scope for the jurisdiction of the High Court as would embrace every ques-' tion as to which a party is aggrieved. Being essentially the highest court at the State level which declares the law which is binding, the High Court should not ordinarily engage itself in settling merely factual controversies, however great the stakes may be.

Formula indicated 1--J .81. To formulate in precise language a test which, while exclu- ding the questions to be excluded from the purview of the High Court will include all questions to be included in its purview in confor- mity with what we have stated above, is not easy. After careful con- sideration, we have come to the conclusion that in respect of second appeals to the High Court, it is necessary that the question involved must be a question of law and that it must be a substantial question.

1-132. It is needless to add that the extraordinary jurisdiction of the High Court under Article 227 of the Constitution--jurisdiction which is admittedly not subject to any rigid limitation pertaining to courts. proceedings or questions--is not intended to be affected by our recommendation or by the preceding discussion.

Distinction between scope oi appeal to the Supreme Court and scope of appeal to the High Court.

1-J .33. We should make it clear that the formulae which we pro- pose will not equate the scope of appeal to the High Court to that of appeal to the Supreme Court. Although the question of law, both in the case of the Supreme Court (under article 133 of the Con- stitutionl and in the case of the High Court( under our propggal) is described as 'substantial', there is a further aspect which makes all the difference. In the former case, the question must be one which needs to he decided by the Supreme Court and must be of general lm.?3'0?'1'¢mC€, While in the latter case, there is no such restriction. The Supreme Court, broadly speaking. will concentrate on questions possessing country-wide importance while the High Court will be free to deal with a wider range of questions For example, a ques- tiﬂn Whethﬁl" the purpose for which an institution provided in a L,a'B{o]22uMof LJ4;CA_s ' 9!] "remote village is charitable in the legal sense, will hardly, if ever, be dealt with by the Suprcrne Court. But the High Court may deal with it, Simiiarljg. a question of law on which other High Courts have consistcntl_v taken one view, while Benches of the particular High Court have given conflicting decisions, can be re-considered by the pa1'ticular' High Court. but the question may not necessarily be ﬁt for C{]I11~'ld'.,'l'EllSlDIl by the Supreme Court.

1--J.8=i At the same time, it should be clariﬁed that the question of law can relate to procedure. e.g, improper rejection of evidence or improper admission of evidence---in which case correction by the High Court should be available if the question is substantial.

Question need not be of general importance 1-.'I,85. it should be noted that We are not limiting the. scope of second appeal to the questions of law of general importance. If the law has been clearly laid down bf,' the High Court, and the decision of the siihordin ate court is in clear violation of the law as pronounced by the High Court, the 'power of the High Court to Correct it should be left intact, This situation will not be covered if the limitation of general importance is inserted.

Historical aspect considered 1-.186. We are aware that in making a recommendation for cut- _ ting down the scope of second appeals to substantial questions of law as above, We are making a departure from a position which has held the field for a century. Even then, we may note that the pro- gre:1;s of law has been towards reduction of the scope of second ap- . \ l-.187. The predecessors of the High Courts in their Civil ap- pellate jurisdiction were the Sadar Divani Adalats. The right of appeal to the Sadar Divani Adalat was very wide initially, but came to be severely curtailed in the course of time. The "Conwa]_l_i-s Scheme", for example. made provi=sion=for two appeals in every cate- gory of cases, irrespective of its value; By 1814, this was reduced to one appeal onl_\_-'. Only in cases of Rs. 5,000 or over. there could be two appeals: one to the Provincial Court of Appeal and second to the Sadar Divani Adalat. A5 Lord Hastings observed_,--

"The 1'.-n'=ility of appeal is founded on a most laudable principle of securing, by double and treble checks, the proper deci- sion of all suits; but the utopian idea, in its attempt to pre- vent individual injury from a wrong decision. has been pro- ductive of general injuitice by withholding redress, and general inconvenience. by. perpetuating litigation.-".

Provisions in Codes of 1859 and 1382 1--J.88_ There is another aspec'. of the matter. Section 100 of the"

present Code is the successor of section 584 {of the 1382 Code), which in its turn c:ori-esnonded to section 372 of the old Code.' (Act

3 of 1859).

l. lii"hetii'I'=en l.Hﬁ1l <'1!'l'i 1852, there was the Code of 1877, but its provisions were almost 1110 some as those of the Code of 1332."

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1-J39. When the Code of Civil Procedure was revised in 1882, only a slight change was made in clause (C). Clause (c) In the 1382 Code laid down that a second appeal would lie on the ground of 'fa substantial error or defect in the procedure as prescribed by this Code or any other law, which may possibly have produced error or defect in the decision of the case upon the merits". The correspond- ing part of section 372 of the Code of 1359 gave a right of second appeal on the ground "of a substantial error or defect in law in the procedure or investigation of the case which may have produced error or defect in the decision of the case upon the merits".

The absence of the phrase "investigation of the case", i section 584 of the 1882 Code (and also in present section 100) rnigh lead to the inference that the right of second appeal was intended to be more restricted than it was under the 1859 Code; but, on the other hand, the insertion of the word 'possibly' would lead to the contrary inference. On the whole, however, the change of language in 1382 in- troduced no material alteration in the law. .

l--J .90. As was observed' in an Allahabad case--

"Investigation simply means the process by which conclusion as to the merits of the case are arrived at; procedure means the rules by which that process is to be guided. The one is the subject of the other, and the law will presume that, where there is no defect of procedure there is no defect of investigation. It follows therefore that the omission of the phrase "investigation of the case" in sections 584 implied no intention on the part of the Legislature to restrict the right of second appeal by rendering it narrower than what it was under the Code of 1859. On the other hand, the introduction of the word "pos- sibly". does not go for to show that the present Code in- tended to extend the right of second appeal".

Direction of historical evolution ' 1-J31. It would, thus, be seen that the direction of historical evolution is towards gradually narrowing down the scope of second appeal to the Sadar Divani Adalat and later to the High Court. We can, therefore. legitimately claim that having regard to the social needs of today, we are attempting to hasten the process to narrow- ing dovvn the scope of second appeals.

1-.192. In the light of the above discussion, we recommend that section 100 should be revised as follows'.-

Re--dmft of section 100 "100. Second appea.I.--(1} Save where otherwise expressly pro- vided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every de- cree passed in appeal by any Court subordinate to a High Court.' if the High Court certiﬁes that the case involves a substantial question of law.

' 1. See' N97otn'."S€ngﬁ v. sierra Singfl, (1339) i.L.1=§. M11. 649, 657 (per Mahmoud J.). L,'s(D;22sMar1.JsoA_s(a; ' ' ' -.

92,.

(AA) in an appettl under this section the memorandum of appeal shall prec.-iselg,» state the substaniial qt=:estr;o-n of law on which aclmtse sicm of the appeal is sought.

{1B_J Where the High Court certiﬁes that a substantial question DJ' Law 'is so in-uoltzed. it shall, at the time of admission of the 613116111- {a_) formulate that questrlm;

(bl state its reasons for so certifying; and {(2} specify any other points that were raised at the time of the hearing; prior to the admission, but not accepted as raising substantial questions of law.

(IC) The appeal shall he heard only on the question so certiﬁed, and the respondent shall. at the hetI'J'°i'.'Lg of the appeal, he al.LowecI- to argue that the case does not involve such question:

I Provided. that a question not so CB'i'l.i}'l€d. and not raised prior to the admission of the appeal, may, if the High Court considers proper, be argued. on such terms as to costs or otherwise as the High Court (rrders, after hearing the opposite party as to whether such order oaoht to he -passed.

Main points summarised l--J.93. It may be convenient to summarise the main points re- garding section 100, as made in the above discussion:--

(i) Reasonable limitations are desirable on this right, in the interest of the public and in the interest of the litigants themselves.

(ii) The basic principle. evenhbehind the present section. is that decisions of the first Court of appeal on facts should be ﬁnal.

(iii) Clause (a) and clause (b) of section 100 purport to be faithful to this basic principle; clause (Cl goes beyond 11;.

{iv} Even as regards clause (a) and clause (bi. decided cases as to what are questions of fact and questions of law (in- cluding decisions wh'ch allow second appeal where there is no evidence) and also 'decided cases dealing with mixed questions of fact and law. show that in actual practice, the ' basic principle referred to above has been departed from.

(v) The question what is the proper scope of the right of second appeal is linked up with the proper role of the High Court. The prc per role of the High Court. in the Commission's View is to introduce and . reintroduce uni- formity in the State, on srbstantial questions of law.

The High Court is not an ordinary court of afopeal, to be in- voked for correcting the errors of subordinate courts on all conceivable questions, 93

(vi) The rationale behind the right of second appeal being as stated above, only substantial questions of law should be agitated in second" appeal, i ('-«'ii) Limitations on the right of second appeal are, therefore, desirable. Replies to the Qu'es'Liormai1'e having been con- sidered, the Commission has come to the conclusion that a second appeal should be allowed only where the case involves a substantial question of law.

(viii) Nature of the questions of law that would fall within the above formula is then indicated.

(ix) It is also made clear. that a wide scope is not contemplat- ed for the jurisdiction of the High Court.

(X) The formula indicated isillustrated in its application.

(xi) The proposed amendment does not go against the trend of history. as 15 shown by the evolution of section 100.

CHAPTER 1-K APPEALS--MISCELLANEOUS Introductory 1-K.l. The principal provisions as 'to first and second appeals have been already discussed. A few miscellaneous provisions as to appeals are contained in Sections 101 to 112 in the body of the Code.' Section 102 1--K.2. In the earlier Report" on the Code, the Commission, after taking into account the recommendation in the 14th Report.' recommended an increase of the amount mentioned in section 102 from Rs. 1,000 to Rs. 3,000. ' Recommendation l--K.3. We agree and recommend that section 102 should be re- vised as follows:--

"No second appeal shall lie in any suit of the nature cogniz- able by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees."

Section 103 1-K31. In view of the change' proposed in section 100, the last few words of section 103, which refer to the illegality, error etc.. mentioned in section 100, require change. Further, it appears desir- able to make it clear that section 103 applies also where the failure to decide a question occurred not only in the lower appellate court but also in the trial court.

Recommendation 1--K.5. Accordingly, we recommend that section 103 should be revised as follows:--

"l03. In any second appeal, the High Court may, if the evidence on the record is sufﬁcient, determine any issue of fact necessary for the disposal of the appeal---

(a} which has not been determined by the lower appellate court or by the court of first instance and the lower appellate court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100."

. See discussion as to sections 96 to 100, Supra. . 27th Report, page I23--Note on section 1%. . 14th Report, Vol. 1, page 377, 3'78, para. 25-26. . See dfacussion an to seotion 100.

IF~c~'aI:\1n--r 94 95 section 104 (fff) to be inserted to deal with order under sections 91- 92, as proposed to be amended l-K.6. We have recommended separately" that where the Court I-efugeg leave to institute a 5,-1511. of the nature referred to in section 91 or section 92 {as proposed to be amended), the order of refusal Should be appealable. This necessitates an adclitiun to the list of ap- pealalole orders as given in section 104.

Recommendation 1-K}. Accordingly, we recommend that the should be inserted in section 104:-

"(fffj an orderr under section 91 or section 92, refusing leave to institute a, suit of the nature referred, to in section 91 or 92, as the case may be".

following clause 1-K.8. Sections 109 and 110 of the code deal with appeals to the Supreme Court. Since the subject is also deal: within Article 133 of the Constitution, we considered the question whether these sec- tions should be retained.

l--K.9. We have, after some discussion, come to the conclusion that since these provisions pertain to procedure, they should con- tinue in the Code. It is appropriate that the Code should, as far as possible, be exhaustive on matters of procedure. We should, howeveri state' here that these provisions should be brought into line with the recent amendment of article 133 of the Constitution."

1. See discussion as to section 91 and soctio11 92.

3. Amendment not drafted.

3. Cf Constitution (30th Amendment] Bill.

CHAPTER 1--L REFERENCE, REVIEW' AND REVISION Introductory 1-L.1. We now come to 21 group of sections dealing with refs» rence. review and revision. While an appeal is ta-ken T0 3 -'I?-lP€7'?'-0*"

court by a party. in pursuance of the "right given by the law and on questions permitted to be reagitated by the law, there are other pro- visions for modification or reversal of judicial decisions by the same court or by a higher court. Reference to the High Court, and revi- sion of decisions of subordinate courts by the High Court, are, there- fore, provided for, and review of its own judgments by the court itself is also dealt with. Sections 113 to 11:": of the Code relate to these matters, and, in this group, the section which has created the largest amount of contr-over.-sy is section 115 [which deals with revi- sion], We shall discuss this section presently.

Section 115 1-L2. Section 115 deals with the High Court's power of revi-

sion. Brieﬁf,r speaking. in a case not subject to appeal, it empowers the High Court to call for the records of a case decided by an in- ferior court. and if the inferior court has exercised a jurisdiction not vested in it by law or failed to exercise jurisdiction vested by law or acted with material irreguiaritjgr etc. in the exercise of its juris- diction. thc High Court can interfere.

1-L.3. Experience shows that often the cause of delay in the trial of suits is the entertainment of petitions for revision against interlocutory orders which invariably result in stay of proceed- ings. In fact, in many cases. the object of the parties in moving the High Courts under s. 115 of C.P.C. may be to delay the progress of the proceedings.

1-LA. This question has been considered in the past more than once.' We had in our Questionnaire issued on the Code" put a queg- tion as to whether the present powers should not be abolished or drastically curtailed.

1--L.5. Most of the replies to the above ouestions do not favour a change in the law. But having considered the matter carefully, we have come to the conclusion that the 'provision in the Code as to revision should be deleted. The discretion of the court in grant- ing adjcrrnrnents. in granting amendment of the pleadings, in iggu. lug or 'E'Efl.lS'|l1;{ to issue commissions, and with regard tg ma";-11,: mom ﬁgsccllaneous matters, should not be open to revision under 'section !. S-to 27th Re]Joi't-. pages 23, 27, plrei. 5-4', 60.

2. Quution 13 93 \_5.

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'Y L--.__ 97 It is against such orders that revisions are generally ﬁ1ed_ result- ing in a stay of the proceedings and consequent delay in the d15- posal of cases.

1-L_6. We ma}; note that serious cases of injustice can be dealt with under article 22'? of the Constitution.

1L.'F. Having regard to the above position, and 10 the fact that where injustice has resulted, adequate remedy is provided for by article 22'?' of the Constitution for correcting cases of excess of juris- diction or non-exercise of jurisdiction, or ille-_i:a}it_v in the exercise of jurisdiction, we are of the View that it is no lnmger necessary' tn retain section 115. Article 227, we are sure, will cover every case of serious injustice: and, in that sense, that article is wider than section 115.

Recommendation 1--L.8. We, therefore, recommend that section 115 shzauld be deleted.

CHAPTER 1-}! SPECIAL PROVISIONS RELATING TO THE HIGH COURTS NOT BEING THE COURT OF A JUDICIAL COMMISSIONER Introductory 1--M.1. Part 9 of the Code, Sections 116 to 120, contains special provisions relating to High Courts which are not Courts of Judicial Commissioners. We do not recommend any change in this Part.

CHAPTER l-N RULES I ntroduotory 1-N.1. Part 10, sections 121 to 131 in the body of the Code, deals with rules. Section 122 e1'r1ptm'e1's the High Courts to make rules re- gulating the procedure of civil courts subject to their superinten- denee, as well as rules regulating their own procedure. These rules must not be inconsistent with the body of the Code.' But they can amend or add to rules in the First Schedule to t.he Code.

Under section 129. rules can also be made by High Courts other than Courts oi Judicial Commissioners, to regulate their original civil procedure. These rules can be inconsistent with the Code, but not with the Letters Patent or similar law or order establishing the particular High Court.

The two se-::tions--sec1.ions 122 and 129~overlap to some extent, that is to say, so far as the original civil procedure of High Courts is concerned.' However, that does not cause any practical problems. The rest of the sections in this Part deal with the Ru1e--Comrnittee and other matters of detail.

Section 123(3) and (-1) 1-N.2. Under section 123(3) and 123(4). members of the Rules Committee are appointed by the Chief Justice. In our view', members of the Rules Committee should be appointed by the High Court,' and not by the Chief Justice. This, we believe, would be in accor- dance with the sentiments of an 0verwhel1nin_g_ majority of High Court Judges.

Recommendation 1-N.3. Accordingly, we recommend that in section 123(3) and 123(4), for the words "Chief Justice", the words "High Court" should be substituted.

1. See 'S7241-ar.-mm v. Indian 0-El C'm-poratioﬂ, .A.I.R. 1969 Boni. I17, 113, paragraph 3.

2. See ;9'iz»eea-ra-m V. Indian Oil Corporation, A.I.R. 1969 B6131. I17, 119, paragraph -1.

3. Of. Article 2;"--."?(2'.- of the Constitution.

CHAPTER 1-0 MISCELLANEOUS Introductory 1-0.1. Part 11 of the Code, sections 132 153. cﬂntainﬁ Variﬂus miscellaneous provisions, Though entitled "M1scel1a_I1eous". some_ of these provisions are of practical interest. the most important being, of course, section 151, which deals with the inherent power of the Court.

Section 132 1-0.2. Section 132(1) provides that women who, "according to the customs and manners of the country ought not to be compelled to appear in public shall be exempt from personal appearance In court". Sub--section (2) of the section saves provisions for arrest.

1-0.3. We are of the view that section 132 is an anachronism. The law should not, in such cases. encourage exemption from perso- nal appeaiance in court. Even where the women do not appear in public according to the "customs -and manner of the country"

there should, in our opinion, be no exemption. from attendance in court. No serious hardship is likely to be caused by the removal of the present exemption, as social conditions have considerably changed, and this practice is getting obsolete.

1-O.3A. Today,' the seclusion of women is completely inconsis- tent with the social philosophy on which our Constitution is found- ed. Section 132 is not to be treated as a concession to some aristo- cratic families, but is a recognition of a universally observed custom. Hence. customs and manners of the country prevailing at the present time should be the criteria, and not the customs and manners which might have prevailed years ago.' 1-O.3B. Moreover, the paramount task of deciding cases' on the oral evidence of an important party involves the personalised pro- cess of the Judge seeing the witness at ﬁrst hand, "instead of pour- ing over the prolix pages of a Commisseionefs record". The judge must have the advantage of observing the clemeanour, or at least the manner of delivery, of the witness, if he is to assess her credi- bility justly. i Recommendation to delete section 133 1.0.4. For the reasons stated above, we recommend that section 132 should be deleted.

1. Bllssi v. Hanan Rae-I: Khan, A.I.R. 1983 All. 340.

. Cf. K-7!-:|tH'§' Hohsmmi-ml Y. Ummtl Haji Umam, (1969) Ker. LXI'. 418-, 421-123.

3. Ku.nli'3'1- Holmmrnad 'I'- U-mms Umm, (1959) Ker. L.T. 418, 421.

100

l\'.} "A in 101 Section 133 1-0.5. Under section 133, certain high dignitaries of State and persons holding exalted judicial ofﬁces are exempted from personal attendance in court. During our consideration oi" the Code, a P0111' was raised whether such special privileges are consistent with equality before the law. and whether the list of persons so exempted shouid be curta-iled .

We have, therefore. considered this point at length.

Analysis of exemption 1-0-5A. Under the section, the persons enumerated in the section are entitled to exemption from personal appearance in court. The list of such persons, as given in the section is long consisting of 11 items, but. in order to facilitate discussion, the persons enumerat- ed could be grouped into four groups. as follows:---

(i) The President and Governors; (The exemption here is obviously because of their position as the head of the State);

(ii) The V:'.ce--President. the speaker of the House of People. the Speakers of State Legislative Assembling and the Chairman of State Legislative Councils; {The exemption in this case is based on oﬁice held as the presiding oﬁicer of the Legislature}; -'

(iii) Judges of the Supreme Court and High Courts;

(iv) Ministers."

Justilcation 1-O-5B. The. -exemptions provided for in section 133 could be justiﬁcd on one or other of the following principles, namel_y:~--

(i) That enforcing the personal appearance of the persons exempt would be derogatory to their status; or

(ii) that forcing their personal appearance would hinder the cﬂicient performance of important public business. whether legislative, executive or judicial_ In all the cases mentioned in section 133, one or other of these principles would apply. For example. Mini5tel's have important duties to perform, and their being summoned in Court might inter- fere with the discharge of their important functions. In some cases, both the principles mentioned above may apply. For example, sum- moning the President of India in court. may be derogatory to his position as the head of the State, and may also cause hindrance to public business. Again, it may be derogatory to the position of a High Court Judge to he required to appear personally in a subordi- nate court over whose judgments he might have occasion to hear appeals. It could also interfere with his judicial business.

1. Section 503 Cr. P.{".. is narrower.

2. Section l3B{1}[xi], relating to Rulers of former Indian Fiiaiee, may be dimrgardod fur t-lu present purpose.

102

Rules of law as contrasted with public policy 1-D-E-C. We are aware that in a democratic country, such exemp- tions should be conﬁned to the minimum. The rule of law postulates that no individual enjoys, by virtue of his position or office, any special privilege in contrast with an ordinary citizen. But compelling considerations of public policy may justify qualiﬁcations to this abstract rule and it is on this assumption that the section provides a departure from the abstract rule.

Position in England I-O-ED. We may brieﬂy deal with the position in England. In England, the sovereign in her private capacity is not subject to the jut-isdiction of the courts This position continues even after the passing of the legislation abolishing several of the immunities of the Crown' from litigation. It has been held that a writ of execution cannot be executed within the precincts of any palace, which is used as a residence of the sovereign, without her permission. This was held not to apply to the Hampton Court Palace, on the ground that it was not a residence of the Sovereign.' English law does not seem to provide for a general, e.rempt'i.o'n. from personal appearance in Courts as regards Ministers or Judges, or even as regards presiding oﬁicers of the Houses of Parliament. It should. of course. be added that there is immunity from liability in the case of judges, by reason of special rules of law. Any Parlia-- mentarv privilege may restrict the operation of. the general power of the court to enforce the attendance of witnesses. But there is no general exemption from personal appearance as is conferred by section 133, 7 ' No change in law recommended 1-0-6. We have given thought to the matter since, at ﬁI'5t sight, the privilege-may not seem to accord with the spirit of the Constitu-- tion. We are reluctant to recommend any change in the law; but. at the same time, we do express the hope that those who have occa-- sion -to claim this - privilege will, before asserting it, consider whether it is absolutely necessary to do so in the particular case. In this connection, we must refer to the salutary example, which was set I'EC6I'1tl_1,r by the President, who, when it became necessary for the Supreme Court to examine him as a witness, insisted on attending that court in person.

Section 133(1), item (xii 1-0-7. In section 133(1), item (xi) "relates to persons to" Whom section 87B app-lies. We may note that section 8'i'B has been new conﬁned to pre---Constitution causes ot'actior1."

1. The Crown P1'I.Icee-:li11_gs .'rct., 1947.

3. _-l. C. V. Dcrkin, I,'lS':'<}) 19 Wit. lll, {G.A.) cited in Anniml Practice, under Order 42, rule 3. " _

3. See discussion as to section 87B.

...y.qu-9--- ~ --u-5-I---r-u 103 Section 135A 1-O-8. Section 135A, broadly speaking confers exemption. from arrest on Members of Parliament and of State Legislatures, for the period of the legislative session and for a further period of 14 days before and after each session.

1-0-9. in the earlier Report' the following recommendation was made with reference to this section:----

"It is considered desirable to increase the period from 14 to 40 days, in conformity with the position obtaining in England in rela~ tion' to Members of the House of Comn1ons_.--see Article 105 of the Constitution also. It is also considered. that this amendment should apply to Members of State Legislatures also. The View that the sub- ject-matter (so far "as concerns such Members) falls within the com- petence of State Legislatures, under article 194(3) of the Constitu- tion, has not been accepted, It is felt, that the matter falls within entry 13, Concurrent List,----'Civil Procedure including all matters dealt with in the Code of Civil Procedure at the commencement of the Constitution'? .

Reoommdation 1'-O-10. We have, after some consideration, come to the same view, and recommend thetsection 135A should be amended as re- commended in the earlier Report. We agree with the pI'E'ViD1.1'i Com- mission in its View that the matter falls within the entry relating to civil procedure.' Section 139 1-0-11. Section 1313 deals with persons who can administer oaths.

"Notaries" have power to administer oath under the Notaries Act." The question of adding "notaries" in section 139 was considered in detail in the earlier Report' on the Code. with reference to the suggestions to that effect, received through the Ministry of Law. These suggestions stated that in the absence of a provision, the courts re- fused to accept the affidavits sworn before notaries. The previous Commission was of the View that' instead of amending the Code, the matter should be left to the rules of court.

Recommendation 1-O-1.2. We are. however. of the view that a speciﬁc pr risioi would be useful.

. 27th Report', page 124, Note on Section 13541. . Conﬁlllrenb List, Entry 13.

. Section 3[l}f_b] Notaries Act, 1952.

. 27th Report, page 125, note on section 13!.

150579"-

.. .. _-....._._.._._.,. ...,s-. ....- --.------.-.~ 104 140-12441. Accordingly, we recommend that section 139 uhouid be amended by inserting a new clause (aa). The section will then road as io11ows:--~ -

"139. In the case of any affidavit under this Code-

[a) .... ..

(aa) A-ny notary appointed under the Notaries Act, 1952.

(b) and (c) .... ..

may aclministgtr the oath to the deponent." Section 141 T 1-0-13. The applicability of section 141 to various type: of pro- ceedings has been the subject of controversy. The principal proceed- ings with reference to which the question has arisen may be men- tioned:

(1) Proceedings under the C.P.C.

[a] Execution.

(b) Others.

{2} Proceedings under other Acts-

(all Where a speciﬁc provision deals with the matter; {bi .Where no speciﬁc provision deals with the matter.

(3) Proceedings under the Constitution.

(4) Other proceedings.

Section 14l.--a.pplicabi.lity to execution pmeeedings 1-0-14. The case-law is not uniform as 'so the applicability or section 141 to execution proceedings; for example, do Order 9, rule 8 and Order 9. rule 9, apply to execution proceedings? The position is not very clear on the point. We have considered the question whether section 141 should be extended to execution pro- ceedings. It'is not, however, feasible to extend section 141 to pro- ceedings in execution Such an omnibus provision would cause hardship, There may be rules----e.g. Order 9, -rule 9,----which ought not to apply, in all their rigour, to execution. We have, however. considered the utility of applying speciﬁc provisions' of the Code to execution and, wherever necessary made recommendations in that regard.

Section 141 and Order 9, rule 3 1-0-15. The applicability of section 1%]. to proceedings under Order 9 is itself a matter of debate. Under Order 9, various kinds of orders and prooeedings--c.g. e.-r parte proceedings and orders of dismissal for default-----can be set aside {for suﬁicient cause). But, where an application for obtaining such relief is itself dismissed for default or decided em pa-rte. what is the position'?

1. See for example, rliaeussimi as to Order 9, 9rd-or 21, rules 104-105, Order '98, rule I, Orior 26 live. » "" ' -- *'lail:ae..-;;

RE Does section 141 apply so as to bring into application the hene-- ﬁcent provisions of Order 9 itself? That is the question that has arisen; and it appears that three diﬁerent views have been express- ed on the point. _ ' Ifi) The High Court of Bombay has. held that section 151 applies in such cases, and not section 141. Reference was first made to a Privy Council case," in which it was held.

that---

" .......... .. the proceedings spoken in section 847 (of the 1882 Code of Civil Eroeedure which corresponds. to section 141. of the. preant code), include original matters in the nature of suits, such as proceedings -in probates, guardianships and so forth, and do not in- clude executions." e = 2 - 1 1-O-16. The Bombay High Court took -the View that the remarks of the Privy Council and the expression "so forth" must be taken as referring to applications which are;..ejusdem_ generic with 'pro«_ geedings ilgeplflbﬂtﬂs, puardianships and so forth, that his 'to say, Lhely; o not re 1' o interocu 1')' a ,.c_a __ or app' a'ons,w ic_ arise out of other proceediiigs sucgriis but which in themselves indicate a lis. Hence, section 141 .«did not-"apply to the instant case.

1-O-17. Further it was pointed out that the instant casarelated"

to an application to restore a suit to tile which had been dismissed for default, and not to a ease ewhere-an ea: pm-ts order was issued. The court distinguished a Supreme Court case' which was concern- ed with an ea: parts decree in a; sumtnary suit under Order 37 ofthe Civil. Procedure There, the question was whether such.a decree could be set-aside under section 151. The Supreme Court pointed out that Order 3?. .rule 9! expressly gave power to the Court to set aside an ex parte decree passed under the provi- sions of that Order, and there was therefore no scope for resort to section 151 for setting aside the decree. The present case did not relate to any such question. " _ 1-0-1.3. Accordingly, it was held that the further restore. the ap_ ication under Order 9, rule 9, to the considered un er the i1iherent,ppo'_w"ers,of the court under section 151; and the case was sent back to the' trial court, for disposal in conformity with this decision. * 1-O-19. In an Orissa case,' it was held that Order 9 has no ap- plication to a proceelzling can be applied. Apparently, section 1v_11 was regarded as inapplicable to such a case. _ ' , _ -A ..

Same is the Calcutta view.' l. Lon:-m.€ In-or-n'me'M Co. v. Tat:-aelmad, A.I.R. 1988 Born. 260, 253 [D.B.].

2. Tﬁoitmr Pmmd V. Falcirullok. (1395) I.L.a. 17 All. we {P.(1.;-

3. Rtlmalmr '''''v!' v. Hiagwaeam. A.I.R. use so. 1:144.

4. KW ﬁiliori Dos v. Ohourhio Dos. g..I.a.;1_eos_'q:i.a 24 (on. Misra, J.)

5. Sums Krishna Bose v. Biskwemr Mflm. A.I.;_R. Cal. 53-; (D.B.J. L;B{D}229iio£ Hoops 9 plication to J 1e could he-_ anon Oriana, but that section 151 106 1-0-20. The Andhra View is that section .141 applies.' Seine is the Madras view.' 2 . , _.

1-0-21. The Patna view" is that section ".141 does not apply in the absence of special circumstancesand section 151 also does not apply. The applicant can, however, appeal under Order 43_"Rule ucxd). _ , , Recommendation as to section 141 and Order , 1-0-22. There is no great -reason -'why such-"applications should not be dealt with under section 1-11.-3A clariﬁcation -on the subject is desirable. ' 7 - "

Other proceedings under other Acts 1-0-23. As regards other proceeding under other Acts, the question has mainly arisen with respcctatn -references under section 146, Criminal Procedure Code. - ' - - ' Section 1:11, 0.1-.0. and rereq::i_c'e s.._1l3_, or. _r. c._ * 1-o--2-4. on the point whetheruthe5_pro1.risions orsecnon 1=11,Ci.Vi1 ' Procedure Code, are attracted to a reference made by the Criminal Court under section 146 Code 'of Criminal-Procedure to a civil"court, there was previously aiconﬂibt of decisions. In an An'dhr'a'Pradesh- case,' proceedings were irisirituted under-section 145, Ct. P-.C_ ~'I'he'= Criminal court made a 1-eference"und9r section 145, Cr.P.C. to a civil- court for a decision of the question*"t.Jf', possessi'on._c The court of, first instance came to the conclusion that the-provisions of sectionw 141, C.P.C. applied to such a reference; as -it was not a proceedmgr before a civil court Within the ntfaniﬂg of Section 141, C.'P.C_ Against ' this order, a revision was ﬁled.'-

It was held by the High Court since is reference under' section 146, Cr.P.C. was not a "Proceeding" within the meaning of section 141, C.P.C., the provisionsof at section were not attracted to such 'a -reference. Hence, the, co' was iustiﬁe-'d 'in 'rejecting an application under Order' 19, 'Rule 1, 'E!'-.?.C.=i'h'at1e in ,si1c1_i'ia reference.-

Such'an application was not inaintaiiiaiale.' The contrary view5 had been taken-{whine .Allehabad 'night Court.

Amendment as to lﬂil 213. not needed' 1-0-24A. Now," however," the: §iipcre1ne Court 'has_.:he1d°.that section 141 applies to such cases. Hence, no amendment is required.

1. Raj Applr Rrw v. V929-r1. Ragﬁava, A.I.R.. 1966 'A.l>.'2a3.' 1

2. (+1.) Veokatcmrasimha Rec 1''. .9ura-Mmyuigkl 21.1.3. 1926 Med. 326. [.5] Helm}.-I:tI»I 1'. Pmlavn ﬂounder, .-LICK. 19 Mad. W.

2. mm Ukoudhcry V. Ram Naresh Lat, 5;-..I.n. 1'95-a' Pat. 121 :r.n.;.

4. Jonga Raddy 1:. Hafezwmiaa Begum, A:'T.'.F..'19B5 A..P. 17.

5. Ram cieamzm. v. State of UJ'.. A.I.R."l£l65 All {-16, 4:49. 2 +5. 11.1.3. 1966 so. 1333. 1391; {1use1s.b.a.'a9s.

--- ---£__.._._ xx-

107

Section 141 and proceedings. under the Constitution 1-0-25. The question whether an application under article 226 of the Constitution is a "proceeding in a court of civil jurisdiction"

within the contemplation of section 141, has: been the subject-matter of controversy.

1-0-26. The Andhra High Court, for example, holds that sec- tion 141 applies to such proceedings.' The Calcutta ﬁiigh Court"-' takes a different view. ' l-O-27. The Madras High Court" holds that Order 1 of the C.P.C. cannot be applied to proceedings under Artic_1.e 226, as section -141 is not attracted. ' " ' 1-0-23. The'AIlahab'ad High Court' has also -held that Order 2, rule 3, C.P.C. does not apply to writ proceedings, and that section 141 cannot be invoked for-the purpose.

1-O-29. The Punjab" High" Court in a 1968 case," held that section 141 does not apply. It expressed itself thus-- .

"What is provided in section 141 is that the procedure laid down in the Code in regard to suits is to be followed so far as it can be, in all proceedings in any court of civil jurisdiction. A High Court when it. .ex,erciscs,extr,aordina_ry_' jurisdiction under Article E26 "(ii the Constitution, cannot be said to be a court_ of jurisdiction. This special jurisdiction of .a High Courtaims at securin a -very speedy and efficacious remedy, to a person whose -- egal or consti- tutional right has been infringed. If all the elaborate and technical rules of _Civil Procedure laid down in the Code, were to be im orted throu section 141 of the Code into these writ proceedings, th rd very purpose is likely to be defeated by the_ir'becoming J bogged down in procedural delays, In short, the 'provisions of the Code of 'Civil Pro- cedure do ,not_, in: terms, gaovern writ proceedings under Article 226 of the Constitution."

1-0-'30. However, it was held that the court will, in appropriate- CBSES, apply the principles {as distinguished from the technical ro- visions) of Order -22, rules 3 and 4=of the C.P.C. in the exercise o its discretion on the grounds of justice, equity and good conscience. In this particular case, the court refused to exercise its discretion in favour of the petitioners, as the petitfonershad delayed their appli- cations for substitution without any "exp1anation,t_vorth the_naine"

1: _Ee;..:n Ad-sinorayrﬂi v. o'io£e of ._i;rodhr_u_ Prado.-1:, s.1.a. was Al'. is.

2. Biaarﬂt Board .1mo 1.td., v.1i.'cgrioiao3 Provident Fund Umnmioaimier, .-1.1.3. 1957 Cal. N2.

3. frranogemeﬁéofffainbuw DycEogFoctory,Su£etra v. Ind-ustriol '1'n'tumal, A.I.R. 1959, Madras 137, 141, para 32'. ' '

4. [(1) Una Site-'?aFcar Roz' 1/. Dist. Sugielriii-teﬂt-level, N. Ely" A.I.H. 1950 All. 333.

{5} Kfmrjuwaia Buckles l'lfa-our-factor-ing 99,, v. Coimnissiomr, Sales Tax. U.P.A.I.R. 1965 All. 517, 519, paras 4. and B [Desai C.J. and RE. Pat-halt J.)

5. Bhngrurxll mingle v. Addl. Dirsctdr, Consolidation, A.I.R. 1963 Pam". 360. L,IB(D}22sMorLJ.sCA----9[s} NB Recommendation as to proceedings under article 226 1-0-31. It is desirable to exclude the applicabilitgfof section 141 (by suitable amendment) in respect of proceedings under Article 226 of the Constitution.

Amendment of section 141 1-0-32. In the light of the above discussion it is desirable that an express amendment' should be made in section 14l--

(a) to include in its scope, proceedings under Order 9;

(b) to exclude from its scope, proceedings under article 226 of the Constitution.

Amendment of section 141 1-0-32. We, therefore, recommend that an Explanation should be inserted in section 141 as follows:----- ' "Explanation--In this rule, the jsxpression "proceeding" in- cludes proceedings under Order 9, but does not include proceedings under Article 226 of the .Constit1ition."

Section 145 1-0-3. Section'145 was considered in the earlier Report,' and an amendment recommended, .We,agree with the earlier Report, Section in and Under 21, Rule is ' 1-O-34. The general principle that-a transferee succeeds to 'the right of his prcdecemor, is to" be foundiin section 146 "of the Code, which is as follows:-'-- - - -' _ .

"146. Save as otherwise provided this Code or by any law 'for the time being in force, where any proceeding may be taken or application made by ._or against ianyperson, then the proceedings may be ' kc ' or, the appiication may he made -by or against any 13 [soon claiming under. him."

The special provision as to the elcootltioh of decrees by assignces of the decree is contained in Order? 2t,'1'11:le 16_ which provides that a decree may be executed by assignees, if there is an assignment of the decree in writing. a ' ' ' "

The question has arisen whether; a person who does not have a written assignment of the decree assigned {Order 21, rule 6}, but who has succeeded to the decree holder's right,_ is entitled to exe-

cute theclecree under section 146, .

A conﬂict of decisions 1-0-35. A Madras case? illustrates the conﬂict. In that case P [through her attorney, the contcstin reipondcntj ﬁled a suit in Madurai against 29 defendants, for livery of possession of certain

1. Amendment not drafted. I . 27th Report, page 126, note on'sootion_l45. . . Pennant Pfitai v. ;Vaia.ru_j'o'?-!-. A.I.R. 1983 190 {Knﬂasam J2}.

will ,L.«..,..;.. .. ...m ....

Ev

- the 1955 Supreme Court case.' In.

109

property. A decree was passed in 1944. Pending the appeal, P transfer- red all her rights in the -property in favour of the respondent, N. for a certain sum of money. Later, P died, and N was brought on record in the appeal. N sought to execute. the decree by ﬁling Execution Peti- tion 373 of 1950. This petition was opposed by one L, who -claimed that he was the legal representative of the deceased P. L. contested the right of N. to execute the decree, and the executing "court found that the dispute between N and L could not be gone into under section 47, C.P.C. It was held that N was not an assignee decree- holder, and could not execute the decree. ' " ' ' N then ﬁled a suit for the declaration that he was entitled to execute the decree; the suit was dismissed by the subordinate court. On appeal to the High Court, the a peel was compromised, and a compromise decree was passed "in which N's right to" execute the decree was recognised. Subsequently, an execution petition was ﬁled by N which was dismissed. Subsequently, another ExecutionuPeti- tion 209 of 195? was ﬁled. out of which the present; secondappeal arose. ' ' A number of questions were raised, but only on'e,is'"mate-rial for the present purpose. It was contended that N could not'be said to be an assignee decree--holder, and therefore could not ,avai.l himself of Order 21, rule 15, C.P.C. and that, as the transfer of the roperty by thedecree-holder was -made after the decree was passed, a could not maintain an execution peti¢tio'i_1--:even under 'section 148, _C.'P.C.'_ It was held that this was not a transfer of. the . rights of the decree in writing as required on - Order 21,. rule 16, -C.P,C, -but was a transfer of property after the _ _ _ree';was; passed: without transfer- ring the rights in. the decree. Re gene: was made to a Supreme -Court case} in" which it had been held that:

"Either the respondent company are transfereeanuiithexsdecree by an assignment in writing or by operation of law, in w'hich"case they fall wiﬂiitri Order 21, Rule C.P.C. or they are not such transferees, iii which case even they may avail themselves of the eprdtisions of -section 1&6, if the other condition is fulﬁlled." ' - - * Following this Supreme Court-jud,gm'cnt, it was held in the Madras case that transferees; if they do not fall within the provi- sions of Order 21, rule 16; ma avail nisohres of the provisions of section 146. Further_ .it was h d that 1:11 .-would also include a trans- feree of the property after the decree is passed.

And. Kailasam J. in the Madras case referred to above," did not accept the interpretation put by Jaﬁdiisan, J. in an earlier case' on ati case it had been 'held by Jagadisan J. the true principle is, that a decree cannot be executed

1. Jtagalkiahrmr .<.'.m.,r 7. Raw 0055913 00., 3.1.3." 1:155 so. 375.

2. Poﬂnianlt Pitbri v. Names». A.I.R. 1933' Prlfacl. so (Koilasam J.). _

3. 3'mnpr:..P.:'a -lfﬂdaliar V. Sakunialamnﬁl. (I9C4_}, M. LJ. 563 [Jqgndisan 3.} 110 by anybody other than the decree-holder, except by an assignee who satisﬁes the requirements of Order 21, rule 16 and that section 146, C.I1P.C1_6cannot have the effect of overriding the provisions of Order 21, ru e .

'The result was, that the contention that N being an assignee of the property after the decree was passed was not entitled to main- tain an execution -petition, was not accepted 1-CI-36. The later Madras_view is in accord with the view of the Andhra Pradesh,' Patna" and'Kerala' High Courts.

Recommendation as to Order 21 R1112 16 1-0-3'i'- In the above state of the case-law, it appears to be desir- able to amend Order 21, Rule 16, go make it' clear that it does not affect the provisions of section 14 , and a--transferee' of rights can gbtain execution of the decree without a separate assignment of the ecree_ Section 148 1-0-33. With reference to section 143, we have taken the oppor- tunity of studying judicial decisions during the last ten years, includ- ing a judgment of the Supreme Court,' but we do not see need for any amendment. -

Section 148A (New) (Caveat) , 1-O-39. In order that a party who'_wish'es to indicate his intention to have notice of an intended application by an adverse party' may"

be authorised to do so, a provision for caveat may he, in our view, useful. The relevant provision' in the.Su reme Court Rulesl is intend- ed for cases where no appeal is' ,_1_1g',_ but a similar provision, modiﬁed so as to beapplicahle to cages where a suit is pending as yelllﬁis to those wherea suit is a},J!3§1_t' to _be instituted Woul b6 e p . l Recommendation 1-0-4D. Accordingly. we .recommend the insertion of the follow- ing new section in the Code:-- . - . -

"I48-A. {1} .Where an applitlzﬁon is expected to he =ma.de, or has been made, in a suit instituted err about to be"instituted in a court, any person claiming a right to appear before the »court on the hearing of'such'-igﬁiication may lodge a caveat in respect thereof, land shaft? 2-reupcm he _en.titled-- "(af to receive j'1'oo1t-tTie=_C0ru:rjt'Itotice of making ofthe -ftp-_ plication, ifat the ttmeiof the .Iodg;mg_of the caveat such application has iiO13'yet been made; and . Satyonarayana V. Ar-um Math. ELLE. I955 A.P- 31- Ramnrltk 1'. Amrdei Dem", AIR-. 1954 Part.' 511..

Haﬁi Daiarsia v. Parke}; ﬁ.~'ca1re'a, {I960}, Ker. LT. 1077.

To be carried out under Order 21, Rule 15.

. Ilvfakatit Ram 11'. l"}"a:rI§ra Dds, A.I.R. 1931. S.G- 332- Drder 19, rule 2. Suprenlo Gourt Rules. .

. Cf. High Court Arrears Committee RepD1't{1_9_7:$}, Vo1.I, page 56.Ghapter 5, pu_ra25- ~1:=-=we:u=.I~=--

xi ;

111

\ (lo) if and when the application has been made, to ijeqttife the applicant to serve him with copy of the application and to furnish him, at his ownearpense, with copies of my papers ﬁled' by the applicant in support of his application; - - _ (2; The caveator sha11.,forthwitl_I, after lodging his 'caveat, give notice thereon' to the applicant, if the application MS' been made."

Section 152 1-O-41. Section 152 was considered in the earlier Report,' but no amendment recommended. We agree with the earlier Report.

"Section 153A (Proposed) ' .

1-0-42. Sections 152 and 153 authorise the ,correcti__on_of mistakes in judgrnentsetrr. 'in speciiiediiei-as}es.*T1i»E= itfherent power' under sec- tion 151 could also be resorted to, for the purpose. A question which has arisen with reference tofthese provisions is, whether, when an appeal has been summarily"dismisse'd,tinder Order 41, rule 11, an application for,ame1ndme_nt of the decree should be" made to the appellate court, or, whether it shouldzbe to the coiirt which passed the substantive decree.

1-0-43. The Bombay' and Patnai View is, that it is the original Court which must be approached for the purpose, the reason being that-when an appeal -is summarily dismissed, the original decree is neither reversed nor varied; and is'rlc'f't*2uri1ouched..= (The Bombay case preseiits complicated facts but the principle applied was as stated above. = ' ' * ' 1-O-44. But the Alla_habad'..a11d_.Andhra' View is that there is no diifcrence in,essence,between, a juclgxmsdisinissing aniappcal under Order 41, rule,-11, Civil Profoed_i.ure,}C", _, and that made under Order 41, rule 2?, Civil Procedure Code, In both the cases, the judgment of the appellate court adj_udicates,_uponithe rights of the parties, though inone case, the'manne:j-iof"iiisfbosa1_is concise and speedy, and in' the other it takes a more elaborate 'form and longer time. 'Whether the appeal is disriiissecfin Iiinine the ex respondent or dismissed after hearing the ' it. is the cores of the appel- late court that governs the rights of " e" parties. ' As the appellate decree is the ﬁnal decree" and thE"d'e1l':'ree' of 'the' lower court merges -with :it,.it §a't1ows,.that itheapplicationa for amend- ment of the decree should by: made to the appellate court. The doc- trine of merger applies everrwhen a second a peal has been dismissed Eyghc High Court summarily u11der_O2'd_er 41, rule 11, Civil Procedure o e. i . ' " '

1. 27th Report, page 123, Note on also 152. , .

3. Ha-iseiﬁ' Sol'! v. Sitcrrsnt, A.I.R. I953 'Hum. 122 (Ghngla. G.J.).

3. amt Preset! 1:. Amara: M-ma,"A;I;n. 11939' ﬁt 233.

4. Durga sang.-i v. Wahid Rafa, A.I.R. use All. 22:: (no.1. Raamrmna v. Srsaramuill, s.1'.n. 1958' 1.2."-ms (no.3.

112

I-O-45. and 1-0-46. Having regard to the conflict of decisions on the subject, a clariﬁcation is needed. It is suggested that the Bombay View should be adopted. No doubt a decision under Order 41, rule 11, is also a determination of the appeal', but, since the decree of the lower court is, for all practical purposes left untouched, 'it is not im- proper to give power to amend the decree to the original court. It may be convenient to have a separate 'section,--~sa3r, as section 153A- on the following lines:--

"153--A. Where an 'appeal from the decree or order of a court has been dismissed by the appellate court without iteerhtg the respondent, the power of the court to amend the decree or order or other proceeding' in the case may be'e:rerc1'.sed by the court which posted the decree or order, notwith- standing that the dismissal of the appeal has the eﬂect Of conﬁrming the decree or order." .

Section 1533 (New) (Duty at the to assist nupnuo 1-O-47. It is common e erience _, at litigants who have not previously been to court feel ost iri court, and not being familiar with procedural rules, often do not rpﬁlise the consequences of this or that default. Some provision drawing the attention of the court to its duty in such cases would be useful. ' 1-D-48. In the Fundamentals of Soviet Civil Procedure,' there is an interesting provision:---- .

"It shall be the duty ﬁ the acourﬂwithout conﬁning itself to e the pleadings and Iniattrialn-.-.= -sulunitted, to take all the measures -prescribed by law :fur the full, comprehensive and fair clariﬁcation of the actual facts of the case, and the rights and duties of the parties.

"It shall be the duty of the__cou.rt "to explain to the litigants their rights 'and duties,_?to W them 'of the consequences of procedural acts and oat ' s, and to help litigants in the exercise of theiif rign' "3 1-0-59. The earlier half oﬁ _' T for our system. But the latter h be inserted in_the Code, at lqs; or _ represented by counsel. When legal ,3' {on .a_-comprehensive sealo.be~' comes feasible, it could he_del_eted.' 4.2, _ _ o- .

Recommendation is not slppropriafg spro or tchcou whore 'Hie li not impose too heavy a burdeh "15_3--B. Where a party, a. nogprepresented by pleader, the court shall ezpgin to t '_ party his ri ﬁts and duties in relation to the procedure in the suit, a acquaint, him with the signiﬁcant: of every nutteriel step necessay for the progress of the s1tit."' T _ We recommend the insertion of ouch a proviﬁon.

1-O-50. It is believed theta' ﬂu tollowingl -lines would a 1 A}i.'i«§:is, Fnndnm-ohthls of Soviet Civil tigant is not .

;..r..,__~,.,-_,..c._.. .

H-.

113

Section 1530 (New)'(Proeeedings in Camera) 1-0-51. The Code of Civil Procedure has, at present, no provision as to holding the proceedings in open court and as to the power of the Court to hold proceedings in camera. At present, the matter is dealt with under section 151. It would be appropriate to have an express provision on the suhject. The matter pertains to "civil proce-

dure" and should present no difficulty as to legislative competence of.

Pa rliarnent, 1-0-52. The Supreme Court has elaborately considered, in Nareshfs case: the importance of public trial, and the necessary excep- tions. The Supreme Court stated that the primary function of the judiciary to do justice between the parties, is not to be overlooked. If the primary function of the Court is to do justice in causes brought before it, then on principle, (the court stated) it is difficult to accede to the proposition that there can be no exception to the rule that all causes must be tried in open court.

It was held that the High Court has inherent jurisdiction under section 151 of the Civil Procedure Code, to hold a trial in camera, it' the ends of justice clearly and necessarily require the adoption of such a course; the High Court _has_ also jurisdiction to prohibit excessive publication of a part of the proceedings at such trial.

1-O-53. It may be noted that the Code of Criminal Procedure has an express provision' on the subject.

Recommendation 1-0-54. In View of what is stated above, we recommend the in- sertion of a new section as follows:---~ ' "253-C. The place in which any civil Court is held for the purpose of trying any suit shall be deemed an open Court. to which the public generally may have access, so far as the same can "conveniently contain them: ' "Provided that the presiding Oﬁcer -may, if he thinks ﬁt, order at any stage of any inquiry into, or trial of, on particular case, that the public generally, or any pm-tic - r persorr.' shall not have access to, or, be or remain in, the room or building used by the court." -

_ I . ,

1. Nureah Mimjkar v. State of Maktirmhtﬂ. A.,I.R. 1937 EC. I'.

2. Section 352, Cr. I-'.0. ' CHAPTER 1--P PARTIES TO A SUIT Introductory l--P.1_ The tirst question for a person seeking judicial relief is whether a suit is competent. This is dealt with in the body of the Code. When this question is answered in the affirmative, the second question for the erson seeking 'judicial relief is, to which court he ought to'resort. "Fhis question is also answered in the body of the Code, by a set of provisions dealing mainly with the competence of courts with reference to pecuniary value of the subject-matter and the place of suing. Having ascertainedthe court to which he must resort, the third question for the person seeking judicial relief is, for and against what parties such relief must be claimed. This is dealt with in Order 1. - . . :

1--P.2. In general, a widellatitude isgiven, in this respect, to the plaintiff, as is evidenced by various permissive words, suchas, "may", "rna_w,r be joined", "it shall not be neceS5ai"_','f", "the plaintiﬁf may at his option join" and "where the plaintiff is in doubt", which occur in various rules in Order .;1.

To avoid conﬂicting decisions and multiplicityof proceedi_1;igs,, there is a provision under which one person may, with the pemis- sion of the court. sue or defend on behalf of numerous persons hav- ing the same interest in one suit. " - s -

Mis-joinder and non-joinder of parties in general, would not affect a suit, except where a necessary part}; is omitted to be joined.

This, in brief, is the ,scherne of Order 1. While the first seven rules do not seem to have much scope for improvement. rule 3 and some of the subsequent rules 'require discussion. ' Order 1, rule 8 and nlttnermis parties 1-P.4. Order 1, rule 3' deals with what are known as 'represen- tative suits'. Under this rule, where there are numerous persons having the 'same interest' in, one suit, one or more of them may, with the permission of the court,isue or be sued or defend in such suit, on behalf of all of them. The other persons have, of course, to he notiﬁed, and can apply to be made a party to the suit.

1-P5. Now, a question which presents some difliculty is, what is meant by the expression "same interest". It is not necessary to go into the cases on the subject, But, in one respect, a clariﬁcation is needed. The impression seems to prevail that the party represent- ing and the parties represented should have the same cause of action. This is not. in our view, necessary: nor is there any reason why it should be so. What is more important is community of interest. If, for example, A sues one hundred persons who have, in pursuance of 11-1 115 a conspii-acjf, trcspassed on his land, or have wrongfully conﬁned him, and A asks for declaratory relief, the Court should have power to permit him to sue, say, three of the opponents as representatives of all the hundred. provided there is community of interest among them. Such community of interest can, ordinarily, be said to exist where there is concerted action or 9. common object. The cause of action against each trespasser is separate But, if their interests are common, one suit should be permissible, of course with the leave of the court.

Recommendation 1--P.6. We, therefore. recommend thatthe following Explanation should be inverted below Order 1, Rule 8:-

"Explanation--lt is not necessary that the person who sue or are sited or defend should have the some cause of action as the persons on whose behalf or for whose beneﬁt they site or are sued or defend, as the case may be."

Order 1, rule 8 and execution 1-P.7. The Commission, in its earlier Report _on the Code,' pro- posed some changes in Order 1. rule 8 regarding execution. The main change to which it drew ii-ttentiongwas the proposed provision to the effect, that while a judgment under this rule should be binding on all persons on whose behalf the suit is brought or is defended, it shall not, except with the leave of the court, he executed against any such person who is not actually-a party to the suit. In suggest- ing this amendment, the Commission followed the provisions of Order 15. rule 12(3). of the Revised Supreme Court Rules of England.

1--P.8. The relevant provisions ashformulated in the Appendix to the Report" are as follows:

"{6} A decree passed in a suit under this -rule shall be bind- ing on all persons on Whose behalf or for whose beneﬁt the suit is instituted or defended, as the case_ may be; but such decree shall not be executed by or against any per- son not a party to the suit except with the lea-ve of the court.

"(Tl Notice of an application for the grant of leave under sub- rule (6) shall beserved on the person against whom the decree .is sought to be executed in the manner provided in this 'Code for the service of a summons.

{8} Notwithstanding that .a decree to which any application for the arant of leave under sub--rule (6) relates is bind- ing on the person against whom the application is made, that person may dispute liability to have the decree exe- cuted against him on the mound that 'av reason of facts and matters peculiar to his case he 'is entitled to be exempted from such liabilitv."

1. 27th Report, page :33, para. 62.

2. 27th Report, Appendix showing the draft amendments. Order 1, rule 3, Proposed" lub- rules (ii) to (3). . _ 116 ltecommendation 1-P.9. We have carefully considered this particular point, and we think that such a restriction is unnecessary. We, therefore, recom- mend that while carrying' out the amendment in Order 1, rule 8, as proposed in the earlier Report. on the Code, the restriction as to execution without leave need not be incorporated.

Order 1, rule SA (New) 1-P.1G. The Code has, at present, no provision for permitting the juinder of an organisation interested in the legal issues in a suit, i.e. an organisation which, though not concerned with the narrow questions of fact arising between the parties. has a View to offer on some broader issues.

1--P.11. It may be noted, in this connection, that in Soviet Russia, there is a provision for participation, in the trial by organs of State administration, trade unions, establishments, enterprises.

organisations and citizens in defence of the rights of others. The_ Fundamentals of Soviet Civil Legislation porvide as follow":--~ "In the cases provided for by law, organs of State administra- tion, trade unions, state establishments, enterprises, kol- khozes and other co-operative and mass organisations or citizens may take action in defence of the rights and lawful interests of others.

"Organs of State administration, in the cases provided for by law, may be caused by the court to join the suit on thtir own motion to present their "opinion on the case in order to perform their duties or to act in defence of the rights of citizens or interests of the state.

"The organs of state administration, establishments, enterpri~ ses and organisations enumerated in the present Article, through their representatives,' and citizens may acquaint themselves with the_ materials of the case, make challerr ges, deliver pleadings, submit evidence, take part in the examination of evidence, ﬁle petitions, and also perform other procedural acts provided for by law." , 1-P.I2. It has been stated," that in the U.S.S.R., social organisa-A tions are drawn into civil proceedings just as they are drawn into criminal proceedngs.' A civil case may be initiated on the petition of a social organisation.' The Court ,ma_v "permit representatives of social organisation ............. ..to participate in the trial" "in order to present the court with the opinions of authorised persons _of their organisations .......... .. concerning the case under consideration I. To be borne in mind while amending (Jrdsr 1, rule it, as per 27th Report.

2. Article itﬂ, Fundamentals of Soviet Civil Imgislntion and Civil Prooodune.

3. See Harold Barman, "Educ-.a.tive Role of Soviet. Court" (January, 1972) 20, I.C.L.Q. 3] «$5.

4. Apparently. the reference. is to section 25'}, R.S.CF'.-':i.R. Ur. l'.[.'.

5. n.s.F.s.n. Code of Civil Procedure, Anni. ' E. R.S.F.S.R. Code of Civil Procedure, Art. l4l[E].

i,p..,. ._;,a._»..g:;,.._.~L«---as -

AL 'kl 117 by the coui-12'", Representatives of social organisations appearing__in civii cases have the same rights as counsel for the parties'. "In practice, social oigariisa-tions do frequently participate in civil cases---- especially in housing disputes, labour and family law".

1--P.13. Some such pi-ovision--suitabl3r adapted, of course, so as to suit Indian conditionsawould be useful. It is true that it may not be in harmony with the adversary system on which our proce- dure is based. Somc safeguards man' also be required. in order to prevent busy bodies from interfering with private disputes.

Nevertheless, it would be worthwhile inserting a provision which could be pressed into service in suitable cases.

Recommendation l--P.14_ The provision could be somewhat on the following lines and find a place in Order 1:

"BA. The court may, if satisﬁed that a person or body of per- sons is interested in any question o_f law in issue in the suit, and that it is in the public interest to allow that person or body to present its opinion, permit that person or body to take such part in the proceedings as the court rnafu specify."

1-13.15. This will not be exactly the same as the practice of ap- pointing an amicus curiae, because the organisation concerned would have its own views to present, and its role would not he conﬁned to assisting the court, though its participation may help the court in elucidation of some of the issues. ' Order 1, rule 9 1--P.1ﬁ. Order 1, rule 9, which deals with the effect of rnisjoinder and non--joindcr of parties, provides as follows:----

"No suit shall be defeated by reason of the misjoinder or non- joinder of parties and the court may in eyery suit deal. with the matter in controversy so far as regards the rights and intenests of the parties actually before it."

ltecorumendation 1--P'.1T. We are of the view that non--joinder of essential parties should be excluded from the scope of this rule." Accordingly. we recommend the insertion of the following proviso:

"Provided that nothing in this rule shall apply to non-joinder of a necessary party".

Order 1, rule 10(2) 1~P_18. The following changes were proposed in Order 1, rule 10(2). in the earlier Report on the Code.' in order to make the rule comprehensive : --

{3} A power to strike off the name of any person who has. for any reason, ceased to be a proper or necessarv party, should be added. a ' . R.S.F'.S.1{. {Tulle of Civil Procedure Art. 147.

. lt.S.F.ﬁ.H. f'or,lr,- of Civil Proooflure. Art. I47.

. Cf. Llisclission as tn section 99.

. 27th Report, page 128, note on Order 1, rule lU{2].

.p.:,aN.:_-:' 115' {b_) A p0't'\-v.'-31' to J."C1Tl()'.fe any person who has been unnecessarily joined, should be added.

While we 39-0 the utili='.y of such an amendment, it appears to us that the proposed anriendment will inev.ritabi;»;; give rise to the question whether the party struck off under the rule (as proposed to be amended) should be given a right 01 appeal against any deter- mination of a question which might have been rendered before he ceased to be a party. It becomes necessary to consider this aspect, be- cause such a person would not be a party on record when the suit is finally disposed of and the decree is passed.

1-13.19. The right of appeal against an original decree is govern- ed by section 96, which is silent as to the person who can appeal. Courts have, in general, taken a wide View in this respect,' and, without conﬁning the right to the parties on record, they have en- tertained an appeal by a person whose rights are aﬁected by a decree, even where he was never a party.

l--P.2U_ Even then, a controversy could arise as to whether the person whose name is struck off can be recognised as having a right of appeal against the decree that most be ultimately passed after he has- ceased to be a party, if the decree aﬁects his interest.

Recommendation in earlier Report not to he carried out 1-P.21. In the circumstances. we have come to the conclusion that the recommendation in the earlier Report as to Order 1, rule K10(2} should not be carried out. . ~ , Order 1, rule 10A (New) 1-P22 The Code czmtains no express provision, empowering the court to ask counsel {not appearing in the case) to assist the court by agreements. Such a practice is common. It may he desir- able to give legislative recognition "to this practice.

Recommendation 1--P.2.'i. Accordingly, we recommend that the following new rule should be inserted in Order 10%»-

''10A_ The Court in its discrettoii, request any pleader to address the Court as to any interest which is likely to be ajffectecl by the decision of the matters in issue and which is not represented." 1 ' ' *1 V

1. Swrmdra Dos V. Bliulu. Prvi.-mil, A.I.R. 1950 Assam 2'2 [Case-law reviewed], H. CHAPTER _ 2 FRAME 01;' SUIT.' Introductory 2.1. Order 2 deals with the frame of the suit; andthe dominant rule here is that. as far as practicable, every suit shall be so framed as to afford ground for ﬁnal decisiﬂn 3.113011 the 51-1bl9'3t5 in di5l3_'~1t~'-' _3nd to prevent further litigation concerning them. With this end in view, the Code provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, and. siniilarly, he must claim all there-liefs which he is entitled to, in respect of the same cause of action.

2.2. As has been observed.' "Were the rule otherwise, a man might be sued. repeatedly. in respect oi' the same matter, and conﬂicting judgments might be pronou.nced regarding separate portions of the same property, included in the same cause of action.

"And as the value of the property claimed by the plaint deter- mines the class of judges by which a suit is cognisable and the reme- dies of the parties in an appeal, a suit might be split up, so that each branch of it should be decided by a judge of a lower class than that by which, with reference to the value -of the whole property in litigation, it ought to be decided, and the right of the parties to appeal would be unfairly limited".

2.3. The Code also encourages the plaintiff to unite, in the same suit, several causes of action against the same defendant jointly,-- the object here again also being-to avoid numerous proceedings. Of course. where there are several defendants or plaintiffs, and several causes of action, and one or more of the plaintiffs or defendants are not interested in one or more of the causes of action, the nice ques; tion of "multifariousness" arises. The Code expressly provides that objections on the grounds of rnis-joinder of causes of action must be taken at the earliest possible stage.

We do not recommend any changes in this Order, Order 2, rule 2 and Execution Proceedings 2.4. Since the provisions of 0.2, r.2 do not apply to execution proceedings. it has been held" that an application to enforce one relief will not be a bar to a subsequent application to enforce the other relief, though both the reliefs were awarded" by one and the same decree." We do not think that a speciﬁc provision is necessary in this respect. ' 7- 'LIN."ll':-_ﬁ;ipherso1t, New t'-it-il Proceditre for British Imlia H3.

2. R.-«Um Kishan '7. Barﬂy: 'Pr:r-aha-If, {I391} I..L.R. 13 Cal. 515.

119

_ CHAPTER 3 RECOGNISED AGENTS AND PLEADERS Introductory 3,1, Order 3 deals with recognised agents and pleaders. Recognis- ed agents are persons who do not belong to the profession of law- yers, while pleaders so be-long. There are rules for appearance. application and acts to be done by the recognised agents and pleaders. and for the service of process on them. Pleaders who act gr plead for a party, have to file in court a document or memoran-

um.

There are a few points which require discussion in this Order.

Order 3, rule 4 3.12. Order 3. rule 4(1). prohibits a pleader from acting for any person in any court, unless he has been "appointed" for the pur- pose by a document in writing. Order 3. rule 4(2) and rule 4(3) contain provisions as to the duration for which such appointment "shall be deemed to be in force". At ﬁrst sight, the wording of sub- rules (2) and (3) of rule 4 may create an impression that they apply so as to regulate, as a matter of law, the duration of the professional relationship [of counsel and client]; created by a contract. But on a close reading, this impression is dispelled. Sub-rule {2} is to be read as relevant only for the purpose of the prohibition in sub- rule (1).

We have examined the matter at some length, and have come to the above conclusion. But a clariﬁcation on the point is desirable, Recommendation 3.3. Accordingly, we recommend that Order 3. rules 4(2) and 4(3) should be revised as follows:--

"(2_]- Every such appointment shall be ﬁled in Court and shall, for the purposes of sub--rule (1). be deemed to be in force until determined with the leave of the Court by a writing signed by ,.

the client or the pleacler, as the case may be, and ﬁled in Court, or until the client or the pleader dies or until all proceedings in the suit are ended so far as regards the client.

Erpla'nation.---For the purposes-of this sub-rule, the following shall be deemed to be proceedings in the suit:----

(a) an application for review of judgment, , {b} an application under section 144'or section 152 of this Code.

(cl any appeal from any 'decree or order in suit, and 120 O' ."'3"'--'"'.**-::---. « -

.._,'..'_ _.._'_.,-.,,__ __&.?_-' .-._.__ 121

(d) any application or act for the purpose of obtaining copieo of documents or return of documents produced or ﬁled in the suit or of obtaining refund of monies paid into" the Court in connection with'the suit, "{3} Nothing in s-uh-rule (2) Shall be construed--

(a) as extending as between the pleader and his client, 2 the duration for which the pteader is engaged, or "(b) as a-uthorising service on the pleader of any docu- ment issued by any court other than the court for the ~ purposes for which the pleader was engaged, except where the client has otherwise expressly agreed in the ducu.me'r'1t referred to in sub-rule [l)."

in-\ HfB{'D)22B'Mof LJeoA._1o ...:

-I V---v---Qirvnrjvv - -- V-

Cnuvrnn 4 INSTITUTION OF SUITS Introductory 4.1. Order 4 deals with the mode of institution of a suit. A suit, it says, is to be instituted by presenting as plaint to the court or its authorised official. This Order must be read with section 26, which provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Particulars of a suit presented are to be entered in the register of suits. Detail-

ed rules as to pleadings in general and plaints in particular are contained in Orders 6 and 7.

We do not recommend any changes in this Order.

*9, L.,.,n...'...' .-..---~_......._ «£5. .I'.'_...A..-.. .-up )v1I-._ . CHAPTER 5 ISSUE AND SERVICE OF SUI!-'I1\rIUNS Introductory 5.1. When the plaint has been registered, a summons may be 1gsu.gd.:o the deiendant, or to each defendant where there are more defendants than one_ It is for the court to decide Whether the Surn- mons shall be for thesettiement of issues only, or for the ﬁnal dis- posai of the suit. Elaborate provisions as to the mode of servlce of summonses are contained in the various rules of Order 5, the object being to make sure. as far' as possible, that the summons comes to the knowledge of the dctendant.

5.2. Since a considerable proportion of' suits are decided en: parte owing to the defendants failure to appear the importance of these rules is obvious. Rules as to the eifect of appearance and n0n--appea- rance of the defendant are separately provided for in Order 9 (which also deals with the consequences of nonappearance of the parties). Most of the rules in Order 5 relate to ministerial acts. We shall discuss only a few rules of importance.

Order 5, Rule 15 z, 5.3. Where, in any suit, the defendant cannot be found, service of the summons can be made on any adult male member of the

15. In the earlier Report,' the previous Commission noted that the word "male" had been omitted by local amendment in Kera]a_ The previous Commission, however. thought that the amendment may not be suitable for adoption for the whole of India.

Recommendation 5.4. We have considered the matter again, and are of the view that the word "male" should he dropped. Having regard to the in- crease in literacy and status of women during the last few years, this change could safely be made. for the whole of India, We. there- fore. recommend that in Order 5, rule 15, the word "male" should be dropped.

Order 5, rule 20(1) 5.5. Order 5, rule 20 deals with "Substituted service". The rule provides that such service can {besides aﬁixation of the summons) be ordered in such other manner as the Court may direct. The usual mode of service ordered is by publication in the nev,!,rgpape.Iv_ we con- sidered the question Whether. besides publication in the newspaper,

1. 21th Report, page 136, Note on Drcler 5, rule 15.

- 123 .

LfB(D}2293iuf LJ&:C'.A-----1C|(a.) family of the defendant who resides with him, under Order 5, rule I24 the court should have power to direct that the substance of the sum- mons should be read out by means of announcement on the radio. But, on inquiry being made from the Department concerned, we understand that, that would not be feasible. '3.) 5.6. We, therefore, recommend no change in this respect. Postal service i' w 5.1'. A recommendation for service of summons by post along with personal service has been made in the earlier Report,' and we wish to record that we are in full agreement with it.

/ .--.

1. 27th Report. pages 13!, 137, nail on Orin 5.; rule 19.

............,_., _.._'..

-*-."."- .

Cnarrnn 5 PLEADINGS Iuirouluctory 6.1. The provisions in Order 6 relating to pleadings in general are taken mainly from the English rules. The fundamental rule is that only facts, and only material facts, shall be stated in the plead- ings, but not the evidence, and the statement of facts should be concise. The whole purpose of the system of pleadings is to narrow down the dispute between the parties to deﬁnite issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at theihearingf From this funda- mental rule follow the detailed gutidﬁ-lines given in the Order; and the philosophy of the Code towards encouraging amendments which are necessary for the purpose of determining the real questions in controversy between the parties, is given expression in rule 17 of this Order.

We do not consider any changes in this Order to be necessary.

1. Tharp v. Hoideworth, {ms} 2 Ch. D. 337, 338, 339. (Jeans! 11.11.} 1215 _ Cnsrrsn 7 PLAIN!' Introductory 7.1. Detailed prox-isions as to the particulars to be contained in the plaint are dealt with in the _ﬂI'ST. eight rules of Order 7. Where a plaint is presentecl. it may either be admitted (rule 9), returned, if the court has no jurisdiction (rule 10}, or rejected for certain grounds (rules 1] to 13). Each of these three possible alternatives is of importance.

'?.2. Since, usually. the plaintiff sues or relies upon a document in support of his case. rules -14 to 18 in Order '7 contain detailed pro- visions as to listing; and production of such documents at the time when the plaint is presented.

Order '7, rule 2 '13. Order 7, rule 2 provides that in a suit for recovery of money. the plaint shall state the precise amount claimed. Under the Punjab Amendment to Order 7, rule 2, where the suit is for mov- able property in the possession of the defendant or for a debt of which the value cannot be estimated, the plaint shall state approxi- mately the amount or value.

7.4.1]: the earlier Report' it was considered unnecessary to adopt such a prmrision But. we think. that it would be useful.

Recommendation T5. Ac-cordingljgv, we recommend the following re--dra'Et of Order

7. rule 2:-

"2. Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed. But where the plaintiff sues i'oi'--

{a} Mes-we proﬁts, or (bin for an amount which will be found due to him on taking unsettled accounts between him and the defendant. or (cl for movahles -in the possession of the defendant, or (di for debts of which the value he cannot, after the e,'1','e'rc'E.3e of rea3onabl.e diligence, estimate. the plaint shall state approximately the amount or value sued for."

Order 1', rule 6 7.6. Order 7. rule 6, requires that a ground of exemption from limitation should be speciﬁcally pleaded 111 the plaint. l. 271:}: Report-. p:t_t{s- [45, more on Oruler '3', rule 2.

126

..,.. ref .-. ...

127

7.7. Where the ground of_ exemption from 'limitation is 'not stated in the plaint, the question arises whether it can be ra1S|_!d later (without amendment of the pleading)_ The earlier Report dis- cussed the controversy,' on this point.

7.8. Another question is whether. when the around of exemption from limitation is stated, the plaintiff can take another 31914115, which is new but is consistent with the allegations In the Dleadllj-E:

The controversy on this point was also discussed in the earlier Report?

7.9. A third question is, whether a new and inconsistent ground can he pleaded? It was noted in the earlier Report" that a clerical error in a Bomba}r 'Judgment had misled some courts' into th1I1k}I1E that even an inconsistent plea can be taken for claiming exemption from lirnita-tion.

?.lU. To summarise the position, as was stated in that Report,-

(i} the strict provision embodied in Order 7, rule 6 has been administered liberally by most High Courts (excepting the Madras High Court}?

(ii) there is some confusion about whether the extra grounds which can be set up, should be "consistent", with the earlier ground as set out in the pleadings.

?.11. In view of the majority view, it was stated in the earlier Report. that an amendment was not necessary.

Recommendation "r'.l2_ But we think that it is desirable that the position should be clariﬁed. There should he no objection to the court being given a power to' permit the plaintiff to rely on a new ground of exemp- tion, so long as that ground is not inconsistent with the allegations in the plaint_ The insertion of the following proviso at the end of Order 'i', rule 6, is, therefore, recommended:--

"Provided that the court nwy permit the plointiﬁ' to claim exemptton from such" low on any ground not shown in the pin-int, if the ground is not inconsistent with the allega- tions in the plaint."

Order 7, rule 10 7.13. Order ?, rule 10 provides that the plaint shall, "at 3.113,; stage of the suit", be returned to the plaintiff. for presentation to the court in which the suit should have been instituted, if the court has no jurisdiction to try the suit. The words 'at any stage of the suit' have raised one question. Where the suit has been 31TEadi' tried and 8 judgment delivered, can the plaint be returned?

1. 3'I't.h Report, pp. 145-146, Note on Order T, rule 6.

2. 27th Report, pp. 145-146, Note on Order '7, rule 6.

3.. 27th Report, pp. 146-146, Note on Order 7, rule 6.

4. The later decision in H..I{. Hixrimnﬁ 1. K. Raiikalrﬁaﬁnan 15.1.11. 1972 Mod. 108 t"D.B.} does not seem to make I. diﬂiaronoa. - ' , 128 Does the "stage of suit" still continue? When, for example, it is found either in appeal or in revisio_n that the decree was without jurisdiction, can the appellate or revisional court return the plain'. on the theory that an appeal or revision is a kind of continuation of the suit'? The authorities are conflicting on the point.

7.14. In a Calcutta case', the plaintiff sought for a return of' the plaint in similiar circumstances. But, the respondent's counsel argued that where there had been a trial and a- judgment on a plaint. the plaint could no longer be returned. The Court held that the plaint could no longer be returned. -

7.15. In an earlier Calcutta decision', it had been observed that the plaint had already merged in a decree, and "it is inconceivable how it struck the munsiff that the plaint could be returned at that stage". That was a suit for partition. The property was valued at a certain figure, and a preliminary decree was passed. But, thereafter. it was found, at the time of the ﬁnal decree, that the suit was under- valued. On those facts, it was held that it was not open to the Court, if the value of the property exceeded the pecuniary limits of' the jurisdiction of the court, to declare the preliminary decree a nul- litv and to return the plaint for presentation to the competent court.

7.16. It was urged in the later Calcutta case that where the plaint (or rather, the cause of action)~has merged in a judgment or decree, the appeal court (or the revisional court). can always make an order setting aside the judgment and directing the plaint to be presented to the proper Court. But it was held that normally, having regard to the context and juxtaposition of Order 7, rule 10, the question of return of plaint should be considered at a stage where the jud ent has not been delivered. It is at the stage where the plaint is ﬁl , and before the summons in the suit had issued, that the plaint is nor- mally returned. In fact, Order 7, dealing with the plaint, contextually comes before Order 8. which deals with the written statement. Sub- I rule (2) of Order 7; rule 10. would also seem to indicate that i.t is the initial stage that is being considered under this provision, and not the stage when the suit proceeded to a trial and the judgment already delivered.

7.17. It was observed further, that the words "presentation", "return" and "endorsement" of the reasons as envisaged underﬂrder 7, rule 10(2) seem to indicate that the legislature is contemplating the stage of such return long before the trial of the plaint and before the delivery of the judgment on such a plaint. The small causes court judge should have acted under Order 7, rule 10 on this plaint when it was presented to him, and should have returned it for presentation to the proper court. The appropriate course for the High Court should be to set aside the judgment. and not to order return of the plaint for Jresentation to the proper court.

1. Gap!" Kfialma 7. Am'! Bose, A.I.R. 1965 Cal. 59.

2. Raiikoﬂto Jzfyore v. Sonata-n Buidyo, A.I.R. 1930 0:11.214? (B.B. Ghush and S.K. Ghana J}.

129

T.1-3. Some other High Courts assume' tha-t a wider interpreta- tion is the correct one.

119. In the above state of the case--law, a clariﬁeation is desir- able. Dismissal of the suit for want of jurisdiction, though an easier course, is bound to lead to hardship in respect of court-fees and limitation. It will be more convenient if a provision is added to the effect that the power under Order 7, rule 10, can be exercised by the Appellate Court or by the Revisional Court.

As regards the situation where a preliminary decree ha.s already been passed, we do not think that it would be appropriate to provide for return of the plaint by the court of first instance. -

Recommendation to amend 0.31, 1'. 10(1) 7.20. Accordingly, we recommend that the following Explanation 'should be inserted below Order 7. rule 1ﬂ(1):--

"Explanation--A Com: of appeal or revision may direct the return of a pic-int under this rule, notwithstanding that a decree had been passed in the suit."

Recommendation to insert 0.1', r. IDA, etc. 7.21 and T22. We are. further, of the View that in order to avoid delay, the court returning the plaint should ﬁx a date for the appear- ance of the parties in the new court. We recommend the insertion of following rules for this purpose:--

"10-A. (1) Where, in any suit, after the defendant has ap. peared. the court is of the View that the plaint should be returned under rule 10, it shall. before doing so, inform the plaintiff, and the plaintiﬁ shall thereupon be entitled to make an application to the Court--

(a) intimating that, on return of the plaint, he proposes to present it to the court in which it should have been instituted. to be speciﬁed in the application;

(b) praying that the court may fix a date for the appear-

ance of the parties in the said court; and

(2) Where an application is made under sub-rule (1), the court shall, before returning the p1aint----

-(a] fix a date for the purpose mentioned in clause (b) of that sub-rule; and (13) give to the plaintiff and to the defendant such notice as is referred to in clause (C) of that sub-rule; and where such notice is given.

(if! it shall not be necessary for the Court speciﬁed hi the application, on presentation of the plaint ' 1 my acme Francis' Ltd. v. Bhopal Municipality, A.l'.l-'t. 1959 M.P. 253, 255, pm. 11

(ii) Ram Asa» -.-. Germ' Siﬂgh A.I.'R.. ma Oadh 11:. 113.

(3)

l3U in that Court. to serve the defendant with a sum- mons for appearance in the suit -instituted by presenting that plaint, unless that court, for reasons to be recorded, otherwise directs; and

(ii) the said notice shall be deemed to be a summons for appearance of the defenda-nt on the date so ﬁxed in the court mentioned in the notice.

Where the plaintiff has made an application under sub- rule (1) and the application has been granted, he shall not be entitled to appeal against the order returning the plaint.

103. (1) Where an order directing that a plaint should be returned under rule 10 is proposed to be conﬁrmed by a- court in appeal, or where a court hearing an appeal is of the ViE'W that the plaint should be returned under rule 10, the court (hereinafter referred to as the court of ap- peal) shall, before passing a ﬁnal order, inform the plain- tiff, and the plaintiff shall thereupon be entitled to make an application to the court-

(a_] requesting that instead of the plaint being returned, suit may be transferred to the court in which it should have been. instituted (hereinafter referred to as "the groper court"), whether within or without the ctatc:

(b) praying that the court may ﬁx a date for the appear-

ance of the parties in the said court: and C3) requesting that notice of the date so ﬁxed may be given to him and to the defendant.

Where an application is made under sub-rule (1), the court of appeal shall, instead of returning the p1aint,--

(a) transfer the suit to the proper court;

{bl ﬁx a date for the purpose mentioned in clause (13) of that suh--ru1e; and

(c) give to the plaintiff and the defendant such notice as is referred to in clause {c} of that sub-rule and where such notice is given,-

(i) it shall not be necessary for the court to which the suit is transferred to serve the defendant with a summons for appearance in the suit, unless that court, for reasons to' be recorded, otherwise directs; and

(ii) the said notice shall be deemed to be a summons for appearance of the defendant in that court on the date so ﬁxed.

4.' ...«:§g-gn...-t..4.....(...- .. :.

5--

AA 131 7.23. Order T, rule 11(0), pr{JVidE.'5 that the plaint shall be rejected I;-.'here the relief claimed is properly valued but the plaint is written upoii paper irisufiieieiitiy stamped and the plaintiﬁ', on being required by the court to supply the requisite staInp--paper within a time to be fixed by the Court, fails to do so. Some conti-overs}!-seems' to exist on the question whether granting of time under this rule is manda- tory. One view is, that the matter falls outside section 149, and is entirely governed by Order 7, rule 11, which is a special provision; and. therefore. the party is entitled to demand some time for making good the deficiency. Another View is, that the grant of time is dis- cretionary, on the ground that the authority to grant time is in sec- tion 149. and not in Order 7', rule 11, which is a disabling provision.

7.24. The Madras High Court has made an express amendment to this rule v.'hieh., in sL'hstaI1ee_. orovides that the grant of time is a matter of discretion. The question whether the Madras amend- ment should be adopted was considered in the earlier Report', but it was felt unnecessary to insert any such provision.

Recommendation 'F25. We are of the View that the Mzidras amendment should not be adopted, as it would be too harsh. At the same time. we are of the View that once time is given, it should not be extended, and section 148 should not apply to such cases.

Recommendation 7.25. Acco1'ding1j,r_, we recommend that present Order 7. rule 11. should be remumbered as sub~rule (1), and suh-rule {2} should be znserted in that rule as fol1ows:------

"(2) Where :1 plaint is liable to be rejected under clause {b)* or clause (C) of s-ub--rule (1). the Court shiﬂigmnt time to the ol.airnti.}fF to correct the volmtt-Eon of or to supply the Teqttiséze stamp paper, as the case may be: but, nottmC1:h-

standing anything contained in section 148. time so gm-nted .-thail not be errte-n.ded".

1. (rs) !?m-Elm Krmm 1'.Drb<mdra»1'a'amyan.. I.L.R. -19 0.11.830: AILR. I922 Gal. sns. 5-":8 .j1'rIno}ter-foo and ("nn1in_g JJ.), {E} -9'ti'Jbr-'- R6.-£r::'.;z_.r V. F'erJI'(tta-nrrrasfmﬁa Rsdrla,-. AIR. 1937 l\l.';+.d. 'Z66.

[ct] V.=nl:amm 1'. .4rIa-«fr9m.a.wa, .-LT.R.. [933 Marl. 512-.5-t3,right hand [Von]-ratnsuhl-ta Ra-'J J.]. ' id"; Anfivxt h'rt1n:'Fu'Tna'.rrI V. 3r'agI't;;J3iP, ALB, T914 Born. 249, 25"} [B:1.f.-oh-elor and Shah JJ] ('l'I'ueesl1isior_1r of the rule}.

(2) Baijnom. V, D'mr.~3.7m,-rwr. :'L.1.R 1937. Pitt. 560 [PB].

ff) S'.?i2'-r.'=f'I:rzrr1:1 1', Hahn'-ru? Iﬂl, A.1'.I3-. l94l Oudh 31').

|_'9'.l Ram K".-'Jzrln V. J-'zffﬁ»e. A.T.R. 1959 Born. 96 {Mu-'i|Loll(aT' J. T{P\'iews B'1'"E]:l'.i'_

2. 27th Report, page, I-1'7, note on Order '5', rule 11. R. 0rd4=.1' '7, rule llf_h) stands on the same footing as Order 7, rule lI{o].H .. . up--.......,,.._. .7 Cnsrrn. 8 WRITTEN STATEMENT AND SET-OFF Introductory 3.1. Thh reply of the defendant, to the plaint, which is called "written statement of his defence", is dealt with in Order 8. A written statement may be ﬁled; but, if the court so requires, it must he ﬁled within the time permitted by the court. Order 8, rule 1 so provides.

3.2. The mode of denial of allegations in the pla-int occupies rules 2 to 5 of this Order; set--o1'f is dealt with in rules 6 and '7, and rule 8 permits the defendant to take any new ground of defence at a later stage. Ordinarily, the plaint and the statement of defence are the only pleadings allowed; but relaxation of this rule is per- missible under rule 9. The procedure to be adopted when a party fails to present a written statement before the court, is dealt in rule 10,»-a rule which has created some controversy.

Order 8, rule 1 and obligatory written statements 8.3. It was noted in the earlier Report' that a recommendation had been made in the Report on the reform of judicial administra- tion to make the ﬁling of the written statement obligatory. The Commission, however. thought that this might work hardship.

Recommendation 8.4. We have reexamined the matter, and are of the View that such a provision should be inserted. In the absence of a proper pleading by the defendant, it is diﬂicult to proceed with the suit, and in fact. the whole scheme of the Code postulates that there should he a written statement which constitutes the foundation of the de- fence, if the defendant chooses to participate in the proceedings. The time has now come when a written statement should be obligatory, and we recommend accordingly, that Order 8. rule 1, should be re- vised as follows: -

"The defendant .... ._ shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence."

Order 8, rule 5 3.5. Under Order 8, rule 5, an allegation of a fact made in the plaint, if not denied, or not stated to he not admitted in the pleading of the defendant, is to be taken as admitted. Whether this rule an plies in a case where the defendant,-has not ﬁled a pleading at all

1. 27th Report, pages 147-148, not on Order 3, rule 1 and obligatory written statement, V

2. let]: Report, 'Vol. I, page 302. para 11.

132

,...s_,............. .. .. .. ._ g.r..-_,._,,_....,,_..,..._.,........~. .

v-, 133 is a question that was considered in the earlier Reportsl. No amend- ment to the rule was, however, proposed. as it was felt that on the language of the rule. it should not apply to such cases.

8.6. However, we are taking a different View on the subject, and are of opinion that such a provision should be made. If the defen- dant does not ﬁle a pleading. the court should have a discretion to treat the allegations in the plaint as admitted. This is necessary in the interests of expedition, and should not. in our view, cause any serious hardship, Since the present position" is that Order 8, rule 5, does not applyjtvhere there is no written statement, an amendment is necessary if effect is to be given to our view. At the same time, we would like to emphasise that the court should, in exercising in».

discretion, consider whether the defendant has engaged counsel or__ could have engaged counsel.

Recommendation 8.1'. We, therefore, recommend that Order 8, rule 5, should be re-numbered as sub-rule (1), and the following sub-rules should be added in Order 8, rule 5:---

"'(2) Where the defendant has not ﬁled a pleading, it shall be lawful for the court to pass a judgment on the basis of the allegations of fact in the plaint, except as against .1 person under disability; but the court may, in its discre- tion, 1-equirg any such allegations of fact to be proved.

(3) In e;l3€7'C'tS'l'ng its discretion under the proviso to sub-rule (1) or under sub-rule (2), the court shall have due regard to the fact whether the defendant could have or has en-

gaged ct pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such. judg. ment bearing the same date as the day on which the judgment was pronounced".

Order 5, rule SA (New) (Production of Iloclunent.) 8.3. Order 7, rule 14 provides that where a plaintiﬁ sues upon a.

document in his possession or power, he shall produce the docu- ment in Court when the plaint is presented. Where the plaintiff relies on any other documents (whether in his possession or power or not), as evidence in support of his claim, he has to enter such documents in a list to be added or annexed to the plaint. The Fourteenth Report' recommended, that 8. similar p1'OViS.l0I'l should be made in the case of a defendant.

3.9. This recommendation, however, was not agreed in by the Commission in the Report' on the Code. The Commission felt that the distinction between a document upon which the plaintiff sues

1. 27th Report, page 15!), Note on Order 8, rain 5.

2. Hardayal Gimme» Lat? in Union of India, LLR. 1339 Plnj. 329 (ration anus}.

3. mi}: Report, Vol. 1, page Blﬁ, para. 32.

4. 27th Report, page 13, para. 28.

134

and a document upon which he relies, Cannot properly be made in the case of varitten statement. "The only manner in which such a distinction can be made is between documents on which a defen- dant bases his defence and other documents on which he .re'lies_as evidence in support of his defence. In our opinion such a d1St1I1ct10I1 would be unrealistic and impractical. A written statement merely answers the claim made in the plaint. In practice, it would be diffi- cult to distinguish between documents on which the defence "is based" from other documents of purely evidentiary value. We, how- ever, think that 21 defendant should enter in a list to be added or annexed to the written statement all documents on which he relies in support of his defence".

Recommendation 8.10. We have carefully examined the matter, and have come to the conclusion that the recommendation made in the 14th Report should be carried out. Barring very few cases, the distinction between the basic documents, and other documents should, we think, pre--

sent no difficulty even in respect of the defence. We recommend there- fore that a suitable amendment should be made as above. To achieve that object, the following rule should be inserted in Order 8-» "SA. (1}* Where a defendant bases his defence upon a docu-

-ment in his possession or power, he shall -produce it in court when the written statement is -presented, and shall, at the some time, deliver the document or a copy thereof to he ﬁled with the written statement.

(2) A document which ought to he produced in court by the de_fendcn.t under this rule, but is not so produced, shall not, without the leave of the Court, be received in evi- dence on his behalf at the hearing of the suit,

(c) Nothing in this rule oppiiestg documents produced for cross-exami-natioh of the plaintifs witnesses, or in answer to any case set up by the pltzintiﬂ' s-ubsequently to the ﬁt-ino of the plaint, or handed to a witness merely to re- fresh his memory."

8.11. Order 8, rule 10, deals with the procedure to he followed when a party fails to present a written statement called for by the court. This rule begins thus:

'5.

"Where any party from whom a written statement is so re- quired. fails to present the same .......... ..".

Now. the word 'so' has been construed as limiting the operation of the rule to failure to tile a written statement that was demanded under the preceding rule. (Order 3, rule '9), and not as covering the more frequent case of a written statement demanded under Order

8. rule 1.

3.12-. In the earlier Report", this lacuna was discussed. and an amendment was also proposed to remove this lacuna.

I. 27th Report, page 151, note on Order 8, rule 10.

".1

--: ~ -.._-M. Ii!' '-11- T35 8.13. We agree with this recommendation for amendment. We are also of the view that it should be obligatory on the Court to pronounce judgment when 1'u]e 10 applies, that is to say. when a party fails to ﬁle a Written statement required by-' law.

Recommendation 8.14. Accordingly, we recommend that Order 8. rule 10 should be revised as follows:----

"1[]. Where any party from whom a written statement is re- quired under rule 1 or rule 9 fails to present the same within the time permitted. or ﬁxed by the court, as the case may be, the court shall pronounce judgment against 53 V] ,..n, ,. _ Cnarran 9 APPEARANCE OF PARTIES AND CONSEQUENCES OF NON- APPEARANCE Introductory 9.1. Order 9 lays down the rules of procedure applicable to va- rious situations concerned with the appearance of parties, namely, cases where both parties attend; where the summons has not been served in consequence of the plaintiffs failure to pay the fees for serving; when neither party appears; when the plaintiff only appears; and when the defendant only appears. Failure to appear attracts certain consequences. Broadly speaking, from the point of view of the plaintiﬁ, the most important is the provision which makes dis- missal of the suit for default of the plaintiﬁ mandatory; and, from the context of the defendant, the most important is the provision authorising the court to proceed ea: parte, if the defendant does not appear.

If the defendant does not ﬁle a written statement, certain ac- tion can be taken against him under rule 1ID,--a rule which appears to have caused a considerable amount of uncertainty, owing to its somewhat ambiguous wording. Since nomappearance of a party may be involuntary or otherwise for suﬂicient cause, there have to be provisions for setting aside dismissal of the suit or ex parte order, as the case may be.

Order 8, rule 5(1) 9.2. Order 9, rule 5(1) provides that where a plaintiff fails to apply for a fresh summons {after the summons on the defendant is returned unserved), the Court shall dismiss the suit (except in certain cases). The period prescribed for the application for a fresh summons is three months under the present rule. The original period was for one year, but it was changed to three months later. The period has been changed into two months by local Amendments by the High Courts of Bombay and Gujarat and one month in Kerala. The proposed amendment in the earlier Report' reduced it to two months. We think that it should be reduced to one month, in order to expedite progress of the case.

Recommendation 9.3. Accordingly. We recommend that Order 9, rule 5(1), should be revised as follows:--

"{1} Where, after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of one month from the date I. Code of Civil Procedure Amendment Act (24 of 1920).

2. 271311 Report, page 152, note on 0-9, I'-l5(i}.

136

- -.-.*'-e*--

.4».

1'1 ..._ _--~e«--¢$uo"'.'._s-II#__,:' _'_ ..

.-, 13?

of the return made to the Court by the oﬂicer ordinarily certifying to the Court returns made by the serving oili- cers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendants, unless the plaintiif has within the said period satisﬁed the Court that---

(a) he has failed after using his best endeavours to dis-

cover the residence of the defendant who has not been served, or ' . .

(bl such defendant is avoiding service of process, or

(c) there is any other sufficient cause for extending the time, in -which case the Court may extend the time for making such application for such period as it thinks ﬁt."

Order 9, rule 6 and Order 9, rule 1' 9.4. In the earlier Report', two points were considered with reference to Order 9, rule 6. .

9.5.. The ﬁrst question was, whether the court should have power to pass a dercee. if it thinks ﬁt, on the basis of a pleading without formalevidence, where the case progozeds as parts. As pleadings are not required to be on oath', it was nsidered unnecessary to make such a change.

9.6. We are. however, of the' view that such a provision would be useful. Having regard to the paramount need to reduce delay, it is, in our view, justified even in the absence of oath. , 9.7. Secondly, the previous Commission noted that it had been held by the Supreme"-' Court, that even when the defendant against whom a case has proceeded ea: parts does not assign good cause for his previous non-appearance, he has a right 130' participate from the stage at which he appears. The decision of Wallace, J. in 3- Madras cases on the subject was approved by the Supreme Court. The under- mentioned decisions' were mentioned by the previous Commission as illustrating the application of the .r_ule enunciated by the Supreme Court. -

9.3. The Commission considered it unnecessary to codify the proposition laid down by the Supreme Court. "

1. 2m: Report, page 152, note on Order 9, rain 5.

2. Order 6, rule 15.

3. Smzgram Sing?! 1?. Election Tribunal, Kohl, {I955} 2 S.U.R. 1; A.I.R. 1955 SJ}. -125, 431, para. 28.

4-. This point really concerns Order 9, rule 7.

5. Venhtztasobbiak v. Lakshmi. A.'I.R. 1925 Mud. 1274.

6. {:1} Bindu PI-amd v._ U1u'tacl.B¢nk, ALB. I959 Pat. 1152. (In) Haircut Remit Doe v. Blupiuder Sinai, All. 1962 Pun. 4.43. e {c} Km.-mra V. Tiaamaa, A,I.B. I931 K91'. 237.

L_fB[D}229L£ol'LJ&GA--Il 17;, 9.9. We have considered the matter, and avg'-1' of the VIEW that what the Supreme Court laid clown should be eodified. We §'PPT3°13t_9 the difficulty of the subject, and the desirability of balanclng consi- derations of justice (on the one hand} Eﬁalmt the 11395 ft'? EXP'-95-1' tion (on the other hand}. But, in this case, there can-'be no other alternative.

9.10. At the same time, while inserting the rule that the deft.-n« dant can join from the stage a-t which he appears, a clariﬁcation on one point would be desirable, namely, that past stages of the trial should not be re-opened. If the defendant, for esxamplﬁ. has not ﬁled a written statement, and the case has proceeded almost to the stage of judgment, the defendant cannot insist that he should be adlowed to ﬁle it. It should, therefore, be ensured that the amended rule will not affect O. 8, r. 5 and 0. 8, 1". 10.

Recommendation 9.11. We, therefore, recommend that Order 9, rule 6, clauseﬂfa); should be revised as fo11.ows:--~ Revised Order 9, rule 6, clause (a) "{1} Where the plaintifl appears and the defendant does not appear when the suit iscalled on for hearing, then----

(a) if it is proized that the 'summons was duly _ser_ved, the court may make an order that the suit be he-: 1rd.' ex:

parts; and may, if it thinks ﬁt, give a judgment on the basis that the aliegations- on fact made in the pleadings are true; ' -

[Rest as in the present rule].

{bl Cllliider 9, rule 7, should be replaced by the following : r e:--

"7. Where the Court has-adjourned the hearing of the suit after making an order that it be heard ex parte and----- - ' ' fa.) the defendant appears and assigns good cause for his previous non-appearance, the Court may, upon such terms as it" directs as to costs or'othe1'Wise. set aside the order for the hearing of the uit ex parts and hear the defendant in answer to 1: suit as If he had 'a'1_Jp_'-Eafed on the day ﬁxed for his appearance.

Cb} if the defendant appears but does not assign good cause for his previous non-appearance as aforesaid, the Court shall, upon such terms as to costs or otherwise as the court directs, permit the defen- dant to take part in the trait of the suit from the Stage at which he appeﬂts; but the proceedings at- TEG-du taken shall not be re-opened, and, in parti- cular, where the defendant had failed to file a

1. Compare 0.9, r. 7.

I I i i

-1

-ti 1 I . :

12-.

139

written statement, before he appears, he shall not ' 'be allowed' to do so after his appearance, and the provisions of Order 3,, rule 5 and Order 3. rule 10, shall apply in relation' to Pris failure to ﬁle it, not- withstanding the permission granted under. this .clause.'' .

Order 9, rule 13 and "duly served"

9.12. Under Order 9, rule 13, if the court is satisﬁed eiﬁ'2e-rti-tat-the summons has not been served, or that the defendant was prevented by sufficient cause from appearing, etc., the ex parte decree should be set aside. The two branches of the rule are distinctive, and the defen- dant, whatever his position may be in respect of one branch, is entitl- ed to beneﬁt of the other branch, if he satisﬁes the court that he has made -good his contention in respect of the other «branch;

9.13. In the earlier Report', several points were considered with reference to this rule, and amendments suggested "on endpoint,-thee broad object being to ensure that adecree shall not be set aside mere- ly on the ground of irregularity in' service, if the defendant had knowledge of the decree: Atter consideration of the points discussed in the earlier Report, we have reached the same conclusion.

It . ;

Order 9, nth: is mamas 41, rule. 11 9.14. Order 9, rule 13 empowers' a court to set aside an ex parte decree. Whether an application for setting aside an ex parte decree can be entertained by the trial court, after an appeal against the ex parte decree has been dismissed summarily by' the' appellate court, is a matter on which there is difference of opinion.

9.15. The Bombay High Cou»rt',.after stating that the majority of the High Courtsi were of the View that as the decree of the trial court merges with the decree of dismissal of appeal, the trial court can have no jurisdiction to deal with the decree, expressed its agreement with the majority view.

9.16. It was held that an appeal was always treated as a re-hearing of the suit, and it makes no diiference whether the appeal had been dismissed under Order 41, rule 11, or disposed of after issuing notice to the respondent.

9.17. The court, after referring to a Supreme Court case cited before it, said' that that case did not lay down that the decree of the trial court does not merge in the decree of the appellate court even for the purposes of review of the judgment of the trial court.

1. 2':'thRep01'b,p1J.153-154,nDteon Order 9, ru1el3and"dnlysor-rod".

2. Kontitala v. Chiba Bore, .-1.1.13'-. 196'? Bum 310 (reviews cases).

3. mg. (:1) 1Jh4mr.ti7v. Taraitunath, 12 Cal. L. J. 531 :

(Ea) Kotaimuldin 1:". Emkakuddin, A.I.R. 1924 Cal. 830;

(c) AE£t'a:m.m.u v. Otis-apt, (I954) Ker. L. Times, 322;

(d] Uauri -5'1'umka.r v. Joya! Narain, A.I.B. 1934 All. 134.

4. State of U. P. 1r. Muhammad Naor. {I959}, S.C.E. 595.

140

9.18. A contrary view has been taken by some High Courts'. $ome of the decisions make a distinction between cases where the applicant was a party to the appeal and other cases.

9.19. To settle the conflict of deeisions on the euhject, an amend- ment is desirable. The Bombay View is, in our 0p'1T11011. 103133-1. and should be adopted. H, ; J _ i .: ,._ 1,.

llecmnmandation . .

(9.20. We recommend,' therefore, thiat the "following Expleneition should be added to Drdeir 9, rule 13--- _ "Explanation---Where there -has-' been me -'appeal against 'the decree passed in the abtenoe of! the? defendant, ant! the appeal has been disposed of, mo application under' this rule"

shall he in respect of that decree."

Onier 9 and execution proceedings _ 9:21. The question how far Order 9 -applies to: exeoution:

mgs is not free from" doubt'. The general trend-of-dpinion 'isi that Order 9, rule 9 cannot be extended to exeeution -case5'with' the -help

- of section 141, and that section 151 can be and should be invoked in execution cases in appropriate- tales: We enewhowever, dealing with' the question of appearance at hearings in_ execution, by gpeciﬁc pm- visions. ' ' _ ' ' . '

1." (ca) hm 1?"eekateeubbe.zmm.'A.I.B. 1:344 _5_':'a iiiupyusn-am' Ayn: J.}.

{b] In re Ram Rubin:-n , A._I.R.. 1911.5 All. 1352. _ . _ 2- See. for emmp1e.Nemz' Ukwnd v. L-'med Mat, A.I.R.. 1932 Raj, 107.

3." See discussion as to 0. _2] rules I04-10.5 {Raﬁ}: :5 _ ' ' 5 .-.4:5 "' ._ _. .

J.-'1 CH.I'LP1I.'F.R 1!).

EXAMINATKJN. 05'. I-A_.;'.g1n'.s.,,_InL.'.l'li|Ii1_. COURT Introductory 5 5 . 10.1. Examination of parties by them at the fi t hearing-or at subsequent hearin is dealt with in, 'Or: r 10. T 'e main; object of exaznination at ,_ e ﬁrst hearing is it} ascertain how far the allega- tions made in the pleadings of one party are admitted gr denied" by the other. The object of this examination is not to elicit adznissions or to bring into being evidence, but to ascertain what.Ji;;_ the matter in dispute between the parties. Statements mﬂde at the examination are distinct from evidence given in a trial of fact. Nevertheless", if used properly, this examination is of the greatest impottance in avoiding delay at later stages. ' ' lilarlier reeoniliiendation for ;EIa..lll.illﬂ.ﬁ-_0'l1_'3.'I'i.Vﬁ1'St hearing 10:2. The earlier Repoirtfmade a Ilséifiﬂ recommendation' as to examination at the ﬁrst hearing bei11g'ma{«Ee'compulsor§*.'_We agitee, and would add that efforts at setti'émen,t'slfou1d'a1'so be=niade'at- the ﬁrst'hearing. But only one adjournment for the purpose of effecting such settlement should be granted. No statutory provision in this respect (for encouraging settlement) is required for sui s in general, but we hope that judicial officers will not lose sight of t is aspect.

1. 21th Rep-nrt: pages 14-15 para. 29.: and page 136, note on Order 10, rule 2_ . ' . L11 '.2- ..muI_zuI."w\l.L.d..=::...

' civil law'.

Cnarrirn 11 DISGOVERY it-lib INSPECIIUN Introductory

11.]. Discovery and inspection are dealt with in Order 11, which, unfortunately, is one -of the least used Orders in the Code. The object of What is called ''discovery'' is to secure, if possible, an admission of facts in aid of proof, to supply-the want of it and to avoid expense!"

Discovery of facts is obtained usually by interrogatories. But discovery"

is not conﬁned to facts, but extends to documents, and 'could he sup- plemented by orders for the inspection and production of documents.

11.2. Non-compliance with an order to answer interrogatories or to discover facts, or an order for the discovery and inspection of documents, can be visited with fatal consequences under rule 11. I; the order for discovery has" been 'complied with, naturally answer"

given by the party in response to t.h.e_ interrogatories can be used in evidence and if the,discovery relates, to documents, the documents disclosed if proved, should be valuable as evidence. It may be noted, that the ultimate source of the practice at putting interrogatories is Order 11, rule 14 11.3. Order 11, rule 14 provides that it shall be lawful for the court at any time during' the pendency of any suit to order the pro"- duction by any party, upon oath, of all documents in his possession, etc. One small question was considered in the earlier Report3 with reference to this rule. The_Commission examined the question whether an order under this rule can be passed before an application for dis- covery is made under Order 11, rule 12. The majority view'-"-', the Commission noted, was, that it can be ordered. This view is based on the words 'at any time' which occur in this rule. But a contrary view, that Commission noted, also seems to have been taken in one case*. In view of the majority opinion, the previous Commission thought that a change was not needed.

11.4. In this context, we have considered the question of adding an Explanation to Order 11, rule 14, as foIlows:--

"Exp1o.n.ation---An order under this rule may be passed before any application fo discovery is made under rule 12 of this Order."

1. 'Wig:-am': Point? in the Low of,Di:cotm15', paragraph 2, cited in Stokes' AugEo.I9uh'uu Codes, Vol. 2. page 401.

2. Story, Plsadings, paragraph 39. cited in Stoke': .inpZa-India» Codes, Vol. 2., page

402.

3. 27th Rcpont, page 156, note on Order 11, rule 14.

4. Ram H-sari v. Niranjan, 50 G.W.N. 84:5.

5. Sriniwas 1'. Election Zl'n'bu'na1, Lucknow. A.I.R. 1955 All. 251.

3. P. Veraikahomamma V. P._BaIa, A.I.R. 1958 A._]?. 157.

7. Boidyanalh 1r. Biaoionath, A.I.B.. 1923 Pat. 7337, 338.

112

I. ',-

143

11.5. However, we have ultimately come to the conclusion that no such change is needed, as the present language is sufﬁciently wide and clear to cover the point.

Under 11, rule 1»! .

11.6. With reference to Order 11, rule 14, two points were con- sidered in the earlier Report'; but, after an examination of the posi- tion, the Commission considered an amendment unnecessary. We agree with the view taken in the earlier Report. ' ' ""

Order 11, rule 21 11.7. Under Order 11, rule 21, where any party fails to comply with any order to answer interrogatories. or for deiscovev or inspec- tion of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and if a defendant, to have his defence, if any struck out and to be placed in the same position as if he had not defended. The rule further provides that a party inter- rogating or seeking discovery or inspection may apply to the Court for an order to that eﬁect, and an order may be made on such appli- cation accordingly. _ 11.8. We are of the view that a fresh suit should be barred when a suit is dismissed under this rule".

11.9. It is also desirable to provide that an order under this rule can be made only after hearingrthe other side.

Recommendation 11.11}. Accordingly, we recommend that D. 11, rule 21 should be revised as follows:--

"21. (1) Where any party fails to complv with any order to answer "interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of p-rosecution' and] if a defen_ dant, to have his defence. if any, struck out and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection H13? EPPIY to the Court for an order to that eﬁect, and an order may be made on such application accordingly after notice to the parties and after giving them a reason- able oppoftufhitu of being heard.

(2) Where on order under sub-rule 1 is 3 ' * ' the suit, the plaintiff shall be pricgudedmir-def: E:-frrigifdng fresh suit on the some cause of act«;on_" ' Order 12, rule 211 (New) 11.11. The earlier Report'-noted th t d ' made in the Fourteenth Report' to aemiadﬂiriimtlilgnciyiig? ﬁaaitggiﬁ penal costs against a party unreasonably neglecting or refusing to

1. 27th Report, page 156, note on Order 11, rule 14.

2. Compare Order 9, rule 9.

3. 27th Report, page 153, note on Order 12, m|.E- g_

-1 14th Roport,Vol. 1, pages 318-317, para 39.

14-4 admit documents (Such costs will be in addition to the costs awarded at present under this rule). After some consideration, however, it was decided by the previous Commission not to make this change, as the Commission felt that the existing provision is adequate.

11.12. We, however, think that such a provision is desirabie. Further, we think that if a document is not denied, it should be taken as admitted, unless the Court otherwise direct'.

Recommendation 11.13. Accordingly, we recommend the insertion of the following new rule in Order 12--- "

"2A(1] Every document -which a party is called upon to admit, if not denied speciﬁcally or by necessary implication, or stated to be not admitted in the pleading of that party or in its reply to "to the notice to admit documents, shall be taken to be admitted, except as against a person under disability. ' Provided that the Court may, in its discretion for and reasons to be recorded require any document so admitted to be proved otherwise than by such admission, (2) Where a party unreasonably neglects or refuses to admit a document, the Court may also award against him penal costs, to be paid to the opposite party".

1. Cf. Order 8, rule 5.

rd-M-v-3|-IIi.'W_!i--[""-"T -

.1' CHAPTER 12 ADMISSIONS Introductory _ 12,1_ A5 an alternative to interrogatories and discovery of docu- ments, a party can avail himself of the procedure prescribed 'in Order 12, of calling upon the other party by notice to adrnlt facts or docu- ments. Notice to admit facts would, in many cases, supersede 111- terrogatories, and thus save expense and delay. Notice to admit do- cuments could similarly save expense and delay of proving the documents if the documents are admitted iI1 response to the notice.

Order 12, rule 6 12.2. Where a claim is admitted, a_ court has jurisdiction under Order 12, rule 6 to enter a judgment for the plaintiff, and to pass a decree on the admitted claim {with liberty to the plaintiff to proceed with the suit in the ordinary way as to the remainder of the claim).

12.3. The object of the rule is to enable a party to obtain speedy judgment, at least to the extent of the relief to which, according to the admission of the defendant, the plaintiff is entitled'.

12.4. The rule has been held to be wide enough to cover oral admissions. The use of the words "or otherwise" in rule 6, without the words "in writing" which are used in rule 1 of Order 12, shows that a judgment may be given even on an oral admission'. It is. desir- able to codify this interpretation.

12.5. It may he noted that under the present rule, a judgment on admissions can be passed only on an application. According to a loca-l amendment"; the Court may, on the application of any party or of its cum motion, make such order or give such judgment. This is a useful amendment, and should be adopted.

12.6. In our view, it is also desirable to provide that a decree shall follow on a judgment on admissions.

Recommendation 12-7. Accordingly. we recommend that Order 12, rule 6, should be revised as fo1lows:------~ -

"5- (1) Where admissionsof fact have been made either on the pleading or otherwise ?and either orally or in writ- ing. the Court m3Y.iat _aI13r Sta.-.=.'e of »a suit. on the applica- tion of any party or of its own motion, without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think Just having regard to such admissions.

(2) Wherever a judgment 'is pronounced under this rule, a decree shall be drawn up in accordance with such 3-udg_ merit hearing the same date as the day on which the judg.

ment was pronounced".

1. [970 Haj: L.W. 5&9. referred to in the Quin quennial Digest, (I956-l9'F{l].

2. 1970 Rs]. L. W. 5549, referred to in Quinque|nj_ia.I Digest (1933.197m_

3. Sea the Patna Amendment to Order 12, rule 3._ ml .. ._ _....,._.,_.

CHAPTER' 13 PRODUCTIUN OF DOCUMENTS Introductory 13.1. Detailed rules as to production, impounding and return of documents are contained in Order 13. These rules apply also to the material objects other than documents, by virtue of rule 11. The principal provision is in rule 1, the substance of it being that docu- entary evidence must be produced at the first hearing. The main 0 ject of this provision is to prevent fraud by the party relying on_ the document and also to prevent surprise to the opposite party and to give to the court a clear picture of the case of the party concerned with the documents. A speciﬁc provision deals with the effect of non- production oi documents, and the court is. empowered to reject irre- levant or inadmissible documentary evidence. The rest of the pro-'Iri- sions in this Order really pertain to ministerial acts, such as, ﬁling the documents, numbering them and the like.

Order 13, rule 1 13.2. Under Order 13, rule 1, the parties or their 1:-leaders must produce "at the ﬁrst hearing" the documentary evidence on which they intend to rely and which is in their possession or power and which has not already been ﬁled in court, as also all documents which the court has ordered to be produced. The expression "ﬁrst hearing" in this rule has led to some controversy. It has been held by the Calcutta High Court' that this does not mean the first hearing for appearance of the defendants. but it means the hearing after the pleadings are completed and before the issues are framed.

13.3. The Madras view' is that it means the hearing at which issues are framed. The Madras High Court' observed that parties are not bound to produce the documents, until the issues are trained. -

13.4. The Madras case' of 1926 points out that the reason for having all documents produced when issues are framed is to prevenzlz fabrication to suit the issues. It has also been pointed out that it is only after the issues are framed that the parties can decide what is essential. "Unessential documents ﬁled in a case are a nuisance to all concerned".

13.5. It may be noted that the Patna and Orissa High Courts have added the following words after the words "at the ﬁrst hearing"-

"or where issues are framed, on_'the day when issues are fram- ed, or within such further time as the Court may permit".

" 1. Ashoka Marketing v. Rothas Ksmmr, AI. R. 1955 Cal. 591, 594, para. 13. {B.N. Bannerjee, J.].

2. Chiddmborom v. Parcaihi, A.I.R. 1926 Mad. 34?, 348 (Jackson, J.]. Lakelamina-raga-n-moortki v. Sunduram. A.I.'.R. 1935 Mad. 251 [Ws1ah, .I,; (on.-mg,

4. Ohidambardm v.Par1:ath£, A.LR. 1923' me". 341, 343. r us 5° 1 i-...-...g.m_._....... ._.;.t. .

----.,x 147 13.6. The Bombay High Court has substituted the following rule:

"1. Documentary evidence to be produced at or before the settle-

ment of issues--(1) The parties or their pleaders shall pro-

duce at or before the settlement of issues all the documen-

tary evidence of every description in their possession or power on which they intend to rely and which has not al-

ready been ﬁled in the Court, and all documents which the Court has ordered to he produced.

(2) The Court shall receive the documents so produced:

Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs".

Recommendation _ 13.7. It appears to be desirable to adopt the Bombay Amendment, 11'] order to make the provision more explicit'.

1. - -ihnendment not drafted.

-------..-..n----- - -

Cnsersn 14 I ISSUES Intmductory 14.1. In order that the material points in controversy? may be rightly decided, and there may .be ﬁnality in litigation, it is-essential that those points should be properly formulated; and Order 14 provi- des all that a law can provideto ensure the "the material propositions of fact or law aﬂirmed by one party and denied by the other" are presented to the court in a precise form; these propositio,ns_ are the name of issues. These material propositions are' t'o"oe"tio e d not merely from the pleadings but also from the exaniination of the parties, (for example, where the ﬁacts are not sufficiently stated in the plaint), and from answersto interrogatories, and the contents of documents produced by the parties. As has been stated', "in the course of administering justice between litigants, there are two suc« cessive objects,----to ascertain the subjects for decisions and to decide". It has therefore been emphasised, on several occasions, in decisions of the highest courts in India, that the duty of framing proper issues rests upon the judge himself.

Order 14, rule 2.

142. Order 14, rule 2 is as follows:------

"2. Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case of any part thereof may be "disposed of on the issues of law only, it shall try those issues ﬁrst, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined".

14.3. This rule has led to one difficulty. Where a case can be dis- posed of on a preliminary point (issue) of law, often the courts do not inquire into the merits, with the result that when, on an appeal against the finding on the preliminary issue the decision of the court on that issue is reversed, the case has to be remanded to the court of ﬁrst instance for trial on the other issues. This causes delay. It is considered that this delay should be eliminated, by providing that a Court must give judgment on all issues, excepting, of course, where the court ﬁnds that it has no juﬁsdiction or where the suit is barred by any law for the time being in force.

\ Recommendation _ 14.4. We, therefore, recommend that Order 14, rule 2 should be revised as follows:--

"2_ (1) Nothwithstanding that a case can be disposed of cm a, pre-

liminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.

1. Stephen. Principles of pleadings. ['7th edition], page 1.

- ' "us ' ' 149 (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue ﬁrst if the issue relates to-----

'(a') * the _iwri.sd'Ectit:|n cf' theﬁtdurrt, *5?'

(b) a bar to suit created by any law _f01r the time being in force.

and for that purpose may, if it. thinks ﬁt, postpone the settle- ment of the other issues until after that issue--has been determined, and may deal with the suit in accordance toith the decision on that issue." - .- .

| .- 4.

.,.. , ._.....,..- K... .

Cnnvrsn 15 DISPOSAL OF TIEIE SUIT AT THE FIRST HEARING Introductory 15.1. If, at the ﬁrst hearing, it appears that the parties are not at issue on any question of law' or fact, the court is, under Order 15, authorised to pronounce judgment at once. If any of the several defendants is not at issue, the court has a similar power, in 'respect of that defendant. Sometimes, it appears thafan issue of fact or law is such that the evidence hearing on it can be immediately produced. The court is empowered to determine that issue, and to pronounce judgment under certain circumstances.

Order 15, rule 2 15.2. As regards Order 15, rule 2, under which judgment is pro- nounced if the parties are not at issue, local amendments made by Madras, Andhra Pradesh and Kerala High Courts provide that wllienever a judgment is pronounced under this rule, a decree shall fo low.

15.3. We consider it proper to insert such a provision, Here, we depart from the View taken in the earlier Report' where section 33 was regarded as adequate for the purpose.

Recommendation 15.4. Accordingly, we recommend that Order 15, rule 2 should be renumbered as sub--rule (1), and the following sub-rule should be inserted as sub-rule (2):

"{2} Whenever a. judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judg- ment bearing the same date as the day on which the judgment was pronounced."

1. 27th Report, page 130, note on Order 15, rule 3.

150' 1 ! 1' i.

E .1» 1' CHAPTER 16 SUMMONING AND ATTENDANCE OF WITNESSES Introductory ' 16.1. After the defendant has been served. and the pleadings ﬁled, and the issue framed, evidence will have to be lfld [U-111955 the case is disposed of without issues). For that purpose, it becomes I_1ec .- sary to summon and compel the attendance of witnesses. This Is dealt with in Order 15, the provisions whereof are ultimately de- rived from an Act of 1353.' The body of the Code* exemtﬁs Certain persons from being summoned to attend.

16.2. As a matter of historical -interest, it 1113? be noted that 3 Central Act of 1855' provided that a person known to be of uI1s0_t1I1d mind should not be summoned as a witness without the P1'_eV1°115 conmnt of the court_ This provision was repealed when H19 EV1d£'m-'39 Act of l8"r'2 came into force. Since such a 99350" is not 3, "-'°mP9t*3nt witness under the Evidence Act, a party would not ﬁnd it useful to summon him.

16.21'-L Most of the provisions in Order 16 deal with matters of detail. We shall deal with such of them as require consideration.

Order 16, rule 1 16.3. Under Order 16, rule 1, at any time after the suit is insti- tuted, the parties may obtain, on application to the court, or to such oﬂicer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence or to produce docu- ments. The words "may obtain" seem to have led to an argument to the effect that if a party applies for a summons, the court is bound to issue it irrespective of any other considerations. The argu- ment has not been accepted in the categorical form stated above. Since it has been stated in some suggestions made to the Commis- sion that the court should have discretion to refuse to issue a- sum- mons, the case law on the subject has been examined.

a 16.4. The case law on the subject shows that the position, is broadly speaking, as follows':-

(a) It is the duty of the Court' to summon the witnesses for whose attendance an application is made by a party, and a court cannot reject -such an application on the ground that it has been made too late. It would be open to the court in such a case, if it ﬁnds that the application has been made late, not to adjourn the hearing of the case on the date ﬁred for the hearing, even though the witnesses Section 12, Act 19 of 1853.

Section 132 at sag.

"Act 2 of 1355, section 14.

. Jﬂltifrsﬂﬂiﬁtl V. .4ZEu'i.u.i£u-, A.I.R. 1922 Pat. 622.

5. (a) Haibui Gcvainri v. Balahfiahna, A.I.R. 1925 Br.-m 368. {E1} -Srtrdari La! 1'. Mehar Shayla, A.I.R. 1925 Bo11.'i T 151 "PP?

152

may not be present in court. But it is not Within the pro- _ vince of the court to refuse to' summon the witnesses for, summoning whom an application has been made before the court.

(h) But, if the application is not a bona jide one, the court may not issue a summons. ' 16.5. The position was dealt with at length in a Punjab case} The High Court observed "Order 16, rule 1, Code of Civil Procedure, entitles the parties at any time after the suit is instituted to obtain on an application to the court or to such other officers at it appoints in this behalf, surmnonses to persons whose attendance is required either to give evidence or -to produce documents. According to the proviso added by this High Court, no party who has begun to call his witnesses is entitled to obtain process to enforce the attendance of any witness against whom process has not previously issued, or to produce any witness not named in a list, which must be ﬁled in court on or before the date on which the hearing of evidence in this behalf commences and before the actual commencement of the hearing of such evidence, without an order of the court made in writing and stating the reasons therefor. Ignoring, for the moment, the proviso added bv this court, it would seem clear that a party is, generally speaking, entitled as of right to summonses to witnesses, and if an application is made for the purpose. the court has to issue the summonses, though of course if the application is belated and the witnesses are for this reason not present, the court is fully com-

petent to decline to adjourn the case for their attendance.' It may be conceded as held that if the application is not bone ﬁde and is an abuse of the process of the court, then the court may he held to he possessed of inherent power to refuse to summon the witnesses.

" ....... ..if a. party's caseis not covered by the proviso to rule 1, Order 16 and there is no want of hone ﬁde and no abuse" ofthe p-rocess of the court, then the court would not be justiﬁed in refus- ing" to a suitor process for his Witneﬁles, whom otherwise the court is competent to summon: indeed, it is generally speaking a Suit(1r'5.

right to obtain such process and thecourt is expected to render in the normal course reasonable assistance in effecting service."

16.6. No amendment on this particular point is required, in view of the position stated above.

Purpose of calling witnesses to be stated 16.7. There is, however, one matter on which an ainendment is needed. We think that the purpose of calling a witness should be stated in an application under Order 16. rule 1.

1. Jozgir SEMI; v. Sitrjon Singk, I.L.R. {£965} 2 Pilnj. 50-1-, 509, (Due. J._'|.

2. Case teferrenoea cited in the judgment are omitted here.

...,......,.... ....u . ... ..

"'11! - 1:-_-""&nH'.',;'-#5-3" v-'--"' ....'..........q-;.;..c' ;§'g..'.~..' '

--- -W bm.

"Il:'.[7--"

M .1523 Recommendation 16.8. Accordingly, we recommend the insertion" of the following sub-rule in Order 16, rule 1 [after renumbering rule 1 as sub--rule (1) of rule 1). 1 "'(2) The purpose of s-umihon-ing a witness shall be stated in ' the application under this ride".

Order 16, rule 1-! 16.9. Order 16. rule -14 provides that where the Court at any time thinks it necessary to examine any person other than a, party Lo the suit and not called as a witness by a. party to the suit, the Court may, on its own motion, cause such person to be summoned as a witness to give evidence. or to produce any document in his possession, on a day to" be appointed, and may examine him as a witness or require him to produce such document.

There is -no power under this rule to summon a party as I1

-witness. No doubt, the court can always examine a party present in Court, and recall any witness alreadv examined? The Court can also, while issuing a summons, direct that the defendant shall appear personally." But there is, in our view, need for a direct provision enabling the Court to summon a partv for giving evidence as a witness. This will to a great extent, help in stopping the malprac- tice of a party not appearing as a Witness and forcing the other party to call him as a witness.

Recommendation 16.10. We. therefore, recommend that in Order 16. rule 14, the words "other than a party to the suit" should be replaced bv the words "incluoEi.ng a party to the suit". .

Order 16, Rule 19, and Order 26, Rule 4--witnesses beyond juris- diction 16.11. Order 16, Rule 19, provides that _a witness shall not be conipelied to attend a court in person unless he resides----

(al within the jurisdiction of the Court, or {b} outside the jurisdiction but within the speciﬁed distance (roughly, less than ﬁfty miles) or, if there is an establish- ed public conveyance for ﬁve--sixth of the distance, then less than two hundred miles from the court house.

Thus. a witness living outside the jurisdiction and beyond the speciﬁed distance cannot be compelled to attend a court in person. For the examination of such persons, the Code provides for the issue of a commission under Order 26, Rule 4. But the word used in Order 26, Rule 4. is "may".

1. Clrzlnr 1"]. 1' lit': 2, marl with Order lli, rule 4.

2. Order 18, rule l'.'. -

3. Order 5. I"1]iI!'. ii. ' L,fB(D}32'Jl!rIofLJa:(lA- --12 ' 154 16.12. Now, it is obvious that where the witness is "beyond the speciﬁed distance, and yet is one whose evidence is essential, the only possible mode of examination is by commission, having regard _ to the restriction in Order 16, rule 19 against compelling him to attend in person.

The common understanding of the position isreﬂected in a Madras case'-=4 "A party to suit has a right to ask for the issue of a commission to examine a witness beyond the prescribed distance. The same ]91'1T1-' ciple app-lies even in the case of an expert witness. In Sitamma v. Subreya, 21 M.L.J. 889 at p. 390: (12 LC. T4), Abdul' Rahim and Sundara Aiyar JJ. recognised that principle and stated that the defendants were entitled as of right to the issue of commission apart from the question whether they would have ultimately beneﬁted by it. The same principle is followed and applied in Jagannsdha Sestry V. Sarathamhal Ammcl, 46 Mad. 5"r'4: [A.I.R. 10) 1923 Med. 3213. Wallace J. after considering the various decisions cited before him expressed his conclusion as follows:

The balance of authority is in favour of the View that (1) ordinarily. in the case of a witness not under the control of the party asking for the commission who resides beyond the limit ﬁxed under Order 16, Rule 1903), Civil Procedure Code, a Commission should issue as a matter of right, unless the Court is satisﬁed that a party is merely abusing its authority to issue process and (2) that it is not for the Court to decide whether the party will be beneﬁted thereby or not, that is a matter entirely for the party".

Recommendation as to 0. 26, rule 4 16.13. It would, therefore. be better if the issue of a commission under Order 26, Rule 4 is made obligatory' in such cases. ie. in the case of a witness residing beyond the limit fixed in Order 16, -rule 19, if the evidence of the witness is essential in the interest of justice. Such an amendment will give a more correct picture of what the law contemplates.

Distance mention in 0. 16, r, 13 16.14. The next question is, whether the distance speciﬁed in Order 16, Rule 19, should n-ow be increased, in View of improved facilities for transport, and, in particular. having regard to the availability of transport by air.

The existing words "established public conveyance" are. perhaps, wide enough to cover transport by air, but the question of distance applicable to air travel remains. It could be provided in Order 16, rule 19. that (ii where transport by air is available between the place of headquarters of the Court and the place where the witness resides. and (ii) the distance between the two places does not ex- ceed. saj-I. eight hundred miles (1200 kms} and [iii] the witness is paid the fare by air. he rnay be summoned to attend personally.

1. .'L.I.R.. l!J~!9 End. 495, psi-:1 2. ichiliba H-no J.}.

2. Point concerning Hider 36, H-llii 4. I

----au.a.-..-- -.5»-_«. -1'"

a.-.

._-.....e.

pg.

155

16.15. The last question concerns the distance mentioned in the rule, as applicable to _',o1.'rnE:ys otherwise than by air. Some High Courts have, by local amendments, Changed the provision in this respect, and some of the amendments are useful. It may be desir- able, for example, to increase the distance {at present two hunderd miles) to three hundred miles.' The local amendments relevant to tho (1U€'S'i:'0n of distance uI1d€1' Order 16, Rule 19 are quoted beloW:--

Allahabad:

In order 16, Rule 19{b):

(i) insert the words "or private conveyances run for hire"

between the words "public conveyance" and "for ﬁve- sixth", and

(ii) substitute the word "three" for the word "two". u['i-41-1959] Bombay: Dadm and Nagar Haveli.

For rule 19 substitute the following:--

19. No witness to he ordered to attend in person unless resident within certain limits--

No one shall be ordered to attend in person to give evi- dence unless he resides-

{2} within the local l-imits of the Court's ordinary origi- nal jurisdiction, or

(b) without such limits but at a place less than one hundred or (where there is a railway or steamer com- munication or other established public conveyance [or ﬁve--sixths of the distance between the place where he resides and the place Where the Court is situated) less than ﬁve hr ndrcd kilometres. distance from the court--house. -

(1~e11--1966).

Gujarat In order 16, rule 19(13): for the words "two hundred". substi- tute the words "three hundred". T(17--8-I961).

Punjab, Haryzma and Chandigarh Add the following proviso to Rule 19[b):

"Provided that any Court situate in the State of Punjab may require the personal attendance of any witness residing in the Punjab or Delhi State"'.',!

1. The Allahabad mill Guja-rn,t. a.me;1dmr-sit»! to Onlcr 1:"), Rule 19 (substituting 300 miles for l'2[IIII miles].

Cf. The Bombay amendment to Order 16. rule l9.

. 4.- _.. .......

156

Distance to be expressed in kilometres 16.1:3A. Lastly, opportunity could be taken to express the dis- tance in terms of kilometres, instead of in miles as at present.

Connnlssion to be issued in other cases 16.158. No doubt, even after the above amendments, a commis- sion will have to be issued in cases where the witness resides be- yond the revised distance. Though the functions of the Commissioner are of ver_=_.r limited character. nevertheless, he can make observa- tions as to the demeanour of witness.' Hence, where the witness to be examined is an expert or his evidence is otherwise likely to be of importance, it is desirable that the court should take care that the Commissioner to be appointed by it will be able to discharge his functions efﬁciently. This, of course. is a matter for the Court to consider when making the appointment of the Commissioner, and need not be dealt with by an express provision.

Recommendation as to Order 15. rule 13 16.16. In the light of the above discussion. we recommend that Order 16, Rule 19, should be redrafted' as fo11ows:--

"I9. No one shall be ordered to attend in person to give evi- dence unless he resides--- .

(a) within the local limits of the Court's ordinary original jurisdiction. or {b} without such limits but at a place less than one hundred or (where there is a railway or steamer com-

munication or other established public conveyance for ﬁve-sixth of the distance between the place where he resides and the place where the Court is situated) less than ﬁve hundred kilometres distance from the court house.

Provided tho,t--

(i) where transport by air is available between the two places mentioned above, and

(ii) the distance between the two 'places does not exceed one thousand and two hundred kilometres, and

(iii) the witness is paid the fare by air, he may be ordered to attend in person.

i. J.-rt.l1a-lrr.w' .-1.-mur1. : . Kﬂr-l-Jlrl, Ffurrznrr, [1QI'.l'U], E. l,.'|'. SM', 870, ST! ,

2. As tn 4|]JeJlr|.Im'nl- ill-nl'l1Pl'2ﬁ.. rule 2:. are ]'Iu:'n 115.13, aw,-lpra.

H Cnuvrnsn 1?

ADJOURNMENTS Introductory 1'i'.l. Under Order 1?, rule 1, the court may, if sufficient cause be shown, at any stage of the suit, grant time to the D31'tie5 01' any of them, and may, from time to time, adjourn the hearing of the suit. There is a proviso, now almost a century old,' under Which, once the hearing of witnesses commences, it should continue _(exCept for reasons to be recorded} from day-to--day, until all the wltrlesses in attendance have been examined. lf one object of this proviso is

- to avoid delay, expense and inconvenience, there is a larger object, namely, to avoid opportunities for perjury and attempts to win over witnesses.

17.2. In general, rules appljca-blc to the first hearing apply to every adjourned hearing---though the relevant rule' is not well drafted, and will require detailed consideration at the appropriate place.

Order 1'7. rule 1 17.3. Frequent adjournments of case pose serious problems. As an ideal, the great majority of cases should be disposed of on the day originally ﬁxed for hearing. But this ideal is rarely achieved. Several factors necessitate adjournments. It. is not necessary to go into those factors here. From the legal point of view, the broad situations are the following:---

{a) Where more than the average number of cases set down for trial on a day proves. to be effective and to require trial, some of them have normally to be given later trial dates. Such adjournments should not be long. The fact that on a particular day a number of cases have to be ad.

journed shows lack of care in the organisation of the business of the court.

(b) Sometimes, the court has time to try the case, but the parties themselves desire adjournment. Such adjourn-

ments with consent can be avoided. if the members of the Bar cooperate with the court in the efﬁcient and expeditious disposal of business.

(C) Sometimes, a case is substantially heard, and then ad- journed at the end of the day. Adjournments may be um- avoidable in such situations, and all that can be suggested is that the time likely to be taken should be estimated as accurately as possible.

1. See Section 158, Code of Civil Pmeedure, 1882.

2. Order 17, rule 2.

I57 in-"in 17.4. While studying the question of adjorr-nments, a distinc- tion should, therefore, be drawn betv.-'ee11 ti) adjouiiiments where cases are not reached at all on the day ﬁxed for hearing, (ii) adjourn- merits after less t.han a full da_v"s h§a1"ing, and (iii) after a substantial day's hea.ring_ The recommendation below been made. bearing this aspect in mind.

has Order 17, rule 1(2), Proviso 1'15. Order 1?', rule 1(2), proviso, enacts that when the hearing of evidence has once begun hearing of the suit shall be continued from da}r~to--clay. In practice however, this provision is rarely observed.' The need for recoiiding evidence iy_was emphasised in the earlier Report," and the practice which prevails in England was referred to. It is obviously desirable as was observed in the earlier Report that evidence should he recorded continuously without any break, except in very exceptional circum- stances.

l'i'.6. We agree with the above approach. Further. we are of the view that Order 1?, rule 1(3). proviso, should be made more restric- tive, by express amendment. The time has come for enacting speciﬁc and positive restrictions in this respect; and, in particular, once the stage of evidence has been reached, an adjournment should be granted only for unavoidable reasons. That, indeed. is the spirit of the existing rule; but we would like to give it express recognition. We would,'in the interest of expedition, also like to impose a few other restrictions on the grant of a_djDurnme'nts. The restrictions which we propose will be evident ﬁprn the draft which we give _ below.

Recommendation 17.7. We recommend, therefore; that the existing proviso to Order 1'1', rule 1(2), should be revised, as follows:w--

"provided that, (all when the hearing of the suit has commenced, it shall be continued from clay-to-day until all the witnesses -in atten- dance have been examined, unless the court ﬁnds the ad- journment of the hearing heyond the following day to be necessary for exceptional reasons to be recorded;

no adjouxrnmre-nt shall be gronted at the request of :1 party, except where the circumstances are beyond the control of the party;

(c) the fact that the pleader of at party is engaged in another court shall not be a: ground for adjournment;

where the illness of 4:1 pleoder or his inability to conduct the case for any reason other than his being engaged in another court 'is put forth as :1 ground for adjournment, the (la)

(d) ._ Hth Rep-art. '\-'ul. 1, page 3li.'J. . 27th. Report. page 15, para. 31.

l 2 adj ournmcrits' continuous- -

159

court shall, before grant-ing the adjournment, consider whether the party applying for adjournment could not have engaged another pleader in time;

(e) where a witness is present but :1 party or his plea.-

der is not present or, though present, is not ready to examine or cross-examine the witness, the court may, if it thinks ﬁt, record the statement of the wit- ness, and pass such orders as' it thinks ﬁt dispensing with the examination-ion-chief or cross-examination of the wit- ness, as the case may be. by the *pt1?'ty or pteader not pre- sent or ready as aforesaid."

. I . e..,,...,.._..... 7. , Cnaeraa 18 HEARING OF THE SUIT AND EXAMINATION OF WITNESSES Introductory 18.1. On the day ﬁxed for the hearing of the suit, the party having the right to begin is to state his case and to produce his evidence in support of the issues which he wants' to prove; the other party can then state his case and produce his evidence, and may then address the Court generally on the whole case. The party beginning will, then reply generally on the whole case. This topic--¢he statement and production of evidence»--and the mode of examining witnesses and recording their evidence is the subjeetmatter of Order 18. Most of the questions under this Order arise not from any conﬁiet of deci- sions, but from practical needs.

Order 18, rule 3A (examination of pa.rty)--[New rule] 18.2. We shall first refer to an important point regarding exami- nation of the parties. The matter was considered in the earlier Report', but, as we take a different view, we propose to discuss it again.

18.3. The Fourteenth Report" had recommended that ordinarily, a party who w-ish_es to be examined as a witness should offer himself ﬁrst, before the other witnesses are examined. The Commission, in its Report on the Code, however, considered it unnecessary to make any such statutory provision. It noted that this should be the ordi- nary rules, but thought that a rigid provision on the subject would not be desirable.

Rqcommendation 13.4. We think that the amendment recommended in the 14th Report should be carried out. Since the proposed rule will be conﬁned to ordinary cases, the hardships arising from special features of the ' case, should not present a problem. Having regard to the persistent and notorious malpractice indulged in by litigants in this respect-- malpractice which borders on dishonesty---we think that the time has come to insert a statutory provision.

Accordingly, we recommend the insertion of the following rule in order 132-

"3A. Where a party hi.»m.sel,f wishes to appear as C! witness, he shall. so appear before any other with-ess on his behalf has been ercamined. unless the court, for reasons to be recorded, permits him to appear as his own witness at a later stage."

1. 27th Report'. page 1711. Note [in Order 13, ml; 3, l:'uiu't-eentli 1ieporl.. Vol. I. page 3340, para TI, last nub-plrn. Cf. Gm'.-lint Krrirr 1'. P342-fa Si-agile, AIR. 1962 Punj. Iii), 181, . 180 101 Order 13, rules 5, 3, 9, 13 and 14 18.5. It was noted in the earlier report that the Fﬂuﬂeenth RF-'l301' had recommended'-' that a provision empowering the Judge to dictate the 1:erl;>at*-.m record of evidence should be inserted, and the Code of Civil Procedure should be brought into line with the more elabﬂr-ate provisions contained in this respect in Section 256 of the Code of Criminal Procedure.

The Commission, 1.'1II:W'&'i-'E'*I', after some consideration, felt that the existing provisions were adequate. The present wording 'under the personal direction should, in its view, cover dictation.

Point as to tapereoordiag l8.6. We are, however, of the view" that the matter should be put beyond doubt. We are, further. of the View that there should be an express provision to the effect that the evidence should be dictated directly on the type-writer. Lastly, the law should permit the evi- dence to be tape-recorded. We recommend an amendment of rule 5, on all these points. .

18.7. Order 18, rule 8, requires that when the judge does not him- self take down the evidence, he shall make a memorandum of the substance of the evidence. Such a memorandum is in addition to the verbatim record kept under rule 5. This 'dual record' is, in our view, not necessary where the J udgc takes down or dictates the evidence, and the rule should, therefore. he modiﬁed, accordingly_ 18.8. Under Order 18. rule 13. in nonvappealable cases, a memo- randum of the evidence is to be written by the Judge. Here also, dic- tation Should he provided for. Rule 14 (permitting dictation of the merno1'andL'm where the Judge is unable to make the memorandum himself in appropriate cases} should, in consequence, be omitted, Recommendation 18.9 to 18.13. In the result, the following re--drafts of Order 18, rules 5, 8, 9, 13 and 14 are suggested:--

. "5. In cases in which an appeal is allowed, the evidence of each witness shall he--

(a) taken down in the language of the Court--

{ii in Writiﬂﬁ bif. Or in the presence and under the personal direction and superintendence of, the judge, or

(ii) from the dictation of the Judge, dictation. on the type- writer. or

(b) recorded mechanically in the_tanguage'o_f the Court in the presence of the Judge."

1. 271511 Report, pages 170. 1'71, 172, note on Order 18, rule 5.

2. 14th ltepoit, Vol. I, Pages 344. 345, para. 59. 6')'. l-it}. Report, Vol. I. page 344, para. 90.

1653

Revised Order 18, Rule 8 "8. Where the evidence is not taken down in writing by the judge, or from his dictation in the open. court, or recorded mechanically -in his presence, he shall be bound, as the "examination of each witness proceeds, to make a memorandum of the substance of what each wit- ness deposes, and such memorandum shall be written and signed by the Judge and shall form part of the record."

Redraft of Order 18, Rule 9 "9. Where English is not the language of the Court, but all the parties to the suit who appear in person, and the pieaders of such of the parties as appear by pleaders. do not object to having such evidence as is given in English being taken down in English, the judge may so take it down or cause it to be tal-:_'en down."

Revised Order 18, Rule 13 "13. In' cases in which an appeal is not allowed, it shall not be necessary to take down or dictate or 'record the evidence of the wit- ness at length; but the judge, as the examination of each witness pro- ceeds. shall make, or dictate directly on the typewriter, or cause to be mechanically «recorded, a memorandum of the substance of what the witness deposes, and such memorandum shall be signed by the J udge or otherwise authent-icated, and shall form part of the record."

[Order 18, rule 14, to be omitted].

Order 18, Rule 17A 18.14. A situation sometimes arises where, after the close of the evidence -of a party's witnesses. fresh evidence is discovered which was not within the knowledge of the party. The question may arise whether the partjv can produce that evidence. The answer should be yes', 18.15. The Code has no speciﬁc provision on the point, and the matter is governed by practice. Under the Evidence Act, the order' in which witnesses are to be produced and examined, depends on the law relating to procedure. and. in the absence of a law, by the dis- cretion of the Court. The Code of Civil Procedure also contains pm. visions' permitting the Court to caller recall witnesses. And the widewording of the relevant rules,----cg. the words "at any time" in Order 18, rule 14-., and the words "at any stage of the suit" in Order 18, rule l'?,--suggests that the policy of the Code is to leave a wide discretion to the Court".

13.16. It is felt that a speciﬁc provision dealing with the situation described above, would be useful. In the rule dealing with additional evidence in the appellate Court, we are recommending the insertion of a provision permitting the production of additional evidence which was not within the party's knowledge at the time when the decree was passed. A similar provision, cove-ririg the stage before the decree was passed, would be desirable. it would minimise the number of applications for additional evidence in the appellate Court.

1. Section 136, Evidtenct-. Act-.

2. Order iii. Rule 14; Under 18, rule 17. ,

3. Sea Madkulm' 7. Amrhailai, A.I.R.. 1947 Born. 156 {case under Order 18. rule ]7]_ , 163 Recommcndatiun 18.1'? Accordingly, we recommend that the follmaring new rule should be inserted in Order IE-:----

"l'7~A. Where :1 party satisﬁes the Court that any evidence, not- 1-u'éthstandi-nq the exercise of due diJ.fge~n.ce, was not within his knowledge or could not be produced by him at the time when that party was leading his evidence, the Court may pearmit him to produce that evidence at 41 later stage, on _ such terms as may appear just."

CHAPTER 19 AFFIDAVITS Introductory 19.1. While the oral examination of witnesses in Court is dealt with under Order 18, the next Order---Order 19-wempowers the Court at any time. "for sutﬁcient reason", to order that any particular fact or facts may be proved by affidavit, or that the afﬁdavit of any witness may be read at the hearing, on such conditions -as the court thinks reasonable. But, if either party bona. fide desires to cross-examine the witness, an order authorising the witness to give evidence by affidavit cannot be made.

19.2. It is now well settled that in the absence of any agreement between the parties and in the absence of an order made by a Court under Rule 1 of Order 19 of the Code of Civil Procedure, and except in cases in which an Order is made for examination by interrogato- ries or before a Commissioner the witnesses at the trial should be examined viva. voce and in open Court'.

This rule is modiﬁed by Order 19. There are also other provisions where, in speciﬁc instances", the Court is expressly permitted to act upon affidavits.

19.3. In general, the litigating public in India does not seem ta have taken kindly to affidavits, and the words "for sufficient reason"

in Order 19. rule 1. seem to have been construed as limiting the dis- cretion of the Court of exceptional cases;---apart_. of course, from evidence given by affidavits in support of interlocutory applications where the discretion of the Court is wider.

19.4. We do not recommend any change in this Order, as the in. creased use of afﬁdavits is a matter dependant mainly on cooperation of litigants.

1. (if. Warner 1r. Jcfossea, (1380) 18 Ch. I). 10!). '

2. [rI) Order 5, rule 1§.

Hi} Under ll. rules 8 to 20.

(6) Order 32, rule 3.

(ti) 0r<.lu1"i3o. rules I and 5.

{2} Order 39, rulo l.

3. -Cf. jiatni Waseppa T. .S-umni.-i{u:1.!.;1.[.R. 1959 Iyl. 139 [Some Hath Iyer J.).

154

4-'.

Crmrren 20 JUDGMENT AND DEGREE Introductory 20.1. Under Order 20, after the case has been heard, the Court should pronounce juudgment, which should contain 'a concise state- ment of case, the points for determination, the decision thereon and the reasons for the decision. The Court must state its ﬁnding or deci- sion on every issue. unless the ﬁnding upon one or more of them is suﬂicient for the decision of the case.

20.2. Under the scheme of the Code', on a jcdgment a decree is to follow. Thereare detailed provisions as to what the decree should contain in general, as well as provisions for several types of decrees. The guiding principle behind these provisions. is that _the decree should be self--contained and capable of execution without referring to any other documents or, as has been stated", the decree is the "n1ounth- piece of the suit in its immediate result". _' Order 20, rule 20.3. In the earlier Report', -a point relevant to Order 20, rule 2, was discussed.

Order 20, rule 2 provides that a Judge may pronounce a judg- ment, written but not pronounced by his predecessor. The Commis- sion noted that though the word used is "may", one View is that the rule casts a duty on the succeeding Judge, and it is mandatory upon the succeeding Judge to pronounce the judgment written by his pre- decessor, and he cannot re-open the whole matter'. But a contrary '.'i€'W has been taken in some cases. The former View is based on the ground, that the Legislature did not intend to leave an uncontrolled and unregulated discretion to the succeeding J udge, and that a duty is cast on the Judge to pronounce a judgment in the interests of the public and to save time.

The view taken by the Commission was that the provision seems to confer a power [and not a duty) but the Code also contemplates that the power should ordiniaril_v be exercised. It considered it un- necessary to insert any rigid rule, No change was. therefore, suggested.

T. F,-'f. section 2(2). definition and section 33 of" decree".

2. Rrlnjit v. Iilrrhi. 1'13-83] I.L.R. All. 52!'). 52? {Stuart L'-.J,.fI.

3. 27th R-uplirt, note on Order 2'}. rule 2. _

4. {rt} 3'. V-mimics-u 'I'. N. S'ur-gmmryanrs, A.I.R. 1959 Anrlhra. Pradesh 16 :fD,H.'.;

iii} 2::;zrg';r2-ilrt 1'. _-Ni1£1'£.'L'|'?-"?,'i'!«1',l', I.L.R. 14 Rangoon 136; .°L.l_R-. I936 Rangmln 147, 149 i -B-):

it!) Lo-ﬂlman Pra-Md V. Ram Kiahou. I.L.R-. 33 All. 236 (K110; and Karamnt Hiisain Jul.) 155 166 Recommendation 20.4. In our view. however, it should be mandatory for the succeed-

ing judge to pronounce the judgment in such case. This will avold unnecessary delay. We, therefrzrc. recommend that instead of the word "'mav", the word "shall" should be substituted in Order 20, rule

2. Order 20, rule 5-A (New)--judg'ment to inform parties of rizht oi appeal 20.5. In order to acquaint unrepresented litigants with theiighl of appeal against a judgment adverse to them, it would be desirable to have a suitable provision to the effect that the judgment should indicate the Court of appeal and the time limit for appealing.

29.6. It may be of interest to note that the Fundamentals of Civil Procedure in the l.T.S.S_R.' pI'f.'Vld£'&--

"The judgment of the court must be legally correct and valid. The Court shall base its judgment only on the evidence examined at the trial. In any event, the judgment must state the circumstances established by the court; the evi- dence on which the court's conclusions are based. and the reasons for which the court has rejected any evidence; the laws by which the court was guided; the court's decision satisfying or denying the claim in full or in part; the time limit and the manner in which appeal may be taken from the judgment. [Rest of the article in not re1eVar1tl"-

20.7. A similar provision may be useful. To begin with, cases where both the narties are represented by lawyers may be excluded from the new provision for mentioning time--1imit and manner of appeal.

Recommendation 20.3. Accordingly, we recommend that the following rule should be inserted as rule SA in Order 20:-

"EA. Except where both the portim are represented by pleaders, the Court shall, when it pronounces judgment in .3 case sub- ject to appeal, inform the parties present as to the court to which an appeal lies and the period of limitation for ﬁling an appeal."

Order 20, r. 6, and registered address--R.ecommendation 20.9. The question whether a provision should be inserted to the effect that the decree" should mention the address for service {conse- quential on the proposed addition of a rule requiring a pleading to be accompanied by the registered address). was considered in the 27th Report". but no amendment was regarded as necessary. We think that the decree should contain it. We, therefore_. recommend that Order 20, rule 6(1} should be revised as follows:----

"(ll The decree shall agree with the judgment; it shall contain the number of the suit. the names and descriptions of the parties. and their registered address and particulars of the claim. and shall specify clearly the relief granted or other determination of the suit."

1. Article 37, Fitndamoiitals of flicil Procedure of the U.S.S.R. and the Unlon Replillliﬂ 1961.

2. 271;}; Report, page 1'7] , not. on 0- 20, 1-. ti, and registered address.

167

Order 20, r. EA [new]----(Last paragraph of the jllﬂﬁlﬂeﬂt) 20.10. Under Order '20.; rule 6, a judgment has to_ followed bit' a- decree," which is the "formal expression" of th_e adgudgcation of the Court. The Code does not contemplate a lone interval between the judgment and decree. But, in practice. the interval turns out to be long, with the result that the ﬁlling of an appeal against the decree is delayed, because an appeal has to be accompanied by a Copjrof the decree'. We think that this delay could be avoided if a provision is inserted to the effcct that the last paragraph of the ]'|.1dﬂIT'1E'Y1t should be framed as precisely as a decree, so that it 'can be used for the purposes of appeal. We had. in our Questionnaire". inserted a question on the subject, and the suggestion has been generally favoured.

20.11. This last paragraph of the judgment could. we think, he used also for the purpose of execution, (though this aspect was not mentioned in our Questionnaire).

Recmnmendatlan 20.12. Accordingly. we recommend that a new rule should be inserted in Order 41. as follows'.--

"EA. (1) The last paragraph of the judgment shall in precise terms indicate the relief granted.

(2) Where a decree is not drawn up within one month of the date on which the judgment is m-orr.o1.mced---

Ca) 0. party desirous off appealing may appeal. idithour ﬁIi.n_a a copy of the decree. and the last paragraah of the iudgment sho.1I_ for the purpose of rate 1 of this, order be treated as the decree: and

(b) the Inst paragraph of the judgment shall be deemed to be the decree for the purpose of execution, until a decree is drawn up, and a party interested shall be entitled to a com; of that paragraph without'. being re-

quired to apply for a copy of the judgment."

20.13. We now turn to a minor matter concerning the copies. of judgments. Where the judgment is typed. it would be desirable if carbon or xerox copies of the judgment are made available on pay. ment of prescribed charges. We recommend. accordingly. that the following rule should be inserted as Order 20, rule 6B:--

"SB. Where the judgment is typewritten. copies of the judg- ment, type-toritten or xerox, shall be made available to the Dartrfes immediately after the pronouncing of the judarrtent, on payment of such charges as may be laid down by the Htgrllz Court, where the su.ppI1__: of such copieg is p7'(]_Cﬁ.. ca 2."

1. Urder 41, rule 1,

2. Question 2|}.

168

Order 20, Rule 11 20.14. Order 20, 1'L.'--le 11, which deals with instalments in case of money decrees, consists o[ two parts. Under sub--rule (1), the _C0111f't can, for suflicient reason, order that the money be paid his' 11}5l31' ments, or may order postponement of recovery. '_I'h_1s power is to be exercised by passing a separate order', unless it is incorporated 111 the decree.

We think. that is more convenient if it is iaid down that----

(i] the order should be incorporated in the decree";

(ii) the power is exercised after hearing the parties who have apnearcd personally or by pleacler at the last hearing before t.he judgment.

Sub-rule (2) of this rule authorises the court to make an order for payment by instalments after the decree. But this requires con- sent of the deerec--holder_ With reference to this sub-rule, it may be noted that some local amendments" provide. that where the court pmtioses to pass an order for payment by iiistalments, the decree- hc-.1der shall be given an opportunity of being heard, but his consent should not be required. One result of such an amendment would be. that the court has to exercise a judicial discretion, and the order would be appealable under section 47, as has been held in cases under the similar Madras Amendment'. ' 20.15. The Commission, in its earlier Report" considered the question, whether such a change need be made. It took the View that the present provision is a good and just one. We agree with this view.

Recommendation 20.15. In the result. the only amendment required is in sub--rule {1} of Order 20. Rule 1]. It should be revised as follows:_ "{1} Where and in so far as a decree is for the payment of money. the Court may, for any sutﬁcient reason, and after hea1°in._q such of the parties as were present at the last hearing, direct by its decree that payment of the amount decreed shall be postponed, or shall be made by instal- ments. with or without interest, notwithstanding anything contained in the contract under which the money is pay- able."

"Order 20, rule 12 20.1'?. It has been suggested by a High Court Jrdge' that clause

(c) of Order 20. rule 12, should be removed. This suggestion has been made as a measure likely to reduce delay.

J. .l".**n;-:1:-ti'): V. Firum Jfrzl. .l.l.P.',. I928 Lali. 931.

Till-.= will I1'l.-'l.l{!.'-/ll" amnr-.a|::l1|e as part of deer:-r-.

'-titre .'~Iadra.s anrl '.\":i-.:psIr- -imenrlnl-?:1ts.

2'-5Ttli Report, tisice l'i"-3. Note on Orrlnr 2|}, Rule 11. 27th B:-port pa.iz_c 172.

El. Nci. 28 (in answer to Qtiestimt 29].

?'F":*":"'.'~T' T _..-a

-...-...g---..-1 mn-

L'?

169

20,13, It should, however, be pointed _out that the power to pass a preliminary" decree directing an inquiry as to H1953}? P1"°ﬁl55"' which is the procedure laid down in Order 20, rule l2{c}--1s a useful one. Of course, it is not obligatory' in law~--see the word 'may' 111 Order 20, rule 12. But as possession will be delivered after the decree, the proﬁts for the interval have naturally' to be P1'0Vid_|'-'Cl fﬂri and since the parties do not furnish the material for calculating the pro- ﬁts, it becomes necessary to grant time. acceptance of the Suggestion, thelrefore, is not recommended, as it W111 not be of much practlﬂal uti ity.

Order 20, Rule 12]! {New)-----Execution of document or endorsement of a negotiable instrument 21.19. Under Order 21. rule 34, where a decree is for the execu- tion of a document or for the endorsement of a negotiable 1nstru~ ment. and the judgment-debtor neglects or refuses to obey the decree. the d-ecree--holder may prepare a draft of the document or endorse- ment in accordance with the terms of the decree, and deliver the same to the court. The court shall, thereupon, cause the draft to'be served on the judgment-debtor, together with a notice requiring his objections (if any) to be made within such time as the court ﬁxes in this behalf. Where the judgment--debtor objects to thedraft, his ob- jections are to be stated in writing within such time, and the Court shall make such order approving or-ialtering the draft, as it thinks ﬁt. The rule, then contains elaborate provisions as to further action.

20.20. Further, as regards suits for speciﬁc performance of con- tracts for the sale or lease of immovable property, the Speciﬁc Relief Act provides'-

"{3} If the purchaser or lessee! pays the purchase money or other sum which he is ordered to pay under-the decree within the period referred to in sub-section (1), the court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any 9f the follow. ing reliefs, namely';-

(a) the execution of a proper conveyance or lease by the vendor or lessor;

(b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease."

20.21. An elaborate' provision regarding the decrees for speciﬁc performance of contracts for sale or lease of immovable property was suggested in an earlier Report" of the Law Commission. The recom- mendation there was to the effect, that complete relief (such as, pos- session, etc. I'e_Scission. refund of-earnest money, etc.) in such a suit should' be available by application -in the suit itself (instead of in execution as at present), and that appropriate provision should be made in the Civil Procedure Code enabling such applications to he made and orders thereon and also for appeals,

1. Section 23(3), Speciﬁc Relief Act, 1953,

2. 'Jill Report [Speciﬁc Relief Act}, pages 40-41, 42, para. 81, read with pages 6----IT, para 35. ! I ' _ - = n .,..;t .. .......,........ .._._.._.

170

2[],2?,_ The matter was considered in the 2?th Report, where it was noted'--

"It is considered, that so far as a provision authorising the making of an application and orders thereon is concerned, section 28 of the Speciﬁc Relief Act. 1963 (read with section

22) would be adequate. So far as appeals from such orders are concerned, the orders, it is considered, would fall within the deﬁnition of "decree" given in section 2(2) of the Civil Procedure Code. It is thought, that the only speciﬁc. pro.

vision which is required is to the effect that the decree should specify the period fdr payment of the purchase- money or other amount due under the decree."

Order 20, Rule 1523, (New) 20.23. We are of the view that where the decree orders the execu-

tion of a document or --for the endorsement of a negotiable instru- ment, the proceedings for signing the document etc., should be completed in the very suit in which the decree is passed?

Recommendation be 20.24. Accordingly, we recommend that the following rule should added in Order 20 as" rule 12B. - e [0]. 0.21, R. 34(1)] "12-B. (1) Where the Court passes a decree for the execution of a document or for the endorsement of a negotiable ins- trument, and the judgment-debtor neglects "or refuses to obev the -decree; all subsequent proceedings provided for in this rule shall take 'place in the suit.

- [:C'_f. 0- 21, R. 34:2];

(2) The decree--ho1der may. on such neglect or failure by the judgment-debtor, prepare a draft of the document or en- dorsement in accordance with the terms of the decree and deliver the same to the Court.

[c_r. 0.21, R. 34(3)] .

(3) The Court shall thereupon cause the draft to he served on the judgment-debtor, together with a notice requiring his objections (if any) to he made within time as the Court ﬁxes in this behalf. - ' .

[C[f. 0.21, R. 34(4)] (4) Where the judgment-debtor objects to the draft, his objec- tions shall he stated in writing within such time, and the Court shall make such order approving or altering the draft. as it thinks -ﬁt, -

1. 27th Report, page-172, note on Order 20. rule 12.

2. Cum scqiiently, Order 21, rule 34 should be deleted. 3' As to Under 20, rule 123;, see 27th Report, page 53 and page 172.

n...n._p»-u -.-----:-..-

-r '\- I. :

9-1' 17] [qt 0. 21,_ R. 34(4)] p {5} The decree-holder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamp-paper if a stamp is required by the law for th time being in force; and the judge or such officer as 111 3r be appointed in this behalf shall execute the document so delivered.

[Cu'. 0.21, R. 34(5)] (6) The execution of a document or the endorsement of a negotiable instrument under this rule may be in the follow-

ing form, name1y:-- ' "C.D., Judge of the Court of (or as the case may be) for A.B., in a suit by E.F. against A.B."'. and shall have the same effect as the execution of the document or the endorsement of the negotiable instru-

ment by the party ordered to' execute or endorse the same. [67, 0.21, R. 34{B]} _ ' ' (7) The Court. or such oﬂicer as it may appoint in this behalf, shall cause the document to be registered if its registration is required by the law forthe time being in force or the decree-holder desires to have it. registered, and may make such order as it thinks fit as to thepayment of the expenses of the registration.

MfB{D)21ﬂi\Inf[J&CA---12s , .. ,..,. ......._ .._ .

Cnarrnn 21 EXECUTION , Introduction 21.1 Order 21 contains detailed rule as to the execution of decrees. .

The body of the Code itselfdeals with certain matters relating to execution'. But the detailed procedure is dealt with in Order 21. Payments and adjustments of amounts due under a decree must be certiﬁed to the Court to avoid controversies later on. Various modes of execution are provided for. In practice, attachment and sale are the most common. " ' ' ' ' The rules require an application-for execution to be-in writing, and in the prescribed form. Most movables are attached by seizure effected by a process-server under the authority of a warrant; im- movables are attached by an order served on 'the judgment-debtor, forbidding him to deal with them. Ifthe property -is not susceptible of actual seizure from the possession of the jud ent debtor--if, for instance, it is a debt payable to-the ﬁqdgrnent ebtor--a prohibitory order is served on the person in possession or controls.

21.2. Attachment may be followed by an application for its remo- val by a third party, and the present rules require a summary in- quiry and order, which may be followed by a suit to establish the right denied in the summary proceedings.

Before attached property is sold, notice must be given to the parties, and a proclamation issued containing the particulars prescri- bed. The proclamation must be posted on the court house, pro- claimed by heat of drum near the property, and the court may re- quire publication in a newspaper. The proclamation gives the date of sale, which must be at least ﬁfteen days in the case of movables, and thirty in the case of immovables after the proclamation has been published. The sale is usually an auction conducted by the bailiff, an oﬁicer of the court in charge of property under the con- .tI'01 Of the 601111. and of the process serving staff. The bailiﬁ has a discretion to refuse the highest bid or postpone the sale. In the case of movables, the property passes at the fall of the hammer but the rules governing the sale of immovables are more elaborate. The Judgment-debtor may secure postponement of the sale if he can satisfy the court that he may: be able to raise the money to satisfy the decree by 'sale, lease, or mortgage of the attached property, or otherwise. If the property-

is knocked down, the succe f 1 Hold ' ' d ' one-fourth of the sale price ﬁnd hds ﬁlter: ldaaliylél lghggerfoigi °n§y the balance. The judgment-debtor may still save his property if wIi)th3:

in thirty days he satisﬁes the decree and pays the successful bidder

1. Section 3'7, at say.

172

*-1'v'!'!'.¥ '-

i'!-'i 173 one-twentieth of the sale price, Any erson interested may_move to set aside the sale for material irregu arity or fraud in pub11sh1ng'or conducting the sale, and the successful bidder may apply to set_as1de the sale because the judgment--debtor had no saleable interest in the property, but, failing a successful appflicatlon of the kind ilﬁdlﬂllfﬁd. the sale is conﬁrmed by the court, which may order the purchaser to be put in possession. Resistance by the Judgment-dehtor 01'_3_I1Y other person acting on his behalf may be p'uIi1shed by civil imprison- rnent, but a person unconnected with the Judgrnent-debtor and 111 possession on his own account who has been evicted may_app1y, to be reinstated. ' ' M ' Order 21, rule 2, and limitation , _ 21.3. A point relating to limitation for applications -under Order 23, rule 2, was discussed in the earlier Report', and should be-men- tioned here.

The period of limitation for an application for certiﬁcation of payment or adjustment is 30 days under the Limitation Act, 1963, article 125. Since the provision in the. Civil Procedure Code regard- ing certiﬁcation is now proposedto be made more stringent than at present (by requiring" -that the payment should be in the manner provided in Order 21, rule 1 as proposed to be amended or that the adjustment should be proved by documentary evidence}; it was con- sidered that a longer period should be allowed. It was, accordingly, recommended that the period -should-' be increased to 90 days". The 14th Report' recommended that the period should be deleted, but it was not considered necessary to go so far.

While we agree that the neriod should be longer, we think that 60 days should suffice, and we recommend"_ that the Lirnitation Act should be amended accordingly." ' _ Order 21, rule 2(2) and Sureties c '_ .

21.4, In the earlier Report', it was noted that under the Madras amendment to Order 21, rule 2, any party to the suit c'an"c'ertifi,r' and get recorded a payment or edjusmient. Besides. this, by the Madras amendment, a person who has become a surety-as well aslegal re- presentatives of the judgment-debtor are also brought under this rule. These Tarnendrnents were considered in'ethe earlier Report, but it was felt' that it was unnecessary to adopt them.

21.5. The Commission stated that so far as sureties are concerned. even now, they fall undertthe rulef.-Sq far as legal representatives are concerned, section 1,46 was adequate, in its opinion; No change was, therefore, proposed, on these points.

1. :3i'th Report, page 177, note on Order 2], rule :3 and limitation.

2. See 27$]: Report. omendmalt roponani in Order 21, rule 2.

3. If-'f. Limitation Act, 1908, art e17-I. '

4. 14:}; Report, Vol. I,poge4-14, PM-a.28. _

5. This wi]lnecessitateamendmentofm-tiole 125,Li1nitotion.Aot19i53. '

5. 27th Report, [rages 1'74-175. Note on Order 2!, rule 2.

7. {rﬂ Trmril V. Devi, I.L.E. 49 Mod. 325.

(El) Dnkormoi 1'. Nriiya, A.I.R. 1923, 'Cal. 313.

._.,..-~.

174

We are, however, of the view" that so far as sureties are concern- ed, the Madras amendment should" be adopted, so as to make the position explicit.

Recommendation Accordingly, we recommenduthat in Order 21, rule 2(2), after the words "The judgment-debtor", the words "or any person who has become surety for the judgment-debtor" should be added.

Order 21, rule 5, Mode of transfer 21.6. Under the earlier half of Order 21, rule 5, where the Court to which a decree is to be sent for execution is situated within the same district as the Court which passed such decree, such Court shall send the same directly to the former Court.

Br;-t under the latter half of the rule, where the Court to which a decree is to be sent for execution is situated in another district, the decree is to besent through the distinct court. It was noted in the earlier Report', under local amendments" in casewhere the courts are situated within the same State. the decree can he sent for execution to the transferee court directly, instead of through the District Court as is required by the present rule. The previous Commission, how- ever, considered that the District Judge would be in a position to know and check up if the court mentioned is the proper court. and did not, therefore, favour an amendment.

21.7. We are of the view that the local amendments referred to above are useful, and we do not think that direct transmission of papers should, ordinarily. cause any difficulty. We are also of the view' that in every case of transfer of a decree for exemition (whether within or without the State), the decree should be sent to the trans- feree court directly, But the court to which it is sent should, if it has no jurisdiction, send the papers to the proper court.

Recommendation I 21.7A. Accordingly We recommend that Order 21, rule 5, should be revised as follows: -- -

"5. ....... .. Where a decree is to be sent for execution to another court, the court which passed such decree shall send the same directly to the former Court, whether or not the former comxt is situated in the same State, but the court to which it is sent shall; if it has no jurisdiction to execute the decree, send it to the court having such _1'ru1isdiction."

Order 21, rule 11(2) 21.3. Order 21. rule l1{2)(j](i'1) or-ovides for mentioning "attach- ment and sale" or "sale without attachment" in the application for execution. It does not expressly mention simple attachment. The local amendment madﬂ hi? the Bombav High Court adds the words "by; the

1. 27th Report. page [79, note rm u-3], r, 5, .

2. See amendments made by the Allahabad and Bombay High Gum-t,g, «-4

-175 attachment". Cases of simple attachment may arise when a. decree or debt or money in the Custody of a public officer, etc.. 15 1:0 be attached_ It may also be noted, that section 51(b) covers attachment simpliciter' . ' 21.9. The earlier Report" considered it unnecessary to adopt the Bombay amendment, as the re-siduary clause in rule 11 would suffice. We think, however, that the Bombay amendment could be usefully adopted.

Recommendation 21.9-A. Accordingly, we recommend that Order 21, rule 11{2)(j)(ii} should be revised as fol1ows:--- ~ "(ii) by the attachment, or by the attachment and s_ale,,, or by sale without attachment, of any property."

Order" 21, rule 16 - , 2l.9B. As recommended under" section 146," it is desirable to amend Order 21, rule 16, to make it clear that it does not affect the pro- visions of section 146, and a' transferee of rights in the subjectanatter of the suit can obtain execution of the decree without a separate assignment of the decree.

Recommendation 21.9.0. Accordingly, the insertion of the fol1ou_:_ing,Explanat_ion below Order 21, rule 16, is recommended:---- ' 1 "Exp-lanation--Nothing in this rule shall aﬁect, the provisions of section 146, and a transferee of rights? in the property which is the subject-mdtter of the suit may apply for'e.recution of the decree without a separate assignment of the decree, as required by this m1e."' Order 21 rule 22A 21.10. With reference to execution of decrees, a point concerning the effect of death of the judgment-debtor was discussed in the earlier Report'. The ordinary rule is, thatjhe sale of a judgment-debtor's property after his death, and without bringing his representatives on record, does not bind his representatives. The Patna High Court has added iule 22A, to the effect that where property is sold in execution, the sale shall not be set aside try reason only of the "death of the judgment-debtor between the date. of issue of the sale proclamation and the date of sale, notwithstanding the failure to substitute. legal representatives. But, if the legal representative is prejudiced, the Court may set aside the sale, The earlier Commission noted the above position, but considered it_'unne-cessary to adopt the Patna Amendment. ' ' _ ' .»l1»mtJ'._g,vr.: 1:. Pashujiaii, A.I.R. l95l.Ca,l, -18, 50, para '7.

:lTth Report, page 181), note on U . 21. r. 11(2) and Bombay Ameiidment. , See discussion as to section 1-16. V 27:11 Report, page 134, note on Order 21, rule 22A Patna.

2'?-'°."'* 116 Recommendation 21.11. It appears to us, however, that such an amendment would be unobjectionable in principle, and would also reduce delay, and we recommend insertion of the following as Order 21, rule 22--A:--

"22--A. Where any property is sold in execution of a decree, the _ sale shall not be set aside by reason only of the death of the judgment-debtor between the date of issue of the "pro- clamation of sale and the date of sale, notwithstanding the failure to substitute his legal representative in his place; but, in case of such failure, the Court may set aside the sale if satisﬁed that the legal representative of the judgment-debtor has been prejudtced thereby."

Order 21, rule 24(3) ' 21.12. Under Order 21, rule 24(3), Ia' process issued by a court {in execution) should specify the day on or before which it shall be one- cuted. After the date ﬁxed for return, execution is not valid'.

. With reference to this rule, a short point was discussed in the earlier Report'. The Commission noted that some High Courts had made local amendments', which remains thatthe day on or before which the process should be returned, should also be .speciﬁed in the process. The Commission considered it unnecessary to adopt this amendment. being of a minor character.

Recommendation 21.14. Accordingly, .we recommend that Order 21, rule 24(3), should be revised as follows:----' _ "{3) In every such process, a dagshall be speciﬁed on or be- fore which it shall.,be executed, and a day shall also he speciﬁed on or before whiohit shalt be returned to the court but no process shalt be deemed to be void if a. day for ' its return is not speciﬁed as required by this rule." _ .-

Drder 21, rule 25 21.15. Under Order 21, rule 26(1), the Court to which a decree has been sent for execution shall, 1.1p'on' sufficient cause being shown, stay the execution of such degree for " reasonable time. to enable the judgment-debtor to apply to the. co rt by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution thereof, fo'1'..an order to stay' execution, or for any other order relating to the decree or execution' which might have been made by such court of first instance or appellate court if execution had been issued th .reb1V, or if application for execution had been made thereto. Underfsub-rule (3) of this rule, the court may require security ftom the judg"ment--debtor, or imnose other conditions, before granting stay.

1. See Gurditti v. E-mp. . I.L.R. 55 AlI.l19;A.I.R.1933 All. 46 {Pollen J.}.

2. 27th Roportr, page IHJ, note on the [l- 21, rule 24(3).

3. See also Civil Jiiet-ice Committees Report, {1925}; page 406, paragraph 13, to the same ct. ' I .__..,..._...u.».... ....\,...--w ..,.

\«-I 177 21.16. In the earlier Report, t]1e following observations' were made with reference to stay (under this rulelzﬂ "A recornrnendation has been made in the Fourteenth Report' ' to the effect that where a judgement-debtor applies for stay of execution under this rule, the court shall require him to furnish security or impose conditions under the rule, before granting stay. This recommendation was made in view of the feeling that the courts failed to discrimi- nate between honest and dishonest judgmentdeh-tors and thus failed to exercise properly the discretion left to them. It is, however, considered that the existing provision should continue, and that making ,it mandatory would cause hardship.

Hence, no change is suggested".

We are. however, of the view that the change proposed by the 14th Report is a salutary one, and should be carried out. Recommendation 21.17. Accordingly, we recommend that Order 21, should be revised as follower-

"(3) Before making an order to stay execution or for the resti-

tution of property' or the discharge of the judgment--debtor, the court shall require such security from, or impose such conditions upon, the judgment--debtor as it thinks ﬁt."

rule 26(3) Order 21, rule 29 21.18. Order. 21,_ rule 29, runs as"follows:--

"29. Where a' suit is pending in any court against the holder 'of a decree of such court, on the part of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks ﬁt, stay exe~ cution of the decree until the pending suit has been decided." a 21.19. At present, there is a conﬂict of decisions on the question whether the decree must be of that court which is required to act under this rule. One View is that a court to which the decree of any other court is transferred. can 'act under this rule. But another line of cases takes. a narrower view'.

The wider View bases itself on the principle that the transferee court becomes the "court" which passed the decree, (section 37), and W0'-lid Under 5305011 42,- become clothed with the some powers. The narrower View justiﬁes itself on the language of the section. which requires identity of the court passing the decree and the court in which the suit is pending.

17 37th Report, page l2-K5, Note on (1,231. 1-_ 25_ 2? LI-til RL']'H'Il't VOL I Page 449, ]'u1;ra, .j:3_

3. H'-.o also (iii-il-I11:-zt.ico fl-iiiimittcc H925). Ii-cport, page 406, para. 14.

4. See cities cited in 27th 'I-I-ipnrt, iiage IE5. 18-G.-note on Order 21, rule 29.

178

To clarify the position, necessary change was U1'0D0SE'd 31 thﬂ earlier Report' on the Code, adopting' the wider view.

21.20. With this change, we agree. But there are a few other points which require consideration.

It has been stated in one of the replies: to Our Ql1ESl10m13}1'€ that this rule is not needed, as the purpose can be served by obtain- ing a temporary injunction. We have examined the Ihatter, but it appears to us that the scope of temporary injuﬁctlons is d1f'i'e1'eI1t. A ternporary injunction is not directed to a court. but to aI1_1I'1_d1V1- dua1"_ Apart from that, the rule which relates to temporar_=,r_1n3ur1c- tions', speaks of propertzr being "wrc-ngfully" sold in execution of_ a decree, while an applicant under Order 21, rule 29 does not necessarily' assert that the execution is wrongful. One of the objects of _the I'_111e is to prevent multiplicity ofexecution proceedings, and this object may be of importance even if property of the person who is now the plaintiff is, (inhis capacity as a judgment-debt01"l, being lawfully sold in execution.

21-2011. Another point made in the same rep1_\,* is, that the rule is being abused; but we do not think that deletion of the rule would be justiﬁed merely on the ground of occasional abuse. Situations that have ﬁgured in reported decisions' show that the rule does per- form a useful role.

21-20B. For example, in a Madras case", the respondent was the assignee-decree--ho1der, and the petitioner was a woman. She was the plaintiff in a suit, and her suit was for damages against the assignee-- decree-holder, for havingbroken his agreement with her whereby he agreed to receive, in satisfaction of the assigned decree, certain bonds and to get satisfaction entered up. She desired stay under rule

29. The lower courts took the view that rule 29 did not apply to the facts. The View was set aside in revision. No opinion was expressed Ennl the merits, but the facts illustrate how rule 29 could prove use-

u .

21.21111 another Madras case', a proceedings before the single judge was by the appellant bank for an interim order of stay pend- ing the appeal, with regard to the decree obtained by the respondent (widow of the deceased employee of the bank), embodying the liabi- lity of the bank to pay certain provident fund amounts to the credit of that employee. The bank claimed that the deceased emplogreewas guilty of malversation of the funds of the institution to a far greater extent than the claim; and that, therefore, the widow could not ob- tain such a decree, or at least that she should not be permitted to

1. '.'7t-]1 Report, pzigu: lb'-5-l-S6, note on Ortlc-1: 31, rule 29.

2. Q1195-_t.i0n 29.

3. A.I.R.. was Lit. 220, 221.

4. Iflrrler 39. rule 1.

5. {tr} ."lftIF.Ieah CF14-mdrrr 7. .Ir:grr=w-frrx, A.I.R. 1928 Cal. 222.

[I5] ,-'lfnrrfm-nfa H4-H7; V. D. A mi.-ml, .='i.I.R.. 1963 Mad. 143, 1-14.

3. Kottnrtmniut v. Jlfegfiiwtiireziaunzsultt-m5. A.I.R. 1936 Mad. 102, 103. '3'. Meroﬁanrs' Bank Ltd. v. D. Ammt. A.I.:a. 1903 Mad. 143.

la-

1'79 enforce the decree and take away the monies Pen'-'U112 13119 3DP§?E11 by the bank against the decree in the widow's suit. No cross-claim by the Bank was pending, and rule 29 did not apply. But the facts Illus- trate how_ if the situation was under rule 29, it would have been useful.

Security also cannot be required in every case.

As was laid down in a Rajasthan case'--

"While granting stay of execution under Order 21, 1' 1116 29. the court should consider various circumstances before_decid- ing that security should be furnished up-to the entire de- cretal amount of the former suit. Where the former decree is passed on a mortgage, some security is already there. The court should enquire whether that security is sufficient or not. If it appears that the security is not sufficient, Such further amount as might be necessary to make up the deiﬁ- ciency may be asked. Further, it should also enqulre whether it is possible in the earlier suit for the decree- holder to ask for a personal decree."

However, it can be provided that ordinarily, before _s_ranting stay of a money decree. the court shall consider if securlty ought not he demanded.

Recommendation 21.23. to 21.25. In the light of the above discussion, -we recom- mend the following change in Order 21, Rule 29:-

(i) After the words "a decree of such court", the words "Dr H. decree which is -being executed by such court" should be inserted".

(ii) The following proviso should be inserted at the end:----

"P-rovided that if the decree is one for payment of money, the court shall, if it grants stay without requiring security, record its reasons fo1r'dUi.n_q so."

Order 21, rule 34 21.26. Order 21, rule 34 should be deleted, in View of our recom- mendation" to insert in Order 20 a rule dealing with proceedings for the execution of a document or for the endorsement of a negotiable instrument.

Order 21. rule 41 21.27. Order 21, rule =11. provides for oral examination of the judgment--deb-tor in order to ﬁnd out his assets. The Commission in the earlier Report made a recommendation for the filing of an atti- davit by the judgment--debtor'.

1.. Ifumsrrtj V. S134'--21.-;Jr»'i.£ri,, .-\.[.R. 1957 Ra-j. 219, (Waueliou (.3.-I". .-ind llavc =3 .) "2. Cf. t.|1u.- recoiriniendatinns in the 27th Report.

3. See riisottssion as to Order 21}, rule 123 (Prupoed).

4. 27th Report, pages, 188-189, note on Order 21, rule «I-I.

- . .,..,..__=._,. ._ . .:

180

The Commission recommended that where a judgment--debt re- mained unpaid for 30 days, the decree-holder should be entitled i0 call upon the judgment--debtor to make an afﬁdavit of his assets. The ﬁling of such an afﬁdavit was, in the opinion of the Commission, much more effective than the examination now in vogue, as the de- creeholder (at present) attended the examination without any prlor knowledge of the debtor's assets and liabilities.

21.28. The following sub-rule was accordingly recommended to be added:----

"(2} Where a decree for the payment of money has remained unsatisﬁed for a period of thirty days, the court may, on. the application of the decree-holder, order that the judg- ment-debtor, or in the case of a corporation, any officer thereof, shall make an affidavit stating particulars of his assets; and the power of the Court to make -any such order shall be without prejudice to its power under sub~rule (1]".

It was however, considered unnecessary to make any speciﬁc provision as to the penalty for failure to make the aﬂidavit in such cases. The Commission noted that the Evershed Committee had sug- gested' that the notice should be endorsed with a "penalty notice"

under Order 41, rule 5, Rules of the Supreme Court. Neglect to make the aﬁidavit would, thus, render the judgment-debtor liable to a process of execution for compelling him to obey it. This would attract the provisions of Order, 42, rule 7. R.S.C.. providing for writ of attachment, or committal.

_ Recommendation 21.29. We agree with the earlier Commission's recommendation regarding the duty to file an afﬁdavit. Further. we are of the view that a penal provision is necessary, in order to secure compliance with the new duty.

Accordingly, we recommend that the following should be added' as sub-rule (3). in Order 21. rule 41:-----

"(SJ In case of disobedience to any order under sub-rule [2], the Court making the order, or any court to which the proceeding is transferred, rrmu order the person disobeying it to be detained in the civil prison for a term not exceed. inq sin: months, unless in the meantime the court directs his release." ' Order 21, rule 5'?

21.301. With reference to Order 21, rule 57, the earlier Report' considered one point. It was noted. that-where an application for exe- cution is dismissed either by reason of the decree-holder's default or otherwise. the Question arises whether an attachment already

1. Final Report of the (Tnn11nit=t«eo rm Supreme Court Practice mul Procediire, (1953). Crud .

paper 8873, pages I-15-l »1fi_. paras. -£53-454 ainrl form ofaﬂidavit at page 376. _

2. This is in addition to the anienduient suggested by 27th Report in Order 21, rule 4].

3. 21th Report, pages 106-10?, noteron Order 21. rule 57.

$4 181 effected ceases or not. At present, the case where the decree-holder's default entails dismissal of the application 15 covered, but other cases are not. (In the former case, the cessation of the attachment is, at present. compulsory). Local Amendments" to the rule seek _to impose an Obligation on the court to direct, in each case of dis- missal, whether the attachment is to be regarded as continuing 01' not.

21.31 In some of the local amendments (e.g. Bombay and Madhya Pradesh}, it is further provided that, in the absence of an order to the contrary, the attachment shall cease. This is intended to avoid doubts which are felt sometimes as to whether the dismissal was in fact, for "fault".

The earlier Commission, however, considered it necessary to adopt these amendments, as it was felt that where the execution application is dismissed {for default), the attachment must cease.

It appears to us that there is need for a clariﬁcation; and we are further of the view" that cessation of the attachment should "not be automatic. It is more convenient if the provision istor the effect that the attachment should continue uI1l:.f."! otherwise ordered. ' Recommendation 21.32. Accordingly. we recommend that Order 21, rule 57. should be revised as follows: --

":37. (1) Where any property has been attached in execution of a decree, and the Court, for any reason. passes an order dismissing the application, the court shall direct Wheth,e_r,..

the attachment shall continue or cease.

(2) If the court omits to give such direction, the attachment shall be deemed to contznue."

Order 21, rule 58 21.33. With reference to Order 2l,srule 58, the earlier Report" dis- cusssed a number of points. Of these, the position regarding one 'of_ them has been further examined. .'I'h¢_Rep0rt considered the question of making an express provision as to whether the proceedings under rule 58 et seq and the decisions given thereon will be binding as between the judgment-debtor and a third party claimant. The answer to that question, it was stated, would depend on the question,--_who are the parties to suit. and what are the matters raised therein?' We have examined the position -and, it appears to us that the view taken in the earlier Report" needs no change.

1. (If. the Amenriment:-. made by the High Courts of Calcutta, Manirss. I Nagpur, Patna etc.

2. Sec (Li vii J11st.Eci- Committee{1!l25}. Rs-port, page -1 01"}. para 22.

3. 27th R-sport-_. page 198. _

4. Reference was ma-dc to A.I.R. 1957 21.1'. 61.

5. For 3 recent decision, see I.L.R. (1966) ]; All» I01, 103.

182

Urder 21. rule 66 21.34. A point concerning Order 21, rule 66, which was discussed in the earlier Report' requires consideration.

A recommendation had been made in the 14th Report" to the effect that to avoid the difficulties caused by mistakes in the estimated Value of the property as stated in the proclamation of sale, rule 66 should be amended on the lines of the Patna Amendment, so as to provide (in effect) that the court should state merely the estimated value of the property, if any, as iven by the parties, and insert a statement that it does not vouch or the accuracy of either. It was considered by the Commission in the Report on the Code that it would be sufficient to adopt a simpler amendment, namely, that -the proclamation should merely contain a statement that the estimated value is stated.

Recommendation 21.35. We agree with the view taken in the earlier Report on the Code, but we would suggest a small drafting change in the draft amendment suggested in that Report.

Accordingly, we recommend that the following proviso should be added below Order 21, rule 66(2)(e):--

"Provided further that nothing in this rule shall be construed. as requiring the court to enter in the proclamatﬁon its own estimate of the value of the property, but the proclamation shall include the estimates, if any, given by either or both of the po'rties""'.

Order 21, rule 72 21.36. With reference to Order 21, rule 72, a point was considered in the earlier Report. A recommendation had been made in the Fourteenth Report' to the eﬁect, that a decree-holder should be allow- ed to purchase property unless the court has prohibited him from doing so." The object of the recommendation was to avoid the delay that is frequently caused when the warrant of sale is returned unexecuted in the absence of bidders. An amendment carrying out this recommendation was proposed in the draft Report on the Code which had been circulated. Comments received thereon, however.' emphasised the need for the court being aware of any proposal by the decree-holder to bid. The earlier Commission thought, that there was force in this approach, and a decision was taken not to disturb-

the existing rule.

We have Considered this matter further, and have come to the conclusion that the approach in the earlier Report on the Code was correct. Hence, no change is recommended.

. 27th Report. page EULI, Note on Order :21, rule £36 and nlraft rule, ]u,1ge B9.

. 14th H.epur1', Vol. I. p.-igr-. -"154. para ﬁtl.

. The first pmvisln to he added as reoommcmletl in the 27th Report, page 69, will stand. . 27th Report-, page 2l.I'.7'., note an 13-21, r. 72.

. 14:}; Report, Vol. 1, pages. 4:35, 45?, para 57.

. See also Uivil Justice Committee [1925], Repnrt, page 410, para. 2-1.

Girl-I-'-3-3LQ*--'i f._.,.. ..,._.,.........

183

ﬂrder 21.» rllle 72 21,364.. We have considered the more fundamental question it rule 72 should be retained at all. The object behind this provision is to ensure fairness in the auction. The decree-holder, if interested in purchasing the property himself. can, conceivably, keep back or dis- coura/ge (or eveii mislead) prospective purchasers. Ordinarily, the fetching of a higher purchase price would be in his interest {as likely to satisfy his claim without further execution], But, it should not be forgotten that when he is the purchaser, this consideration takes leave, and he--like every purchaser--would like the price to be low. To a certain extent, he has a hand in initiating" the sale, though not so in theory. It is he who obtains the proclamation of sale; and, though the rule in Order 21 do not so require, it is he who is expect- ed to assist, and even to guide, the process-serving staﬁ in various matters concerning execution----e.g. afﬁxation of the proclamation etc. He also estimates the price. For these reasons, it is better to keep the existing safeguard.

Order 21, rule 72A (New) 21.37. A new rule discussed but not recommended in the earlier Report' may be usefully considered at this stage. The Commission, in that Report, noted that Order 21, rule 'l2A, had been added by the High Court of Bombay, to provide that if leave to bid is granted to a mortgagee, then, as regards him, a reserve price shall be fixed. (unless the Court shall otherwise think ﬁt), which shall not be less than the amount due on principal, interest and costs in case the property is sold.

The history of the Bombay rule is interesting. The Subordinate Judge of Haveli wrote a letter to the High Court of Bombay in 1913, stating that this was the practice followed in the mufassil, and as the rule could not now be made under section 104, Transfer of Pro-

perty Act, it should be made under Order 34. The Rule Committee ' recommended that the old rule 2|] of the' Supplementary Civil Circu- lar No. 11 should be restored." In the absence of such a rule,' the mortgagee can (under a general permission to bid) recover in execu- tion the balance from the mortgagor or from his estate, if the amount for which the property is sold is less than the principal, etc. due to him. a 21.38. The question whether this amendment should be adopted was considered by the earlier Commission, but it felt that a rigid provision of such a nature was not necessary. It apprehended that to a certain extent, such a provision ma detract from the remedy of the mortgagee under Order 34, rule 6 a so.

We have carefully considered the matter, and have come to the conclusion that the Bombay Amendment is a healthy one. We _do not think that it will detract from Order 34, Rule 6, because the decree- holder can, before seeking permission, consider whether the property is likely to fetch the total amount due to him.

l. 27th Repmt, page 2112, note on Order 2, rule 72A {Bombay}.

2. Hon. rlisoussion in I-'rrrjh.d v. Vmk-ataawwmi, I.L.R. 52 Bum. 459; .-LLI-t. 1923 Born. I23, 125 ﬁliort-en, CAT. and Blackwell, J.].

\ _.,i- -.._T.-. _. -.

18-;

Recommendation 21.39. We, therefore, recommend that the principle of Order 21, Rule 723., as inserted by the Bombay Amendment, should he adopted. Apart from the general rule' requiring the decree--holder to obtain leave to bid, it is our intention that for the special case of mortgagee, leave should be required as above.

The following new rule is, accordingly, recommended- "72A. (1) A mortgagee of immovable property shall not bid for or purchase property sold in execution of a decree On, the mortgage, unless the Court grants him leave to bid jar , or purchase the property.

(2)

shall ﬁx a reserve price as regards the mortgagee, and, un- less the Court otherwise directs, the reserve price shall he-

(a} not less than the amount then clue for principal, inte- rest and costs, in respect of the mortgage if the pro- perty is sold in one lot; and

(b) not less in respect of each lot (in case the property is sold in lots) than such sum as shall appeal to the court to be properly attributable to that lot in rela-

tion to the amount than due for principal, interest and costs on the mortgage.

(3) in other respects, the provisions of sub-rules (2) and '3) of rule "F2 shall apply in relation to purchase by t e decree-holder under that rule." -

Order 21, rule 89----period of limitation 21.40. An application to set aside a sale on deposit under Order 21, rule 89, has to be/made within thirty days of the date of sale.' It has been stated that this period roves to be too short in practice, and often causes hardship inasmu as the judgment debtor cannot arrange for moneys within that time. Banks take a far longer period than one month in sanctioning advances, and it has been suggested that the period should, therefore, be increased. We ﬁnd some force in this suggestion, and are inclined to accept it. No doubt, the law should take into account the position of the' purchaser also; but, since ﬁve per cent" of the purchase money has to be paid to him under the rule, no serious prejudice is likely to be caused to him by an increase in the waiting period.

21.41. Since section 5, of the Limitation Act does not apply to g applications in execution, a change in the law is needed if the above hardship is to be removed.

1. Order 21, H-ulv 72.

2. Iﬁmitation Act, IQE3, article 127.

J Ijleave to bid is granted to such mortgagee, then the Court '

i 1 >'-.*-

*0'riIe; 212 I'I'I1é-.+":"'='c"'.'.*':*1!%I?*I'*'It = »- 5: .

_to the conclusion that the rg¢og'1i' ' . on- the Code, ' 135 As to the d1rection"£1i"4.t#1iréI!i" tiie ihi%i'r"s1hdo'1a ﬁe a=naénded,'r1&ia're are two alternatives. One-.altcIrn&tiv¢.'is .-to;give the court a power to extend the period of limitatic:e1,.;eubjm:t.,: of course to some maxi- mum. The second alternative would be,to increase the period--30 days--to, say, sixt:,'r'da':,rs_. The ﬁrst'd1terﬂativ'e'cou'Itl"l5'é achieved by inserting aiproviso soilnewhatlpn the 'following lines'-

"Providcd that,» where the Court. is-satisﬁed that the applica-

tion could I'1Dtg'fCII' reasons 'beyond the control of the ' . judgment debtor-, be made Withine the..period prescribed §=»«in.f:in t.hat,l1ch_alf'hy the1Lirz1i:ation'Aot.=;1963, the Court.m_a§', by order and for reasons _ato'be recorded, extend the,_said period bysuch further pariiod as may be speciﬁed by it, so however' that the_preso1'ibed:pori-ad and the extended period shall not exceed sixty idays in the aggregate."

The second alternatitre couidilzie achieved by amending. articie 1-2?l-Ibf the-Limitatiion Act-.-"We. prefe-1*'the second alternative,-which »i.-?.sirnP1oer_ '=-*- - : = . .

21.42. Although the-problem .has. arisen with reference to appli- cations 'by the 'judgment-debtor,--t11e=iune:iiied'5:eriod. has to cover all applications, (i.e. those'unde1i'0rdcr'i31,-<rl1le.9[]~91 also), 'because after the proposed amen _ ,nt,_the court will have to wait in every 'case for,the'increasedi',1jerii') ']oét_o-;~e__p_ti:iﬁrn1_in,-g the sale.' : 1:' - v -' Reeommendetioo ' 'm .. p »a_ = -_ ' "-21.'12ﬁ..---.$COOI'd1'.l1g1}"[:- wearocomlninﬂ thetdn the Lirnitation Act, 1963, in the Schedule, in the-second-.oo1u.mn, -against-entry 127, tor the words "thirty days", the worddéiei-xty days" should be substi- tuted.' _ .+.

- an .,:;.f 5' '"

21.43. with' i-'eﬁercncls to*'0rtb1|' =21-;i' }u1é-so; the earlier Report dis- cussed' one point. A recommendation had been made in the Four--, teenth Report' to the eifect, that a person app1ying=to:isemanide uthe sa.1e,_unde<r .rL_l1e,._ Slip Id be c e to deposit an amount not' exceeding 12;' perBOcentt}:f5'_ o," £ 3 price,}-which "amount 'can be utilised for awarding costs iftie é'p%§§ca'Eioﬁ fails. But the Commis- sion (in its-»Repoet=on the Code)-Letated «that as theamount of such costs wouidmot he -very: large, «it thlrunnecessany to carry out this recomrnendation. I 33.! -. - -

Recommendation ""1" - '.:;E ,1." his 1» :21.-1.'-IA. We. have examined t e ,_t_ter further, and have come ,_ Jtjﬁn made _in the 14th Report _ ' ﬂthe "view" taken in the Report need not be carried "out." We agree '

1. To be carried out. in the Lirnitation Act, 1963.

2. 27th R '1-ort, page 205. Note on 0rdq.21,;1-ole 90 and tlepoift.

3. 14th Report, Vol. 1, pages 454, 451. para 5}.

I..,fB(D}229Mof LJ&CAa14 \

-»--- -m--nu-'-

186

Order 21, rule 30. and absence oi.' attaehmt 21.44. Another point concerning Order 21: rule 90, which..Was discussed in the earlier Report may be-noted.' The Commission noted' that the question whether absence or, or irregularity in, attachment is, a defect in the 'publication or conduct of the sale' within Order 21, rule 90, had been discussed in several decisions. At one extreme was the View that attachment is not neces- sary at all, before sale. At the other extnerne stood the View that sale without attachment is void. A third View was that want of attach- ment is an "irregularity" but it is not an illegality in publishing or conducting the sale, According to the fourth view, a sale is not a nullity merely because of a defect in the attachment or want thereof, but, if it causes 'substantial injury', it can be set aside under rule 90.

The Commission thought that the last view was the correct one. The object of attachment (it stated] is to bring the property under the control of the court, and, in the 'case of immovable o , one of the requirements is that the order of attachment - be publicly proclaimed. The main object of the proclamation is to give puglicity to the fact that the sale of the proclaimed roperty is in contemplation, The publication ofuthe attachment, is, hus a step leading up to the proclamation of the sale.

The Commission also considered the question whether it was necessary to insert a provision to clarify the position on the sub- ject. In fact, in the draft Report which had been circulated, an Explanation had been proposed to rule 9|] to the effect that absence of or defect of an attachment shall be regarded as an irregularity under this Rule. After some consideration however, it was decided that no such provision need be inserted, 21.45. It ap ears to Us that to put the matter beyond doubt, it may be advisa e to insert a speciﬁc provision on the subject and the provision should be to the eifect that mere absence of or irregularity in attachment shall not be a ground for setting aside the sale.

Recommendation 21.46. Accordingly, we recommend that the following Explanation should be inserted below Order 21, rule 90- ,_ "Explsnation--The mere absence e or defect in attachment 01 the p-roperty said shall not of steel)' be a ground for setting aside a. sale under this rule."

Order 21, Rule 92(3) 2l.4'f. The question whether an auction purchaser at a court auc-

tion, on ﬁnding that the ju { ' nt debtor has no saleable interest in the property sold, has a» ri t to sue for a refund of the urchase money on the ground of fai ore of consideration, has pr to be a controversial one.

1. 27th Report, page 206. note on Order 21.

2, qr. Order 21, rule as.

'u.-._ -nu --<-

187

Three different shades of View prevail on the subject--- (1) No such right is available.

(2) Such right is available. _ (3) Such right is available, but only on limited grounds, 21.48. The ﬁrst shade of View is represented by a full Bench deci- sion of the Andhra Pradesh High {;our-t,' which holds that the auc- tion-purchaser cannot, after the conﬁrmation of the sale, maintain an application for setting aside the sale on the ground that the judg- ment-debtor had no saleable interest in the property sold."

Referring to Order 21, rule 92, the Court held that alter the sale is conﬁrmed, and had become absolute, the auction-purc'hascr is pre- cluded frorn bringing a suit to set aside the order conﬁrming the sale. It was also held that -Order 21, rule 93 empowers the purchaser to apply for payment only in cases where the sales are set aside under rule 92. Here the rule diﬁers from section 315 of the Code of 1882 (its predecessor}, which contained the provision that even when it was found that the judgment-debtor had no saleable interest in the property sold, the purchaser could receive back his purchase money. This was omitted in_ rule 93.

The Court held that---

(a) There is no scope for invoking the doctrine of "money had and received" since it could not be postulated that the executing creditor received money which he had no right to do, and,_ by a legal fiction, the receipt by him was for the use of the plaintilf.

{b} If no one had guaranteed the title of the Judgment-debtor to the property sold under a legal process and the pur- caser had purchased only the judgment-de~btor's interest therein for what it wag worth it could not be predicted that there was any failure of 'consideration for the urehase of that, or that the judgment-creditor either unjust 3* or in- equitably had withdrawn the amount de sited by the purchaser. The question of failure of consi ration would arise only if there 'was a convenant of title. In the absence of it, the principle of money had and received would be inapplicable, and the suit for return of money cannot be sustained on that ground.

(c) "Sales in invitum" do not involve a covenant of title. [d] The -purchaser accepts the property with its risks, and the rule of "caveat emptor" applies, to these cases.

(e) As a necessary corollary, he has no right of recovery of the purchase price, except as contemplated by the provi- sion; of -Ondew: 21, Rule 91 read with rule 93.

1. .%'urynJcrrnr1tr::n.mrr v. Domgya, A.I.R. 1965 LP. 239 [F.B.].

2. To the some elfact. is Ngzrgptm P1'll_tzi v. Gopuhn, A.I.'E. 1967 Ker. 145. L{B\'D)229Moi' LJ.&;C'.A--1-1(3) 188' 21.4813. The Court thought that p:-ritapsi the reason why the legislature (in enacting the Code .of; M-Z|,{]$)_,_th<_)a_1,ght it ﬁtto take away the remedy of suit and to limit the scope of the relief envisaged was that the right of suit invo1vc"s»deLa'y_.'=uncertainty -and often hardships to execution creditors, andgthat the quick.and.inexpen- sive remedv provided by the said rules aﬁord adequate 'and equi- table relief: to the purchaser, by iligwing h_.i.I_n to get out of the diﬂi-

culty before the conﬁrmation of L . ,_ g T. Brit the rjg'ht to recover 'the'au'd{ion--fJrice inbrease of'fr:itid'a!t1d t misrepresentationﬁwhich had' indlhcecfithe puridhaser to"Hﬁ'wr pro-

perty, stands on a diiferent fooiifig,' sales" were -hé51'd*'to=£ai11 outside Order 21, and would be within the provisions of the Indian Contract Act. T " " " ' ' 21.48B. As regards the second shade of view, reference may ;be made to a Madras Full-Bench case,-'.:3.vhich strikes -a divergent note, R-amesam J., (who delivered the -judgment of the Ful1»i._Beh1ch), observed: - - - t = : , 'Io - . " ;..; » ;.L, j;

"Taking the ﬁrst: quéstio'r1,"' viz., .whethBr','the' ti'e'spondent'=_'is entitled to Q iefundat all Eveht 'bv '»Va'_';"' 'of .31! suit, the "($155- tion depends upon the .right of 'the parties 'as_-they w out of the circumstances of the case," and not" upon whether a provision for such a suit is, made in the Civil Procedure Code. The Civil Procedu're"Ct')de is 'a 'Code of objective law, and cannot create-rights; of nctionrrthough it-may recognise. thbmlﬂr: takers thiem-:»awa3n,-- Forgetting for a moment all teohnioaiitiestnand thencodes of Proce- dure, one would thitlkiolliﬁhexfacts that the -auction pur- chaser should have a ri'giitr.'ofi action.-for..In9I1e:5,* had and received" . I I 21.480 A" Calcuttaicasei 'eontainls which represents both the second and the third? shzidea -of. View-.. The _C0u1't, while referring to the situation of the» auction-purchaser,.aI1d the argu- ment' that h_e"sho_u1d have -a righ1:|.oa£-' suit, 07bSeI'\'£'d-1'-.

"H it did rt Peri uitiitthti *1: "ti 'gbtrttrr *° oss resu _ng ro __ _ co us n_a_ ' e een an execution rt:i'e__,itor' 1i'1'1'tf""_tf1"e'_ jt1_dg_me'iiti'dé'd'Eaor, and yet ,remain with ut r_e<i_r ﬁs. '?$u}:',_' "a'gajnst';'o '_'sustained in such circums 'noes, ' la' ? oes notédﬁ é him defence- less, and the auction ' re '_se _rk_1av_ 'the purchase price which he had ea1:i'i'1PE.=_-'*catit' tirtnj-giﬁnfseir Within the eqsitarr "$"°i""'*i£""i°"" trittr rt ittgotsoatts an 1- ceive upon e, un ,1. 1 H g i that the fendtin shoitﬁ-Yiétairi the money 115' against the plaintiiig hat, I ink, retire true position at the auction- purchascr under_%the' 1atv"1'q:on principle-.anu;i,;aPart.from any st_atutor_v'r!1ght lwluch hesmay possess t.-_E'here 15 au- thority=aleo'for=-the views that where' an auction-purchaser '; ' 2:7 3 L

1. .-'lfoc-Ptri Koundrm -.-. Koim-:1 K-mtmt, A.T.R.. toss Mad. so {r.13.;.

2. Riskee case. 1'. your J.-Ioﬂa, A.I.R. 1925 04.971, ova. ' 3. See Dorutl riﬁly Khan V. Abdool Azeez, (1887) 3 Gal. 8115;-5 LA. 13'-(P.C.,'r.

-

u

-.'- -1"'-' --" ' -.- .

5+ 139»-' at a Court sale has suffered loss through the fraud of the execution creditor or the breach of any duty which the execution creditor owes to theauction-'purchaser, he is en- titled to receive compensiation for the loss which thereby he has sustained.'''-"-". " T ' Recommendation _ ,_ 21.48D. Whatever he the correct |view on the existing language, it appears to us that something should be;.dpne to improve the si- tion. No doubt, to perrnit the auctirgn-purchaser,, to sue for re und from the decree-holder, is to add to the troubles ofsthe decree-holder, and thus to delay execution. But that seems to be the only possible alternative. As "between the decree-holder and the auction-purchaser, if some one has to suﬁer, the? =fo1'mer"should-suffer.

It may not be feasible for 'the court to inquire into the title of the judgment-debtor (at the time of _the proclamation), in an elabo- rate-n1anner;,but_that does not answer. the basic question, namely, when a sale l1eld'b_v a Court an;d;¢,ul,1niu_at_ing in a certiﬁcate issued by the court is held to be a nullit3a1_fpr,§ifant of title, by reasonof a _ -

defect discovered after expiry «of e-period for making objections under rule 91 etc., is it justice to dispose of the purchasers grievance.-

hy saying that the puurchaser purchased the property at his peril? The decree-holder should - re-imburse -himrfor the loss suﬁered by him, because'-it is the decree-holder-it whose-instance the sale was held. The abstract principle that there is no warranty at court sales fails to yield a just result in this case. ' The auction-purchaser should have atright to sue the decree- holder. Where a third party chal1e1'?Ig'es ithe judgment-debtor's title by ﬁling a suit against the auction 'Pk'rch.aser- thadecree holder and judgment--debtor should be necessary parties, and in that suit the court shall direct -the decree-holder torefund the money to_ the auction-purchaser." ' " = i If such a decree is passed the original execution proceedings shall be revived at the stage where the sale was ordered,.uI1les§.t_hﬁ Court otherwise directs, This provision is necessary to avoid compli- cations-asto limitation. _» _ _ p_:_ H E . -

Recommendation ' --' - .r 2 . - -

21.49. We, therefore,sreoom1'l1erli'.I that the should be added '_Orde'r 21', rultei :-{--'.":__ ' 1 "[5] Where 1; third pt;lT'l_5y','Cl'til,ll«i*11:_q'¢as "the judgment-debtor's E title _By ﬁling a. suit agiimst th _ auctzonrpurchaser, the decree-holder xmdvthe, ju_dgiJeerit--de_l)tor-shall be necessary parties' to the suit; ' ' ' ' ' (6) If the suit referred to in sub-rule 5 is decreed, the court shall, direct the decree-holder -to refund the money to the auction-pure-hnser, and, where such on order is passed, the .e=9et'uf-iion oroceedirtg in which the sole had been held shall, unless the court otherwise directs, be revived at the stage at which the sole ordered." _'

1. See Dn_:m,! Krishna .va;m{{«. .-.lmirf»1-|Lai.' oss,{1.ooe} I.L.n.,e9 on. 370.

2. Parmtilti l-1-mmai 2:. Goviad'asami_PiLl_op?, (1o1_o):I.1..1t. 3D_Macl. ass. 7

3. Btdvant Begkumtlt v. Hula. A.l.R. I922 Bani. 205.

following sub-rules .. . . ,..,.. ........ ..- .

H "V '-1 190 Order 21, Rule 102 21.50. With reference to Order 21, Rule 102, the earlier Report' discussed one point. Order 21, Rule 102 provides that nothing in rules 99 and 101 shall apply to resistance or obstruction etc. by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person. The earlier Commission noted that the words "a person to whom the judgment-debtor has transferred the property" had created a conﬁict as to whether an involuntary sale is caught by these words. One View is that they are caught. 3"' It has also been held that the proper remedy of such a person is to raise the matter under section 47, and that he has no locus stundi to maintain an application under rule 100 or to sue under rule 103.'-5 A contrary view, however, has been taken by the Patna High Court," on the ground that since o-ld section 333 of the Code of 1882 was adopted at a time when the doctrine of tits pendent: had not been extended to a transfer in execution, rule 102 cannot be given the extended interpretation which section 52 of the Transfer of Property Act had received.

21:51. The previous Commission-, however, did not suggest _a change. as it was of the opinion that the former view could prevail.

Recommendation 21.51A. We agree with the previous Commission that the wider view will prevail, but we would like to codify the view. Accordingly, we recommend that the following explanation should be inserted be- low Order 21, Rule 102-

"Explanation----In this -rule, 'transfer' includes rr transfer by operation of low".

Order 21, Rule 103 21.52. Under Order 21, rule 103, a party (not being a judgment- debtor} against whom an order is made under rule 98, rule 99, or' rule 101, may institute a suit to establish the right which he claims to the possession of the property; 'out, abject to the result of such suit, if any. the order shall be conclusive. The period of limitation for such suit is one year'. Now, the question to be considered is, whether it is necessary to institute a suit within one year, or whether a decision in a pending suit can be availed of. if it involves the same question. . 27th lleport, page 22119. note on 0rdm' 3], Rule 102.

Nageodru North 1'. Ram Kriahaua, .~LI.R. 1960 Cal. 209.

. Bepiw Uha.1idra- v. Hem. chanatra, A.I.B. 1939, Cu]. 709.

Hiram. Ckrrnd v. .M'oo10fw:nd. A.I.B.. 1934 Lah. 457.

. Rnjoru!-nam. v. Shaikh Hans. Bi, A.I.R. 1926 Mad. 968.

. (rt) Hrrriher Pmsad v. Lokhoitlal, A.]I.I-t. 1935 Pat. 230.

{5} Hum: Darya Pmsad Roe v. Krishna Boo, I.L.R. 24 Put. ems; A.I.B.. 1943 Par. 134.

7- Article 1l,Limit-:I-tio11Aot, Iﬁﬂﬂmidoorrecponlhigartiole 1'.nt|1ol9ﬁ3Aet.

Gimgamgaw /.

'L . "'-.r""x -- -

v 191 According to one view, the policy underlying Order 21. 131119 103. Civil Procedure Code is to have speedy settlement of the C11-1*'-'5t1°n Of W91'? raised in execution----sales, and what m_akes the order conclusive under Order 21, rule 103, is not the failure to institute a suit, but the failure to have the right established. Where a suit or an appeal al- ready ﬁled by the claimant is pending at the time vrhen an order under Order 21, rule 98, C.P.C_ dismissing his claim is made, it is not, according to this view, obligatory to ﬁle a suit under Order 21. rule 103.

Two single Judges' decisions of the Madras High Court'-" took this view, holding that the institution of a suit under Order 21, rule 103, is not the only remedy against the Order under Order 21, rule 98, and that the rule only contemplates the establishment of a_ right to the property to supersede the order. But these decisions, 1t has been stated'' should be deemed to have been over-ruled by the Full Bench decision of the Madras High Court,' which has held that the provisions of Order 21, rule 103, are mandatory. and the 530151011 in 3 claim petition is ﬁnal unless the party aggrieved takes the course indicated in the rule by instituting a suit.

21.53. In a Calcutta case' the Court stated that Order 21, rule 103, does not at all refer to the necessity of obtaining a decree of a court within one year, and all it requires is the ﬁling of a suit within one year. It was held in the Calcutta decision that the summary order was superseded by the decree passed by the trial court in a pending suit within a. year.

In the Madras case of 1969', it has been observed that the Cal- cutta decision would lead to an anomalous result. If the passing of the decree is delayed beyond one year by one day, the party would suffer through no fault of his own.

21.54. In this state of the case-law, it is necessary to make a clariﬁcation. The Madras view and the Calcutta View represent partial truths. On the one hand. the Calcutta view may, it is true, lead to,.difﬁculties where the judgment of the court of ﬁrst instance is given within a year, but the proceedings are prolonged by reason of appeal and the appellate judgment is pronounced beyond the period of one year. But, on the other hand. the Calcutta View has the merit of avoiding duplication of proceedings, because it is illo- gical to expect a person to ﬁle another suit when he has already ﬁled a suit for the very relief contemplated by the rules. The whole diﬁiculty is caused by the rigidity of the Dre.-sent provisions, whose language leaves out of consideration a situation where a suit is already instituted and pending. That lacuna should be remedied' by providing that where the person affected has already instituted a suit to establish his right, the order shall be subject to the result of any such suit.

. Prilditfppu v. Ifmnuaurdiny, A.I.R. 193? Med. 582.

. ["mmmi.al.h V. Pedru Hausa. A.I.R. 1950 Mad. 1'9; [11]-193 M.L.J. 286. . .S'iru:r:zme.n V. P..1f..S. Mudaiiar. A.I.R.. 1969 Mad. 166.

. Scethnoemtz v. Koiareddi, A.I.R. 1969 M9.d..5S6 {F.B.) . Gopimm 7. .'5'ewa:n(r'!1tJ, A.I.R. 1960 Cal. 580.

. Supp-in n. 4 _ .' Similar amendment may be desirable in Order 21 . rule 33, which contains an annlogru one PEI'! ~..'rF101'l.

-l@Ibl|F-lﬂl&r--

- ......... _.......,.. .. .

192

\ Recommendation 21.55. We recommend that_ Order 21'; rule 103, should be_re'vised soastureadasfollows:------- _ H. _, "ms. Any party not being. a .j.w;1g1nent-debtor against whom an order is made under rﬁle 9ﬂ,..ru1e 99 or ru1e.10'l may institute a suit to esfaablis nhesright which he clalznsuto the present possession uﬁuproperty; but, subject to such-

suit {if any), and subject to the result of any suit which may be pending on the date-on which the ogder is made and in which such right :is -in issue, the order shall conclusive".

0.21, Rules 104.105 (New}--;~Heai'ing..}of P1-ooeed.in'g§,' = 21.55. 1: is now well settled dim' 'owin to the ndn-applicability of the provisions of section 141 to" ace' ' on proceedings, Order 9, also does not apply to" execution 'prance dings. The result ha's"}3een that the courts have foundjit diiﬁcult td."dé'c'ide the circi1mst'a\i1ee%'ii'1 which an application for execu'¢idn' dhh 'be'ﬂismiss€d for non--&p- pearance, or. if a court has dismisse-d*a:n.app1icatio-n' for nDn-appear- ance whether the court, in the-..absence.of =an3r specific provision re- garding" the restoration in the C..P.C., 're_tton:e-such- application. They cannﬂtebe restored under -().-.R. 9, as .=tl1at:-rule does not apply to execution proceedings. ' ' ._ . ' 3 - - -

The situation has been proposed to be dealt irith by {He earlier Reporf where two new ruies were inserted to" deal with the hear- ing of applications for exeicuﬂihn. We ag'I1!e'wit_}1 this recommenda- tion. No other amendments are necessary in -this 'regard.=- i

1. Similar a1nenrImeI1l be 111:1-Llc in Order 21. Rule 63.

2. 271.11 Report, page 72, draft 0- 21. R. 304.105 [New], and discussion at page 210.

V':

is _ VCHAP'IV'ElR _ DEATH, MARRIAGE AND -INEOLVENCY UF PARTIES Introductory I -' I = - -

22.1 Various "incidental proceedings" are dealt with in Orders 22 to '26. Theiﬁrst is dealt with in Order 22, 'relating to procedure in suits 'when a party dies, marries otlbeeomes iI'1solvent,- or where otherwise there is an assignriient of tlrdinterest of a part}! in the subject-matter of the suit. These'I111les' were origi'na1ly'taken from the Common Law Procedure'-Act'-lands from the relevant Rules of Courts in England. ' - * Scheme of Order 22 i. I _ i . . -- -

22.1A. Very brieﬂy stated, the "sol-ietiie of Order 22 is" as follows so far as the effect of death is conodrneli: The-mere death of a party does not cause the suit to abate,=if t ri,c.r,l_1t,t_o sue survives.e But.

if theﬂright to suesurvives Iid awpexty diesTduri.ng the'1'JreI1d-E:1_1_t;y,o_f the suit, an application mus be-.'_ "'de"_t5ri'thin: the':prescri_hed period'? ; to the court, to niake the legal representative of the deceased person a party to the suit. If this is naiidoheietiie-suit-nh'aihu,.--tioti:-by 'i*eaiituri.'"

of death o__n_l_v, _but by reason of death of_ the party followed by non- substitutioti of his 'legal re'pi'esen;tat;ix§é'.. '_P'rirq._ari1y, the suit algates, "so far as the ydjaceased plaintiﬁ is;_q'o' £r':'i§3d"' r "as_against.the de--,_ 1;

4 .

ceased defendant," as the case iIia,V'l5e"----ClI_'der;'3?,. ri.i1e'3(2) 4(2).' But, if the hature of the ca 'ectio' is such that e _s_uit_i, cannot proceed bysor against the 'iiig _aintiEs' or do endan..1:s',,i'_ the whole' suit may abaisjit-gm A , _'_a}Jatérnent, the; suit can he 1'9Vl'V'Ed bf! 1118511.}-I 3n,3DD:ﬁ.é'& '§1'1' 3355 . f '§1_ti',1'tt.?_t'o set aside the abaitej-. ment for sufficient cause. ;'applica lo 'fo1_-_the purpose mL:st.]:é ma_c_l_e' within the prescribed' xﬁrilod; tli court has,_howei.§_er. power to condmie delay in making 33' application. __,i' __ ' This Order also deals {ith the eﬁeqt of marriage and jnsg]- vency on pending suits,' Bill: .,the' 'ﬁr visions do not cause .much difficulty in practice. It is the pi' xtisi ' ska': to the eﬁéclt ofldeath which are-iimportantpand we--shah deal: with 3:-'fe'W'Df' sthezﬁ which have caused diEﬁcu_lty.-- '::- ~aii:, '.i;a..') ~ = 1 . :' .'= '2

- -r . - - i. -, .. .- .' " "'t"I.' .'; -I.4:iJr-

0"?°r'2%.=rule i+n9we ¢0'=F?F§i3*'.-§l!¢§l'E1fﬁh0ﬁld'be.-Elven ..

--33-3-.-The first mint ;conoelns~.= xi 32.-Irule 4, underiiﬂrieh rnon'- ; suhstitutiB1'1;.0f_a legal-e=reDIBﬁeIl'ﬁal'iiHer§lIds to arbatement of the suit. The €11-1E5'5!011 Whﬁther -the Cmnzrt should: in-on proper -case. -'have 3' power to grant [exemp%1ome'ii1.respett-of ithesrequiren-reiit df=-substi- -= tuition of the legal repfresellf-0..t1ve:'iVes.i sconsidered in the " earlier - Report". The Commission noted that local amendments giving ~ such power had been made by the High Courts of Calcutta' Madras,

1. Commﬂh Law Procedure A.o'l'.,'lB5-1--'(I5 lull Violin. 6}.

2.. Questions as to limitation are governed by like Limitation Act, 1983, Sec paragraph 23'5.a11fru. _

3. 27th Report, puizjca 210-211, Note on O1'der=22,rIle 4- Relaxation of."

I : . , 1931.' is * ' . . VI ....-pm-u--. .......... .. . --

194

Orissa, etc. in respect of a defendant who has failed to appear and contest the suit. It however, felt that such a change should not be made, as it would impinge upon the rule that litigation should not proceed in the absence of the heirs of a person who is dead. These local Amendments were not therefore, adopted.

22.3. We considered the matter further. At one stage we were- inclined to add sub-rule (4) in Order 22, rule 4 as fol1ows:-----

"(4) The Court, whenever it mine ﬁt, may exempt the plain-

tiff from the necessity to substitute the legal representa- tive of any defendant against whom the case has been allowed to proceed ex parts or who has failed to file his written statement or who, having ﬁled it, has failed to appear and contest at the hearing, and the judgment in such a case may be pronounced against such defendant notwithstanding the death of such defendant, and shall have the same force and effect as if it had been pronounced before the death took place."

22.4. We have however, come to the conclusion that any such amendment would amount to passing a decree against a dead man and would be wrong in principle. Hence no change is recommended.

Order 22, rule 4 and ignorance or death 22.5. On the death of a party, the plaintiff is, under the rules, required to move for the substitution.of his legal representatives. The application for substitution has to be made within the time prescribed by the Limitation Act-'. On failure -to do so, the suit abates. Now, when the plaintig is ignorant of the defendant's death, there may be delay in making the application for substitu- tion of his legal representative. and th question whether the delay due to such ignorance should be excu d for the purpose of limi- tation has arisen in several cases. it being competent to the court to excuse delay under section 5, Limitation Act, 1963, provided there is sufficient reason.

How far ignorance of the death of the party concerned is a suﬁicient ground, would depend on the facts of each case'--".

22.6. It was for the last-mentioned reason that the earlier Com- mission, in its Report on the Code,' after discussing the position as above. considered it unnecessary to make an express provision as to , ignorance of death as a suﬂicient ground. At one stage we were inclined to think of a solution wheslelmderf due regard could be had to the fact of ignorance of ﬂash, while considering an application under section 5, Limitation Act, for convdonation of delay in respect of an application for setting aside the abatement. This could be ichieved by the insertion of the following sub-rule in Order 22, rule

1. The period for aubstitnition is 90 days {article 120, Limitation Act, 1963), and the period for application for setting aside the abatement il 60 days [article 12]] Limitation Act, 1963.

2. (:1) UmIonofIm:h':: v. Rom C-'lsa.rmaA.I.R. F964-S.C. 215,224]; (bl A.I.R. 1951 Sim. 25?.

3. Also {I969} 69 Punj. L.B.. 956, oited in the Yearly Digest. 4- 2?th Report». page 211:, Note on Order 22, rule 4, and ignorance of death.

:_ - .. .4 - .

195

"Where-

{a) the plaintiff was ignorant of the death of a defendant, and, could not, for that reason, make an aptiliﬂﬂiﬂ-0'! ff-W -if"-b_3' titution of the legal. representative under this rate within the; prescribed period as 1.11, the Limitation AC1', 1963:

(b) the suit has, in consequences, abated; and

(c) the plaintif applies for setting aside the abatement and also for admission of that application after the prescribed period under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within such period;

the Co-art shall, in considering the application under the said section, have due regard to the fact of Such i9'-"~0"¢111C€. if proved".

ltecommenﬁtion 22.7. But we are separately recommending a- new rule' which imposes a duty on the pleeder to inform the court about the death of a party. Hence &1 provision as to the eﬁect of ignorance is needed.

Urge: rule 4-3; (New) (Appointment at person to represent the a ) .

22.8. In the earlier Report", a suggestion received from the Calcutta High Court for the insertion of a provision to deal with cases where the legal representative of a deceased party was not traceable, was also considered. Reference was, in this connection, made to Order 16, rule 46 of the Rules of the Supreme Court,- now Order 15, rule 15 of the R.S.C. Revision {1962}. The adoption of a somewhat similar provision was suggested in a judgment of the Calcutta High Court" also, and the suggestion was repeated in another case'.

22.9. The English rule on the subject; is intended to cover two, cases; first, where litigation is intended to be started but there is no "personal representative", and secondly, where litigation has already started, and then a party dies and there is no personal re- presentative. History of the English rule is discussed in a judgment of the Court of Appeal', and the undermentioned authorities' ' discuss the practice under the English rule.

22.10'. The earlier Commission, after considering the above mate- rial, came to the conclusion that. such cases would not be many, and, therefore, the provision suggested by the Calcutta High Court need .

not be imerted.

1. See Order 22, rule 10-34 (New) ipropoaadizpnra 22-22, infra.

2. 27th Report, page 211, Not-eon Under 22, rule 4 and legal representative not traceable, a\ William Harold Gibbs v. Debs PI-Mad Roy,'{doci::Ied on I7-it-1950), S5~Ga.loutt.a. 1,":

Journal 2313.

-1. In the Goods of G'ola.1:r: Nabi Maggi: dated 15-5-1931.

5. Paratt is. London Passenger Transport Board (1937) l :51! E.R. 473, -178 (Court of Appggj}

6. Lean v. Aistrm (1947) 1 All ER. 281. .

7. Eslshnry, 3rd Eda. , Vol. 16, pp. 121,134. 393. [Ind Vol. 9. page [78 for Ciunty Cqnd-3 , 196 22.11. But it apears to us that such a provision would be useful.

with increasing urbanisation and growing complexity of S.0c_=1et3*. cases Where the legal representative _o._a_nnD.t.-be ascertained. are 1111613? to- increase; and .a speciﬁc P1"0Vision tesm?-61'--:5u0h 55ltl13*ti°n'W0u1d be desirable. . 1 - .=- ~ -

22.12. The English provision is wide enough to cove-r_ death before the litigation; butwe are concerhied oI_1ly'w_1th deathduring the pendency of the lit.igation.r=We--alsocoonsider.it-.-.useful toegive some indication of the persons awhoucould-='he appointed. Recommendation _ . » -- -- -

22.13. We, therefore, r'ecorm'i1end that the following 'rule should beinserted as Order '22, rulej'!1iA: "" ' ' ' ' _ ' ' "4A. (1) I)', 'in any suit, it shaii appear to the court that any party who has died during the peudencgu of the swat has' no legal. representative, the court may, on my 5??"

of any party to the suit, proceepl?.in_,the absence of-a person representing the estotehof the c; _ egg person. or may by,"

orderfappoint the ,A_d-rp'._zuist1-t1t ;_ 'e-heral, an oﬁger .o_f,ithe ' court or some cum person to 'represent his estate for the trurposcf oivtht: saaitgnavujnhmﬁudgwrcm 61-I order 'Js'ub'3b3"

quently given or made in the suit shall, brind the-estate _ of the deceased person to the some ext nt as it would ' have been bound if a: 'arsenal repfesenta foe ofthe person T had been a party to It e stjtfit _ _ _ .

I "(-2) Before making an order :u'hder:!:his rule, the Court---'-

.[a)_.r_eouire_in5tisc33!:_ of ﬂies application Z; for. ._the';:

' order to be gipen i'.'_'_'_31i"p'I2,_'ri_]'__i1,')?.y] of t_?I.e;l_persons.l hagmg an 'inte_rest";n Jﬁé estate ,a_s;i 't inlce fit;,', an" i' ' " 2 __

(b) shot! asqert _' th 1: t _pe_'i'8D1?, prooosed .1:o.be ",app'Oi'jnted t'Q'c?£§:pre£é'3'1t'];_£;'g}'n1g'.Jestd,t'e is;wilTin_q_t0 be . _ "'30 t?P?J0'5?T1,€.¢ L .' . .

Order 22. Ru-Je 5(1) a I ' _ " _ ?

-22.14. Order: 22, ru.'le"9{1) is as .'r¢;ii&m;s':'--.'.. fr ~ 2 .

"9.(1} Where a suit ahate5"or- isiiiisdiisseiii ?under*-* "this" "order, _ . no fresh s.u.i.t shrill be hrau9#t.onmt}m.same, GEHSG-.'.;9f action".

22.1s.=-The=ru1e=1's"s11_ent on" th'e"o "ii_onwhether*ihe cause; or-'_ action: invoked in the" abated 'suit' coil! -'tkH*rais'ed' 'as'ai§defence"in' _a"' later suit. - " - "' 22.16. The Madras view' is,-that the -paintiﬂ whose suit has abated. is not only barred from "a 'fzesh"suit omthe some cause of action. but he cannot get rid -of the"eﬂi3C'ﬂ of "the earlier decision by pleading the same mutter as a defence ir_1'the subsequent suit. The contrary View taken in a Bombay case"'was_-, dissented from.

_¢-v:' 1 'E - ;:.e'_' 3-..-. u" 3);'-:

..

....u.-

1. Kam-olciti Aimnal v. Azkiyarjudagyu. A.'[.R. lﬁh-9 Had. 426. _ _

2. 'Ja_r,rosingv.GojJaZ,'(l90-1}I,ﬁ Bum. 1.11:. s$s{tr.t.fs:§jrd; ' ' ' ' ,'.. ..__._...._,.__..s_..

197

22.17". The Lahore High Court "l'1astaken'the same yiew as the Madras Hi,<.{h.Cou1jt. ' , , " ' ..

22.18. In the Madras case. it was observed that the decision of the Lahore High Court is ..moI'e in aacﬁrdance. with the P1"111<3iD1E' embodied in Order 22-, Rule 94. The ,earlier determination should be deemed to be, a. decision agaitnst-.him, and he. cannot set rid Of the effect of the earlier determiflatiﬂﬂ .141-St l3E(_3aL15E he hallliens '$0 be 3 defendant in a subsequent suit. E . -

.-- r.-3 22.19: On the othdr'hand,-the"'Bornbay High Court has held"

that where the legal representatives "of the plaintiff, on "whose death

-the "suit abated, get into possessionrdf the ;':§roperty,tlie'y' are entitled to resist the suit brought to oust 'l:'l'len'1 from possession, and that the previous order of abatement did not preclude them from setting up their title by way of defence-_ This is also the Allahabad view."

Recommendation 22.20. Logically, it would appear that the Bombay View is pre- ferable. After all, the law should not multiply impediments to just pleas or defences. Order 22, rule 9, prohibits a fresh suit in order to avoid undue harassment to the opposite party. But, where the opposite party himself takes the initiative. and files a suit, there is no reason why the person whose suit has abated {or his represen- tative) should be deharred from asserting his rights as a shield. Procedure should not stand in the way of assertion of lawful claims 01' defences. except where such a bar is absolutely necessary. No great consideration of public interest appears to justify the exclu- sion of such defence. The rule is a dmabling ruler'. and should be strictly construed. It does not create res judicata'. It should not, therefore. be given a wider effect than is absolutely necessary.

Recommendation 22.21. We, therefore. recommend that a suitable Explanation should be inserted in Order 22, rule 9(1), to give effect to the Bom- bay view. The Explanation could be on the following lines:------

"Explanation--Nothin.g in this rule shall be construed as barring, in any later suit, a de_fe'n.ce based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order."

Order 22,- Rule 10 (New) 22.22. A new rule is proposed to be inserted to the effect that where a pleader comes to know of the death of a party to the suit, he shall inform the court», and the Court, in its turn, shall give

1. Rrtjwt 2'. Ra.-m IL'hrmn:I, ALR. 1933 ilah. 752, 753 (D.B.].

2. Jayasing V. f'}'o;M?, (1904) 6 Hon). L.R. B38 {D.]3.).

3. Bqirti Ragiti V. "1'e§j :'\-'ara1'u A.I.H.. 1943 All. 99 {l\Iut-hm' .l.].

4. Liz:-.hkmn.r1. '.7. Brmsi Lal, ."L.l.R. 1931 Lab. '79, 80.

5. -'Elm-ikh i'Ia-Min-ifr: V."_ Jr;-m-rn1ma Singh, J-\.I.R. 1958 Pat. 95, 96, para '7.

, .......r... ....-my- .. .

T! K .

198

'notice to the plaintiff of the death. Such a provision will, to some extent, reduce the complications that arise by reason of the plain- tiff's ignorance of the death of a defendant. The new rule will be as 1:'ollow$:----

."l0A.(1] When a pleader appearing for II, pafty to the suit ,..1_ ' e'_;,-2-omaes to know of the death of that party he shall infown 1 ' ;the court about it: and the Court shall thereupon gt-ue ,*11ot*ice to the piibinttﬁ of the death.

'{2} Where the pleoder of a party, on coming to know of his death. does not, within a reasonable time, communicate T the fact of such death to the opposite party, the court may order him to my the costs occasioned by his failure 4,-" to communicate the fact.''. ' 64 r 2',_ "' " "'9'-"-"' H I "I-E-'Ir-arm ' .. 1 Y Cusrraa 23 WITHDRAWAL ANII AD-RISTIIENT OF SUITS Introductory 23.1. Rules as to withdrawal and compromise of. suits are con- tained in Order 23. These rules roilihlv correspond with the Rules or Court in England as to the discontinuance of suits.

23.2. Slade J. has dealt with the mode of dealing with compro- mises in England'. According to him there are various ways in which an action can be disposed of when terms of settlement are arrived at when the action comes on for trial or in the course of the hearing.

(1) The first one is very useful where the terms of compromise consist of an agreement by the defendant to pay a speciﬁed' sum of money by speciﬁed instalments on ﬂoeciﬁed dates. Here the court gives judgment for the total amount agreed to be -paid, "coupled with a stay of execution so long: as the instalments are paid in ac- cordance with the terms agreed.

(2) The second way, which is no doubt, more appropriate when the _ terms of settlement are not so straightforward as the mere payment of an agreed sum of money. by speciﬁed instalments is to secure an Order of the Court, made by consent, that the defendnt. and. it may be, also the plaintiﬂ';---shal1 do the thing which they have respectively . engaged themselves-to do by the terms of settlement. In such a case the order would take this form. There would he the title and the pre- amble and then the order would recite, the terms havi been agreed between the-. parties: It '3 ordered that "{a} the defen ant do", etc., "(b] the plaintiff do", etc. making each of the agreed terms an order of the court that -it should he carried out.' -

(3; The third method is what hasrhecome known as "the mmau form of order". ' Dashwood v. Dnshwood' is'citei(a_sHt(l'ae authority for that sfgtg. ment of practice, The AITIWUAL PR E. 1955, P. 200?, goes on to say:

"After this decision TOMLIN, J ., stated that in..3l1atu1'e when in action was proposed to be stayed on reed. terms to be scitiiedﬂlllledlatltirtiliiiée :drd§1;.f ortr sh he as follows:

3" ﬁll '.' '3' tie" ant ving.agreedtotheterms set forth in the schedule glaereto, it is ordered that all fur. ther proceeding in this action be tayeﬂ except for the put. pose of carrying such terms. into eﬂect Liberty to apply as to carrymg such 'terms into eifect,"

1. Green 1'. Roam, 11955) 2 All E.R. 797.

2. Dash-wood 7. osstwaos (1927) w.N'. a, 27:5.

.109 it Cnaeran 23 WITHDBAWAL AND ADJUSTMENT OF SUITS Introductory 23.1. Rules as to withdrawal and compromise of suits are con- tained in Order 23. These rules roughly correspond with the Rules of Court in England as to the discontinuance of suits.

(1) The first one is very useful where the terms of compromise consist of an agreement by the defendant to pay a speciﬁed sum of money by speciﬁed instalments on speciﬁed dates. Here the court gives judgment for the total amount agreed to be paid, coupled with a stay of execution so long as the instalments are paid in ac- cordance with the terms agreed.

{2} The second way, which is no doubt, more appropriate when the terms of settlement are not so straightforward as the mere payment of an agreed sum of money: by" speciﬁed instalments, is. to secure an Order of the Court, made by consent, that the defendant, and, it may be, also the plaintiﬁ',------shall do the things which they have respectively engaged themselves to do by the terms of settlement, In such a case the order would take this form. There would be the title and the pre- amble and then the order would recite, the terms having been agreed between the parties: It is ordered that "(a} the defendant do", etc,, "(b} the plaintiff do", etc. making each of the agreed terms an order of the court that it should be carried out.

(3) The third method is what, has become known as "the TOMLIN form of order".

Dashwood 1;. Dushwood' is cited as the authority for that state. ment of practice, The ANNUAL PRACTICE, 1955, P. 200?, goes on to say:

"After this decision TOMLIN, .I._. stated that in future when an action was proposed to he stayed on agreed terms to be scheduled to the order. the order should be as follows:

and the plaintiff and defendant having agreed to the terms set forth in the schedule hereto, it is ordered that all fur- ther proceeding in this action he stayed except for the pur- pose of carrying such terms into effect, Liberty to apply as to carrying such terms into effect."

1. Green v. Roam, (I955) 2 ME E.R. 797.

2. Ilasiuimod U'. Denhzmmd (1937) W.K. H. 2'75.

199

SZUU (-'1} The fourth method is an order of the court made by consent staying all further proceedings in the action on the terms agreed on. -

(5) Th _ﬁ_fth_met o ! hi ) as _llowe ' ' nt case! is where thei?e' is rib' otdeil-':'o¥7"t £5: uﬁfgf aill, xii? Eddtffrgfﬁrely being told by counsel that the case has been settled on the terri:'1_§'tl3gl('i.c:1;%(id on counsels' briefs. ' 23.3. Such' a variety of methods of 1-ecording or acting on com- promises is not met with in"l"ndian pr_actice.. But there does exist a variety of methods of consensual Heaitings in connection with'litiga- tion--e.g. by making the Judge an arbitrator, by agreeingnot to appeal. by stating a special 'case' u der Order 36, and the like". Some, but not all of these. ﬁt in with y 9' procedure given in Order 23, rule 3. under" which the court is empowered to "record 'a' settlement or "compromise. The most important rules in Order 23, are 'rule 1 (withdrawal), and rule:_3 (recording 411'. Compromise). and most. of the problems that arise revo1vesi.around- {these rules-; ' . -

Order23,_rule1,' In t t.

T 23.4. Order 23, rule 1, speaks of. two kinds of "withdrawails"- of suits, namely-:-- __ p _ _ p (1) Withdrawal without permission of the Court toiﬁlen aufsresh 'suit, and _ _ _, _ . _. . . H;

(2): Withdrawal with-such permission.

The first is governed by sub-rule'(1). The second is governed. by sub-rules;-(2) and (3). For convenience, the first kind of withdrawal may be described-as --"a-bsol!ute"-w'ithdr3tva'l 1 , while the sei,':ond"may be described as "qualiﬁed" withdrawal_ The diﬁerences in the legal incidents of the two types of withdrawal are well--known.'The point which is proposed to be raiseduhere. is-one of terminolo'gy,---and' the point is, that the use of the same ex_ r_ession_ to.de-note both _=the.types of action is confusing. as ordinary' itiganf would certainly get con.

fused, and. sometimes even lawyers do not fully realise the diﬁerence b9tV~'9en the tW'0- The P0.Siti_Qn would be. improved by using the ex- Eregsign "abandon1'nent" '(of suit},-iwhere_ absolute withdrawal is in- en' e . ' Recommendation 2315. Accordihgiy. we recommend ' d' 1;

rule 1. so. as ttrsubstitute tl1e"'ex rebsio"'?}dbI:g1c';d1ndd1iE1?t",0&'h(;r?ctdIlof:

ing re-drafts are suggested for t e 1:lu_ __'pse;--__ T ' I Re-draft of Order 23.'m1e 1:.-1i:--i "{1} At any time artéi the institution of a suit the plaintiff may. as against all or any of the defendants, abandon hjg suit or abandon part of his claim." I 1- "'f- r1"MFeJe'ma£ed Etenmtmn on. V. Kstuireddy, A.I.R. 1970 Mrs. :55. 157, Para 12.

, ;,___,u'___-..-

-4'"

- .3.-:5,---tau';-r -p-

T 201- Order 23, rule 1(2)-

Redraft of Order 23, rule 1(2), 1(3) and 1H)--

Substitute the word 'withdraw' for the word, 'abandon'. Re--dra.;ft of Order 23, rule l(3)~ (3) "Where the plaintiff abandons a suit, or abandons part of a claim, -under sub--rule (1). he shall be liable for such costs as the court may award, and shall be precluded from instituting any fresh suit in respect of the subject-matter of such suit or such part of the claim."

Re-draft of Order 23, rule 1(4) (-1] "Nothing in this rule shall be deemed to authorise the court to permit one of several plaintiffs to abandon a, suit or part of :1 claim under sub--rule (1), or to withdraw under sub-rule (2) without the consent of the others."

Order 33, rule 1 and execution proceedings 23.52%. The question how for Order 23. rule 1 applies to execu- tion proceedings has sometimes arisen, For example, in an Allahabad case', the decree-holder ﬁlled an application on August 29. 1835 be- fore the Subordinate Judge requesting that his case may be struck off for a short time. The Court granted the application, and recorded an order striking off the case "for the present". On August 23, 1383, the decree--holder ﬁled another application for execution, to which the judgment debtors objected.- The Subordinate Judge disallowed the objections. The judgment-debtors ﬁled? an appeal before the Allaha- bad High Court. The High Court allowed-the appeal. and-set aside the Order of the Subordinate Judge. Hence, aggrieved from this ' decision of the High Court, the decr-'ee--holcler_ﬁ1ed an appeal before their Lordships of the Privy Council-which held that Order 23, rule 1 did not apply. The Privy Council obs-erved"----

"After hearing the appellant ea:-porte the Court came to the conclusion that "It is not suggested that section 373 {now order 23, Rule 1) of the Civil Procedure'Code would of its own force apply to execution proceedings.

The suggestion is that it is applied by force of section 647 (now section 141). But the whole of Chapter XIX of the-

Code. consisting of 121 sections. is devoted to the proce-

dure in executions, and it would be surprising if the fra-

mers of the Code had intended to apply another 'p?'0(."2I5l-'uT€ mostly unsuitable by saying in general terms that the procedure for suits shoiild be followed as far as appli-

cable ......".

Having taken all aspects into consideration, we are of the View that it would not be convenient to extend order 23. rule 1 to execu-

tion proceedings.

1. 'W!.-'1..I:::r Pm.-ggwl 5-'. Fa.ku'r l'.7N1l!Tt{l89-1-l. L.R. 17 All. 601 (P.U.] follmvr-rl in !§'rIm Prrmrutl

7. Hannah K-rm/r. A.I.R. 1922 Pitt. 525.

2_ 'f'k.-.-},-7J.r Prr7.9.n1.ri' 1'. T"fJ.7_-'07-1' "NEIL [.L.Rr. 17 All. H-0] {P11}, L}B[D}229}lof L-J&F'A .-I5 \ Ids 'F V} x .''§ 202 'aide: 23, rule 1.11 (New) I' 23.6 We now proceed to deal with a situation not expressly pro vided for in Order 23. Where a suit is Withdrawn by a plaintiﬁ under Order 23, rule 1, one of the opposite parties sometimes ﬁnds it ne- cessary to be transposed as a laintiﬁ, so that he can pursue what- ever claims he may have ma e against a co-defendant. The Court has, under Order 1, rule 10, already a power to order transposition of parties'. But it appears to be desirable to provide that where there is a request by the defendant for transposition {as plaintiff} in Vl('l'Vt-' of withdrawal or abandonment of the suit by the plaintiff, the court should have due regard to this consideration. ' Recommendation 23.7. The insertion of the following rule in Order 23, is, there» -

fore, recommended : --

"IA. Where a. suit is withdrawn or abandoned by a. plaintiﬁ' under rule 1 of this Order, and a defendant applies to be transposed as a piainttﬁ' under Order 1, rule 10, the Court shall, in considering such application', have due regard to the question. whether the applicant has a substantial- ggeition to be decided as against any of the other defen-

n S '. \ Under 23, Rule 3-Lawful 23.8. Order 23, rule 3 deals with compromises. One of the impor- tant conditions precedent to the applicability of this rule is that the compromise must be 'lawful'. Now, where a decree is passed on compromise and it is alleged that it embodies terms which are not lawful, can the validity of the decree be challenged? On this question, there seems to be a conﬁict of decisions. We proceed to examine the case-law on the subject.

23.9. In a Bombay case', it was held that a consent decree passed by a Court of competent jurisdiction cannot be treated on the same footing as a contract between the parties. It is true that before a Court passes a consent decree. it can, and should, examine the lawful- ness and validity of the terms of the proposed compromise. But once that stage is passed and a decree follows, different considerations anse.

23.10. Thus, as were the facts in that case, where the compromise decree contained a term against alienating certain property, and gave the other party a right to its possession on such alienation, the decree was held not to_ be a nullity, in spite of the fact that the term was opposed to section 10, Transfer of Property Act. The decree was merely contrary to law. and bound the parties thereto, unless it was set aside by taking proper proceedings.

]. (rt) Ettufjcs v. Vullchitoy, l.l..R. '7 Born. 16?; U2'. Bhiamodev V. R-xtlkakiahcn, .r1.I.R. 1968 Oriana 239 (reviews oases].

2. Gooiml Wamrm v. .lf-urtidkcr $.'hr.-'m'a-rw, A.I.R. 1953 Bum. 412 {Gafendraggdkar and Fife. .T.T.l. , *9.-

' .

I 5 I s ..W .1 re.

293

23.11. Same is the Andhra view'.

23.12. In a recent Mysore casei, it was held that wt1e1"e a c0_m- promise decree passed by a court of competent jurisdiction contains "' a term which is opposed to law or public policy and the decree has not been set aside in proper proceedings, it is res judicata. The Mysore High Court. following the Bombay case, said that though the Court should examine the lawfulness and validity of the terms of the pro- ' posed conipromise, once that stage is passed and the court has Put its seal -of approval to a cornprornlse and made it a decree of the court. then that decree is binding between the parties and must be enforced, ' unless it is set aside in a proper proceeding. It was also held that "ﬁnality of decision is an important principle of law based on public policy. If a compromise decree of competent Qourt. which has not been set aside, can be ignored on the ground of it embodying an illegal term. there will be confusion and uncertainty."

r 23.13. The Madras High C-ourt" and the Patna High Court' have taken a dlﬁercnt view. In the Patna case. a compromise decree provid- ingefor recovery of pension contrary to section 12. Pensions Act, 1871. was held to be void, (The Bombay case is not referred to in the Patna judgment).

23.14. In the Patna casei, it was observed--

"It is a settled princ'ple of law that a contract is not less a contract a_nd subject to the incident of a contract because there is superadded the command of the judge. If any authority is indeed in support of this proposition, reference may be made to Weirttzoorth v. Bullen". The compromise is received under the provisions of Order 23, rule 3 of the ow Code of Civil Procedure, which states that where it is ' proved to the satisfaction of the court that a suit has been adjusted wholly or in part b_v any lawful agreement or cornpromise. or where the defendant satisﬁes the plaintiff in respect of the whole or any part of the subject-matter of the suit. the court shalltorder such agreement compro- mise or satisfaction to be recorded. and shall pass a decree in accordance therewith so far as it relates to the suit."

23.15. The House of Lords' has decided that a consent decree beyond the contractual powers of the corporation is Void--- '

- "It is quite clear that a company cannot do what is beyond its legal powers by simply going into court and consenting to a decree which orders that the thing shall be done."

....a . Ve-ni':ofe.shFm_i_.-ya Y. Firoyyo, :LI.I'... 1958 AP. 1 (F.B.]

2. Hfrima Ra-ma 'I'. Atuilsil Rce.sFz.i'.r.?.. .-'L.I.R. I963 Mys. 184 {D.]3.'J.

3. {a} La£~akmrm.aaia.Ia.1n,y Nnrtizilra 1;. Tm.-:-tgmmna, (1930) I.L.R.. 26 Mad. 31:

[P3] Rrr.m.r.w.Ia1a.7ro v. I-"ea.Icrrlrrtaksiimiﬂamyanno. A.I.R. 11319 Marl. 429.

-1. Brrldeo Jim v. -,'}rm_r;rrr. Pfusrld. .~'l.I.R. 1959 Pat. 1? U-tamaswami, l'?J and R.K. Chowdhri J.].

5. Brrlztro Jhrr V. Glriag-1. Prasruf, A.l.R. 1959 Pat. 17, 20. para. 9.

6. Wniiwo-rile V. Buflcn, 109 E.R. 313. 316 [This case, however. does not relate to an illegal contract}-.

7. Great Noﬁk-West C7rJiti'oE Railway 1'. Ukarbkois, (18913) 11.0. 11-1, 124.

L!'B(D]22QMofLJ&CA---1 5{a} 204- That case however, is distinguishable from a case of having an illegal object.

23.16. In the above state of the case --law, it is desirable to make a clariﬁcation. In the interests of ﬁnality of litigation, it may be better to provide that a decree shall not be set aside on the ground of illev ,c_{a1ity' of the compromise on which it Is based.

Recommendation to insert Order 23. Rule 3A 23.16A. Accordingly, we 1~_eco'_n1nend the insertion of the follow- ing rule as Order 23, Rule 3A----

"3A. No suit shall lie to ses aside :1 decree on the ground that the compromise on which the decree is based was not li:twFttl." ' Order 23, rule 3--the words "so far as relates to"

23.11 Order 23, rule 3, authorises the court to pass a decree on a compromise in so far as the compromise relates to the subject matter of the suit. The controversy on one point under this rule was noted in the earlier Report'. That controversy" related to the inter- pretation of the words "so far as relates to the suit" used in Order

23. rule 3.

The question that arose in practice was. whether a decree which - a records the terms of a Compromise in respect of matters beyond the scope of the suit is executable, or whether the terms of the decree relating to matters outside the suit can be enforced {as a contract) only by a separate suit. It was not. however, (in the Commission's view) possible to resolve the conﬂict of decisions by verbal changes, since the application of the rule may vary according to the facts of each case. As a general amendment was not thus possible. no change was considered necessarv.

23.18. We have given some thought to the matter and come tr the conclusion that----~ _

(i) the c0ntrovers_V should be out an end to, and

(ii) the only way to put an end to it is to widen the provision, by requiring the court to pass a, decree covering the whole compromise. so for as it relates to the parties to the suit, whether or not the subject matter of the compromise is conﬁned to the subject of the suit. This will avoid the un- necessary controvcrsy that arises under the oresent word- ing, namely. how much of the compromise has attained the force of a decree; and how much is to be left to be en- forced by separate agreements. and so on. No doubt, such a widening can. theoretically, raise questions of jurdis- diction and court fees. In most cases, however, the wide power will not affect iurisdiction and court fee, In any case. the proposed simpliﬁcation is needed, and should override any such objections.

l. .-'ii-l.na.l -.-irnendmcnt not dmfterl.

2. 27th Report-_. page 21.1, Note on Order ,3. rule 9 and th-- \$I,'>rda " so for as relates to".

3. Hoe oust-'--law :]i=u-nosed. in Hair: -fuaaum V. Drzri-idru Nr.."Im_. A.I.R.. 1880 LLP. 280, 232 pa-ran l7 and IR.

1,/' F' Recommendation 23.19. Accordingly, we recommzncl that in Order 23. rule fiﬂ' 1' the words "so far as rotates to the suit', the wo1'ds_"so for as relates to the parties to the suit. whether or not the subject-matter oT_th€' agreement cc.mprornise or satisfaction is the stnne as the S1tb_'f€(3t--

matter of the suit", should be substituted.

' Order 23, rule 3-21 (New) 23,20_ In a 1-:_=p1"esent.ative suit, leave of the court should be re- , quired before a comprcmisc s reccrded. Before such leave is given, notice to interested persons could be provided for. We have in mind those suits where a decree passed in the suit can bind persons not formally on the record. Such a. procrision is, in our view, required in Order to safeguard the interests of Jersons so bound.

-' Recommendation 23.21. A new rule is proposed accordingly. as fo11ows:--

Order 32.. Rule 7 (J).

"3-A. (1) No agreement or compromise in :1 representative suit shall be entered into without the leave of the court ea'- pressly recorded in the proceedings; and any such agree- ment or compromise entered into without the leave of the court so recorded shall be void.

(5--mast Order 32,' Rule 'a'{2].

(2) Before granting such leave, the co-itrt shall give notice to such persons as may appeal to be interested. in the suit, 1 in such manner as it thiiics ﬁt.

Exp1anation--In this rule, the expression "representative su.it"' means--- .

{a} a suit under section 91 or section 92:

lfb) :1 suit under Order 1, rule 3:.

((3) a suit in which the manager of on undivided Hindu family sites or is suei as representing the other mam- bers of the family;

(:13 any other suit in iohich the . decree passed, may by virtue of the_provisinns of this Code or of any other iaw for the time being in force, bind any person who is not 'ﬂamed as party to the suit."

dl-' ,.

Order 23, rule 3, and the word "praised"

23.22. There is anotiier point co icerning rule 3. According to this rule, if it is "proved" to the satisfaction of the Court that a suit has been lawfully compromised or settled, it is bound to pass a decree 3CD0I'§1iﬂg1Y. NOW: the 1.'Xp1"e'S'Si0n "_:ir0ved" has raised an interesting question as to how far is the sour": bound to hold an inquiry as to the factum of the compromise. The matter was discussed at length in a recent Mysore case. The facts were as follows:--

The respondent ﬁled a suit for Cancellation of a registered deed of sale against the petitioner. The petitioner, during the 206 course of the suit, ﬁled an application under Order 23, rule 3 (read with section 151} saying that a decree be drawn up in the terms of the compromise. The respondent con-

tended that there was no agreement, and that he had not. received any money as mentioned in the endorsement, and that the document had been brought about fraudulently. The Munsiff came to the conclusion on the evidence that the suit had been settled out of court. An appeal to the Civil Judge by the respondent was allowed, and the decree of the Munsiff set aside. On revision before the High Court, it was contended that the Civil Judge had exceeded his jurisdiction in examining the allegations of fraud and mis- representation'.

23.23. The High Court held that Order 23. rule 3, requires that there should be proof to the satisfaction of the Court that the suit has been adjusted wliolly or in part by an agreement; and, furthensuchg agreement should be lawful. The words "where it is proved to the satisfaction of the court" with which the rule opens impose .... .. an obligation on the court to be satisﬁed that the suit has been genuinely adjusted in whole or in part .... .. that the words "proved to the satis- faction of the court" are comprehensive enough, indeed seem to have been intended to empower the Court to go into the merits of the allegations "set up by the party denying or disagreeing with the terms of compromise or agreement and decide them, so that the parties get full justice in the suit in which a decree in terms of the compromise is to be passed under the rule. Where the Court finds during the course of the enquiry that the alleged agreement or com- promise is vitiated by fraud_. misrepresentation etc. it cannot be said legally that an agreement has been arrived at. The agreement con- templated under the rule envisages the two parties coming to certain terms voluntarily and of a free will. so as to put an end to the litiga- tion pending between them in the Court .... .. If (the Court] decides that the agreement or compromise is vitiated. it can reject it and proceed to dispose of the suit on merits."

-I 23.24. The High Court, after reference to the order of the Civil Judge and to the depositions of the parties, also came to the con- clusion that there was no agreement as alleged by the defendant. and the order of the Civil Judge {for the remand of the suit for disposal according to law) was therefore affirmed. , 23.25. The decision is correct on the present language. But it now requires to be considered whether some modiﬁcation in the existing ﬁr position is not called for. in the interest of speed. Reference may be made to the Punjab Amendment.

In the Punjab, the following provisos have been added to the existing ru1e:--

"Provided that the hearing of a suit shall proceed and no ad. journment shall be granted in it for the purposes of decid- ing whether there has been any adjustment or satisfaction, unless the court for reasons to he recorded in writing, thinks l. dftctty VT. .S'.cz.se:=,r.!i', A.I.R. 1970 Eye. 1209 {Tnlaol J.].

my 207 ﬁt to grant such adjournment, and provided further that the judgment in the suit shall not be announced until the question of adjustment or satisfaction has been decided:

Provided further thatwhen an application is made by all the parties to the suit, either in writing or in open court through their counsel, that they wish to compromise the suit, the court may ﬁx a date on which the parties or their counsel should appear and the compromise be recorded, but shall proceed to hear those witnesses in the suit who are already in attendance unless for any other reason to be recorded in writing, it considers it impossible or un- desirable to do so, If, upon the date ﬁxed, no compromise has been recorded, no further adjournment shall be granted for this purpose, unless the court, for reasons to be re- corded in writing, considers it highly probable that the suit will be compromised on or before the date to which the court proposes to adjourn the hearing."

23.26. A similar provision would be useful. It could, however be made simpler.

Recommendation 23.27. We therefore, recommend that the following proviso should be inserted below Order 23, rule 3--

"Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the court shall decide the auestiom but no adjournment shall be granted for the purpose of deciding the question whether there has been any adjustment or satisfaction, unless the court, for reasons to be recorded in writing, thinks fit to grant such udjou'mme'n.t."

CHAPTER 2-} PAYMENT INTO COURT Introductory 24.1. In Order 24, there are provisions as to payment into Court, which apply to everv suit for debt or damages. The payment amounts to an admission of the claim in respect of which it is made. There is no power to pay money into Court with :1 defence denying liability. Provision is made for the two cases,-- -

(ajl Where the plaintiff accepts thb deposit as satisfaction in part. and {b} where he accepts it as satisfaction in full. No changes are recommended in this Order.

C:m1>-my 25 EIECURHT FOR COSTS Introductory 25.1. One of the incidental proceedings dealt with in the Code concerns orders requiring security for costs where the -plaintiﬂ resides out of or leave India and does not possess suﬂicient immmtable pro-

gerty in India. This is in Order 25. No changes are needed in this rd-er.

. ,C1.-L:u=rss_26 __ C(_}MMISSIONS _ Introductory ' 26.1. Order 26 deais with commissions issued by Courts.'Com-

.-missioiis are of four k_lnds--to. examine witnesses, to make local in-

-vestigations-, to examine accounts and to make D3-1"'€1t10I1 of 1-II1m0V*-'

-able property. - - - ' ' - - -

A Most" of the provisions for commissions to exlamine absent wit- nesses were adapted by the framers of the first Code (of 1859] from an Act of 1841', .

The rules as to Commissions for local investigations are ulti- mately derived from three old regulations.

Order 26, rule 1 2s.2."orde1- :36. rule 1 provides as follov.-'s:--~ "Any Court may in any suit issue a commission for the exami- nation on interrogatories or otherwise of any person resi- dent within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or inﬁrmity unable to attend it)' Order 26, rule 1, and medical certiﬁcate 26.3. A suggestion was made to us, that for proving the sickness or inﬁrmity of the witness, a certiﬁcate signed by a qualiﬁed medical practitioner should be accepted. Even now, we were told, it is being done in some courts: but the practice on the subject is not uniform, and in some places affidavits" about illness are usually required.

We have considered the matter. and see no objection to a provi- sion permitting the use of such certiﬁcate in evidence. at the discre- tion of the court, for the purposes of Order 26. rule 1.

26.4. The examination, under the rule is "on interrogatories or otherwise". It is understood that an order for examination on interro- gatories is sometimes issued when the examination should really be comprehensive.

25.5. It is. in our view, against the intendment of the rule to' issue an order for examination on interrogatories except in special cases, and we think it desirable to so provide by amending the rule.

Recommendation 26.6. Accordingly, we recommend that Order 26, rule 1, should be revised as follows:--

"l. Any Court may, in any suit, issue a commission for the examination on interrogatories or otherwise of any person 1_ _=ia1 of 1341.

.'w'_ Lj_O1'dE!IJ.9. ruin 1.

21° .'_ 211 resident within the local limits of its jurisdiction who is exempted under this Code from attending the'Court_ Or who is from sickness or inﬁrmity unable to aigteriddit.

Provided that dommission for exuminézt-ionlon interro- gcno-ries shall -not be -issued unless the court, for Teasﬂﬂs 30 be -recorded, thinks -it '.rr.ec:e.<:sm~_1i to do so. .

"Explanationn-Th_.e Court may, for the purposes 01' this rule, accept a certiﬁcate purporting to be signed by a registered medical practitioner' as evidence of the sickness or 1'{?»ﬁW7l!"

bu of any _pe'i'SOT1, without ocalling the medical practi-ttmier as a 'u.'-it'rie3s."" " A ' Order 26, rule 4(1) :Zti.T. Under Order 26, rule 4(1), any Court may. in any suit, issue a commission for the examination of--~-

(a) any person resident beyond the local limits of its jurisdic- tion: _ .

{b} any person who is about to ieave such limits before the date on which he is required to be examined in Court; and

(c) any person in the service of the 'GovernInent, who cannot, in the opinion of the Court. attend without detriment to the public service.

236.8. The rule does not provide for issuing a commission for exa-

-- rnination on interrogatories. We think that such a proirisioii would be useful', although examination on interrogatories should be resort- ed to only in special cases'. ' -

26.9. There is another point arising outgof .01-der_..1ﬁ,-Bule__19.

Order 16, Rule 19, provides the-'_c a witness shall not be compelled to attend a Court in person unless he resides---- -

(3) within the jurisdiction of the Court, or

(b) outside the jurisdiction but within the speciﬁed distance (roughly, less than ﬁfty miles,Tor, if there is anestablished public conveyance for ﬁve-sixth of the distance, then less than two hundred miles]. " ' .

26.10_,_Thus_, a witness living outside the jurisdiction and beyond the speciﬁed distance cannot be compelled to attend a" court in per- son. For the examination of such person, _the Code provides-for the issue of a commission under Order 26, Rule 4. But the word used in Order 26, rule 4,_is_"n1a3:". Now, it is obvious that where the wit- T195315 beyﬂnd the J}1I'1Sd1"--'t_l0n and beyond the speciﬁed distance, and yet 15 one whose evidence 15 essential, the only mode of examination 15 by commission. . -

1- If necessary, the expi'esaion"'1-egistered medical practitioner" nayje ioiuai.

3. Cf. Order 2ii,1.'ule l. ' '

3. Cf. amendment proposed to Crier 23. rain 1.

212

It would, therefore, be better if' the issue of a commission under Order 26, rule -1 is made obligatory in such cases, if the evidence of the witness is essential in the interest of justice. Such an amendment will give a more correct picture of what the law contemplates.

Recommendation T 26.11. Accordingly, we recommend that Order 26, rule 4(1) be revised as iollows:-- ' "«i.(1) Any Court may, in any suit, issue a commission for the examination on interrogatories or otherwise of---

{a) any person resident beyond the local limits of its juris- diction;

(1)) any person who is about to leave such limits before the date on which he is required to be examined in Court; and

(c) any person in the service of the Government, who cannot, in the opinion of the Court, attend without detriment to the public service;

Provided that where, under O'rde1' 16,. rule 19, a. person cannot be compelled to attend a Court in person, a com- mission shall be issued for his examination if his evidence is considered necessary in the interests of justice:

Provided further that a commission for examination on inter- rogatories shall not be issued unless the Court, for reasons to be recorded, thinks -it necessary to do so."

Order 25. "Rule lOA--1I-B 26.11A. As already recommended', new rules 10A to 10C should be added in Order 26 to provide for scientiﬁc investigation etc. Order 35. Rule 1'! 28.12. The Kerala Amendment to Order 26. rule 17 provides.

that where the Commissioner is not a.-Judge of the civil court, he shall not be competent to impose a penalty, but such penalty may be imposed on the application of the Commissioner by the court which issued the Commission.

In the Report" of the earlier Cornrnission on the Code, this was noted. It was, however, considered unnecessary to adopt this minor amendment. ' 23.13. But we think that the amendment could be usefully ad- opted. though there may be not many occasions in practice Where it would make much difference.

1. See discussion as to'Order 18. Rule 19.

3. Sn-. discussion relating to motion 75.

3. 27th Report, page 215, Note on Order 26, Rule 17. ' ' 213 Recommendation 26.14. We, therefore, recommend that the following proviso should be inserted below Order 26, Rule 1?---

"P-.-oaaiciled that when the .Comm£ssiorzer is not :1 Judge of a Civil Court, he shall not be omnpetent to impose penal- ties; but such pencllties 1716-y be imposed on the nﬁllia cation of such Commissioner by the Court which irsucd the commission."

Order 26 and execution proceedings

26.l5A. The Madras High Court' has held that the provisions of Order 26, rule 4 are not applicable to execution proceedings, and have not been made so by reason of the prnvisions of section 14.1.

'L Venkr'-Iyya. v. Raffazyya, A.I.I-L. 1939 Had. 573.

CHAPTER 27 stars B! on AGAINST oovmnmnnr Introductory ' 2'11." D1'dei-'27 deals with suits by or against the Goifernment gr public ofﬁc-erg in their official capacity. Except as p1'ov1ded by special Acts. suits against the Government 0]' public oﬁicers me?' be instituted in any Court, however inferior. But there are certain special. provisions applicable to such suits. The procedural pI'0V'1- sions in thisrespect are contained in Order 27.

271A. Most of the matters dealt with in the Order relate to minor details such as. signing of pleadings. persons authorised to act. description of the plaintiff or defendant, service of process. ﬁx- ing a day for appearance. exemption from security and the like. We shall now discuss such of the rules as require amendment.

Order 21', rule 5 27.2. Wc ﬁr-st take up Order 2?. rule which is as follows:---- The Court, in ﬁxing the day for the Government. to answer to the plaint. shall allow a reasonable time for the neces- sary communication with the Govemment through the proper channel. and for the issue of instructions to the Government pieader to appear and answer on behalf of the Government, and may extend the time at its discre- 1-ion."

27.3. In the Report on the Code.' the question of a timealimit for ﬁling a written statement by the Government was considered. The Fourteenth Report' had. recommended an amendment to give the Government a. m.inimn..m period of three months for filing a written statement. But it was, in the Report on the Code. considered un~ necessary to lay down any such rigid minimum period applicable to all cases.

27.4. We agree that such a long minimum period is not needed. We. on the other hand, think that a period of two months should nc.1'ma1}7,-* suﬁice, and in the interest of expedition. we recommend an amendment substituting such ﬁxed period. Government. with its re- sources. shonld not find this period too short.

Recommendation 27.5. Accordingly. we recommend that Order 27. Rule 5, should be revised as folloWs:----

The Court. in ﬁxing the day for the Government to answer to the plaint. shall allow a reasonable time for the neces.

331'}! communication with the Government through the pro--

-per channel, and for the issue of instructions to the Gov-

I. 27th Report. page 'Z16, note on Order 27, rule 5.

2. l-tth l{r--1_)oi't-, Vol. 1. page 3I'I'3, p-,1.ra 13. 21-1 1,-.\. -.. .--A.-«J...»-« N

-,4' 'Z15 ernmcnt pleader to appear and answer Government, and may extend the time at its discretion. but the time" so allowed and the time .3-o'e3:t.encled shall not exceed two m-:.'In.th.s in the aggre_«;rots", -

Order 2m, Rule 5-B-'.{New)r ' "2736. I1: is the unfortunate experience of -manvjudicial officers to deal with litigation between- the Governmenteand the citizen which could have been' avoided if the Government had been urged to go into the merits. and if positive attempts at a settlement had been made at early stages -of the litigation, This, in fact, was one of the objects behind the provision for notice under section 80 of the Code. but the object was seldom achieved.

2'-7.1 In our view, the time,_has come to insert provisions that would impress upon all concerned the need for such an approach, in litigation in which Government is concerned.

27:8. The Kerala High Court was constrained to, make these nhservations'----

"The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevi- tably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party t.rvin_e to win a case against one of its own citizens ' b_v hook or by crook; for, the Stat'e's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or over reach a weaker party to avoid a just liability or secure an unfair advantage, simply because iegal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic 'success so that if on the merits the case is weak, government shows a willingness 'to'sett1'e the dispute regardless of prestige and other lessor motii vations which move private parties to ﬁght in court. The .

lay-out on litigation costs and executive time bv the State and its agencies is so staggering these days because of the large amount of litigation in which it-is involved that a positive and Wholesome policy ot cuttingback on the volume of law suits by the twin methods of not being' temp- ted into forensic showvdowns where a reasonable adjust- ment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of gov¥ ernment some initiative and authority in this behalf."

-2'19. We are of the vi_ejw that there should be some provision em- phaslng the need for positive efforts at settlement, --in suits to which the Government is a part_v_

1. .lhiibrtr.lcer.v. T.i'micm- of India, A.I.R.,]972 Ker. 103, l[I'l_.pa;-:1 .5 (rye; .1-.~,._ _.

on xiii '--th.'.- :.

216

Beomnmudatlan 2'i'_1u_ With the above end in view, we recommend the insertion of the following rule--

"5-B (1) In every suit or proceeding to which the_ Gooermgnent is a party or (1 public oﬂicer acting 111 his oﬁimcl capacity is I:

party, it shall be the duty of the Court in the first iflstﬂﬁclls ~ in every case where it is possible to do so consistently with the nature and cifcumsmnces of the cm, to make every endeavour to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.

{2} If, in any such s1.u'.t'or proceeding, at any stage it appears to tho court that there is c rousomible possibility of a settle- ment between the pc'rSies,' the court only adjourn th.o-_;crro- ceeding for such period as it thinks ﬁt, to enable attempts to be made to eﬁect such a settlement.

(3) The power conferred by sub-rule (2) is in addition to any other power of the court to adfiowm proceedings."

Circle: 27, Rule 5A (Now) 27.11. Order 2'? deals with suits against the public officers.

In the Report of the Law Commission' dealing with State liability, 2 re-cozrnnendation had been made to the effect that when a suit for damamgo is filed against the Government in respect of any act of its employee, agent or independent contractor, the employees, etc. should be impleacled as a party to the suit. It was also stated, that any claim based on indemnity or contribution by the State may well be settled in such proceedings, as all the parties will be before the court. An amendment of the Civil Procedure Code was recommended on these lines.

27.12. The recommendation was not carried out in the Report of the Commission on the Code', (27th Report), as it was felt that a mandatory provision of the nature su'gg«este'd was not _needed.

27.13. We agree with the View taken in the 27th Report, as a man- datory provision of the nature suggested in the 14th Report will on necessarily cause inconvenience to individual ofﬁcers. But, we would like to make a provision for the converse situation, namely. where a suit is ﬁled against the employee for oﬂicial acts. In such cases, the Government should, we think, he made-a party, so that the question of State liability is decided in that very suit. Here, af mandatory pro- vision would not cause hardship-to individual ofﬁcers.

Recommendation 27.14. The following rule is. therefore, reoommended:------

"SA. Where a swit is iustitutecl against a public officer for do- mages or other relief in respect of any act, alleged to be done by him. in his oﬁicial capacity, the Government shall be joined as a party to the suit."

1. First Report {Liability oftho sum in Tom, page 40, pm. IV (in).

2. 27th Report, page 210. note on Order 2?. am] I-nits ﬁgﬂvlilet the Gov-er nmatnt.

Government and

-u-.---- ----u.-._.._ f_-\.

- ..-..r-' . --n.-'- ....5,_.

5-?"

CHAPTER 2?A SUITS INVOLVING SUBSTANTIAL QUESTIONS OF LAW AS TO THE INTERPRETATION OF THE CONSTITUTION Introductory 2T--A.l. Order ii'?-A, which deals with suits involving constitutional questions, was inserted in 1942. by amending Act 23 of 1942. As ori- ;;ina.ll_i_,-' hnaeted. it was intended to provide for suits invol'-:'i1"1B Sub' gtantial questions of lav; as to the interpretation of the Government of India Act'. After the Constitution. it has been adapted, so as to deal with suits involving substantial questions of law as to the inter- pretation of the Constitution.

2T--A.L2. Its genesis is of interest. In a case which was decided by the Federal Court"_ the question arose whether. during the hearing of an appeal in which the constitutiorial validity of an Act of the l"rovincial Legislature was imougned. the High Court had the power to make the Province of U.P_ a party. under the provisions» of the Code of Civil Procedure. 1908 as it then Stood. While the Federal Court answered this ouestion in the aifwmative. the Chief Ji:st'-.ce expressed certain doubts and suggested that the matter "might well F!lD,'a_££E' the attention of the Central Legislature": for. if those doubts were justified, "private persons could. by a private settlement of their dispute. or even bv collusion, prevent. a Provinci.:l Government from obtaining a decision of the Federal Court on issues of the highest import:-.nce.""

2T--:"l..3. The Amendment Act accordinglv sought to provide that in any suit or appeal in which it appears to the Court that a sub- stantial question of law as to the interpretation of the Government of India Act or an Or'rierein--Counci1 made thereunder is involved. the Court shall ﬁrst give notice to the Advocate-General of India or of the lF'1"0vint'e as the case rr1a_v require. and rnav. if satisﬁed that it is necessary or desirable for the satisfactorv determination of the question so to do, order that the Government concerned shall be added as a partv.

2"r'--A.4. One object of Order 27-A. was, thus, obviously to prevent collusion between private parties who conspire to obtain a a ruling about a constitutional question without the court having an oppor- l.L1I]l'lZ7.r to hear the Government, 1 27-A.5. The provision that the Court must give notice to the Advocate-General has been adopted in substance from a Canadian Statute'. As to the provision in Order 2'?'-A, rule 3. barring costs, the 1, Cnn1p:1--re s-.>ot.ion Suﬁ nf the Government of India. Act, 1935.

9. U P. v. .--ln-tiqfﬂegit-in, [lil-til) F.C.R. Ill}; 3.1.3. 1943 EU. 16.

r 3. E-'a't..-itmm-ut. nl' Ohientr-i. and Reasons, dutcd 'lﬁth Aiigust, 194-2 to the Ameiirlmciit Bill o 19-12.

1. Sea the section in the Judlcil.-Ll1i'ﬁ Act. Ontario, infra-.

217

T..'B{D]229?.InfI_J .tcii_1a 218 reason seems to be this. A question may arise as to the Gove1"nment's right to, or liability,-' for, costs in proceedingsin which the Advocate- General may appear or in which the Government may be impleadﬁ-It as a party in accordance with these provisions. As the Advocate- Gcneral or the Government would. in such cases, come in more to protect their own interests than for the purpose of making the action eﬂective between the original parties. it seems to have been consi- dered reasonable that ordinarily the Government should have no right to, or liabilitv for, costs in the ﬁrst instance. If, after the Gov- ernment is added as a party. the case is decided one way or the other. further proceedings by wav of appeal by the Government or any of the «original parties will, of course, be governed as to costs by the general principles governing all actions. In some cases, how- ever, special considerations may arise. either because of the manner in which the Government or one or other of the parties conducts the case. or because of the special nature of the case. In this special class of cases. the Court can depart from the general principle above indicated, and make special order as to costs:

27-{L6, In Canada. there are similar provisions. The Judicature Act' in Ontario, for example. provides as follows3:----

"EU. (1) In an}: action in which the Attorney-General for Canada or the Attorney-General for Ontario is a party plaintiff and the other Attorney-General is a party defen- dant, the Court has jurisdiction to make a declaration as to the validity in whole or in party of "any sta_tute of the Legislature or any statute of the Parliament of Canada that bv its terms purports to have force in Ontario, though no further relief be prayed or sought.

(2) The judgement in any such action is subject to appeal as in ordinary cases.

"33, (I) Where in an action or other proceeding the constitu- tional v-1-liditv of any Act or enactment of the Parliament of Canada or of the Legislature is brought in question, it shall not be adjusted to be invalid until after notice has been given to the Attorney-General for Canada and to the Attoi'ney--General for Ontario.

(2) The notice shall state What Act or part of an Act is in question and the day on which the question is to he argued, and shall give such other particulars as are neces-

sary to show the constitutional point proposed to be argued.

(3) Subject to the rules. the notice shall be served six days before the Gav named for the argument.

(4) The Attorney-General for Canada and the Attorney- General for Ontario are entitled as of right to be heard either in person or bv counsel notwithstanding that the Crown is not a party to the action or proceedings.

1. Thodudicaturc Act-, R.S.O.'.l5JﬁU C'. 197 (Ontario, Ca.n5da)_ '. Laskin Canadian Constitutional Law (1960). page 14?.

-'E"!'t 219 {5} Where in an action or proceeding to which this section applies the Attorney--General for Canada or the Attorney- General for Ontario appears in person or by counsel, each shall be deemed to be a party to the action or pro- ceeding for the purpose of an appeal from any adjudi- cation as to the constitutional validity of any Act or t-nactment in question in the action or proceeding."

2T--A.?. For cD1'npa1'ab.'e legislation see the Constitutional Ques- ' tions Act. R.S.Aj 1955, c. 55; The Judicature Act, R.S.A. 1955. c. 164, s. 31; Constitutional Questions Determination Act, R.S.B.C. 1948. c. 66, am. 1953, c. 11; An Act for-Expediting the Decis-ion of Constitutional and Other Provincial Questions, R.S.M. 1954, c. 44; The Queen's Bench Act, R.S.M, 1954. c. 52. s. T2; Judicature Act, R..S.N.B. 1952, c. 120; ss. 24 and 24A; The Judicature Act. R.S.M.S. 1952. c. 114. 5. S4 {enacted by 1953. No. 33']; Constitutional Ques- tions Act, R.S.N.S. 1954, c, 50. The Judicature Act, R.S.P.E.I. 1951, c. 79, s. 39; Constitutional Questions Act, R.S.S_ 1953, c. 78.

Order 27A, Rule 1 2?-AB. On the question whether in a case which involves a ques- tion referred to in Order 2'?-A, rule 1, notice must be given to the Advoc-ate--Generai or the Attorney-General, as the case may be, irrespective of the considerations whether the State is already a party to the suit, there are three reported cases from Bombay, Allahabad and Patna.

2'?--A.9. In the Bombay case,' section 6{4)(a) of the Bombay Land Requisition Act. 1948 was challenged as contravening the provisions of the Constitution. The petition, the Court held, involved a substan- tial question of law as to the interpretation of the Constitution, and Order 27-A, Rule 1 made it mandatory for the Court to give notice to the Advocate--General or the Attorney-General as the case may be. The Court observed-

"As the rule stands. it is clear and explicit and, as I said before, mandatory and it makes it incumbent upon the Court in every suit where such a question arises to give notice to the Advocate--General or the Attorney-General as the case may be."

2T--A.l0. It was ureed that if the State or Union was already a party to the suit or proceeding, then no object could be served by giving notice to the Advocate--General or Attorney-General. The Court did not agree with this view. The court referred to such in» stances as. where the Advocate--Generai represents a charity or where, apart from being the legal adviser of the State, the Advocate-General not only represents the State but also the bar as its leader; The Court held that "The Advocate--Generals and the Attorney-General have independent rights and independent function to discharge and an occasion may arise when the presence of either one or the other may be necessary irrespective of whether the State or the Union is a party to that litigation."

N 1. I't'e.l-P!-:1-ii-I'-V. S2'-rt?-°. 0fBun!i':rt_«,r. A.I.R. 1951 Rom. 191. l21{D.B.) [Chagla ('..J. and Gajend-re:

garlkar J.].

LII3(D}229MofLJ&,CA--16(a.) 5220 27431.11. l'ieEerring to Order 27A, rule 2, the Court said--

"This seems, to suggest that the draftsman of the rule contem- plated that even where the State or the Union was added as a pat-tv to the suit. the Advocate General may still ap- pear and, therefore. the question of costs had to be dealt with both with regard to the State and the Advocate- General."

'3'F-.='i.l2. In tho Allahabad case.' one oi" the issues involved was whether the dismissal of a Government employee had been ordered by a coiiipetcﬁt authority. and whether sufficient npliortlinitv had been given to him to defend. In the High Court, after the hearing of the case had almost concluded, counsel for the State requested that notice of the appeal should be sent to the Advocate-General of the State, inasmuch as according to him, (Counsel for the State) the case involved a substantial question of law as to the interpretation of the Constitution referred to Order ETA, rule 1, Civil Procedure Code. The Court held that these two points at issue did not involve any substantial question of law as to the inteiprctation of the Const'-- tution, and observed:--

"The State is party to this appeal, and the case on behalf of the State had been argued by the learned standing Counsel. We, therefore-_ ﬁnd ourselves unable to accede to the request made by the learned counsel for the respondent."

fl?-A13. In one Patna case? the -vi-1'e.=.' of the Suits T,-'gloating Act was challenged in a suit between private parties. Government was not a party For the appellant, it was urged that certain sections of the Act were ultra wires the provisions of article 14.» of the Constitu- tion. But it was conceded that this point could not be decided in second appeal, because no notice of this particular ground had been given to the A_ttornev--General, as required under Order 27--A. Recommendation ?7-Al-1. we have examined the question whether the present prisi- tion in respect of the point discussed above should be allowed to continue; Having regard to what was said in the Bombay case, we would not disturb the present provision. ' 27-3-'L15 l.-Vs'. now proceed to discuss one point which concerns the scope of Order 2T--i*-'L as a whole. It may be noted that Order 2?--A is confined to situations where the validity of an Act is challenged. and does not deal with questions relating to validity of, statutory "rules and orders (and other statutory instruments} We have considered this question, having regard to the increas- ing importance of statutory instruments We are of the View that when the vires of a statutory instrument is challenged in a suit. the authority which issued the instrument should be made a partv to the suit, Even now, the promulgating authority would appear tn be I. (I'm PrrI.i:rr3Tr- V. -,H'£o.£r-. of I 'J'. Ifliiﬁi-J) Lab. LC. 3053, 319. para Qt] [D.33.). 3- ""I=frI fro?! arm? -'We? fl'-J. V. Arm' Ffumdrn. A.I.R. 1961' Pat. 246 {D.]3.',-.

221

a proper party,' in such cases. But om intention is: to make the posi- tion more explicit in this respect_ It is desirable that the Govern- ment or other authorii_s,r issuing the instrurnent is given an oppor- tunity to join as. a party, in such cases. The amendments which we recommend in this rega1'c] will be substantially on the same pattern as the present provisions in Order 27-91, which govern cases involv- ing substantial qiiestions. of law as to the iiﬂte-rpietation of the Constitution.

Recommendation 2'1'-A-16. Accordingly, we make the followiiig recommendations for amendment of Order 27A:-----

0) The heading of Order '37--A should be res.-'ised, so as t_i read as follows:---

"Suits involving a substantial question of law as to the interpretation of the Constitution or as to the validity of any statutory instrument."

{Order 2?-A, rule 1 will remain unchanged].

(ii) The following new rule should be added as rule 1--A:~ "'1--A. In any suit in which it appears to the court that any question as to the validity of any statutory instru--- ment, not being a question of the nature mentioned in rule 1, is involved, the court shall not proceed to determine that question until after notice has been gtven--

"(a) to the Government Pieader, if the question con' cerns the Government, or '

(b) to the authority -which issued the statutory instru-

ment, if the question concerns an 'author.'ty other than the Government.

Explanationwin this rule. 'statutory instrument' means a rule, notification, bye--l.auJ, order, scheme or form made under an enactmentz."

[Order 2'?-A, rule 2, will remain unchanged].

(iii) The following new rule should be added as role 2--A:--

"2-A. The Court may, at (111.3; stage of the proceedings, in any suit invol.vin.g any such question as is referred to in rule 1--A, Order that the Government or other au- thority shalt be added as a defendant---

"(a) if the Government pleader or the piectder appear-

ing in the case for the authority which issued the i.nstru'rrtent, as the case may be, whether upon receipt of notice under rule 1-A or otherwise, ap- plies for such addition, and

1. Dr|1|'I' l. l'.'.l:* III.

'. In the :ill'ernative, the di--.i'u1it.iuu oould. be [J|.a.L1B-'18.-t-I-llI."t'-llil nfilii: Urticr.

222

(b) the court is sor'e'.<';ﬁcd 2yT.:a.t such addition is neces- sary or desirazhle for the satisfactory determina- tton. of the question." -

(iv) Order 2'?--A, rule 3, should be revised as. fol1ow.==.:----

"3. Where, under rule 2 or rule 2~A the Government or any other authority is added as a defendant in a suit, the Attorne_\_-'--Genera1, the Advocate--Genera1 or the Govern- ment Picador, or the Government or other authority, shall not be entitled to or liable for costs in the court which ordered the addition, unless the Court, having regard to all the circumstances of the case, for any special reason otherwise orders."

IL) CHa1'rm28 SUITS ET.' DE AGAINST SOLDIERS ETC.

1ntroductor,_r,r 28.1. Order 28 deals with suits by or against members of the armed forces. The provisions of the Order are mainly designed to avoid the inconvenience that may be caused to a member of the armed forces who has to appear as a party to a suit, but cannot obtain leave of absence. Mainly, the rules empower him to appoint some other person for the purpose. No changes are recommended in this Order.

CHAPTER 29 SUITS BY AND AGAINST CORPORATIONS Introductory 29.1. Order 29 deals with su ts by 'and against corporations, There are provisions for the subscription and veriﬁcation of the plaint, and for service of the summons on a corporation. As regards forum in the case of suits against CO1"p0I'atlOI'lS, Explanation II to section 17 is relevant; The Court may require the personal appear- ance of any principal oﬂicer of a corporation, able to answer material questions relating to the suit. There are not many points of contro- versy concerning this Order. We therefore recommend no change in this Order.

1. See rliscussioii i-elating to section 17.

224

1,:

CHAPTER 30 SUITS BY DR AGAINST FIRMS Introductory 30.1. Order 30 deals with suits by or against films.

The main provision authorises Suing of partners in the name 01' the iilzn. 1313;-iosu1'e oi partnei s' name is provided for, as also service. Appearance of partners is dealt with. There is no appearance except by partners. Appearance under protest is allowed. A suit against a person as carrying on business in a name other than his own is governed by similar provisions.

Order 30, rule 2 30.2. An amendment has been made to Order 30, rule 2(3) by the High Court of Orissa, under which the names of the partners disclos- ed in the manner stated in Order 30, rule 2(1) "shall appear in the decree". The question whether this amendment should be adopted for facilitating the execution of the decree against individual partners was considered in the earlier Report,' but it was felt that there was no need for any such provision.

30.3. We are, however. of the view that the Orissa amendment is a useful one, and the particulars proposed to be added may come in handy at the stage of execution.

Recommendation 30.4. Accordingly, we recommend that the proviso to Order 30, rule 2 should be revised as fol1ows:----

"Provided that all proceedings shall nevertheless continue in the name of the ﬁrm, but the name of the partners dis- closed in the manner stated in sub-rule (1) shall be entered in the decree."

1, 27th Report, page :31". note on Orrler 30. Rule 2.

225

CHAPTER 31 SUITS BY AND AGAINST TRUSTEES AND EXEUUTORS Introductory 31.1. In the Order relating to suits by and against trustees, exe- cutors and administrators, Order 31--the Code first provides that in suits concerning trust-property, the trustee shall represent the beneﬁciaries. and that. unless the Court otherwise directs the bene- ﬁciaries need not be made parties. The Court will order the beneﬁ- ciaries to be made parties, when the trustees etc. are wholly un- interested in the matter, or have an adverse interest therein. No changes are recommended in this Order.

I'\ Cimr--1-Ea 32 SUITS BY AND AGAINST MINORS Introductory 32.1. Order 32 relating to suits by and against minors is Sub:

stantialty taken from the rules of the High Court at Fort William, dated 10th June, 1874:. In the case of a minor plaintiff, the provision is that" he should be represented through a next friend. In the case of a minor defendant, the provision is that he should be represented by a guardian for the suit, to be appointed by the Court.

32.2. There are pI'(:I'v'iSi0l'1S as to who may act as next friend or be appointed guardian for the suit, the main object being to protect the interests of the minor. With the same end in view' the Order imposes restrictions on--

{a} receipt by the next friend or guardian for the suit, of pro- perty under a decree for minor;

(b) agreement or compromise by the next friend or guardian for the suit.

Retirement of next friend, removal of the next friend, and retire- ment, removal or death of the guardian for the suit, are provided for. The course to be followed 'by a minor on attaining majority, is also dealt With. Unreasonable or improper suits by the next friend are also dealt with. Application of these rules to persons of unsound mind is provided for.

We shall now deal with such points as require amendments.

Order 32, Rule 3(4) 32.3. Under Order 32, rule 3(4), notice of an application for ap- pointment of a guardian ad Iitem is to be given to the father or other natural guardian of the minor, It appears to us that the notice should be given to the mother also, even where she is not the natural guardian. We also concur with certain other amendments recom- mended in the earlier Report.' Re-draft of Order 32, Rule 3 32.4. Accordingly, we recommend as follows:--

In rule 3 of Order 32, or sub-rule (4), the following sub-rules should be substituted:--

"(4) No order shall be made on any application under this rule except-

(a) upon notice to-

(i) the guardian of the minor appointed or declared by an authoritv competent in that behalf, or. where there is no such guardian, ....... _. the father or other natural

- Q' :.";'1h l{::po:-ti, note on 227 22:':

guardian of the minor, or where there is no father or other natural guardian, the person in whose care the minor is,

(ii) the -mother of she minorr also, and {la} after hearing any objection which may be urged on behalf of any person served With notice under this sub-rule.

HA) Tftt' Court may, in I1'Il/y case, -if it Lh-énlcs fit, issue -notice under sub-rule ('-l) to the minor also."

Order 32, Rule SA (New) (Elfect of adverse interest) 32.5. Where a guardian or next friend has conducted the suit with care and honesty, can the decree be set aside on the ground that he had an adverse interest? Of course, the objections which the minor (or other persons looking after his welfare) may like to urge as to the partiality of any person, can always be taken when notice is issued under Order 32, rule 4. But, if the notice does not reach the minor or the person looking after his welfare, then diﬂiculty may arise. On the one hand, it is desirable that a decree of a court should not be liable to be set aside except for strong reasons. On the other hand, justice requires that a minor should not be bound by the acts of a guardian adverse to the minor's inte-rests.

32.6. Discussion of the case--law on the subject must start with a Privy Council decision.' In that case, the suit was ﬁled on 'behalf of the minor for a declaration that certain decrees and sales were invalid because the minor had not been properly represented in the proceedings from which they resulted. It was held that the decrees and proceedings were invalid, because the sister of the minor, being a married woman, was not the proper person to be appointed as guardian ad lite-m, and, as regards the other guardian, who was the minor's uncle, his interest was obviously adverse, as he had purchased in the name of his sons the decree passed against the minors father. and was thus personally interested in the minor's estate adversely to her. All this was proved in the suit to set aside the decrees and sales, and it was therefore held that the minor was never a party to any of the Suits in the proper sense of the term.

32.}. The learned Subordinate Judge had found that" the re- ceedings impeached in the plaint failed as against the plaintiff ap- pellant), because she was not properly repersented in them. He held that Ulfat--un-nisa, as a married woman, could not have been appoint- ed guardian ad litem, and that Mauladad, whose sons were merely benomi purchasers on" his behalf, and had an interest adverse to that of the minor, and was therefore disqualiﬁed. The High Court on appeal set aside his decree, and dismissed the suit upon the ground that-

"the decrees upon which the execution proceedings were found- ed are not in any way impeached in the Suit, not could they be. The impeached transactions were proceedings on those decrees in execution. and, this being so. it was the

1. R-*:rlu7-II an i'u'i'asa. \". .1!-alum.-imari Jsrnriiﬁ, (l'.Ji.'I9] I.L.l-E. 31 All 5?2 (l.'.C.).

2. Itaaltid mi. 1\r'i'sau V. .lfu:ham.maal Ismail-, (19119) I.L..l:L 31 All. 572-582 [l'.U.}.

229

proper course for the plaintiff, if she had ail}? 0?)l€Ct1011_ to make to the execution of the decrees, to raise these objec- tions under the pmvisions of section 2'--l'--1_of the Code of Civil Procedure, and not bv a separate suit."

32.8. The Privy Council observed-

"With all respect to the learned Judges of the High Court.- rheE;-- l_=.'J':'dEi1l1'}§5 are unable to agree with this conclusion. Section 244 of the Civil Procedure Code applies to ques- tions arising between parties to the suit in which the decree was passed, that is to say. b3tW9€11 Parties W110 have been pl'DT)€'l"l}' made parties in accordance with the provisions of the Code. Their LU1"dS-hips agree With the Subordinate Judge that the appellant was never a part_v to any of these suits in the proper sense of the term. "Her sister. U1fat---un-nisa. was a married woman, and therefore was disqualiﬁed under section 457 of the Code from being appointed guardian for the suit, and Meuladad's interest was obviously adverse to that of the minor."

32.9. This decision was followed by the High Court of Madras. and it was held that where the interest of a guardian ad litem is 0bVi0l1Sl1,r adverse, the decree is a nullity.' The High Court of Travancore-Cochin also seems' to have held that the decree is a nullity'.

32.10. In an Allahabad casef it was observed~ "It is now settled law that where a 2'Uai'dian ad iitem has an interest adverse to the minors, they are to be considered as not having been properly represented in the suit. and the decree is not binding on them."

32.11. Tn a later Madras case,' the ouestion whether the notice given to the father was sufficient notice, was considered in the con- text of a suit on a mortgage where the executant of the mortgage was appointed guardian ad litem of his minor son. The court, refer- ring to the above question. observed-

"This again depends on whether the appointment of the father as guardian ad litem is absolutely void, or is only void- able. We think that in cases where a person contests the validity of the appointment of a guardian ad Iitem on the ground that his interests are adverse, and Where there is no express prohibition in law as to the appointment of a person except on the ground that his interests are adverse, the partv must prove that the facts do show that the inte- rests of the guardian ad Iitem are adverse. and that owing to that fact the guardian did not act in the interest of the minor and did not conduct the defence with proper dili- gence or raise proper defences to the suit and that the minor has been prejudiced."

1. 5-'r:.?.E-i\_-pprzc GM-wltdrxn v. llfaeta Naﬂcen [1924] I.L.R. 4'7 Marl. 79, ALR. 1924 Mad. 297.

5. Isrizrzii Hirrrhim V. J-faﬂzaieﬁerion. A,I.R. I955 Tr. Co. 'i'lJl .

'. Ckinznjilal v. Syed Hyaa AH, A.I.R. 1924 All. 751 {Domilo and Dads! -TJ.}.

'. Monti Swemuer v. Subrame-nits, A.I.R. 1929 Med. 393, 394.

230

32.12. In a Calcutta case,' Rankin, C. J. doubted whether the Privy Council case" went so far as to hold that the appointment of a guardian ad lttem whose interest was adverse rendered the decree a nullity in every case.

32.13. The Bombay High Court has observed" that where a minor plaintiff is not properly represented in a suit, he is not en- titled to ignore the decree passed therein and to ﬁle a fresh suit to have the issues tried on the merits. He should sue to set aside the decree in the prior suit, and to revive that suit.

32.14. In a Patna case,' the suit was ﬁled to set aside the mort- gage decree on the ground that the minors were not properly re- presented by their father. as his interest was adverse. It was held on the evidence that as the defences open to the minors were not put forward by the guardian, the decree was not binding on them, but that it cannot be said without going into the merits that the decree was had simply because the father's interest conﬂicted with that of the sons. ' 32.15. In at Bombay case", the position in the case of members of a Hindu joint family was thus summarisedﬁ "In the case of a Hindu joint family where the manager has the power to bind the minor members of the coparce- nary by an alienation for legal necessity, it is open to the son to challenge it in a suit brought to enforce the alienation on the ground that although it may be bind- ing on the manager, it is not binding on the minor. His interest may. therefore. conflict with that of the mana- ger, as the defences of both may be separate debt on the family. In such a case it would not be desirable to appoint. the manager as the guardian ad litem for the minor in the suit' but if he is so appointed and a decree is passed against the minor's interest in the property. it cannot be said, in absence of fraud or collusion on the party of the manager, that the decree is a nullity merely because the manager ought not to have been appointed as his guardian. If the minor subsequently sues to set aside the decree. he must show that the alienation was not. in fact, binding on him. This would be especially so where the manager is the father who is the natural guardian of the minor and whose personal debts also are " binding on the son if they are antecedent to the aliena- tion and are not illegal or immoral. In the present case. there is no proof of fraud or collusion on the part of the father. and the debts for which the mortgage and the sale were made are not shown as not binding on the son. The interests of the father and the son are not thus conﬂicting. We are of opinion. therefore, that the mort- gage decree is not proved to be not binding on the son on this ground."

1. -'~'ru'.Hc A-'.IrIJ.iI .7\'rrrin1 '.7. '7'.71-ﬂturrfvra (1929) 55 Cal. 55. Cal, I2!'-T: g

3. Rrwhfrl rm. v. Jfufutmrnmﬂ I-rimtil, (1909) I.L.R. 31 All. 572 {I'.C.}.

3. Ertrrnan V. Srir.-is-znutii, ,-LLR. I959 Born. 125. '. r'.'.'-.z'r'.rru1'.i'mr i't'rsrri.i1-1.. Dag Y. Kiiirirt-r Tkakur, A.I.E. 1933 Put-.L-137.

5. .'!'aJttIdetI v. Shankar, A.I.R. 19-'13 Bum. 337, 390 (Davatia. 8:. Lokur JJ].

.,.-

231

33.16. We are of the view that the position should be settled in this respect, Mere adverse interest is not, according to the view of most High Courts, a ground for setting aside the decree. But, where the minor is prejudiced by reason of such adverse interest, the decree can be set asde. These propositions should be enacted into low, At the same time, the ordinary rule that the decree can he set aside on the ground of gross negligence or misconduct on the part of the guardian leading to prejudice, should remain. un- aﬁected, since it is independent of any question of adverm inte- rest.

332.17. It was suggested to us that it would be better to consider this point under the Evidence Act, but since it also concerns the Code, we are dealing with it here.

32.18. No doubt, theoretically, an adverse interest should be suﬁicient for setting aside the decree. because the minor is not represented. But, such a provision would create practical compli- cations. and aﬁect the ﬁnality of decrees in numerous suits to which minors are parties. The question is of choice between the abstract pristine view of mere adverse interest (on the one hand), and adverse interest leading to prejudice to the minor (on the other hand}. The latter seems to be the present position, and is the only practical view.

Recommendation 32.19. We, therefore, recommend that the following rule should be added in Order 32:--

"3A. (1) No decree passed against a minor shall be set aside merely on the ground that the newt friend or guardian for the suit of the minor had an interest in the subject- matter of the suit adverse to that of the minor: but the fact that by reason of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for set- ting aside the decree.

(2) Nothing in this rule shall preclude the minor from ob-

taining any relief available under law bu reason of the misconduct or cross negligence on the part of the next friend or guardian for the suit. resulting in prejudice to the interests of the minor."

Order 32, rule 15 32.20. _In the earlier Repﬂrtf a recornmendrution was made for the insertion of a new rule--2A--in Order 32, in the following terms:

"2A. (_1) Where _a suit has been instituted on behalf of the minor by_h1s_next friend, the Court may, at any stage of the suit, either of its own motion or on the applica- tion of any defendant, and for reasons to be recorded. order the next friend to give security for the payment of all costs incurred or likely to be incurred bv the defendant. "

1. 27th Report, Note on Order 32, Rule 241, (New), and draft at page ':5_ 232 {2} Whe1'e such a suit. is instituted informa pauperis, the security shall include the court-fees payable to the Got-'ernrnent. ' (:5) The provisions of rule 2 of Order 25 shall, go far as many he, apply to a suit where the Court makes an' order under this rule directing security to be furnished."

32.21. This followed broadly the Madras amendment on the :.L=b;iect.

Question of security 32.22. We agree with this recommendation. The reason why_we refer to it here is, however, connected with another provision, namely Order 32. rule 15.

Under Order 32, rule 15, the provisions contained in Rules 1 to 14 of the Orders, so far as they are applicable, shall extend to persons adjudged to be of unsound mind and to persons who. i.hou,r:h not so adjudged. are found by the Court on inquiry. by reason of unsoundness of mind or mental inﬁrmity, to be capable of protecting their interests when suing or being sued. Now, the Madras amendment to Order 32. rule' 15 excludes the operation of rule EA (security demanded from next friend or auardian) i_e. the newly inserted rule in relation to persons of unsound mind etc. '-

The previous Commission noted this, but considered it unnecc-s~ sary to have any such provision} Supervening insanity 32.23. Another question relevant to Order 32, rule 15 is of super- vening insanity. This had also been considered by the previous Coma mission' in the earlier Report. (at present, rule 2 does not apply in such case)? It would appear that in England", in case of super- vening insanity, the action must be carried on by the next friend (who will, usually, be the receiver in lunacy). The previous Com~ mission took note of this.' position. However, it thought that as such cases are not frequent, no amendment was required in the earlier Report.

32.24. We think that although both these points are minor, they should be suitably dealt with.

1. 2'.TtlI Rﬁpurh I';'..qo 22-'1. '.\'ote on Order .'-32. Rule 15.

3. Firm IJa'ol'mrr1rr. Dds V. Debi Suﬁsm", A.I.R., 1936 Lah. T, 8 {Boclzrat J.)-.

". Sec Order 16, rule 17 and Order 17, rule 4, 11.3.0. [E:tg.] and commentary thereon in the,-Annual 'Practice.

..x 233 Recommendation 32.25.Accm'ding1y, we recommend that Order 32, rule 15, war. should be revised as follows:--

"15. The provisions contained in Rules 1 to 14, other than rule V 2A, so far as they are applicable, shall. extend to persons i ' adjudged to be of unsound mind before or during the pen- dency of the suit, and to persons who, though not so adjudged, are found by the Court on inqui1"§,', by reason of unsoundness of mind or mental inﬁrmity, to be in- ' capable of protection their interests when suing or being sued."

L;13¢n}229Mo£1.JauucA._17 _ CHAPTER 32A SUITS CUNCERNTING THE -FAMILY Introductory 32131.1. We propose to add a new Order, intended to deal with suits relating to matters concerning the family. We explain below the reasons for adding it.

Peculiarity of disputes concerning the family 32;-'-1.2. In the administration of justice, in disputes relating to the family. one has to keep in mind the human relationships with which one is dealing. The objective of family counselling, as a method of achieving the ultimate object of preservation of the family, is to be kept in the forefront.

3211.3. Litigation concerning or involving affairs of the fazniiiy, therefore, requires a special approach, in view of the serious emo~ tional aspects involved. For this sensitive area of personal rela- tionship, our ordinarv judicial procedure is not ideally suited. As Sir Garﬁeld Barwick (then Attorney-General of Australia),,said' in the debates on the Matrimonial Clauses Bill, 1959, the JudgE""~ not unnaturallv feels reticent about intruding into the human re. latinnship of those who come before him; and the parties them- selves so often enter into a conspiracv of silence, where their in- nermost secrets are concerned.

32A.4. It is now being increasingly realised thate

(a) as fact' as possible, an integrated broad based service to families in trouble. should become a part of the Court system;

(lo) the existing court structure should be so organised that one single court should deal with the problem of pre- serving the families; and

(c) the conventional procedure dominated by the adversary system may not be appropriate for disputes concerning the family.

32A.5. Many of these matters are outside the scope of this Report: moreover. it will require considerable time and effort to re-mould the legal system to make it an effective instrument for dealing with them. Nevertheless, it is felt that so far as the Code of Civil Procedure is concerned, it may be desirable to have spe- cial provisions on some matters,--provisions which highlight the need'for adopting a different approach. where matters concerning the family are at issue, including the need for eﬁorts to bring about an amicable settlement.

1. Australia, H. Piirl. Del». (New Series]. 2222, 1325.1 997' lnlil. I, 19559] 33% 'U $4 _.._....

235

Recommendation 3221.6. With the above object in view. a few_ provisions relat- ing to suits concerning the family are proposed in the form of a new Order, which will be as .EUllUws;--

"Order 3'2A--Suits relating to matters concerning the family-

1. (2 Application of the Order (1) The provisions of this Order apply to suits or proceedings relating to matters con- cerning the family.

) In particular. and without prejudice in the generality of the provisions of sub-rule (1), the provisions of.this Order apply to the following srits or proceedings, namely.--

(a) a suit or proceeding for matrimonial relief, in cluding a suit or proceeding for a declaration as to the validity of a marriage, or as to the matrimonial status of any person;

(b) a suit or proceeding for a declaration as to the legi-

timacy of any person;

((2) a suit or proceeding in relation to guardianship of the person or custodv of any minor or other person under disability;

(d) a suit or proceeding for maintenance.

(e) a suit or proceeding as to the validity or effect of an adoption;

(fl a suit or proceeding relating to wills, intestacy and succession;

(g) a suit or proceeding relating to any other matter in respect of which the parties are subject to their personal law.

"(3) .So much of any rule contained in this Order. as relates to a matter provided for by a special law in respect of any suit or proceeding shall not apply to that suit or proceeding.

Proceedings to be held in camera--In every suit or pro- ceeding to which this Order applies, the proceedings may be held in camera, it the court so desires and shall be so held if either party so desires.

Duty of court to make eﬁorts for settlemm-rt---(1) In every suit or proceeding to which this Order applies, it shall be the duty of the Court in the first instance. in every case where it is possible to do so consistently with the nature and circumstances of the case, to make every endeavour to assist the parties in arriving at a settlement in respect of the subject-matter of the suit.

LfB{D]229MofLJadnGA-+173 236 (2) If, in any such suit or proceeding, at any stage it appears (3) The power conferred by sub-rule {2}

4. to the court that there is a reasonable possibility of a settlement between the nartles, the court may adjourn the proceedings for such period as it thinks. ﬁt. 130 Enable attempts to be made to effect such a settlement.

is in addition to any other power of the court to adjourn proceedings.

As.5'i.str:m.ce of welfare e.trpert--In every suit or proceed- ing to which this Order applies, it shall' be open to the Court to secure the services of such person.' whether related to the parties or not, including a person pro- fessionally engaged in promoting the welfare of the family, as the court thinks ﬁt, for the purpose of assist-- ing the Court in discharging the functions imposed by rule 3 of this Order.

Duty to inquire into _facts----In ever}; suit or proceeding to which this Order applies, it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the plaintiﬁ' and into any facts alleged by the defendant."

For the purposes of this Order. each of the following shall be treated as constituting a family, that is to sarj,r-----

"'(a) a man and his wife living together, any child or children being issue of theirs, his or hers, and any child or children being; maintained by them;

a man not having a wife or not living together with his wife, any child or children being issue of his, and any child or children being maintained by him;

(Ci 3 W0I'ﬂan not having a husband or not living together with her husband, any child or children being issue' of hers... and any child or children being maintained by her;

{£1} a man or yvoman and his or her brother, sister, an- 'cestor or lineal descendant living with 'him; and (Elan? ffolrlbination of oiie or more of the groups speci- ﬁed 11" 01311365 (8), (b). {-2) and Id) of this rule."

(bl 1' The P3139" sh-°'1]d llmfembfgr be H: Wonzum, wherever a.1'aila.bIe.

'.9 i

-u...* CHAPTER 33 SUITS BY INDIGENT PERSONS Introductory 33.1. Order 33 deals with suits by indigent persons. The Code does not deal with the subject of legal and, but provides for exemp- tion from Court fees, in respect of persons who are indigent, called by the inappropriate name of "paupers".

33.2. The object is to enable persons who are too poor to pay, court fee to institute a suit without payment of it.' The exemption does not extend to process-fee (rule 3).

33.3. This Order has a long history.' In the reign of Henry VII, an Act was passed by the English Parliament as "a Mean to help and speed poor Persons in their suit". This Act, which permitted the destitute to appear in court without paying the usual court fees at the discretion of the Chancellor, was in force in England, with modiﬁcation, until 1949.

33.4. It enabled him to obtain writs original and writs of sub- poena free of charges. The Indian Legislature ﬁrst dealt with the subjeota in 1939; :and the provisions have, with necessary additions and modiﬁcations, found a place in successive Codes of Civil Pro- cedure.

Order 33 and expression "pauper"--Recomrnendation 33.5. With reference to indigent persons, we have a general re- commendation to make on a question of terminology. We recom- mend that the expression "indigent person" should be used through- out the Code. in place of the present expression "pauper", which "is not in harmony with modern attitudes.

Order 3.3, Rule i-----Point. not discussed in August & September, 19 2).

33.6. In Order 33, rule 1, which deals with eligibility to sue, cer- tain modiﬁcations, Which are summarised below, were proposed by the earlier Reporti-

(i] The amount of rupees one hundred was proposed to be raised to rupees one thousand; .

(ii) In considering the question of suﬁicient means, the subject- matter of the suit (case Bombay Amendment) and neces- sary wearing-apparel were proposed to be excluded;

"--_1._tIa£iwda-hr v. Du-ofka (1393: I.L.R. so Cal. 111, 115. it

2. 11 Henry VII, 6. 12.

3. Act. 9 uf 1839.

4. 27th Report, page 225, note on Order 33, Rule 1.

237 938

(iii) The question whether the date of presentation of the ap-

plication or the date of its hearing should be the relevant date for considering pauperism, was dealt with. The deci- sion on the subject revealed a conflict of views. A provi- sion had, therefore, been recommended to the effect that property acquired by the applicant after presentation of the petition and before decision of the application should be taken into consideration.

We agree with these recommendations. We are also of the view that certain other points require to be _considered and we proceed to discuss them below.

Order 33, Rule 1, Explanation 33.7, The question whether a person suing. in a representative capacity. who has no property in his hands in that capacity, can sue as a pauper. has been the subject matter of debate. as is shown by judicial decisions.' 33.8. Here. reference may be made to the earlier Re ort" which has taken a similar view. while referring to the Madras mendment to Order 33. Rule 1. Explanation (iii), which provides that where a plaintiff sues in a representative capacity, the question of pauperism shall be considered with reference to the means possessed by him, in such capacity It was, however, considered. unnecessary to make such an express provision, though the Commission agreed with the \-'ll.-'.'W incorporated in the Madras Amendment.

33.9. We now refer to another point, namely, suits in representa- tive capacity. ' In a Gujarat" case. the question arose, whether a trustee who has not no trust property in his hands could sue as a pauper on behalf of: the trust. even if he is possessed of suﬂicient means in his indivi- dual capacity. . - . .

The High Court held-

"The word 'person' in the Explanation to Order 33, Rule 1 being capable of both a wide and a narrow meaning, we should give that construction. which would advance this salutary remedy and achieve the purpose underlying enact- ment. so that the facility for institution of a suit with- out payment of the requisite court-fees can be properly availed of by all persons. who would be otherwise denied the remedy merely because the person had no funds to pay the requisite fees.._......(The)' other' construction would lead to anomalous results. The pauper(s), minors and lunatics. who on account of. their legal disabilities.

I. D-acisf-m4 -:!i+ml 1'': the 271 ll ll-r.'p'rr1 :lI'I' not rc-pq-a.-1.t.ed-lun-e.

2. 27th Report. page 22.1. -\

3. I"'}r.",-.u1.ir. L-'Il 1.-'. I',-'.l'm.rM'rrm'].--n.. A,I_[{_ }_!J¢-55 (}uj_ 207, 2][)_ L ilf-tiurrj Rrr_;'n,fa' 1.-'. Kiurrrdrm Balm. |.L.R. 1'93'? Flam. 279, ZSI; Hkrtmt A-Mayodoy Caﬂoit Mills Ltd. v. .1-famcahnrrrr SE-rag}:-, A.I.R. 19330411. 745.

.,,J 239 could not act except through someone else on their be- half, could not sue at all unless the next friend or guar- dian was a pauper, because they could not present the application in person.

Similarly, the trustee of an executor or a Mutavalli could not sue or appeal against a decree against a trust estate un- less they were themselves paupers or they choose to put in their own moneys to ﬁnance the Iitigation'.".

33.10. Further, in the Gujarat case, it was held that "merely be- cause the test of a wearing apparel could not be fulﬁlled and no deduction of its value could be claimed by persons possessing no wearing apparel. it could not justify a construction that the word 'person' in the clause refers only to natural persons who can possess wearing apparel. So also, there isno difficulty in complying with Rule 2, as regards the presentation of the application by the person himself. "In such cases of trustees and executors, if the suit is brought in a representative capacity. they could present the appli- cation in that capacity, and they could remain present as such be- fore the court to answer any question relating to the trust".

33.11. The proper test in such cases is to see in what capacity a person sues and whether in that capacity he is a pauper. The trustees could therefore, sue on behalf of the trust, provided they had no sujfficient trust moneys in their hand to pay the necessary court fees, even though in their -individual capacity they may -not be paupers, Resources of the trustees in their individual capacity would be irrele- vant. The question whether the word "person"' in Order 33. Rule 1. Explanation should be taken to include a limited company incorpo- rated undcr the Companies Act, was left Qnpen.

33.12. It is in our opinion desirable to make the position clear on this point.

33.13. It is. in our opinion, also desirable to exclude not only the necessary wearing apparel while calculating the means of plaintiff desir-ousof-siiing as a pauper, but all property exempt from attach- ment.

33.14. The basis on which property is exempted from attachment by the law' is the assumption that the property is necessary for liveli- hood or that the exemtion is otherwise necessary encourage thritt.--all of which can be subsumed under the general rule that the law does not favour property (of the particular kind). being disposed or dissipated or spent away for any purpose. It follows, that the person to whom such property belongs should rot only assign it.' but be discouraged from selling it in order to provide himself with the means for fighting litigation.

Recommendation----Drder 33. Rule 1. '- ' 33.14. Accordingly, we recommend that for Order 33. rule 1, the following rule should be substituted:--

"1. Subject to the following provisions. any suit may 'be in- stituted by an indigent person.

I. Flee (li.~iI.-ucseirm as to section Fifltl), Proviso, 2- "'-',J'- nnfziiori FL Tran:-afcr of Propel-t._v Act.

240

Explanation 1.---A person is an indigent person»-

(a) when he is not possessed of suﬁicient means, other than property exempt from attachment in execution of :1 dec-

ree and the subject-matter of the suit, to enable him to _ pay the fee prescribed by law for the plaint in such suit, 'V or

(b) where no such fee is prescribed, when he is not entitled to property worth one thousand rupees other than the pro- 1 perty exempt as aforesaid and the subje-et--matter of the suit.

Explanation 2.----Any property which is acquired by a person after the presentation of his application for permission to site as an indigent person and before the decision of the ap- phcation, shall be taken into account in considering the question whether he is an indigent person.

Explanation 3.--When the plaintiff sites in a representative capa- city, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity".

Order 33, rule IA (New) 33.15. We are of the View that inquiry into pauperism should or- dinarily be made by the Chief Ministerial Dfﬁcerl of the Court.

Accordingly, we recommend that the following rule should be added in Order 33:---

"IA. Inquiry into the question whether a person is an ind'1- R'! gent person shall ordinarily be made by the Chief Mi- nisterial Ofﬁcer of the Court, unless the Court otherwise directs; and the decision of that oﬁicer shall, unless the coui-E: otherwise direct, be deemed to be the decision-.~«e!L"'""""""""* the ourt".

Order 33, rule 5(c).

33.16. There is a minor point to be considered concerning Order 33, rule 5(a).

The rule is as follows:-- -

"5_ The Court shall reject an application for permission to sue as a pauper----~ {al ............. ..

(c) where he has, Within two months next before the presentation of the application, disposal of any property fraudulently or in order to be able to apply for permis-

sion to sue as a pauper, or-.

(d) .......... ..

1. Cf. Section 128(1) (j).

24-1 33.1? It may be noted, that under clause (c), the application;

is rejected on the ground oi fraudulent disposition of proper'ty;or disposition of property in order to be able to apply £01' P'-3-1"m1551°ﬂ to sue as a pauper. The assumption behind this rule is, that if the H property had not been disposed of (ivithin the Speciﬁed peﬁodl, then the applicant would have had suﬁicient rneansto pay the 0011"? £995- This. however-_ is not sufficiently brought out in the clause, because under the present wording, even where the property disposed of and the property still in possession of the aPDl1C3¥1t.~ taken t°3"-'lfher- 15 ncjt 5-ufﬁcient far paying court fees, the application can be re1ected. We think that this is rather harsh, and should be set right.

Recommendation 33.18. We. accordingly, recommend the insertion of the follow- ing proviso below rule 5-

"Provided that no application shall he rejected under clause (C) if, even. after the value of the property disposed of is taken «into account, the applicant would be entitled to sue as an indigent pe7'50n within the meaning of 'N13. 1 of this Order."

Order 33, Rule 5(a) 33.19. Amongst the grounds on which an application for per- mission to sue as a pauper may be rejected, is the ground mention- ed in Order 33, Rule 5(d). namely, absence of a cause of actlon.

33.20. In the earlier Report,' it was noted that the existing wording of Order 33, Rule 5(d}--"where his allegations do not show a cause of action"/had been interpreted widely by the courts." The Commission considered it unnecessary to disturb the language of the rule. although it referred to the local amendmenls relevant to the rule.

3321. Since then, the Gujarat High Court has held' that Order 1'; rule 11 makes a distinction between failure to show a cause of action "(on the one hand). and bar of limitation or of any other law [on the other hand). It was pointed out that the two ideas are quite distinct. "The bar of limitation does not destroy the cause of action. if any, but only bars the remedy." Therefore, it was held that the lower court was wrong in holding that the suit does not show a cause of action because it is time-barred.

33.22. This judgment makes it necessary to clarify the posi- tion. It may be noted that the Madras High Court' has added a clause (d-1), under which the Court shall reject the application for permission to' sue as a pauper where the suit appears to be barred by any law. As contrasted with this, the Allahabad High Court has inserted an Explanation to rule 5, to the effect that an application shall not be rejected under this clause ((1) merely on the ground that the proposed suit appears to be barred by any law.

1. 27th Report. pages 225. 226. _

2. [(1) See Balm Paumr v. Go::err2ene'n.t, A.I.R. 1955 All. 415; (E1) Pr:m-trial, A.I.R. 1!}-11 Had. 398.

. .Rit-rnm'.I:la{ 1;. Mutkumiui. A.I.R. 1965 Guj. 21-! (Rain, »T.)_ . As to the eifcct of the Madras aT]!€'|dIIIBnli, see In re .»1n-mtmultm, A.I.R. 1956 Mad. 377, til-Eh-5 242 Recommendation to insert Order 33, rule 5(ﬂd) 33.23. The Madras amendment is, in our view, preferable. If a suit is barred by any law, there is no point in granting permission to sue as a pauper. Of course, borderrline cases could occur; but the power to reject could be conﬁned to cases where it is clear from the allegation in the application that the suit is barred. We there- fore, recommend, therefore, that the following should be added as clause (dd), in Order 33, rule 55---

' "(dd) where his allegations show that the suit would be bar-

red by any law _fCI'r the time being in force; or".

Appeal against order under Order 33, Rule 5 33.23A. We are of the View that an order under Order 33, Rule 5, rejecting the application, should he made appealable,' since the order followed to stand, would prevent the applicant from enforc- ing his right to sue.

33.24. Order 33, Rule 7, prescribes the procedure to be followed at the hearing of an application for permisson to sue as an indi- gent person. It says-

'*7. (1) On the day so ﬁxed or as soon thereafter as may. be convenient, the Court shall examine the witnesses (if any) produced by either party, and may examine the appli- cant or his agent, and shall make a memorandum of the substance of their evidence.

(2) The Court shall also hear any argument which the par- ties may desire to otter on the question whether, on the face of the application and of the evidence (if any) taken by the Court as herein provided. the applicant is or is, not subject to any of the prohibitions speciﬁed in Rule 5."

This rule, thus, turns back to rule 5.

33.25. Under Order 33. rule 5, a Court shall reject an applica-A tion to sue in _forma paupevis on any of the five grounds mentioned therein. These relate to-----

(ij The form and presentation of the petition: Rule 5(a);

(ii) Ting pauperism of the applicant: Rule 5, clauses (b), (c) an {e}.

(iii) The merits of the petitioner's claim: Rule 5, clause (cl).

33.25. Now, the inter-relationship of rule 7 and rule 5 of Order 33 is of interest.

First, so far as rule 5(a) goes, a perusal of the petition is suf'ﬁ- cient to see whether the prohibition applies. so that the examina- tion uncler rule 7 will not relate to it. Secondly, as regards pau- perism of the applicant, rules ii and 7 provide for. the adducing of evidence by the applicant as well as by the Government and by the opposite party. The examination under rule 7 is, therefore, certainly directed -at pauperism. Clauses (b). ((1) and (e) of Rule 5 hroadl_v relate to the quest'on of oauoerisrn. So a full enquiry in ﬂit' Dﬁints mentioned in those clauses has to be held.

1. To be carri-:Ll -13, rule 1 [n_u}, At ...--J ',._. "

-H. 24?'-

Thirdly, as regards cause of acton, i.e. Rule 5, Clause id}, there is a difference oi' opinion among the various High Courts as to the material that a_Court has to make Into account in deter- mining whether there is a subsisting cause of action or not. The conilicting views on the subject are summarised below.

The question which could arise in practice is' "Whether it is open to the Government Pleader or an opposite party duly served with a notice under 0.33, R.Ei. or R7 to ﬁle an objection or to adduce evidence or to present an argument that the applicant for leave to sue in forma pauperis has not complied with the provisions of R_ 5(d), andfor whether at an inquiry under R.7 ll'. 1_S competent for the Court to determine whether the appli- cant has complied with the provisions of R. 5(dl."

33.27. All the High Courts seem to agree that a Court should not, under rule 7, embark upon an elaborate enquiry regarding the merits of the petitiongfs claim. But. as to what should form .- the basis for a decision on the point Whether the petitioner has a cause of action or not, at least three views can be gathered from the decisions-

(i) The ﬁrst View is, that only the petition can be looked into for this purpose and nothing else. This View found favour in a Madras case." But the difficulty with this View is, that rule 4 gives a discretion to the Court to examine the applicant as to the cause of his action. If any statement made by the applicant in the examination cannot be acted upon by the Court. then it is not easy to see why a Court should be invested at all with such a discretion.

No doubt, the word "allegations" in Rule 5(d'} may seem to lend some support to this view. but the word should not be regard-

'"e1:I as material on the above point.

(ii) The second view is, that a court can take evidence re- garding the petitioners' cause of action. This View was taken by in a decision of the Patna High Court," though a later case takes a different view. It is. however, oppos- ed to the scheme of the Qrder. The evidence that can be adduced after notice to the opposite party. should relate (-as laid down by Rule 6) only to the pauneﬁsm of the petitioner.

(iii) The third View (-which is a middle between the two extremes mentioned above) is. that a Court can rely upon the allegations in the petition and the statements of the petitioner made by him during his exarnination under rule 4. if an_v. by the court. This view is shared L ('I°- "'7-'II H45-'-'1' v. .|I;',r. Lt:-. Ptm. .-'t.[.R. 1932 R.":I.I]£{- 10?, T10 [F.B.]. n'? rrfrvanr Pi1i'r4.5 \' F'",rJ'I PHI'!-' (1903), ll} M. L.J. 292 {F.B.). 3 C.l'l.-'u'ir-- -Vila fl'. H.|".'.' 3!-'£.i'f'l";r'E:, :L.l.R. 1919 Pilaf. 53, 59 [D.B.l.

IQ 244 by several High Courts.' But there is again a difference of opinion regarding the scope and nature of the exami- nation of the petitioner under rule 7'.

Some Courts" held that his examination under Rule" T should not be related to the cause of action but only to his pauperlsm, while others express the opinion" that his examination under rule ..

'I may be with reference to the cause of action as well. 33.28. In the Bombay case, it was observed"---

"It follows, therefore, that the materials for forming an opinion whether the applicant has a subsisting cause of action or not, or to use the words of R. 5(d) whether "his allegations ﬁlo not show cause of action" are (1) the application, and (2) the evidence of the applicant under R. 4 or r. 7. Then, under R. 7(2), the Court has to hear arguments if any oﬁered on the face of (a) the applica- tion. and (lo) the evidence (if any) taken, that the appli- cant is or is not subject to any of the prohibitior1s- speci- ﬁed in R. 5.".

33.29. It is, of course, not open to the Court to hold an elabo- rate inquiry into the question whether the claim made by the petitioner is likely to succeed. In ascertaining where there exists a "cause of action", the court cannot go into complicated questions of fact or law".

33.30. The most sensible View (which is practically the same as the Bombay view)" seems to be, that (i) under rule T, a court may examine the applicant. touching the 'cause of action'; {ii} that when he is so examined, the opposite party has a right to cross- examine him under rule '7; and {iii} that a court may take the result of such examination together with any examination under rule 4 and the allegation in the petition in deciding whether the prohibition motioned in rule 5(d) applies or not: (iv) but the other witnesses cannot. under rule '3. testify for, or against, the existence of the cause of action; (V) however. the court can give ,3.» Lion both on pauperism and on the cause of action (or any other prohi- bition mentioned in rule 5).

3.31. Since Order 33, rule 6, speciﬁcally mentions that the evidence to be taken should relate only to the question of paupe- rism of the petitioner, it is desirable, by a slight amendment of rule 7, to provide that the examination of the petitioner (as distinct from the evidence of other witnesses), can extend to the cause of action also.

]. (ct) Jcgewirrx V. Darya Cfmmn, A.I.R. 1919 Cal. 385;

{5} Bai Clm-nrirm. v'. Ultotfa Lat, A.I.R. 1932 Born. 584, 535 (Rangnekar J.},' (0) U Ba:.D:Iz-c 1'. Mg. Lu Plum, A.l.R. 1932 Bang. 10'? (F.B.].

2. [(1) Bid Chanda-H V. Gklmta Lei, A.I.B. I932 Bonn. 534:

{iii U Pct Dive *2. Mg. L-u PM-n, A.I.R. 1932 Bang. 10'', 112 (lrisjority view).

3. (rt) U Hr: Drive i'. Mg. by. Plant, A.I.R. I932 Bang. 10?, 11], I12 (]rI=.1jnrit_v view' to) JnI1r='ruim V. Dmmrz Ckarnn. A,I.R. 1919, Cal. 33%. 39.3.

. Bat flkandon v. Chlzotg L423, A.I.R. 1932 Bum. 534, 535 (Rruignekar J.]. . I-'1';.icti Pratap 1.'. Ilukh Harcm. A.I.R. 1962 S.C. 941, 943, Para. 9. . B-11' Ckamltm v. Chkoaolul, A.I.R. 1932 Boln. 58-1, (Rangnckaﬂ GGIFI A it

3. '"''''I--\..

245

I1: is also desirable to provide for a_ full record, in trienr of our proposal for appeal against orders. rejecting the application for permission to sue as a pauper.

Recommendation 33.32. In the light of the above discussion, we recommend that Order 33. rule 7. should be revised as follows»:-

"T. (1) On the day so ﬁxed or as soon thereafter as may be convenient, the Court shall examine the witnesses (if . any) produced by either party, and may examine the applicant or his agent and shall make a. full. record of their evidence.

(IA) The e.ro.mtn.a,tion of the witness under sub-rule (1) shall be conﬁned to the lrrohibitions in clauses (b), (c) and {2} I of rule 5, but the examination of the applicant or his agent may relate to any of the prohibitions referred to in rule 5.

(2) The Court shall also hear any argument which the parties may desire to offer on the question whether, on the face of the application and of the evidence (if any] taken by the Court under rule 6 or under this rule. the application is or is not subject to any of the prohibitions speciﬁed in rule 5."

Appeal against order under Order 33, rule 'i'--Recommendatlon 33.32_A. We are of the view that an order under Order 33. Rule 7', rejecting the application, should be made appealalﬂe." since it prevents the applicant from enforcing his right to sue."

Order 33, rule 3 """"" We now come one point relevant to Order 33, rule 8. In our Questionnaire. we had included the following Question:' "30. How far do you consider it the duty to the State to provide,-

(a) to a person without any means. or . (b) to a person with inadequate means, the following facilities or concessions in full or part---

(a) Legal aid;

(bl exemption from payment of process fees."

Replies to this question are generally favourable, and we think that the suggestion in part (b) of the question relating to process fees should be implemented.

1. See discussion below.

2. Discussion as to Order 33, Rule 5.

3. To be carried out under Order 43, rule 1 {on}.

4. Question 30. l 246 Recommendation 33.34. Accordingly, we recommend the following amendment in Order 33. rule 34 "In Order 33 rule 3, for the words and brackets "(other than fees payable for service of process)", the words "or fees payable for service of process" should be substituted."

Order 33. rule 9A (NeW)--Legal aid to panpers 3334A. Where a person permitted to sue as an indigent person is not represented by a pleader, it is desirable that the court should

-'assign a pleader to him at the expense of the State.

As to the mode of selecting pleaders to be so -assigned, the faci- lities to be allowed to such plea-tiers by the courts and the fees payable to such pleaders by the Government and other matters. the High Court can make rules.

Recommendation 33.34B. Accordingly, we recommend insertion of the following rule-

"QA. Where a person permitted to sue as an indigent person is not represented by a pleader, the Court shall assign a pleader to him at the -expense of the State.

(2) The High Court may, with the previous approval of the State Government, make rules providing for:--

(a) the mode of selecting pleaders to be assigned under sub--section (1);

{b) the facilities to be allowed to such pleaders by the Courts;

(C) the fees payable to such tpleaders by the Government, and, generally, for carrying out the purpose of sub- section [1)."

'Order .33. rule 15 and costs '- A--''' ' 33.35. Order 33, rule 14, allows the ﬁling of a second suit by a person where an application by that -person to sue as a pauper is refused. But the condition for the second suit is, that the applicant "ﬁrst pays the costs" of the Government and of the opposite party, incurred in opposing the earlier application, Whether this payment of costs is a condition precedent to the very institution of the second suit, is a matter on which the position is not clear from the deci- sions. One view' is, that payment of costs is not a condition prece- dent, but when the matter is brought to the notice of the court, the court should reject the plaint or stay the suit pending payment. The I'u'lacIras view' is that the costs have to be paid before institution of the suit. "In any case, if costs are paid long after the ﬁling of the suit on insufficiently stamped paper, the suit is 'liable 'to be dismis- sed. It was recommended in the Report of the earlier Commission on the Code, that there should be a power in the court to give time (in suitable cases). for payment of the costs.

_--'1l:Ir.io£ Rnkmrtn V. Am.£nbu,i. A.IV.'I'{,. 1913 Bum. 409, 411 {reviews pages],

2. {fl} Ram Kris-.7zIrrr V'. Rn-airrijogo, A.I.B.. 1943 Mod. 541?, 548' (5) Siva Roe v. R-mmnjaga, A.I.R. lt!J=3 Had. 547, 543.

rirjl-in-sf».

247

33.36. We agree that the court should have power to grant time. Further, we think, hat it should be made clear that where the costs are not paid within the speciﬁed time, the plaint should be rejected.

Recommendations 33.32'. Accordingly, the following re-draft of Order 33, rule 15 is suggested. 2 --r "15. (1) An order refusing to allow the applicant to sue as a pauper shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall, subject to the provisions of sub-rule (2), be at liberty to institute a suit in the ordinary manner in respect of such right.

(2) No such suit shall be entertained unless the applicant pays the costs (if any) incurred by the State Government and by thepopposite party in opposing his application for leave to sue as a pauper: and where such costs are not paid at the time of institution of the suit or within such period there- after as the court may allow, the plaint, shalt be rejected".

CHAPTER 34 SUITS {IN MORTGAGES Introductory 34.1. Order 34 deals with suits on mortgages The scheme of the Code in relation to suits on mortgages is as fo1lows:----

, Whether the suit be one for foreclosure, sale or redemption, the preliminary decree in each case must either declare the amount due on the mortgage, or direct an account to be taken of what is due to the mortgagee for principal, interest and costs, and for other costs, charges and expenses in respect of the mortgage--security. An account is then taken of what is due on the mortgage, the sums so found due to each mortgagee are included in one report, and the sale-pro- ceeds are subsequently divided between the plaintiff and the puisne mortgagees in accordance with their claims as found by the report. Where the mortgagee is in possession, an account is to be taken of what is due to the mortgagee for principal and interest, and also of the income derived by him from the property.

34.2. After this, a ﬁnal decree is passed. The shape which the ﬁnal decree takes depends on whether the mortgagor has or has not paid the total amount due on the mortgage. If he has not paid it, the ﬁnal decree is for foreclosure or sale.

34.3. A fundamental defect in the present procedure under Order 34 is that it necessitates two decrees in the same suit and also the possibility of two appeals against decrees in the same suit.

34.4. We think that this should be avoided. The scheme which it

----U..' r u:s-

we propose is, that there should be only one decree in suits on ',§ gages. That decree will correspond to the present prelin'1'm decree. All subsequent proceedings will take place in execution.

Recommendation 34.5. Accordingly, we recommend the following re-drafts of the relevant rules in Order 34:-

Re--draft of Order 34. Rule 2 2_(1) In a suit for foreclosure, if the plaintiff Court shall pass a ............decree--

(a) ordering that an account be taken of what was due to the plaintiff at the date of such decree for-

(i) principal and interest on the mortgage,

(ii) the costs of suit, if any awarded to him, and

(iii) other costs, charges and expenses properly in-

curred by him_un to that date in respect of his rnortgage--securitj§r, together with interest thereon; or .

succeeds. the 248 9-~.. .-., 24.9

(b) declaring the amount so due at that date; and

(c) di1'ecting~ (ii that, if the defendant pays into Court the amount so found or declared due on or before such date as the Court may ﬁx within six months from the date on which the Court conﬁrms and countersigns the account taken under clause (a), or from the date onwhich such amount is declared in Court un- der clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in res- pect of subsequent costs, charges and expenses as provided in Rule 10, together with subsequent in- terest on such sums respectively as provided in Rule 11. the plaintiff shall deliver up to the defen- dant, or to such person as the defendant appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so re- quired re-transfer the property to the defendant at his cost free from the mortgage and fro-m all incumberances created by the plaintiff or any person claiming under him, or, where the plain- tiff claims by derived title, by those under whom he claims, and shall also, if necessary, put the de- fendant in possession of the property; and

(ii) that, if payment of the amount found or declared due under or by the .......... ..decree is not made on or before the date so ﬁxed, or the defendant fails to pay, within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interest, the plaintiff shall be entitled to apply in execution for an order debarring the defendant from all right to redeem the property.

(2) The Court may, on good "cause shown and upon terms to be (3) ﬁxed by the Court, from time to time, at any time before an order under sub-clause (ii) of clause (c) of sub--rule (1) is passed. extend the time ﬁxed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due' in respect of subsequent costs, charges. expenses and interest.

Where, in a suit for foreclosure,subsequent mortgag-ees,or persons deriving title from, or subrogated to the rights of, any such mortgagees are joined as parties, the ....... .. decree shall provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in Form No. 9 or Form No. 10, as the case may be. of Appendix D, with such variations as the circumstances of the case may require.

L,'B(D)229}foi'LJandUA-- I8 25% lie-di-ujt of Order 34, rule 3 5.0}. Where_. before an order debarring the defendant from (3) {3} all right to redeem the mortgaged property has been pass-

ed. the defendant makes payment into Court of all amounts due from him under sub--rule (1) of Rule 2, the Court shall, on application made by the defendant in this behalf, in e.recu.ticm pass an order-

{2-.) ordering' the plaintiff to deliver up the referred to in the decree, and, if necessary.-

{bj ordering him to rc--transfer at the cost of the defen- dant the mortgaged property as directed In the ....... .. decree, and also, if necessary.-

(cJ ordering him to put the defendant in possession of the property.

documents Where payment in accordance with sub-rule (1) has not heen made, the Court shall, on application made by the plaintiff in this behalf in execution, pass an order declar- ing that the defendant and all persons claiming through or under him are debarred from all right to redeem the mortgaged property and also. if necessary, ordering the defendant to put the plaintiff in possession of the property.

On the passing of an order under sub-rule (21, all liabili- ties to whicli the defendant is subject in respect of the mortgage or on account of the suit shall be deemed to have been discharged.

h'.e--d-raj': of Order 34. Rule 4 4(1). In a suit for sale. if the plaintiff succeeds, the Court shall ass a............decree to the effect mentioned in clause a' - P 3 ,4.-

(b) and (c) (i) of sub-rule (1) of Rule 2 and further direct- ing that, in default of the defendant paying as therein mentioned, the plaintiff shall be entitled to apply in execution for an order directing that the mortgaged pro- perty or a siiﬂicient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what has been found or declared under or by the decree due to the plaintiff, together with such amount as may have been adjudged due in respect of subsequent costs, charges, expenses and interest: and the balance, if any, be paid to the defendant or other persons entitled to receive the same.

The Court may, on good cause shown and upon terms to be ﬁxed by: the Court. from time to time. at any time be- fore an order for sale is passed, extend the time ﬁxed for the }3a_'i_rrr.r'nt of the amount found or declared due under sub--rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest. -

. #13- (4) 251 In a suit for foreclosure in the case of an anomalous mort- gage, if the piaintiff succeeds, the Court may, at the in- stance of any party to the suit or of any other person inte- rested in the mortgage-security or the right of redemption, pass a like decree {in lieu of a decree for foreclosure) on such terms as it thinks ﬁt, including the deposit in Court of a reasonable sum ﬁxed by the Court to meet the expenses of the sale and to secure the performance of the terms.

Where, in a suit for sale or a suit for foreclosure in which sale is ordered, subsequent mortgagees or persons deriving title from. or subrogated to the rights of, any such mort- gagees are joined as parties, the decree referred to in sub- rulc (1) shall provide for the adjudication of the res- pective rights and liabilities of the parties to the suit in the manner and form set forth in Form No. 9, Form No. 10 or Form No. 11, as the case may be, of Appendix D with such variations as the circumstances of the case may re- qui1'e.

Re--draft of Order 34, rule 5

5.(l_] Where, on or before the day ﬁxed or at any time before the conﬁrmation of a sale made in pursuance of an order passed under sub--rule (3) of this rule, the defendant makes pay- ment into Court of all amounts due from him under sub- rule {1} of Rule 4, the Court shall, on application made by the defendant in this behalf in execution, pass an order-

(a) ordering the plaintiff to deliver up the documents re-

{2} ferred to in the decree.

and if necessary_.--

lb) ordering him to transfer the mortgaged property as directed in the decree, and also, if necessary,----

perty.

Where the mortgaged property or part thereof has been sold in pursuance of on order passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the defendant, in addition to the amount mentioned in sub-rule (1), deposits in Court for payment to the purchaser a sum equal to ﬁve per cent. of the amount of the purchase--money paid into Court by the purchaser.

Where such deposit has been made, the purchaser shall be en-

(3)

titled to an order for re-payment of the amount of the pur- ehase--money paid into court by him. together with a sum equal to ﬁve per cent thereof.

Where payment in accordance with sub-rule (1) has not been made. the Court shall. on application made by the plaintiff in this behalf in execution. pass an order direct. ice that the mortgaged property or a suﬁicient part there- of be sold. and that the proceeds of the sale be dealt with in the manner provided in sub-rule (1) of Rule 4.

L,fB(D}2293lIr:t'I..JandCA»-18a 252 Re-drrlft of O-rdc-r 34, Rule 6--Reco1:er_1,: of balance due on mortgage in suit for sale.

6. Where the net proceeds of any sale held under rule 5 are found insufficient to pay the amount due to the plaintiﬁ, the Court, on application by him may. if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass an order for such balance in exe-

cation.

Re-draft of Order 34, Rule 'TwDec'ree tn redemption-suit.

'F.(1)_ In a suit for redemption, if the plaintiff succeeds, the Court shall pass a ............. ..decree--

(a) ordering that an account be taken of what was due to the defendant at the date of the decree for--

ii) principal and interest on the mortgage.

(ii) the costs of suit, if any, awarded to him and, {iii} other costs. charges and expenses properly incur-

red by him up to that date, in respect of his mort- gage--securit_*;r, together with interest thereon, or

(b) declaring the amount so due at that date; and

. (i) that, if the plaintiff pays into Court the amount {ii} so found or declared due on or before such date as the Court may ﬁx within six months from the date on which the Court conﬁrms and countcrsigns the account taken under clause (a), or from the date on which such amount is declared in Court under clause (b), as the case may be, and there- after pays such amount as may be adjudged due in respect of subsequent oosts, charges and ex- panses as. provided in rule 10 together with subse-

quent interest on such sums respectively as pro-

vided in rule 11, the defendant shall deliver up to the plaintiff, or to such person as the plaintiﬁ, ap- points all documents in his possession or power relating to the mortgaged property, and shall, if so required, rc-transfer the property to the plain- tiff at his cost free from the mortgage and from all incumberanoes created by the defendant or any person claiming under him, or, where the defendant claims by derived title, by those under whom he claims. and shall also if necessary put the plaintiff in possession of the property: and that, if payment of the amount found or declared due under or by the decree is not made on or before the date so ﬁxed, or the plaintiﬁ fails to pay, within such tirnc as the Court may fix, the .1 253 amount adjudged due in respect of subsequent costs, charges expenses and interest, the defendant shall be entitled to apply in execution for an order--

(a) in the case of a mortgage other than usufruc--

tuary mortgage, a mortgage by conditional sale, _ or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, that the mortgaged property be sold, or

(b) in the case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid. that the plaintiff be debarred from all right to re- deem the property.

(2) The Court may, on good cause shown and upon terms to be ﬁxed by the Court_ from time to time, at any time before the passing of an order for foreclosure or sale, as the case may be extend the time ﬁxed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subseqdent costs, charges, expenses and interest.

Re-draft of Order 34, rule 8-Final Order in redemption suit

8. (1) Where, before an order debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the conﬁrmation of a sale held in pursuance of an order passed under sub-rule (3) of this rule, the plaintiff makes payment into Court of all amounts due from him under sub-rule {1} of rule '?_ the Court shall, on application made by the plaintiff in this behalf, pass a ................... .. decree or, if a decree has been passed, an order in execu- tion--

(a} ordering the defendant to deliver up the documents referred to in the ................ .. decree, and if necessary--

(b) 'ordering him to re--transfer at the cost of the plaintiff the mortgaged property as directed in ................... .. decree, and also if necessary,--- ,

(2) Where the mortgaged property or a part thereof has been sold in pursuance of an order passed under sub-rule (3) of this rule, the Courtshall not pass an order under sub-rule (1) of this rule, unless the plaintiff, in addition to- tlie amount mentioned in sub-rule (1), deposits in Court for payment to the purchaser a sum equal to ﬁve per cent of the amount 'of the purchase money paid into Court by the purchaser.

254

Where such deposit has been made, the purchaser shall be entitled to an order in execution for repayment of the amount of the purchase-money paid into Court by him, together with a sum equal to ﬁve per cent thereof.

(3) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application may by the defendant in this behalf in execution,-

(a) in the case of a mortgage by conditional sale or of such an anomalous mortgage as it hereinbefore referred to in rule 7, pass an order declaring that the plaintiff and all persons claiming under him are debarred from all right to redeem the mortgaged property and, also, if necessary, ordering the plaintiff to put the defendant in possession of the mortgaged property; or

(b) in the case of any other mortgage, not being a untrue- tuary mortgage, pass an order that the mortgaged property or a sufﬁcient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale} be paid into Court and applied in payment of what is found due to the defendant and the balance, if any, be paid to the plaintiff or other persons entitled to receive the same.

Re-draft of Order 34. Rule 8A--Recovery of balance due on mortgage in suit for redemption 8A. Where the net proceeds of any sale held under rule 3 are found insufficient to pay the amount due to the defendant, the Court on application by him in execution may, if the balance is legally recoverable from the plaintiff otherwise than out of the property sold, pass an order for such balance.

Re-draft of Order 34, Rule 9--Ord«er where nothing is found due or

-where mortgagee has been over-paid---

9. Notwithstanding anything hereinbefore contained, if it ap- pears upon taking the account referred to in rule 1', that nothing is due to the defendant or that he has been over- paid, the Court shall pass on order directing the defendant, if so required, to re-transfer the property and to pay to the plaintiff the amount which may" be found due to him; and the plaintiff shall, if-. necessary, be put in possession of the mortgaged property. -

Re-draft of Order 34, Rule 1[}--

10. In ﬁnally adjusting the amount to be paid to a mortgagee in case of a fore--c1osure, sale or redemption, the Court shall, unless in the case of costs of the suit the conduct of the mortgagee has been such as to disentitle him thereto, add to the mortgage-money such costs of the suit and other costs. charges and expenses as have been properly incur-

red by him since the date of the ............. .. decree for fore- closure, sale or redemption up to the time of actual pay- ment'.

1. For further':-1-mendment see below "Reoomment1ation as to Order 34. Rule ID".

255

Rte-draft of Order 34, rule 11---Puyment of interest

11. In any decree passed in a suit for foreclosure, sale or re- demption, where interest is legally recoverable, the Court may order payment of interest to the mortgagee as follows, namely:--

(a) interest upto the date on or- before which payment of the amount found or declared due is under the ................ .. decree to he made by the mortgagor or other person redeeming the mortgage--

(i) on the principal amount found or declared due on the mortgage_.wat the rate payable on the principal, or where no such rate is fixed, at such as the Court seems reasonable;

(ii) on the amount adjudged due to the mortgagee for costs, charges and expenses properly incurred by the mortgagee in respect of the mortgage---

security upto the date of the .......... decree and added to the mortgage---rnoney,--at the rate agreed between the parties, or, failing such rate, at such rate not exceeding six per cent per annum as the Court deems reasonable;

(b) subsequent interest upto the date of realisation or actual payment on the aggregate of the principal sums speciﬁed in clause (a) as calculated in accord- ance with that clause at such rate as the Court deems reasonable.

Order 34, rule 10 3-4 6. There is another point concerning Order 34:. Rule 10. The present rule Sa_'}.TS--

"10. In ﬁnally adjusting the amount to be paid to a mort- gagee in case of a foreclosure. sale or redemption, the Court shall_ unless in the case of costs ol:' the suit the con- duct of the mortgagee has been such as to disentitle him thereto. and to the mortgage-money such costs of the suit and other costs. charges and expenses as have been pro- perly incurred by him since the date of the preliminary decree for foreclosure, sale or redemption upto the time of actual payment."

A question which falls to be considered with reference to this rule is that of costs of the suit. The rule requires the court to award these costs to the mortgagee, "unlem the conduct of the mortgagee has been such as to disentitle him thereto." We considered it desirable to examine the operation of the rule, with special reference to cases where the mortgagor has offered the amount due on the mortgage and also where improvements made by the mortgagee are involved, 256 34.7. A Madhya Pradesh case' related to a mortgage where the plaintiff-respondents were- the mortgagors, and the defendant--ap- pellant the mortgagee_ The mortgagors had been awarded the costs of the suit by the District Judge, and this was contested on appeal. The High Court held:

"The general rule is that a successful party is entitled to costs, unless he is found guilty of misconduct, negligence or omission, or unless there is some other good cause for denial of costs to him. It is true that the learned Judge came to the conclusion that the plaintiff-respondent had not proved the tender of the mortgage-money, But the plaintiff had given a timely notice expressing his offer to redeem the mortgage. Further, when the matter was taken to court, the defendant, by contesting the claim of the plaintiff with respect to possession, (after having given the mortgaged property on rent to his own relatives), tried to deprive him of the use 'of the property; the court could not but award the costs of the suit to the plaintiffs. It cannot be urged that the discretion has not been exercised by the Judge properly."

th t34-3- 111 the Patna 03-59.' it was held by the Patna High Court a :

" .......... in a redemption suit the mortgagee is entitled to costs, unless he has been guilty of misconduct or has re- fused a valid tender of the amount due to him."

In the present case, the first court found that the deposit of the mortgage money under section 83 of the Transfer of Property Act was insufficient and that there was no misconduct on the part of the mortgagor in contesting the suit and that there was no mala ﬁdes on the part of the mortgagee, the mortgagee was entitled to his costs. But, where the court does not give him his costs, the appellate court would be exercising its discretion properly if it reverses the order for costs allowed to the plaintiff-mortgagor against the mort-

gagee.

34.9. The facts in one Madras case' were as fo1Iows:--~--

There was a suit for redemption of a mortgage executed by defendants 2-5 in favour of defendant I under a deed exe- cuted in 1934. Defendants 2-5 executed a subsequent mort- gage in favour of the plaintiffs in 1937, and the plaintiffs ﬁled the suit out of which the appeals arose for redeeming:

the prior mortgage in favour of defendant I. Before ﬁling ~ the suit the plaintiffs deposited the amount due under the mortgage. The respondent prior mortgagee. refused to accept the amount on the ground that the mortgagors who executed the deed in 1934 to him and the deed in 1937

1. Puraldottam V. flrzmeehrzrcmiul, A.I.R. 1961' MP. 237, 239 {D.B.).

2. Ram. B1'!a.s-It v. Radhmimlaknu Pmaad, A.I.R. 1958 Pet. 55?.

B. Himhbi dyyar v.Jmm.l:iAoIsa1€¢rA.I.R. 19¢ Ind. 592 {]).B.].

25'?

to the plaintiff petitioners and, therefore, it would he un- safe for him to receive the amount and hand over posses- sion in the absence of the mortgagors.

It was held that the conduct of the prior mortgagor in taking the objection was neither vexatious nor unreasonable, and that he should not be made to pay the costs of the subsequent mortgagee.

34.10. I-n one Patna case,' the mortgagor sent a telegram to the mortgagee, asking him to refrain from ﬁling a suit, and promised to pay by a ﬁxed date. Then he sent a subsequent telegram, expressing willingness "to pay and informing that amount was ready". This. the court held, did not of itself constitute a valid tender. But the latter was immediately followed up by the mortgagor actualiy going to the n1ortgagec's place and offering the money which the court held constituted a valid tender.

In this case where a valid tender of the entire amount due under a mortgage was made and a request was made that the mortgagee should accept what was just on accounts being taken, and the mort- gagee not merely disputed the accounts but refused the settlement of accounts altogether and the mortgagee rushed to the court with- out justiﬁcation, it was held that the conduct was such as not to entitle him to the interest accruing after the date of tender and the costs of the suit. The mortgagee was also not allowed the costs in these appeals.

34.11. One of the points raised in a Madras case in an appeal' against a redemption decree, by the defendants mortgagees was regarding costs, which the lower court had not awarded. The Madras High Court held:

"Ordinarily a mortgagee would be entitled to his costs but this is subject to the discretion of the court where he raises questions which involve a denial of the mort- gagor'-s right to redeem. Here there was a denial that a portion of the property was mortgaged: there was also an excessive claim for improvements and also a claim for enhanced revenue."

In these circumstances the High Court refused to hold that the lower court had exercised its discreti-on wrongly in this matter_ 34.12. The facts in one Punjab case" were as follows: A mortgage was effected on the land in suit by the plaintiff in favour of the defendantfappellant. The lower court had passed a decree for the possession of land on deposit of the amount payable to the defendant and costs, With regard to improvements, the trial court had held that only part of the amount claimed had been proved. On appeal. coun- sel for appellant submitted that in order to increase the yield from the land so as to recompense himself in lieu of the interest due on

1. Jon: L41! 2:. Frttrak Ifafuidzir, A.1'.R. 1929 Put. 3'.-J7 [D.]3.],

2. Vrzatcma Hollie V. Ilfufaafiula Rim, A..I.R.. 1926 Mud. -1105.

3. Rap Rmn v. Munahi china , A.I.R. I960, runj. 4.30 (D.B.].

258

the principal money, the mortgagee had to effect these improvements. Dua J. held that the mortgagee in possession cannot be permitted to lay money in increasing the value of the estate except in circum- stances whigh strictly fall within the four corners of section 63-A of the Transfer of Property Act. The Court held:

"The interpretation of this section, as suggested on behalf of the appellant, is obviously calculated to give to the mort- gagee a handle to so increase the value of the estate as to cripple the mortgagor's power of redemption. This ob- viously could not be the intention of the legislature."

With regard to costs, the court held;

"The general rule is that costs follow the event. In the present case, the mortgagee resisted the claim of redemption both before the Collector and in the civil courts, and indeed it has been very seriously opposed right up to this court. The mortgagee has in fact persisted in claiming title to the land in suit. It was in these circumstances open to the court below to pass the impugned order as to costs. There is no question of principle involved in the order which must, therefore, be upheld."

34.13. In a Patna case,' the plaintiﬁ had prayed for a decree for redemption of certain lands, which were the subject of usufructuary mortgage executed by one M in favour of the defendants. The plain- tiff claimed to have purchased the equity of redemption. The trial court gave a decree for redemption in favour of the plaintiif, and also granted the plaintiﬁ costs of the suit. On appeal, the Patna High Court held that "in the written statement the defendant challenged the title of the plaintiff to redeem the property. and we see no reason why the plaintiff should not be given the costs he has incurred in the suit." ' . " 37.»:

34.14. In a suit for redemption which went up to the High Court of Travancore--Cochin, the trial court had granted a decree, but on terms which did not satisfy; the plaintiff or the contesting defendants.

The High Court held' that normally, in a redemption suit, the mort- gagee is entitled to his costs unless he is guilty of misconduct. Putting excessive value on improvements is not misconduct so as to disentitle a mortgagee to his costs. The question involved Was, whether the mortgagee could claim anything more than what he bargained for in the mortgage deed. Further' the contesting defen- dants also put the mortgagor to prove her title to redeem; when there was no doubt about her title. In these circumstances, the court de- clined to interfere with the lower court's decision awarding the mort- gagee only one--fourth of the costs.

34.15. In another Travancore-Cochin case," in a suit for rendemp- tion, the defendant mortgagee raised untenable contentions regarding part of the mortgaged property, and also claimed full value of the ' building which had been erected by him contrary to the terms of 1'_ Rr;jlyrlIr1.rl:. x-'. RH.-m Aiufar. _'L.[.R.. 1'36? Fat. '.303. 301 {D513 fl.

2. Pril.-1:-:rxfh£ Nerzirﬂcrinirxn v. U-axnrlini Pillrti. A.I.R. 1952 Trnv. Co. 29.'; [D.l3._l.

3. Narawrxnrz Piillmi v. G. Kr.-.wI-wn-n, AIR. 1955 NU-U ['i'r:i.\-'. Go.) 3433 (D.B.').

259

the deed. The plaintiff offered to pay only one--fourth of the value of the improvements to the moriagee srid sis.) ci;.='rr.-ed an exaggerated amount by way of damages on account of waste. It was held that the conduct of the parties was such as to disallow them their costs, and each party was, therefore, to bear its costs.

34.16. The above examination of sample judicial decisions shows that the rule f:,*i1"|y well_ In particular, if the mortgagor deposits the fgll amount, he would not be liable for costs of the suit.

m34.1?. It may be of interest to note the corresponding English rule quoted below:' "Where a person is or has been a party to any proceedings in the capacity of a trustee, oersnnal renresentativ or mart- gagee, he shall, unless the Court otherwise orders, be entitled to the costs of those proceedings, in so far as they are not recovered from or paid by any other person, out of the fund held by the trustee or personal representa- tive or the mortgaged property, as the Case may be: and the Court may otherwise "order ()I1Iy on the ground that the trustee, personal representative or mortgagee has acted unreasonably or, in the case of a trustee or personal representative_ has in substance acted for his own beneﬁt rather than for the beneﬁt of the fund,"

34.18. It has been stated that "a mortgagee has an absolute right to costs, unless they are forfeited by misconduct; if they are for- feited by misconduct. then they are Within the discretion of the Judge.''"

34.19. The English rule was thus explained" by Lord Selborne L.C.:--

"The right of a mortgagee in a suit for redemption or for- closure to his general costs of suit, unless he has forfeited them by some improper defence or other misconduct, is well established and does not rest upon the exercise of that discretion of the Court which, in litigious causes, is generally not subject to review. The contract "between mortgagor and mortagee. asit is understoodin this Court, makes the mortgage a security, not only for principal and interest, and such ordinary charges and expenses as are usually provided for by the instrument creating the se- curity, but also for the costs properly incident to a suit for foreclosure or redemption. In like manner, the con- tract between the author of a trust and his trustees en- titles the trustees, as between themselves ﬁnd their cestuis que trust, to receive out of the trust estate all their proper costs incident to the execution of the trust.

'J. f"mprc1nt- CH-nrt C'-oats Rules [1959] Rulc6f_2].

2. l'Z'}m.rLo;.- v_ J0-n.r-3 (1_sq3I_'.) 33 Ph. D. Hi}. 84. per Lopes L.J. I_'Ca.sc11uder old 0. 55, I'. l R.H.{".].

3. (Josie:-ztt v. S_traHon. {[572] h'Ch. 395-302, {Loni Selhorne L.C-l-

260

These rights, resting substantially upon contract, can only be lost or curtailed by such inequitable conduct on the part of a mortgagee or trustee as may amount to a violation or culpable neglect of his duty under the contract. "Any departure from these principles in the general course of the administration of justice in this Court would tend to destroy_ or at least very materially to shake and impair. the security of mortgage transactions. and the safety of trustees. In fact, such a departure, instead of being bene- ﬁcial to those who may have occasion to borrow money on security, or to repose conﬁdence as to propertyiin their friends or neighbours, would, in the result, throw the former class of persons into the hands of those who in- demnify themselves against extra-ordinary risks by extra- ordinary exactions, and would deprive the latter Class of the assistance of all who cannot aﬁord, or are not inclined, to bestow upon the affairs of other persons their money as well as their trouble and time."

34.20. Since t.he right of a mortgagee to his costs of a redemp- tion or foreclosure suit is a matter of contract and not in the dis- cretion of the Court, costs cannot be denied except where he has "unreasonably instituted or carried on or resisted' any proceedings"

within the above Rule.' e.g._. where he has declined to hand over reconveytmce in e:rchcm.ge for the principal and interest." Mortgagees failing on a fairly arguable point in a foreclosure suit may however. be a'l=l'owed to add their costs to suit their security." Eve J. summed up the position thus:' "I think the various authorities to which my' attention was called in the course of the exhaustive arguments addressed to me in this case establish three propositions: (1) that a mortgagee has an absolute right to costs unless they are forefeited by misconduct: (2) that, if the absolute right is forefeited by misconduct, the costs are in the discretion of the judge: and (3) that the raising of an utenable de- fence, or a claim of o 'ca-rrlance due after the mortgage has been fully paid 01)', both constitute misconduct by which the absolute right to costs is forfeited, Authority for these propositions is to be found in the cases of Charles v. J ones (No. 2) 56 L.T.R. 848; Hall V. Heword (54 L.T.R. B10_ 32 Ch. Div. 4.-30); and Ashworth 1?. Lord (58 L.T.R. 18)".

34.21. It would, thus, appear, that, in substance, the position in England does not differ from that in India. Moreover, the rule gives a discretion which appears to have been soundly exercised. However, it would, in our view, be desirable to provide expressly that where the mortgagor pays or desposits the full amount before or at the time of institution of the suit, ordinarily he shall get his costs, This does not really change the law, but only makes it more explicit.

T. to o--i;=;i:rJ v. .2=.:waiiaa -'I!-«':'.~'2'| LR. 9 oh. 2:35; Hi) T':u.r-:I1.(-r v. Herr-cr-«'1; l:l.'§H-El 17.'li ('51. D. 303.

2. ROI'!-:|'E'f'. v. Rabi."-mint? flﬂill I Ch. 48!}.

3. Starmford ex part» 1'. Km-hie! H 913'! 2 GIL. p. 1'02.

4. Heath v. China. (1908) Lrtw Time: Reports B55-85B.

i, 5361 Recommendation as to Order 34, rule 10 34.22.. Accordingly, we recommended that to Order 34, rule 10, the following proviso should be addod:--

"Provided that where the mortgagor, before or at the time of é.rt3f.it'u.tto-71 of the suit. tenders or deposits the amount due on the mortgage, or such amount as is -not subst-zmttotty deﬁcient in the opinion of the court, he shall not he ordered to pay the costs of the suit to the mortgagee and the mort- gagor shalt be entitled to reoooer his own costs of the not from the mortgagee, unless the court for reasons to bi' recorded, otherwise directs.

Order 34. rule ll]-A (New) (Mesne proﬁts) to he paid by the mort- gagee 34.23. Where the mortgagor has deposited the sum due on the mortgage, me-sne proﬁts should be paid by the mortgagee, if the amount tendered or depositedby the mortgagor is not substantial-

ly deﬁcit-:-nt._We are of the mew that an express provision on the subject is desirable.

Recommendation I 34.24. Accordingly, we recommend the insertion of the follow- mg new rule in Order 3=L:~ "'10-A.Where the mortgagor has, before or at the -institution of the suit, tendered or deposited the sum due on the mortgage, or such amount as is not sttbsttmtially deﬁ- ctent in the opinion of the Court, the Co-1;-TL shall direct the mortgagee to pay to the mortgagor mesne profits for the perwd hegmmrtg with the instit-utioat of the suit."

CHAPTER 35 INTERPLEADER SUITS Introductory 35.1. Where the plaintiff has no claim as such against a parti- cular defendant but is interested only for his debt, he can ﬁle an interpleader suit. under Order 35.

The Order on interpleader is derived from an Act' of 1841, which itself was based on an English Statute". The Order provides for various matters such as when interpieader suit may be insti- tuted: when the thing claimed must be paid into Court; the proce- dure aL the first hearing, when agents and tenants can compel their principals or landlords to interplead: how the plaintiffs costs may be secured; and so on.

No changes are needed in this Order.

1. r"'nl:t 21- Hf lb"-I-E.

2. 3;i.||1Wil|irI:: 4 ill. .35.

262

1- \,.f CHAPTER 36 STATEMENT OF' CASE Introductory

36.]. Persons claiming to be interested in the decision 'of any question of fact or of law may. under Order 36. enter Into an agreement 1;, W1-iting stating the question in the form of a case for n;)pinit}I1_, and providing that upon the ﬁnding of the court there- on, certain monev shall be paid or property delivered by one Of them to the other. or that one or more of them shall do or refrain irorn doing some other speciﬁed act.

36.23. The a£{l"eeII1El'1t has to be ﬁled in the court, and _is num- bered and registered as a suit. Thereafter, the procedure 111 other respects is substantially the same as in an ordinary suit, and the scheme of the provisions contemplates a judgtnent as well as a decree.

The pCC:uliu:'i'r.v and special merit of this procedure lies in the {1} framing by the parties beforehand of the questions involved.

(ii) the submission of the case to the court by agreement of both parties,;to that extent diluting the element of contest met with in ordinary litigation, (iii) the formulation by the parties of the precise relief that is anticipated, and (iv) the acceptance by them before-hand, of the binding character of the determination of the court.

Order 36 Rule 3--Pmcedure under Order 36, not often 3-5.3. UI'1f(Jl'1:1lI1£1[El}", the procedure provided by Order 36 is rarely invoked, and we venture to think that one of the reasons why it has not proved popular is the absence of any apparent beneﬁt to the litigant, The choice is always made in favour of the ordinary procedure, because, the procedure of a statement of case, even if known to the ordinary litigant, does not furnish any additional inducement. Some inducement should be offered. which may be in respect of court fees- The subject of court fees is outside the competence of the Union. But. in order to highlight the desirabilitv of making a distinction bet- ween an ordinar_x_r suit instituted by a plaint and a special case originating in an agreement, the relevant rule of this order should ex- pressly provide that the proceeding can be initiated by an applica- tron.

Suggestion to substitute application so as to reduce court fees 36.4.-. An objection was raised during our discussions that the proposed amendment would be incongruous, as it would bring in the idea of "decree" and "procedure for suit" in a proceeding in- stituted on an application But we think that from the point of View of court fees. such a proceeding should not be treated as a p aint.

263 264

it is also desirable to provide that there should be no appeal from the ClECI'E'x;' passed as a result of such pro-zzeeclings. Even now, that should he the position, because the decree is, in a sense, a compromise decree, against which there is no Qppeall. But an ex- press p1'U\.=i5i0I1 prohibiting appeal would be useful.

Recommendation to amend rule 3 Acco1'ding1y, we recommend that Order 36. rule 3. should be revised as follows:--

"3(1). The agreement, if framed in accordance with the rules hereinbefore contained, may be ﬁled with an application in the Court which would have jurisdiction to entertain a suit, the amount or value of the subject-matter of which is the same as the amount or value of the sub- ject--matter of the agreement.

{2} The application, when so ﬁled shall be numbered and registered as a suit between one or more of the parties claiming to be interested as plaintiﬁ or plaintiﬁs, and the other or others of them as defendant or defendants; and notice shall be given to all the parties to the agree- ment, other than 'the party or parties by whom the appli- cation was presented.

Reenmanendation to add rule 6 36.6. The following rule would be added as Order 36, rule 6- "No appeal shall lie from a decree pronounced under rule 5."

1. :-'.eI.=.i -u 'JG.

mu-..

\-I' CHAPTER 3?

SUMMARY PROCEDURE Introductory 3'i'.1. Order 37 provides for summary procedure, in respect of certain suit-_.~,_ A suit under this Order is instituted in the ordinary form by presenting a plaint; but the summons is issued in a special form'. The essence of a summary suit under Order 3? is that the defendant is not, as in an ordinary suit, entitled as a right to de- fend the suit. He' must applv for leave to defend within ten days from the date of service of summons upon him; and such leave will be granted only if the affidavit ﬁled by the defendant discloses such facts as will make it incumbent upon the plaintiff to prove consideration, or such other facts as the court may deem suffi- cient for granting leave to the defendant to appear and defend the suit. If no leave to defend is granted, the plaintiff is entitled to a decree. The object underlying the summary procedure is to prevent unreasonable obstruction by a defendant who hasno defence.

Bombay Amendment 37.2. The Order i_s conﬁned to suits on negotiable instruments, but the effect of the amendments made by the Bombay High Court is practically to extend it to suits mentioned in section 123(2)(f) of the Code.

37.3. Moreover, by Bombay amendment, the procedure has, to some extent,' been made less rigorous by an amendment of rule 3 of the Order 37. The Bombay amendment requires a plaintiff to serve, with the writ of summons, a copy of the plaint and the exhibits, and the defendant may at any time, within ten days of such service enter on1y.an appearance in the ﬁrst instance. Notice of the appearance must be given to the pIaintif'f"s attorney, and, thereafter the plaintiff is required to serve on the defendant a sum- mons for judgment, returnable in less than ten davs from the date of service, supported by an aﬁidavit-verifying the' cause of action and the amount claimed and stating that in his belief -there is no defence to the suit. It is only after the service of this additional service for judgment that the defendant is required within ten days thereof to applv for leave to defend.

37.4. In 'the 14th Report" of the Law Commission, a recommen- dation has been made for--

(at amendment of the rules. relating to summary procedure on the lines of the Bombav amendment; and (bi extension of summary procedure to subordinate courts in important industrial and coinmercial towns like Ahmedahad. Asanasol. Kanpur and Jamshedpur.

1. Appendix B, Form No. -1.'

2. H-kl: Rep-urt. Vol. I, page '_'.T.':_. pu1'c,._ 22, read with para. 21.

i L[B[D)229ltIo£IJsnc1fJA--19 sss 266 37.5. The Commission, in its Report' on the Code examined these recommendations and expressed the View that action under

(a) above could be taken by the High Courts under section 128{2)(a), and action under (b) above could be taken by the State Governments under Order 37, rule 1(b). It was, therefore, con- sidered unnecessary to make any provision on these matters of detail in the Code.

37.6. We have considered the matter further. As we take a dilferent view, we should deal with the matter point by point. As to extending the provisions to other cities. we note that in the 14th Report, it was observed":---

"22. A general extension of the summary procedure to all court of subordinate judges and munsifs has not been advocated nor do we recommend any such far-reaching measure. We understand that although Order 37 has been applied to the courts of all subordinate judges and munsifs in Madras, it is not in use and has virtually become a dead letter so far as subordinate courts in mofussil of that State are concerned. The High Court of Allahabad is opposed to its general extension. The Bombay High Court is in favour of extending it to the courts in such commercial towns as-are recommended by the High Court. The Civil Justice Committee made a similar proposal. Order 37 was extended to certain courts in Bengal, Uttar Pradesh and the Punjab, probably on the basis of that 1'ecomIneI1dati0n."

"We suggest that the High Courts should extend the rules of summary procedure, as ampliﬁed in Bombay, to subordinate courts in important industrial and commercial towns like Ahmedabad, Asansol, Kanpur and Jamshedpur."

37.7. We have taken note of the views expressed in the 14th Report. We, however. think that the time has come for extending summary procedure to all courts, in the interest of expedition, and not to speciﬁed towns only.

37.8. It is, in our vietv, also desirable to extend summary pro- cedure to all suits mentioned in section 12B(2)(f), in the interest of expedition."

37.9. In, our opinion, the procedural amendments made by the Bombay High Court' are also useful. and should be adopted.

37.10. As has been observed, having regard to the scheme of' Order 37 as amended by the Bombay High Court, it is not necessary for a defendant to obtain leave to appeal in a summary suit. He . 271;]: Report, page 233. Note on Order 37 (Summary procedure}. _ 14th Report, Volume 1. page 2'75. para. 22. . Para. 37-2. 8u_-pfrt.

, Cf. Para. 3'?" 3, supra.

Indian Express Ne-wspaper Ltd. v. Basumdi Pn'ua.ts Ltd., A.I.R. 1969 Bom. 40, 46. 4'? para 14. ' vP€All\5>--« .- N 267 can also make applications which do not raise a defence to the suit without obtaining leave defend.' Recommendation 37.11. In short, our recommendations as to Order 3?, are as follows:--

(i) Order 3'?' should be extended to all C0l11"'»5f-

(ii) Order 37 should be amended on the lines of the Bombay amendment, so as to extend it to certain other suits in accordance with the Bombay amendment;

(iii) Further, the procedure under Order 3?, rule 3, should be amended as in Bombay.' Beonmmendation 37.12. Accordingly, the following amendments are recommend-

ed------

(i) For the existing title of Order 3?, the following title should be substituted-

Summary Procedure

(ii) For Order 3?, rule 1, the following rule should be sub- stituted--

"1. Application of Order-

{1} This Order shall apply to the following Courts, namely,-

(a) High Courts, City Civil Courts, and Courts of Small Causes; and

(b) subject to the proviso, other Courts:

Provided that in respect of the courts mentioned in sub- olause (b) above, the High Court may, by notiﬁcation in the Oﬁidal Gazette, restrict the operation of this Order only to such categories of suits as it may deem proper, and may also subsequently by notiﬁcation in the Oﬁicial Gazette further restrict, enlarge_ or vary from time to time the categories of suits to be brought under the operation of this Order as it may deem proper."

(2) Subject to the 13"-"01:isions of sub-rule (1), the Order applies to the following suits, narn.ely:--

(a) suits upon bills of exchange, h-undies and, promis-

sory notes;

[bl suits in which _the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, aris- mg-

['i) on a written contract or;

1. (If. um Report, vol. 1. page 274-275. para. 29-2.

2. 0;. 14th Report. Vol. 1, page 274.275.

LfB{D]229h!iofI.JaodCA-----19(a] 268

(ii) on an enactment where the sum sought to be recooe-red is o. ﬁxed sum of mo-Hey or in the nature of [L debt mhcr than a penalty; or

(iii) on a, guarantee, where _ _ .prncipaI is in respect of a debt or a liquidated demand only;

(iii) For existing Order 37, rule 2, the following rule shall be substituted: "

"2(l) A suit to which this Order applies may, if the plaintiﬁ desires to proceed hereunder. behinstituted by presenting a plaint with a speciﬁc averment therein that the suit is ﬁled under this Order, and that no relief not falling within the arnlI7Iti.oim:i1his«?i rule has been claimed, and with the lIJSC1'lpl:i01'1 I within brackets "(Under Order XXXVII of the 'Code (2) of Civil Procedure, 1908)" just below the number of' the suit in the title of, the suit, but the summons shall be in Form No. 4, Appendix B or in such other form as may be from time to time prescribed.

In any case in which summons is in the prescribed form (viz. Form No. 4 in Appendix B), the defendant shall not defend the suit, unless he enters an appear- ance and obtains leave from the Court or Judge as hereinafter provided so to defend; and in default of his entering an appearance and "of his obtaining such leave to defend, the allegations in theplaint shall be deemed to be admitted, and the plaintiff Shall be entitled to a decree for any sum not exceeding the Sum mentioned in the summons together with inte- rest at the rate speciﬁed (if any) up 'to the date of the decree, and such sum for -costs as may be deter- mined b_v the High Court from time to time by rules made in that behalf, and such decree may be exe- cuted forthwith." ' ' ,

(iv) The following shall be substituted for Order Rule 3--

"am. In a suit to which this Order applied, the plaintiff .The defendant may enter an shall, together with the writ of summons under Rule 2, serve on the defendant a copy of the plaint and exhibits thereto, and the defendant may, at any time within ten days' of such service, enter an appearance. appearance either in person or by pleader. In either case an address for service shall be given in the memorandum of appea-

rance. and unless otherwise ordered. all summonses, notices or other judicial processes required to be served on the defendant shall be deemed to have been duly served on him, if left at his address for service. On the day of entering _the appearance, noti_ce;gof the appearance shall be given to the plaint,iif's' pileader the claim" against thé'-'*'~' ( 4 .-{2} Eﬁti (or, if the plaintiff sues in person, to the plalntlif himself} either by notice delivered at or sent by pre- paid letter directed to the address of the' pla1ntlﬁ"S pleader or of the plaintiff, as the case may be.

If -the -defendant El'l';E'I's_.= an 'annearanoe.i-'$136' plaintiff shall thereafter serve on the defendant, a summons for judgment in Form No. 4-13; in Appendix Bi-dt's'ui':h other form as may be prescribed from time to time returnable not less than ten days from the date of service supported by an afﬁdavit verifying the cause of action and the amount claimed, and statingthat in his belief there is no defence to the suit.

(3) The defendant may, at any time within ten. days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed suiﬁcient. to entitle him to defend, apply on such summons for leave to defend such sui.t.i..Leave to defend may be granted to him unconditionally or upon such terms as to the Judge of Court appear just.

(4) At the hearing of such, summons for judgment?-

(5)

' in entering the appearance under sub-rule (1) or

(a)'if the defendant 'has'ho1: appliedforn leave to"de- defend or if such application has been made and is refused. the plaintiff s.hall be entitled to judg- ment forthwith.' or

(b) if the defendant be permitted to defend as to the whole or any part of the claim, the Court or the judge shall direct that on failure to complete the security [if any), or to carry out such other direc- 'tions as the Court or the Judge may have given Within the time limit in the Order, the plaintiﬁ Shall be entitled to judgment forthkiiith. ' The 'Court_ma'y for sufficient cause excuse the delay in applying for leaxie to defend the suit under sub-rule (3) of this rule.''' T ' CHAPTER 38 ARREST AND ATTACHMENT BEFORE JUDGMENT Introduction 38.1. The provisional remedies which may be required to pre- vent the defendant from absconding, and property from disappear- ing or being wasted pending litigation, are also provided for in the Code. The Code here deals with the following subjects; arrest be- fore judgment; attachment before judgment; compensation for im- proper arrests or attachment? temporary injunctions; interlocutory orders; and, lastly, the appointment of receivers.

38.2. The rules as to arrest before judgment in England super- seded the writ of rte exeat regno, and the Indian rules roughly cor- respond to the English Rules of Court.

383. NE EXEAT REGNO' (that he leave not the kingdom}, was a prerogative writ whereby a person is prohibited from leav- ing the realm, even though his usual residence is in foreign parts. The writ is directed to the sheriﬂ' of the county in which the de- fendant is resident, commanding him to take hail from the defen- dant not to quit England without leave of the court. It is granted on motion, supported by affidavit showing that a sum of money is due from the defendant to the plaintiff, or will be due on taking accounts between them, and that the defendant intends to abscond.

38.4. The writ was formerly applied to great political purposes. but it is now applied in civil matters only, and is almost superseded in England by orders under the Debtors Act, 1869, s. 6.

Order 33, rule I 38.5. Under Order 38, rule 1, clause {a}, sub-clause (i). if a per- son has, with intent to delay the plaintiff or to avoid service of process etc. left the local limits of the court's jurisdiction, he can be arrested before judgment, if the other conditions mentioned in the rule are satisﬁed.

38.6. Similarly. under Order 38, rule 1, clause (a), sub-clause (ii), if a person is, with the above intent, likely to leave the local limits of the court's jurisdiction. he can be arrested before judgment, if the other conditions are satisfied.

38.7. We have a small suggestion to make regarding this clause. The liability to arrest should not arise for ''leaving'' the Court's jurisdiction on lawful business. In fact, the requirement of a par- ticular intent. and the juxtaposition of these words with the world "absc0nd". shows that only rnalaﬁde acts are covered. However. it is desirable to make the position clear.

1. Sections iii -95.

2. Moseley Jr Whiteley, Law Dictionary (1970), pages 232, 233.

270

2'71 Recommendation 38.8. We, therefore, recommend that-

(i) in Order 38. rule 1, clause (a), sub-clause (i)_, before the words "left the local limits", the words "without lawful excuse", should be inserted.

(ii) in Order 38, rule 1, clause (a), sub---clause (ii), before the words "leave the local limits", the words "without lawful excuse", should be inserted.

Order 39, Rule 5 33.9. Order 38, Rule 5(1) is as follows:--

"5. (1) Where, at any stage of a suit, the Court is satisﬁed. by aﬁidayit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,--

(a) is about to dispose of the whole or any part of his proptry, or

(b) is about to remove the whole or any part of his pro-

perty from the local limits of the jurisdiction of the Court, -

the Court may direct the defendant, within a time to be ﬁxed by it, either to furnish security, in such sum as may be speci- ﬁed in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same. or such portion thereof as may be suﬁicient to satisfy the decree, or to appear and show cause why he should not furnish security."

38.10. The rule, it may be noted, requires that the defendant be given an opportunity to show cause. The question whether non-com- pliance with this requirement has the effect of making the order ultra oires and void, and the consequent attachment a nullity, and whether, if the Court passes such an order, there is total lack of jurisdiction, is one on which there has been some controversy.

38.11. In a Kerala case,' it was held that the question really was not so much whether, (as some decisions had put it), the provisions of Order 38, rule 5(1) are mandatory or merely directory. Even the breach of a mandatory provision does not necessarily make it illegal. The High Court referred to a decision of the Supreme Court,' where it was pointed out that the question to be considered was whether compliance with a particular provision is a condition precedent for the assumpton of jurisdiction or whether on the other hand, the provisions merely lay _doWn the manner in which the jurisdiction is to be exercised. If it is the former, non-compliance would make the order void; but, if the latter, noncompliance would only make the order voidable. The order would be liable to be set aside, but, until that. is done, it would be operative and cannot be ignored or

1. .Mu-d.ha.1:tm '\'. Strrtr, A.I.R. 1936 Ker. 212 {F'.B.)

2. Iltyevira Hwthail v. Varkey. A.I.R. 1964 S.C. 907.

272

collaterally attacked. Therefore. in the light of the above decision of the Supreme Court, in this case. even though the attachment is erroneous and liable to be set aside in appropriate Proceedings. the order of attachment is one made with jurisdiction and is not a nul- lity. Hence. it 'cannot be ignored or subjected to attack in collateral proceedings.' It was held that Order 38. rule 5 is intended for the protection of the person whose property is sought to be attached before judgment. If he did not receive the notice required by law, and was consequently denied the privilege of staying off the attach- ment by the offer of security, an injury would, no doubt, accrue to him: but the law gives him a remedy b_v wa_'~,.' of appeal under Order

43. rule 1, from such an irregular order to set it set aside.

38.12. Contrary views had been taken in some of the earlier High Court decisions," " but these were not accepted as correct in this case. Hence, it was observed, that the order of attachment in this case. though erroneous and liable to be set aside in appropriate profeeclings. was an order made with jurisdiction, and was not a nu] itv.

38.13. The question arose in a recent Allahabad case', where it was held that if the procedure provided by law is not followed, the attachment is a nullity.

Recommendation 38.14. A clariﬁcation of the law is badly needed in view of the recent cases summarised above. On principle. such attachment should be void, and we recommend the insertion of a' sub-rule in Order 38, rule 5, to that effect." .

Order 38, Rule 11 A {news} 38.15. With respect to attachment before judgment {Order 38, rule 9). reference had been made in the earlier Report' to the con- troversy on a certain point. An Allahabad case' shows that the con- troversy still continues.

38.16. In the Allahabad case, the appellants ﬁled a suit in 1941 and obtained an order of attachment before judgment in 1-e5p._ec1;,Df' the property of the judgment debtor. The property was attached, The Munsiff appointed the respondent as "superddar" (Custodian) of the property. In the security bond -executed by the respondent, he made himself liable for any loss of the pr'opert.Y entrusted to him, First, the suit was dismissed for default of the plaintiff; but later it I. Dkian .'i'F1ag-3: r. ﬁlrzcreiary of .'.«'tcItn, A.l'.B. 1945 Nag. 97. 2- xi baht! Krmim V. .-'r'-m' .-'|JoFum.mod. A.I.R. 1920 Cal. 526. 527 (Newbould and Panrton J.)

3. Diﬂrtr .'~'Jfng.?z V. .'.'.rim. I'..'ha.wirr. .-\.I.R. 19314 All. I65, 167 (Raohhpal Singh J.]._ .4. .".~'r+' Krielrrwr G1|3jl1I'l- v. Roam. Brzfm, A.l.R. I967 All. 136 (B. Daya] and 31]). Seth JJ.). [reviews easo--hw']. _ sir; Ame idmcul. 111'? elraillcd.

5. 27th Report". pages so, H17. 233 [i-nfrujl.

fi. Raj Chrtnder v. Ramrsh Kickers, A.l'.R.. 1965 All. 54-6.

r'q-

. 273 was restored. The defendant went in appeal: and the 9359 W515 Te' manded for disposal on the merits, and ultimately the _p1ai_I'1tlﬁ Obr tained a decree. The decree-holder then. moved an al0D4I0l310I1 £01"

execution of the decree bY 3'-"rest "fl-"he 9111'el"§' l"'--'5P°n°dEnl": relying on the attachment before judgement the Cﬂﬂnﬁﬂted 'b011d-

38.17. The main object to this appligation for execution was that the order of attachment before Judgment had come to an end with

-the dismissal of the suit.' -and the respdndant's Jiabilitr also ceased with it. Negativins; this contention, the High Court held' that--- "A plain reading of {Order 38), rule 9 «goes to indicattthat if and when the suit is' dismissed. the court is er"-an obligation to make an order withdrawing the attiichtnatt.

In other words, the order of attachment before judgment made by the court would fall with the. dim!ﬁ'Ce suit. If the court either inadvertently or throgh_.c eless- .ness omits to pass an _o'1'd.eif' W1li'fdrawing the _at'§3',, "merit and thereby fails to _per_forin a duty .imp.9sed_q];>0,ﬂ. ii.

. could it be said that the" attachment shall subsjst 'even though there is no. suit in existence'?_,No o discretion _ is allowed to the court to " rrnit _o the atta_chnien_t to con- tinue even after the diam ssal' of the "suit. It." therefore, follows "that the mandatory provisions of Rules 9'_will not be-aifected by reason of the court having failed to comply ' with the provisions -of the law." -

38.18. It was also further held, that there was no distinction bet- ween the dismissal of suit for default and a dismissal of suit on merits. -i '- --

"If the plaintiff succeeds in getting the suit'- restored in one case and the dismissal of suit is set aside an appeal in the other. all that happens is that the suit becomes alive. It cannot be disputed that once a suit is dismissed either for default or on merits, it ceases to exist in the eye of the law. and any ancillary orders passed in the suit would au- tomatically come to an end and cease to operate."

38.19. In the instant case. it was, therefore. held that the supurd-- dar could not, after the-._ attachment proceedings had become ineffec- tive by reason of the dismissal of the suit for default, be held liable under the security bond executed b_v him.

38.20. In_ this connection, reference may be made to the earlier Report' portions dealing with Order 21, rule 5?. and the proposed new Order 33, rule 11A. Order 21. rule 5'? provides that where property has been attached in execution of a decree, but, because of the decree-ho1d_er's default. the court is unable to proceed further with the_ execution application then. itcan dismiss the application, in which case the attachment_will cease". There was a cgnﬂict gf views, on the question whether this rule applied to attachment before judg- ment. As a solution, the Law Commission had suggested that a gene» ral rule applying the provisions of the' Code frelatinrg to attachment imadet an execution) to attachments before a jiidgrnent should be inser e .

. I \

1. am. Report, patties 30. I97. 233."

2'74 38.21. The proposed new rule was as follows:-----

"Order 38, Rule 11A: The.» provisions of this Code applicable to an attachment made in execution of a decree shall, as far as may be, apply to an attachment made before judg- ment which continues after judgment by virtue of the provisions of rule 11."

33.22. The judgment of the Allahabad High Court on Order 38, Rule 9 is in conformity with the general principle recommended by the Law Commission (in its earlier report). The order of attachment made before judgment by the court would also fall with the dismis- sal of the suit.

Recommendation 38.23 The earlier recommendation should be carried out. It will not, however, solve the special difﬁcultv created by the peculiar facts that were found in the Allahabad case, and it may, therefore, be worthwhile to provide also that the restoration of a suit does not revive the attachment made before dismissal. Accordingly, the fol- lowing rule should be added as Order 38, Rule 11A---

"11A. (1) The provisions of this Code applicable to an attach- ment made in execution of at decree shall, as for as may be, apply to an attachment made before judgment which continues after the judgment by virtue of the Pﬂlvisions of rule 11.

{2} An. attachment made before judgment, in (1 suit which is dismissed for default, shall not revive merely by reason of the restoration of the 3-uit.."

H-

Cnmrsn 39 INJUNCTIONS AND OTHER INTERLOCUTORY 03.935 Introduction 39.1. Order 39 deals with various interlocutory Orders, of which the most important are temporary injuctions.

39.2. The theoretical interest of the subject of injunctions is matched by its practical importance. Injunctions were invented by the Court of Chancery as equitable remedies. One of the earliest reported English cases deals with injunctions in relation to judicial proceedings, but the utility of injunctions was soon realised, and the remedy has now embraced other ﬁelds.

39.3. The equitable nature of the remedy is emphasised by so- veral provisions of the Speciﬁc Relief Act' {which deals with per- manent injunctions, and by rules in Order 39 (dealing with tem- porarg injunctions). But it is odd that a subject of such importance has een dealt with in the Code in provisions which, at times, prove to be less comprehensive than they ought to be. It is for this reason that the matter was considered at some length in the earlier Report, and we also shall have a number of things to say on this Order.

39.4. The "interdict" of the Roman law bears a resemblance to the injunctions of courts of equi . It is said to have been called an lnterdict, because, it was origvinal _ interposed in nature of an inter- loc-utory decree between two parties contending for possession, until the dispute as to property could be tried. But, afterwards, the appel- lation was extended to ﬁnal decretal orders of the same nature". .

Order 39, rule 1 39.6. We shall first deal with the scope of the power to grant tern- porary injunctions. Under Order 39, rule I, where, in any suit, it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens or intends. to remove or dis. pose of his property with a view to defraud his creditors, the court may be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the court thinks fit, until the disposal of the suit or until further orders".

1. Rolicfiiot, 1963.

2. l'5t0l',\'. Et]Ln'+_v Juris]1rudenoe (I917). pane 365.

275 276

39.1'. The rule is primarily concerned with preservation of the property in dispute till legal rights are ascertained.

39.8. The situation Where the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any iniﬂisﬁzuibe 'i'n'5-the suiﬁ, ﬁﬂhut adhered on=a~litera:1 read- ing. We think that it ought to be covered.

_ Recommendation 39.9. Accordingly, we recommend that Order 39, rule 1, should be revised as follows-

Revised Order 39 rule 1-- .

' ,"1. Where, in any suit, it is proved by affidavit or otherwise--- _(a) that any property in dispute in a suit is in danger of being _wasted,.darnageq_I or alienatedlby any party to the suit, or wrongfully sold in execution of a decree, or (bithat the defendant_threat"ens' or intends, to" removeor ' :i]:l':1é(i}1.:€ioer£'f:Jf0l":E:S propertynrith a View td'defraudi?_tg__his

(c) that the defendant" threatens to dispossess the piainttﬂ or Otherwise douse. iﬂj1§Ty_tO the plaintiff in relation to , jlnydaropefty in dispute 1:; the. suit, the court may "be order grant a temporary injunction to restrain such act, or '"make such other order for the purpose of staying .._and presenting the _wasi:ing,.g damaging, alienation, sale, remo- ve:1. or disposition of the property, or dzspossession. of the plain- tiff, or qtlierwtse causing injury to the plaintiﬁ in relation to any property in dispute in the -SW3-t, as the cou.rt- thinksiit, !-,V. __ until the disposal of the suit until further orders"-. Order 3:9,!-'lllE3 'ii.

39.10. Under Order 39, rule 3, the Court is required "to" issue iiuticre' to theopposite party before ranting an injunction, "except where "it appears that the-,o'bject of ,a_ritit1g',the injunction would be "defeated 'by the delay". It is under these 'words of exception that what are lmown as ex-parte ad interim injunctions are granted.

nxiparte -as inteitlin I 39.1DA. Complaints are ofteniheard that the grant of temporary ii'rjunctiotis--par'tic1'ilary ex parte'--bauses hardship, and is an indirect causeof "delay. ' i the ,Questionna1re,_a's to ternpprary

39.'l'1_. Having regard to the "importance of the subject of tem- porarv injunctions, we had in our Questionnaire' on the Code, in-

cluded the following question':--'-

"2«i.(a) Would you favour any limitations on the Court's power to issue temporary injunctions'? In particular, do ]. Question 24.

277 _ you favour an amendment to the effect that an ex parte interim injunction should not be granted save in exceptio- nal cases, and [or reason to be recorded in that behalf?

(b} would you favour the suggestion that "in" case an e:c'pa1rte'-- injunction is granted, it.sha-ll be discharged by the court if it is satisﬁed that the party which obtahied the\i¥1J'.1-1nc- tinn is not taking diligent action to serve the -opposite party or to take other steps necessary for. the progress of.. the suit'?". ' . . . , _.

.The majorityof replies agree with the approach shown inathe question. - - - . i .

~-u 39.12. After taking into account all aspects of the matter: '_,we".'.'r have "come to the conclusion that an amendment of the law is caIl,e_d ' for. -

39.13. No doubt, such a pow K ' _u_' g , . e_' ' ' '_ n ;' needed for urgent cases. But §$é%ti'éZ1'Sl"Heiggfg;%T::te eats "

there ought to be some restrictiomas to the duration for whit-:h=the es: parte injunction should continue. _ In' theabsence of such a _restriction, the,--aparty obtaining an in- junction loses interest in prosecuting the suitwith diligence, and the par-ty bound by the injunction su.tfers..; While we. realise that too severe or too many restrictions on the, powers of-the aoourt may work hardship, we are of the view th__a..t $1-')me broad limitati|3ns.would be pﬁgiul and workable. What, we=t]11nk,'could be. gneeommended is {a} interim 23: parte injunctions shoiild-"not granted for a duration exceeding; say, one month: I "-5"

(hi hearing of the application for injunéiipn should line ﬁnished izfithlijn one nicireldth. Wh61"€"= all ivllterim ex pcrrteinjunction as een gran ; _ _ r . 7 . 1:' ! ' , .

(c) if extension of the duration of an interim esc. pmrtxe kjtinb-r = tion becomes absolutely necessary. the ext n 'on 5 0 be granted only once and should not exceed 1; J with the consent .of-the opposite ' 2'

(d) 'no interimiea: patrte iiﬁunction shouldihe issued,'"iinless ah ' copy--of the plaint accompanies it, -as also a cop-91 of-.-

application for injunction. ' -= 39.13A. Some of the replies received on the questiorﬂput by us in this behalf favour an amendment as suggested, while some ofjhan are opposed to it on the principle that what is discretionary cannot be made rigid. Bearing in mind the views» expressed, we have-- made the above recommendation.' - ' - - - ~ . .

'1" . .-f 39.13B. We are, of thelview thatif a party, in an application for Y temporary injunction or __in the supporting a_fﬁdav'lt, lmowin ﬂakes 3 false statement on a inate-"rial particular, the court should 'mag l

1. Para..23§|- 11, copra. E _' __ _ L j 278 into account in exercising its discretion under Order 39, Rule 4,-- that is to say----in considering the question whether the Court should vary or discharge the injunction. That is the law even now} but it can be usefully emphasised.

39.14, It has been emphasised in England," that an injunction may be refused if the plaintiffs have misled the defendant and the court. This is on the principle that he who comes in equity must come with clean hands--a maxim which has been described as not unrelated to the maxim ex twrppi cause. non oritor actio of the common law'.

39.15. If, on hearing of a motion by a plaintiff for an injunction, or, in the alternative, to continue an interim injunction already ob- tained ex porte, it appears that the interim order was irregularly ob- tained by suppression of facts, the Court may discharge the ex: parte order without any cross notice of motion for that purpose by the de- fendant; though it may grant the injunction asked for.

Motion of dissolve ex parte injunctions 39.16. Kerr states the position thus:

"If, on the motion to dissolve an ea: parte injunction, it appears that the plaintiff has misstated his case, either by misre- presentation, or by the suppression of material facts, so that an injunction has been obtained which would not have been obtained if a more accurate statement of the case had been made, the injunction will be dissolved on that ground alonei. The plaintiﬂ' will not be allowed to maintain it on the merits then disclosed'. Nor can he be heard to say that he was not aware of the importance of the facts so misstated or concealed,' or that he had forgot- ten them'. A motion to discharge an ex parte injunction on the ground of its having been obtained by misrepresenta- tion is proper, though the injunction is about to expire'.

39,17. It would be useful to codify the position by amending Order 39, rule 3.

Drier 35, rule 4 39.13. Under Order, 39, rule 4, a court can discharge, set aside or vary a temporary injunction. It is obvious that where a party has been is. See English cases cited Aoivztid Engineering Co. 1?. Aoﬁhm Rom , A.I.B. 1961 All. 746, para. 51.

3. Armstrong 1'. Shopper: ab Short Ltd. (1959) 2 (M3. 334.

3. Snell, Equity. (1968). page 35.

4. Home 7. Gill {l89I), 64 [...'l''. 824, cited in Annula practice, under Order 50, rule 6.

5. Kerr -on Injunctions, (192?) 660. B6].

Bram v. Nmall. 231 ti 0-. 13- 571): 6L.J. Ch. 348 Cooteili v. Uooi, 7EI., P. 94; Dolglid 7. Jarvis Inc. & C'-. 231; 20 L.J. Ch. 4'76; 86 R-.R. 33; R985 7. Bu.-ztoa (1838) W.N. 56, 30908 'F. Gill 64 L.T. [I891] W.N. p. I03 ﬁchinitten v. Fcxulktt (1893) WA'. 34. See Rea: v. Konaington Income The Commissioners, {I917} 1 K.B. p. 517: 86 L.J.K.B., p. 26].

0. Att. Gm. 1. Owpumtﬁm of Lrioerjpoal, 1K. in (3., p. 211; -13 R.B-. 176: Uoetelli Y. Cook 7 H.tI.. p. 9-1 Do-igliah 1'. Jarvis, 2Mac. St. G..p. 2:18:20 L.J. Ch. 475; 8|} B.R. 83.

T. Dolgliah v.Jr:r1s-ie, 2' Mac. 85 G. p. 241: 20 L.J. Oj. 4'75: 86 R..R. B3.

8. (Jiiftan 7. Robinson, 16 Hour. 355: 96 B.R. 171.

9. Wimbledon Local Board V. Grmydoe .'s'mc.itary Authority, 32. Ch. D. -121: 53 L.J. Ch. 159.

2'79 heard {or had an opportunity of being heard); before the injuncl-'10_11 was granted, the injunction should not be discharged etc. except In special cases. We propose an amendment to bring that out.

Recornmendation 5339.19. Accordingly, we recommend as-fol1ows:--

V ('1) The following proviso should be inserted below O_rder- 39, ' rule 3- "Provided that where an injunction has been granted with- out notice to the opposite ]£l1T1."y--

(a) the period for which it shall be in force as initially ﬁxed shall not exceed one month;

(bl hearing of the application for injunction shall, as . ' far as practicable, he ﬁnished within one month; x and = "{c) if it becomes absolutely necessary to extend the period for which the injunction is to remain in force, the extension shall not exceed ﬁfteen days, except with the consent of the opposite part3,*,"-.- {ii} The following further proviso should be added below Order 39, Rule 3:--

"Provided further that where an injunction is granted on the plaintifs application without notice to the op- posite party, the court shall, before granting it, re- quire the plaintiﬂ to file an aﬁidavit stating that a copy of each of the following documents has been served on the opposite party by delivery to him, or 5 where such service is not practicable, by sending it to him by registered post:--

(a} the plaint,

(b) the documents on which the plaintij} relies.

{c} the application for injunction, and {ti} the aﬁidavit or other documents on which the ap- plicant relies".

{iii} The following proviso should be inserted below rule 4 of Order 39:-

. "Provided that if a party, in an application for temporary injunction or in the supporting affidavit, has knowing- ly made a false or misleading statement on a material particular, and the injunction was granted without notice, the court shall vacate the injunction unless for reasons to be recorded it considers it just not to do so".

(iv) The following fourth proviso should be added to Order 39, rule 4-

"Provided further that where an order for injunction has been passed after giving a party an or;oporlun'ity of being heard, the order shall not be discharged, varied or set aside on the application of that party, unless there has been a change o circumstances, or, unless the court is satisfied that t e order has caused undue hardship to that party".

CHAPTER .liEGEl'FEBS lnitoductory " _ _-= 40.1. Order 404 dealing with receivers, oorrespon to section 503 of the old Code, of which theéportions 'relating to a reoeivefs remune- 1':i_tion and his-_duties are nowtto bq_._fo d in Rules 2 and 3. Under section 5{J5'of the previous Code, a régeiver could be appointed only by High_Court5 and District_Cour_ts but_ under the present Code, all Coﬁrts pan appoint a re'ceivei'. The 'test is 'just and convenient', which hasi 'Been siibstituted for "nece§'3ary 1':5i~'the realisation, preservation or better' custody or management of any property, movable or im; movable; the subject of a suit or -'under:=attachment", thus enlarging the power of' a_ Court'. ' _ _ -_ ' -

N0;.ohaqiges are needed in this Ocfder.

-:r. .-' -' -.I .~ =' ' 3.;

-- . -=' - ' ' 1 J." ' U:-:' . - 'fl . .1:+¥?fW,J*°"'-1€*'*?'P?!*¥***:""Ei~f'-hf':¥"%¥'.¥E?":"9! 19*"-=';',. V

-. 230 ' .5 ,"I_ I Chapter 41 APPEALS FROM ORIGINAL DEGREES Introductory 41.1. Procedure as to appeals from original decrees is governed by Order 41. It is |:iriei'1y as follows:----

&1.2. The appellant presents a memorandum, accompanied by a copy of the decree appealed against. The Code lays down rules as to the form and contents of this memorandum, and forbids the appellant to urge, without the leave of the Court, any ground of objections not set forth therein, To stop the practice of presenting appeals merely for the purpose of delaying execution, the Code declares that execu- tion of a decree is not stayed by reason only of its having been appea- led; but the appellate Court may stay execution when substantial loss may otherwise result to the appellant, and he applies without unreasonable delay and gives security for performing such decree as may ultimately be binding on him, The rules prescribe the proce- dure after the appellant's memorandum is admitted.

41.3. To afford the parties reasonable time for preparation and for instructing their pleaders (if they choose to employ any), a day is ﬁxed for hearing the appeal, so as to allow the respondent suﬂicient time to appear' and answer, and notice of the day So ﬁxed must be published and served on him. If a party neglects to appear on the day so Fixed. the consequence is judgment by default in the case of the appellant. and proceeding ex porte in the case of the respondent.

-11.4. There are rules as to the judgment to be passed in appeal. In order that the litigants may understand the grounds of the deci- sion. and exercise, if they see ﬁt, the right of second appeal, the Code 1'e-"wires the judgment to state the points for determination, the de- cision thereupon, the reasons for the decision, and, when the decree appealed against is reversed, the relief to which the appellant is entitled.

Order 41, rule 1A (new)--Court fees on Appeal 41.5. One of the most important problems which a litigant has to face in respect of appeal is that of Court fees: and, having regard to its importance. we had. in our Questionnaire.' solicited views on the following _ question:--

"B2. Would you favour the insertion of a provision to the effect that at the time of ﬁling of the appeal, only one-fourth of the prescribed court-fee need be paid. and the remaining may be paid when the appeal is admitted".

J _ '|'1.i.= I-mi "IF"."..'l-=l'.|!! was .~u.|ggcsl.L-:1 by iii: R-mics l'<'.=1cuL!i{'.~1 rilliiuy in B-'W N'. '9'?!-Fiffiﬂa Ray! 1 it-r'II. ..\__[5. 3|'.

2. (flucsr inn 3?.

331

T.ﬂ3l:X}22§}5'l:}fLJ&C.-L ~20 282 41.6. Majority of the replies on this question favour, broadly, the suggestion made in the question. After some discussion, we have also come to the same conclusion.

Recommendation 41.7. We, accordingly, recommend insertion of the following rulew

121. At the time of ﬁlling of the appeal, Only one fourth of the requisite cou.rt--;fees need be paid, and the remainder of the court-fees may be paid when the appeal is admitted under rule 11".

Order 41, rule 3A (new) Refund of Court Fees and Process Fees.

41.8. If an appeal is rejected under any rule or dismissed as barred by limitation or for want of jurisdiction or otherwise than -on the merits, then a refund of court-fees should in our view. he allowed. Even now, this can be done under the inherent powers of the court; but a speciﬁc provision on the subject would. in our view, be useful.

Recommendation 41.9. Accordingly, we recommend that a new rule should be in- serted in Order 41, as follows:

"3A. Where an appeal is rejected under any rule contained in this Order or dismissed as barred by limitation or for want o_f jurisdiction or otherwise than on merits, without notice to the opposite party, the court may allow refund of the court fees and process fees paid in respect of the appeal, to such ezrtent as the court may consider just".

Order 41, rule 5.

41.10. One of the most important aspects of an appeal is the grant of stay of execution of the decree appealed from. In this context, the question whether a stay order operates immediately or only when it is communicated to the Court {or the officer conducting the sale) was examined at length in the Commission's earlier Report'. The Commis- sion, after referring to the conflicting rulings on the subject, express- ed the opinion "that ordinarily the order should be effective imxme ' - tely, and a provision to the contrary may be abused. by interested parties attempting deliberately to delay transmission of the order from the appellate Court to the lower Courts". At that time, the Commission did not recommend any amendment on the subject.

41.11. Since then, the Gujarat High Court has held" that the stay order granted by an appellate Court becomes eifective not from the moment of its pronouncement. but from the moment it is com- municated to the Court. It was held, therefore, that the decree passed by the Court of Small Causes. before communication of the stay order issued by the High Court 1' the communication actually took place the next day}, was a proper decree.

1. 27th Report, page 238, note on 0l'|.lL'I' 4] , Rule 5.

2. H-swish Kttmrll' Y. |'_."}v..7ur.1rttH.a¢J'_ A.I,R, 1Q[j[i Guj. 28].

1.-

283

On the fact, it was also held that the signing of the decree by the Judge of the Court of Small Causes after the stay order granted by the High Court had been communicated to it_, was not a breach of the stay. order, as the judgment had been pronounced before the stay was com- rnunicatecl.

Recommendation for amendment of Order 41, rule 5 41.12. We have given some thought to the matter and are of the view that stay should be eﬁective from the date of communication, since the opposite view might create practical complications. At the same time, we think that an aﬁidavit by an advocate based on personal knowledge should be acted upon, until a formal order is received, or until orders to the contrary are received from the court granting stay.

We, therefore, recommend that the following Explanation should he added to Order 41, rule 5(1).

"ExplanationMS'tay ordered by the court of appeal shall be effec- tive from its communication, but an affidavit by a plead-er based on his personal knowledge stating that a Stay has been ordered by the court of appeal shall be acted upon by the court of first instance, un- til a formal order is received, or until orders to the contrary are re- ceived from the court of appeal".

Order 'ail, rule 1l--Judgment in case of dismissal of appeal without 110 06 41.13_ In the earlier Report', an amendment was suggested to carry out the recommendation made in the Fourteenth Report' with re- ference to Order 41, rule 11. The object was to provide that even where the appellate court dismisses an appeal without notice to the lower court, it shall deliver a formal judgment, and a decree shall be drawn up. g 41.14. We agree that in such cases. a formal judgment would be useful The above recommendation should, therefore. be carried out, both for the High Court and for the district court when hearing first appeals.

41.15, In the case of the High Court when hearing a second appeal however, the position should be the reverse. Having regard to the res- tricted scooe of second appeals? reasons should be required to be re- corded if the appeal is admitted'.

Order 41 rule 5 (4).

41.16, The question of stay of execution of decrees during the oendency of appeal has engaged our serious attention, and we pro- pose an important change in this respect.

1. 27th llepnrt. page 238. note on Order 41, Rule 1].

2. 14th l-'uu_:mrt- V-rl. L page 335. para ll. 1

3. I-lee suction l(_IIIﬂ-l1I.l rocnmmexidation relating thereto.

-1. See [1;Lrau;ru.pl1 -L2 . 2 and 42.1! infra. L,lB(N)22Ql.'tIol'IJ& C'-A» --2(J(a) r>~:4 41.17. An appeal by itself does not operate as a stay of eXeCuti0I1- But stay can be granted by the Court 133551113 the demfee '3_r bf?' th_e appellate court, for "sufficient cause".' The general direction in this respect in the Code is, that stay shall not be granted, unless the court 'Es satisﬁed about the existence of three circumstances-

(:1) like1ih.ood of substantial loss to the applicant for Stay. if the stay is not gran.ted_' {bi application without unreasonable delay', {.3} security by the applicant for the due performance of such decree or order as may be ultimately binding upon him.

Suh--rule (3) of Order -11. rule 5 so provides--But sub-rule (4) of the same rule says "{4} Notwithstanding anything contained in sub-rule (3), the court may make an ea: parte order for stay of execution pending the hearing of the application".

41.18. It is this sub-rule which causes trouble in practice. Once an car: parts order of stay is obtained, the appellant is not interested in ":TDIT'lpT. disposal of the appeal. Moreover_, it is common experience that often the very object of appealing is to obtain stay, particularly in respect of money decrees. and even if the appellant knows that he has no case. he appeals with the above object.

41.19. Having regard to what is stated above, we are of the view that Order 41, rule 5. sub-rule (4). requires radical modiﬁcation, so that the remedy provided by it may not be abused. It is against the spirit of suh-rule {4} to grant stav as a matter o'f course, and it cer- tainly is unjust that stay without the safeguards contemplated by sub- rzrlel (3) should be granted ex parte. even pending the hearing of the amp ication.

Recommendation

-$1.20. We. therefore. recommend that Order 41. rule 5(4), should he rcvisecl as follows:---

"{4} Subiect to the 'orovi.si.om.- of suh--ruIe (31. the court mav .m=1l;e an ea.' oarte order for stay of execution pending the hearing of the application".

Order 41. rule 1] and appeals under section 47 41.21. A recommendation had been made in the 14th Report of the Commissioni to the effect that in case of appeals against orders in execution of money decrees. a restriction should be placed on the right of an-neat. by reouirine the appellant iudgment-debtor to de- posit, or at least give sccuritv for. the decretal amount, as a conditi on

7. [_]|'l'."|' I1. ll=;h-:- T-'1'! :'.:::| 51:2'.

3. Hih ll-.=_nnr'.'."-hn11r:1,pa;;n 14'). para. :21.

'-u 285 precedent to the admission of the appeal. The Report referred to the proposal of the mended the acceptance of the proposal.

41,22. The Civil Justice Committee had stated in its Report that after trial, it was only just that such a protection should be z'=,'1'«'*°-'T'l 1-0 the successful decreeholdcr.

$1.23. The Law Commission in its Report' on the Code, after noting the above recommendations, expressed the view that such a rigid provision might cause hardship. and did not, therefore. favour an amendment. It also expressed the View that the restriction against stay, embodied in Order 41. rule 5(3) {read with Order 4].. rule 8,}, was enough.

41.24. We have considered the matter at length, and 'nave come to the conclusion that a provision emphasising the need for demand- ing security in such cases would prove to be useful. At the same time, we appreciate that a strict or rigid provision may cause hardship in some cases. It -appears to us that while the entertaining of the appeal need not be postponed until seCu1"itj5r is furnished, the apeal should be admitted conditionally. that is to say, if security is not furnished within the time fixed by the appellate court, then the appeal should be liable to be rejected.

Reconimendation 41.25. AcCordi11,9,1y, we recommend the addition of the following sub-rule to Order 41. rule 11:---

"{4) Where an appeal is admitted under this -rule a.g.ainst a, de- termination of any such question as -is referred in section 4'7, and the question relates to the execution, dischttrge or satisfcictio-n of a, decree for the payment of money, and the appeal is by the judgmenhdebtor, the admission of me appeal shall be conditional on the a.ppella-nt f'J,L7'?1'i.'.'l'L'i'l'l_(} secu- rity for the due performance of such decree or order as "mat! ultimately be binding upon him; and -if the appellant does not ﬁtrnish such security within such time as may be ﬁxed by the Court, the appeal sholi. be -re;_iedted."' 41.2515. AS to diS1'_IliSSE1lDf appeal without n0i.i(:e, we have already referred" to the earlier recommendation.

Order 41, rule 12A (NeW)"Admission of appeal restricted to certain grounds.

41.26. On the question as to whether appeals ﬁparticularlgr. second appeals} can_be adnntted on certain grounds only, there has been some discussion.

1. Civil Justice Uoriimittee Report, (1925) page 401.

2. 2Tt.l1 lteiport, page 30, para 68. I

3. Para 41.13, sujam.

Civil Justice Committee to that effect', and recom-

286

412?, In its Report'. one of the previous Com1nissions._stating that there was a conﬂict on the subject, observed that this difficulty could be met by an amendment of the law. It recommended the inser- tion of a statutory requirement providing that the Judge adlillltlng the appeal should state the point or points of law _which arise for consideration in the second appeal. to ensure a stricter and better security at the stage of admission.

41.28. In its Report on the Code, however. alaterCo-mmission.' which considered this recommendation. came to the conclvsion that the power of the appellate Court should not be so conﬁned.

41.29. We have examined the matter at some length; and as we take a different view in this matter, we propose to discuss the position in some detail.

41.30. An examination of judicial decisions reveals that the trend of rulings is to the effect that a Court cannot restrict the grounds on which an appeal is to be heard ﬁnally." though the ap- pellant can give up some of the grounds' at the hearing.

41.31. In this connection, attention may be invited to the ob- servations of Asutoosh Mookherjee J. in a Calcutta case," where he stated as follows:--

"But in so far as the objection taken that the Appellants should be restricted to the one ground for the considera- tion of which the appeals were admitted, we are of opinion that it ought not to prevail. It is not competent to a Court of Appeal under Rule, 12 of Order 41 of the Code to restrict the ground or grounds upon which the appeal admitted under the rule is to be heard ﬁnally; in other words, the restrictive order of this Court made at the time when the cases were heard under Rule 11 of Order 41 was ultra mites. Rule 11 provides that 'the Appellate Court after sending for the record, if it thinks ﬁt so to do, and after fixing a day for hearing the appel- lant or his pleader and hearing him accordingly if he appears on that day. may dismiss the appeal without sending notice of the appeal to the court against whose decree the appeal is made and without seI'vin,<: notice on the respondent or his pleader'. Rule 12 then provides that "Unless the appellate court dismisses the appeal under rule 11, it shall ﬁx a day for hearing the appeal". It is worthy of note that a day is to be fixed for hearing the appeal, that is to say, the whole appeal and not any selected grounds out of those speciﬁed in the memoran- dum of appeal. Consequentally, all the grounds taken in the memo of appeal by the appellants are open for consideration at the ﬁnal hearing, and we now proceed to examine them."

. I-itih Report, Vol. 1'. page 392, para 16 second sub-paragraph. . 27th Report, page 123, Note on section 1130. para 2.

3. Kriahnuji v. Itfu-rffmsa, A.I.R.. 1934 Born. 207, 211 t]d'.B.] {hj i'~lu..E:}tr1ro v. Gcndaiol, A.J.R». 1954151. P. 24.25 [Reviews cases]. (0) (19373 I M3-'5. L. J'. 1, timid in the yearly Digest.

4. Rel':-ho Tbakzir, v. Ranmavetqn A.I.R. 1936, Pat. 7, 8, 9.

5. LIti1_'si.'r'Iir-air: -'lero-oji V. Sn}RumUkonuTra[I9lI}1ﬁCa],W.N. 92l,922(D.B.)

53.:

287

41.32. These observations seem to have been followed in later decisions of that High Court as well as of other High Courts; and there is, therefore, no conflict on the question whether an aDiJ'i3a1 can be admitted on some grounds 01111.'-

-1l.33. The conﬂict really is on a slightly different matter. namely. whether the admission of an appeal in part is Illegal. The Bombay view' on the subject is, that if the sub]'eCi»~Y11ﬂit91' i5 5C'V5'1""

able, this can be done. The Madras View is, that it cannot he done.

41.34. We think that on the first point"--I1amely, the admission of appeal restricted to certain 5:1-ounds,--the law should be altered, in the interest of simpliﬁcation of procedure and avoidance of de- lay. On the second point'. r1amely_--the admission of an appeal in part where severable,u--the law should be clariﬁed.

41.35. The alteration on the ﬁrst point. and the clariﬁcation on the second point, shorld be based on the same approach, namely, the court should have power to restrict the admission to certain grounds only or to a part only (as the case may be).

Recommendation 41.36. Accordingly, we recommend that the following rule should be added in Order 41.

"12A. The Court may, at the time of admission of the appeal, direct that the appeal is admitted in part only or on speciﬁc grounds only, and where such. an order is passed, it shall not be open to the appellant to argue the appeal on any other part or to urge any other around of appeal, as the case may be, without the leave of the Court."

Order -11, rule 14, and dispensing' with service on respondent against whom case was ex parte.

413?. With reference to service of the memorandum of appeal, one point was considered in the earlier Report". A recommenda- tion had been made in the Forteenth Report' to the effect. that in the case of parties who had not appeared in the court below, and who had not ﬁled any address for service. a provision may be made to dispense with service of the notice of appeal. A somewhat similar recommendation had been made bv the Civil Justice" Com- mittee' also, which observed that the necessity of serving each of th_ose respondents against whom the suit had proceeded ex parte, with notice of appeal or of any inter'-ocutor_x,r motion, led to an un- necessary delay. It stated. that this was more specially the case where the appellant had obtained an interim stay of execution, as it would be easy for an en: parts defendant to collude with the . Krislinaji v. Marianas, A. LR. 1934 Bum. 207 (F.B.] . Eswariali V. Ilmncsﬁu-araya, A.I.R. 1940 Mad. 433.

. Paragraph 41-30, supra.

. Paragraph -1.1-33, aaprri.

. 27th Report», page 239, Note on Order 41, rule 14., . 14th Report, Vol. I, Page 393, para. 21.

. Civil Justice Committee (T925) Repcrt, page 117, pgm 2'7, second sub-para.

-q:|¢3UI:IFhOﬂ[s3i---

288

defendanl-appvlluiii and evade scrr.-cc of notice. Amendments on these lines. too have been made by the lligh Courts of Allahab-ad, Andhra Pradesh. Assam. Calcutta, lvladhya Praclesh, Madras. My- sore and Punjab. in Order 41. rule 14, and by the High Courts Of O1.'is>;za and Patna hv inserting Order 41, rule 14.4..

41.38. The carlia:--r Commission noted the above position, but felt that it was LinneCessa1'y to carry out the suggested change, as not much tie"-lay is caused by the necessity of service of notice of appeal.

41.39. lt appears to us, however, that such a provision would he 'l1S€'f'.ll, saving delay.

Itcconiinendation 41.40. Vi-"e_. therefore, recommend that in Order 41, Rule 14, the following sub-rules should be added--~ "(3} The notice to be served on the -respondent shall be ac- co-mptmied by a. copy of the memorandum of appeal.

{4} Notwithstanding anything to the contrary contained in s=u.li-'rule (1). it shall. not be -necessary to serve notice of any -proceedinr; -inc-idcntal to on appeal on any respondent other than. a 'pe7'3DT1 impleadcd for the first time in the A30-petlote Court, unless he has tI'pper.17'ed and filed an address for service either "in the t-rial court or, in the case of :1 second appeal, in the lower appellate Court, or has a.ppeU.Ted in the appeal.

(5) Nothtogv rn. sub-rule (4) shall bar the resoondent referred to in the appeal and defending it."

Order 41, rule 17 and dispose! on merits in absence of the appellant 41.41.15-'hen an appellate Court does not dismiss an appeal summarily, it should fix a date for the hearing of the appeal and notice of the date should be afﬁ:-ced in the appellate Court house and should be served on the respondent or on his pleader, under Order 41, rules 12 and 14. The procedure thereafter is provided in Order 41. rule 1?. which lays down that "Where on the day ﬁxed, or any other day to which the hearing ma__ be adjourned, the appel- lant does not appear when the appeal is called on for hearing, the Court rna}-' make an order that the appeal be dismissed." In this rule, the word 'may' shows that. apart from dismissal of the ap- peal for default, the court can pass other orders. One such order could be adjournment of theappeal.

41.42. But there is a conﬂict of decisions on the question whether, if the appellant does not appear, the appellate court can, under this rule, dispose of the appeal on the merits. The Allaha- bad view' is that a decision on the merits is permissible.

l. Gejrm;-1 '*7. Ram Raﬁ, A.'l.ZR. 1965 All. 547, 54!] (Desai and Pathak J. J.) .- I 289 41.43. Answering the queryehow an appeal can' be disposed of on merits without the appellant}: or his counsel being heard, the Court observed "I see no anomaly or even difﬁculty in this. The appellate court can read the judgment appealed from and the memorandum of appeal and hear the respondent or his counsel and then can certainly decide onmerits whether the appeal should be dismissed or not. If the appeal is a good one and the respondent or his Counsel is unable to show any cause for its being dismissed the appellate court. can cc-rtainl_'y' allow it on merits in spite of the appellants absence. Similarly, if it ﬁnds that the grounds of appeal have no substance, it can dismiss it on merits. Orally hearing a party or his pleadcr is not an essential ingredient of a decision on merits and the appeal in the instant case could have been dismis- seed by the learned Additional Judge on merits in Spite of the appellants' absence."

41.44. A later Allahabad casel takes the same view.

41.45. As to Order 41. rule 30. the Allahabad High Court" deals with the position thus:

"Order XL1 R30 no doubt makes the hearing of the parties or their pleaders a condition precedent to the pronoun- cing of judgment, but this condition has been laid down for the beneﬁt of the parties and in their own interest, and its fulﬁlment is, by its very nature. dependent upon their volition and co--opera.tion. The parties cannot, therellore. by refusing to avail of the bene- fit and by withholding their cooperation incapacitate the Court for using that power to the exercise of which the condition has been attached. If the opportunity for the' fulﬁlment of the condition has been allowed, although it has not been availed of. the condition will be deemed to have been complied with and the Court will acquire the competence to exercise the power conferred upon it as if the condition had been fulﬁled. If this were not so, the parties would. by their own omission to avail of the 0I3D01"l1lnitY granted to them. be able to create an in- scrmountable impediment in what the Court has been authorised to do by the statute and render the power given to it totally ineffective and nu,c_,rator§;."

41.45. Other High Courts, however, take a different vievt-'."The most important case in support of the view that the court has no power to dismiss an appeal on the merits [if the appellant does not appeal" at the healing'), is 3 Madras one', Mostly. the line of reason-

ing adopted in the Madras case has been accepted in the decision of other High Courts.

l. 3061;. Ila-m tr. Hire-gwon Doss. A.'l'.R. l9fl8, All, L (F','l3_)

2. Bo-Ina. Ham V. Ifkwgu-on Baas, A.I.R_ I9-E8 All. I. ll}, para 45,

3. Musaliroktk iﬂulto-mad V. Jfonaoiakrama, A.I.R. 1923 Mat]. 13.

290

ll.=1T. The facts of the Madras case were as follows:----

On the date of hearing of an appeal before the Subordinate Judge, the appellant was not present, but a Vakit hold- ing a Vakalatnama from him was present, and applied for an adjournment, The adjournment was refused, and the vakil thereupon informed the court that as he had no instructions or papers. he could not argue the appeal; he took no further part in the proceedings.

The Subordinate Judge, instead of dismissing the appeal for default, considered the evidence bearing on the appellants claim with reference to the memorandum of appeal, and dismissed the appeal on the merits with costs.

41.48. It was contended before the High Court (on behalf of the appellant} that it was not competent for the Subordinate Judge to inquire into the merits of the case in the absence of the appellant and his pleader, and that he could deal with the appeal only in the manner provided by Order 41, Rule 17(1). This contention was accepted by the Divisional Bench which heard the case, and the judgment of the Sulaordinate Judge was held to be without juris- diction, Both the Judges constituting the Bench referred to the change from the words, 'shall be dismissed' in section 556 of the Old Code', to the words "the Court may make an order that the appeal be dismissed" in Order 41, rule 17(1) of the present Code, but they were of the View that in spite of the change, the' Subordi- nate Judge had no power to go into the merits of the appeal. Under the previous Code, the Court had considered it to be undesirable' to dismiss the appeal on the merits. ' 41.49. According to most High Courts. dismissal on the merits is illegal", when the appellant is not present. In a Punjab' case it was held that the remedy is an application for restoration under Order 41, rule 19.

Amendment desirable to remove conﬂict 41.50. Having regard to the conflict of decisions, it is desirable to make the wording of rule 17 more explicit. Theoretically, a dis- missal on merits should be permissible.

41.51. No doubt, the following passage from a Supreme Court case"'( in reference to Order 41, Rule 30) may lend support to the Allahabad view.

1. Section 556, G.P.C'-. 1882.

2. Mnhrak Ck-under Boar' v. Thdkur Data'. 20 Suth. W.R. 425.

3. (my Ttzfa-er Stem: v. Otarﬂddin Hmmlaar, A.I.R. 1929 Cal. 475. (I5) Eﬂaagajafir Whoton v. ..'|»#. Bademi, A.I.R. IQH2! Pat. 1 {uvi-1'1'uling A.I.E. 1921 Pat (cj Digemire (-'Fumdra v. Rridfin Ballot, A.T.R. 1953 Assam. 'I91.

(:1) [I968] Ar clh. W.R.. 356, cited. in the Yearly Digest.

4. Kundim Sing}: v. Punjab State, A.I.R.. 1952 Punj. 82 (P. O. Pundit J.)

-'.5. Suihpai Sing}; v. Kalyan Singh ALR. 1963 S.['.. 146; (1963) 2 SCR 733.

291

"Where the appellant and his pleader are not prepared to address the Court, there is no hearing and, therefore, noth- ing is shown to the Appellate Court as to why it should interfere with the decision of the Court below. The burden of proof is on an appellant to show that the decision which he appeals from was wrong and where he does not address the Court at all, it appears to us that there is no point raised for determination and therefore, it is not necessary to give a decision on any point or the reasons for the decision. It is sufficient for the Court to pass an order of dismissal for default. Such an order does not' necessarily mean that the appeal is dismissed for default of appear- ance. In such circumstances. the order means that the appeal is dismissed for default of proof".

However, these observations should not be taken as necessarily implying that a disposal on the merits is necessary where the appel-

lant is absent, It is not necessary for the Corrt to give a decision on merits, though it is open to it to do so.

Recommendation 41.52. Moreover. in practice a decision on merits in the appellant's absence, is rarely given. and therefore, the better course -would be-

to preclude a decision on merits in such cases. We are of the View that the Code should be amended on the above 1ines_ Accordingly, we recommend that the following Explanation ' should be added in Order 41, rule 17(1);--

"Explanation--Nothi'nq in this sub-rrule shall be C0'nS1'?"l.!ﬁd as I empowering the court to dismiss the appeal on the merits".

Order 41, rule 18 41.52251. A point concerning Order 41,_ruIe 13 was discussed in the earlier Report' as follows:--

"The Fourteenth Report recommended the adoption by High Courts of some local Amendment". whereunder, if on the day of hearing of the appeal, it is found that the notice for the respondent has not been served and the appellant fails to deposit the expenses of serving the notice again, the court has power to order that the appeal be rejected- ghis is a matter of detail which may be left to the High ourts."

41.523. We are, however, of the View that it is desirable to adopt the amendment suggested in the 14th Report and insert it in the Code. Such a provision will. to some extent, expedite disposal of appeals.

1. 27th Report, page 239, Note on Under 41, rule IS.

2. 14th Report, Volume 1, page 293, para. 22.

292

Recommendation Accordingly, we recommend that Order -11, rule 13, should be revised as follows:---

"l8. 'vl.-'here, on the day ﬁxed, or on any other day to which the hearin,g_ may be adjourned, it is found that the notice to the respondent has not been served in consequence of the failure of the appellant to deposit, within the period ﬁxed, the sum required to defray the cost of serving the notice, or, if the notice is returned ansemed, to deposit within any subsequent period ﬁxed, the sum required to defray the costs of any further attempt to serve the notice, the court may make an order that the appeal be dismissed:

Provided that no such order shall be made although the notice has not been served upon the respondent, if on any such day the respondent appears when the appeal is called on for hearing."

Order 41, rule 18 and refund of process fees.

41.54. A point relevant to Order 41, rule 18 and refund of fees may now be considered.

Refund of process fees where appeal dismissed without notice.

41.55. A recommendation had been made in the Forteenth Re- port'--" for an amendment allowing the refund of process fees where an appeal is dismissed without notice to the other party. The Com- mission, however, in its Report on the Code," felt, that this should be left to be dealt with by the practice of the Courts. No amendment we 5, therefore, suggested.

41.56. We agree with the view taken in the Report on the Code. but for a different reason. As process fees are paid after admission of the appeal, it is not necessary to provide for refund when the appeal is dismissed summarily.

41.57. For the above reason, we recommend no change in the existing rule.

Order 41. rule 20 41.58. As to Order 41, rule 20. the earlier Report' on the Code discussed the controversy as to whether a respondent can be added in an appeal after the period of limitation for appeal had expired. The decisions on the subject will be found discussed in the under- mentioned cases".

. 14-i-h Report, Vol. 1, page 393, para 22.

. See also Order 41:51, rule 2, inserted in Madras. . 27th Report, page 2-iii, note on Order 41, rule 18 and refund.

. P. slnundvu v. M'. Aclaaryzrlu, A.i.R. 1958, Al'. -13 (F.B.] 1 2 3 at. 27th Report, page 2-3}, Note on Order 41, rule 20.

6. j."o|'.£jie-ti Area. Committee, Buria v. tiooind Ram. .a..I.B.. 1959 Pun. 2'77, 2'78 {F.B.) u'_,f fvl 293 Some of these decisions. proceed on the inherent power of the court to add the respondent in such cases.

-$1.59, In a recent case,' the Andhra Pradesh High Court held that Order 41. rule 20, is concerned with a partvto the suit who was not made a party to the appeal though interested in the_ result of the appeal. The appellate court can, then, in exercise of Its discretion di-

rect that he be made a respondent, This provision is only limited to certain contingencies. It was held:

".........that apart from the provisions of Order 41, rule 20, C-_P- C., the appellate court has inherent powers to permit parties to be added to appeals in suitable cases and the language of rule 20 of Order 41 is not exclusive or exhaustive so as to deprive the appellate court of the inherent powers in this behalf. When once it is clear that Rule 20 of Order 41 is not exhaustive of the powers of the appellate court for implead- ing or adding parties to the appeal. certainly powers un- der Order 1, rule 10. C.P.C. read with section 107(2) C.P.C. and under other appropriate provisions including section 151 C_P.C. in proper cases can be availed of even in appeal._.. ..,..It is obvious that a person who was not eo no-mine a party to the such also can be added as a party to the appeal under the provisions of the Code".

41.60, In this case it was. therefore, held that the court below did not err in permitting the petitioner to be made a party to the appeal who was a scttlee -pendants lite of one or the items of suit property b}1;ougt;t by the plaintiff and was a person interested in the results t ereo .

41.61. In one Kerala case,* the question raised was whether a party could be implead-ed in the Civil Revision Petition after" the ex- piry of the period prescribed for ﬁling the petition. The Kerala High Court held that though the law of limi.tation does not apply to an addition of parties by the court of appeal under Order 41, rule 20 of the Code. yet the power under that provision is discroﬁonary, and should not be exercised in all cases, for instance, where the parts; is extremely negligent. But if the court ﬁnds it necessary to bring a party upon the record of an appeal. in order to do justice between the parties, the court has ample power to do so irrespective of limita- tion, even in second appeal. Even apart from the provisions of Order

-11. rule 20. the High Court has power. under section 151 of the Code, to add a respondent to the appeal, even after the expiry of the period of limitation for the appeal against him. if in the circumstances of the case before it. it thinks fit to do so. The conditions to be satisﬁed before a partv is impleaded under Order =11. rule 20 are in the ﬁrst place, I. For example : .

(cl) JIM-nshi Rom. v. .»1ﬁrI-71!.-Isis, .'-S.l.B. 1943 Lab. 252. [*3] P-Film-m Rani r. DI'mIn' Rrrm. A.T.R.. 'I924 Pat. 1773.

2. .'s'nFJfJrrruwt.l4: \-'. Brrdnmmandan, A.I.I{-. 1970 A.P. 21]. 215 {D.R.'_!, fnilmv.-irg Notiﬁed Area. Uomirifitcr-. Buffer. v. I'?'oi'Jind Ram, ALE. 1959 Punj. 277 {F.B.l 3- Ruginnni v. fﬂteilopjaw Rowflllei', (I96-9) Ker. L.T. 789.

294

that the person must have been a party' to the suit but not made par- ty in the appeal, and secondly, that the person added is one interes- ted in the result of the appeal. Once the irnpleadrnent is found neces- sary in the interests of justice, the question of limitation need not deter the court, because the necessity for the impleadnnent strikes the Court only at the time of hearing, and by that time, in most cases, the period allowed for ﬁling the appeal or revision will be over.

41.62. In the circumstances, the prayer for impleadment was allowed.

41.63. In one Punjab case: it was held that where a memoran- dum of appeal does not mention the name of "a contesting p-arty, and the mistake creeps in on account of the erroneous certiﬁedpcopies having been supplied by the court ofﬁcials to the appellant, he should not be made to suffer on account of the mistake having been commit- ted by some oﬁicer of the court in the discharge of his duties. It is quite apparent that the appellant or his counsel did not notice that error at the time when the appeal was ﬁled, and the names of the parties in the memorandum of appeal had been mechanically copied out from those mentioned in the heading of the judgment of the trial court, The mistake on the part of the appellant or his counsel is, therefore, bona ﬁde and'honest_ and the appellate court has ample power to allow the m--istcr.lte to 'be rectified and the party added, even after the expiry of period of l.imitation for appeal.

41.64. In one Patna case", the appeal was ﬁled by an insolvent in time against one of the creditors. When the other two creditors were made parties to the appeal, «the period of limitation under section 75 (4) of the Provincial Insolvency: Act had expired. It was held that under provisions of Order 41. rule 20, even at the time of hearing of appeal, the court could make persons interested in the result of the appeal party to the appeal, and the question of limitation would not arise in such cases.

41.65, In an Allahabad case" under the U.P. Consolidation of Hold- ings Act, 1954 [Section 43), failure to implead necessary parties to appeal was held to be fatal. It was held that the court was not bound to have necessary parties brought on record.

41.66. It is obvious that the postion s. to some extent. nebulous.' The previous Commission did examine it and stated that the correct view is, that after the period of limitation has expired against a party he ceases to be "interested in the appeal" within the meaning of rule

90. as interpreted by the Privy Council.'

1. I-'imm Single. in Gem! 8'-5-ugh T.L.R. (1969), 2 Punj. 369, 372, following Notified Area Committee, Bio-irt, v. flobind Ram, A.T.R. 1959 Punj. 2'77 (F.I-Ll

2. Roraeahemr Ea! .4_qaa'wrili1: 1:. Kim? Men?» (1969) Labour l.('-. 7'90. 792 [Pat] quoted in the Ycarly Digest {H369}. Coluniu. 471"'.

3. 11-366 All. 'W.R. (H. C.) l3B--Quoterl in the Yearly Digest, U968) page. -173.

4. 27th Report, page 240.

5. C'.he£al£ng'am. V. Scﬁﬂiﬂi, I.L.R. 3 Rangoon 29; A.I.R. 1927 P. C. 252.

a.-J. H. 295 41.67, The previous Commission also noted that the question whe- ther such a party can be impleaded under the inherent power of the Court, or whether a separate appeal can be ﬁled against that respon- dent after obtaining leave of the Court under section 5, Limitation Act were (in the view of the Commission) different matters. The pre- vious Commission considered it unnecessary to make any anlendment to cover such cases.

41.68. We are, however. of the view that it would be better if the position as regards. rule 20 is clariﬁed, and We think that the restric- tive view, namely, that a respondent cannot be added after expiry of the period of limitation, should he expressly enacted. At the same time the court should have powers to grant requests for, impleading a party after expiry of limitation for reasons to be recorded.

Recommendation 41.69. Accordingly, we recommend- that the following sub--rule should be added' in Order 41, rule 20-

"'(2) No respondent shall be added under this rate after the ex- ptfy of the period of limitation for appeal, unless the court, for reasons to be recorded. allows that to be done, on such terms as to costs, as it thinks fi ".

Order 41, rule 22 41.70. Order 41, rule 22 gives two distinct rights to the respondent in the appeal. The ﬁrst is the right (if upholding the decree of the court of ﬁrst instance on any: of the grounds on which that court decided aminst him, and, in that case, no notice or memorandum required by the later provisions of the rule is necessary. The second. right is that of taking any objection, called "cross-objection"----to the decree which the respondent might have taken by way of appeal, 41.71. The distinction between the two, though ﬁne, is appreci- able. In the first case, the respondent supports the decree. In the second case, he attacks" it. The ﬁrst' requires no formal document. The second does, and court--fees may have to be paid.

41.72. There is a third remedy--cross-appeal. But this is outside the rule. -' 4133. The rationale behind the two remedies has been thus explained'---- .

"When an appeal is preferred, the appellant is, generally speaking, seeking to get rid of an adverse decision, ad- verse to him wholly or in part, which means that the opposite party, had succeeded wholly or in part. That success might be the result of 3, decision in h's favour on one or some only of several grounds urged by him; the Court negativing the other or others. As regards these latter grounds. he cannot and need not appeal. however. erroneous the decision, because there is no right of appeal . E.I.'il1i'-lr.1é--f',-'|.l'I'l(!I' 41, rule 20. to be rt-numbered as Order 41, rule Elli, lsi1[».;"uJq- . Para -11 .73, infra.

. I'en.l>am Rm. llfurthi A.T.R. I943 ll-Ind. 693-7011, Bills') 4- 296 130 3 Part)', Who has succeeded. But when the opposite l3_aTl3.':'_P1'€fE'1'S_0ﬂ appeal, he may ﬁnd himself in a difficult situation, he 15 obliged to remain content with supporting the decision. on the only point or points on which he had succeeded without i'esorting to the others on which he had failed. For instance, it may turn out on examination that some or all of these other grounds are good, while those accepted by the lower Court are unsubstantiai _______ __ 1: is ro provide for such 0. contingency, and to avoid injustice to the respondent in such a. case, that the rule has been 3'33"-'ted QW73-'_l9 him liberty to support the d€C?"ee if neces- ?€"'_14' 5.1} Telfiﬁﬂg 07?» aim of the grounds decided against him im. the Court below.' The use of the word 'support' makes it plain that the right given is limited to the sustaining of the decreﬂ in so far as it is in his favour, and does not extend beyond so as to enable him to obtain an alteration, giving him a further advantage. This_ he can secure only by an appeal or cross objection. Where a suit is wholly dismissed or wholly decreed, it is open to the respondent to support the decision, by re-agitating ground negatived by the lower Court. This is simple enough and the language of the rule is easily understood and applied. Where, how- ever, the suit is decreed in part and dismissed as to the rest, we have in reality what may be described as a double or composite decree. There is a decree for the plaintiff in respect of the part decreed, and a decree for the defendant in respect of the part dismissed. If the plaintiff appeals. he does so for the purpose of displacing the decree in so far as it is in favour of defendant. If the defendant ap- peals, he again does so for the purpose of getting rid of the decree in so far as it has gone in plai.nt:ii'f'_.; favour. In either case the party who features as the respondent has a decree in his favour which he is allowed to support on any of the grounds decided against him by the Court which passed the decree. When he does this and no more, he is only sup- porting and not attacking his decree. The principle can be appreciated by taking a simple illustration.

Let us take a case where a plaintiff sues for a debt of, say Rs. 1,000, and the suit is contested by the defendant "on two grounds, (i) discharge, and (ii) limitation. Let us assume that the trial Court dismisses the suit on the ground of limitation, while negativing the plea of discharge. The plaintiff in an appeal from that decree may be able to satisfy the appel- late Court that the decision on the point of limitation IS incorrect. in such an eventuality, Order 41, T1116 22 €T13b1E'5 the defendant to sustain the decree by making good the plea of discharge found against him by the Court below."

41.74. and 41.75. In a Punjab case" Dua. C. J. has heid----

"Rule 22 of Order 41, Civil Procedure Code is apparently a special provision permitting a respondent, who has not appealed from a decree, to object to the said decree In the T. Emplidsis supplied.

2. Krishna Go'-pv1Z_. V. Hrrji .Jfoi'r,n'., Illualior, A.I.B.. 1969 Delhi 123, 129.

11'-

")1 297 opposite party's appeal as if he had himself preferred a separate appeal ....... .. where. a decree is partly against one suitor and {:a1'tlj~.- agesnst another. one of shah 13311329,. being satisﬁed with his partial success, may noel: prefer-ran appeal within lirnitatircrq but on the other party appealing may like to re-open the adverse part of theldecree. In the larger interest of the eause of justice, it is in such circum- stances that the party satisﬁed with partial success is granted another opportunity of challenging the part of the decree agahst him ujoon his opponent preferring an appeal, of which notice is serv'ed.on.him. In order to avail' of this right, he has to take cross--objections withimone month from the date of service on -him of notice 'of the' hearing of his op-ponent's appeal." ' r i -

41.76. In this '§_:hE_-rF- was a decree against somedefendants. One dei'endant's appeal was dismissed. There was an appeal by the others. The court left open the question whether the defendant 'whose appeal was dismissed can assail the decree and re-open the contro- iiersy in the garb of cross--olojections_ _ . .

41.'F'T. Further, it was held that cross--objections. are to be heard when the appeal is heard; and as a .gene.ral rule, the court is expected to dispose of both the appeals and the c_r_oss--objections together by one judgment, andthe decision should be incorporated in one decree. By means of a deeming fiction, the cross-objections are, for certain purposes. treated as a memorandum of appeal but they are neither registered 515 an appeal nor are they clothed with an independent status as such. They do not constitute a separate independent cause or writ, _but largely draw their source of survival from the compe- tence of the appeal in which they are tahenf and the exceptions to this dependence are provided in sub-rule'(-13 of Rule 22.

=l1.'i'3. In the present-case, it was held that inthe absence of any binding precedent or any; clear provision of law; it would not be advisable to remit the ease to the lower appellate court for adjudi- cating on the cross-objections on the merits after-the ﬁnal disposal of the appeal, even if otherwise such a course were'lega_lly IBI'1'11iS* sib-le and called for. - -

41.79. In a Calcutta case.' there Was an appeal, .by the, plaintiﬁ whose suit for recover_gr of damages against the defendant munici- pality to the extent of Rs 1,000 or more succeeded in part (for Rs. 842.62), in the trial court, but failed Wholly in the first -court of appeal. On one of the points taken by plaintiff in the Calcutta High Court (negligence of the municipality)-. the defendant had ﬁled a cross-objection. - - . .

41.80. The High C-smart held," that 'where the particular issue of negligence is found against the defendant" municipality, and at the same time the decree dism'ssing the whole suit is completely in its favour, a cross--ohicti.on is hardly called for. The defendant munici- pality, now the respondent, can support the decree on the ground ':- NTi¥iri"i."--'I- Prm-is.' r. Blicncfrexzsrar Jfunielfjfffliitigfi (1959) 73 Gal. ii'. NJ83, 90."

T'fHl"|)]°'.'ill|[- -'T. .I'_..5_-_-" .'\,*f3l ' -' 298 that the issue of negligence should have been decided in its favour. That is what Order 41, Rule 22 sub-«rule (1) of the Civil Procedure Code provides for.' So the cross-objection, Wholly unnecessary one, may be left alone_ ' 41.81. So much as regards the working of rule 22. We have referred above to the two limbs of the rule which give two remedies.' Now, there is a small verbal point regarding the first remedy. The relevant portion of the rule says that the respondent may "support thc dccreﬁ on any of the grounds decided against him in the court below". These words, at ﬁrst sight, appear to be strange, because a person cannot support a decree on a ground decided against him. What is meant is. that he may support it by asserting that the ground decided against him should have been decided in his favour. It is desirable to make this clear.

Reoolnmendatllm 41.32. We recommend, therefore, that Order 41, rule 22, sub-rule (1), should be revised, so as to read as follows:-- T "{1} Any respondent, though he may not have appealed from any part of the decree, may,-

(a}' not only support of the decree by stating that the deci- sion in respect of any ground decided against him in tllte court below ought to have been in his favour; but a so

(b) take any cross-objection to the decree which he could have taken by way of appeal, provided he has ﬁled such objection in the Appellate Court Within one month from the date of service on him or his pleader of notice of the day ﬁxed for hearin the appeal, or within such further time, as the App: ate Court may see ﬁt to allow."

41.83. There is also another point relevant to Order 41, Rule 22. We are separately recommending' that a Court must decide all issues, even if the case can be disposed of 'on a preliminary point, except where a question of jurisdiction or bar to suit is involved. This renders desirable a change in the provisions as to cross objec- tion. Where a decision of the trial court on a preliminary issue is favourable to the respondent, and the other issues are decided against him, the respondent should, in View of the recommendation referred to be empowered to file cross--objection. Strictly speaking, this follows from the change proposed in the section relating to appeal' read with the words "any cross-objection which he could have taken by way of appeal" which appear in Order 41, rule 22. But an express provision would be desirable.

'. Following Lalo Gd/Bﬂ' Slaankar Laiva. JGHH Perallrul {I890} I.L.R.. 17 Cal. 809 (P. 0.], n ease under section E61 ofthe 1882 Gods, corresponding to Order 41, Rule 22. _

2. Paragraph 41.70, eupvro.

3. Bee discussion relating to Motion 96, and Ordnr 14, rule 2. 1- Station 95.

-t.

299

Recommendation 41.84. We recommend, therefore, that the following Explanation should be inserted below Order 41. rule 22(1):--

"Explanation-.--A -respondent aggrieved by a finding of a court which is incorporated in ca. decree may, under this rule, ﬁle cross-objection in respect of the decree in so far as it 'relates to that ﬁnding, notwithstanding that, by reason of the decision of the Court on any other ﬁnding which is sufficient for the decision of the suit, the decree, wholly or in part, is in favour of that respondent."

Order 41, rule 22«----(Cross-objections between respondents) 41.85. With reference to Order 41, rule 22, the following point was considered in the earlier Report:' "A suggestion has been made to the effect that a respondent should not be allowed to ﬁle a cross-objection in which the appellant is not interested. While that would be the ordinary rule," a rigid provision may not be desirable, because there may be cases where a diiferent rule might have to be applied. The suggestion has not, therefore, been carried out."

41. 86- We examined the matter again, but have come to the same conclusion as was recorded in the earlier Report. Qross-objec- tions as between respondent and respondent are not unlmown, and we do not think it proper to change the existing position.

Order 41, rule 23

-11.87. Order 41, rule 23, provides for remand where the lower court has decided the suit on a preliminary issue. We are recom- mending separatelyi that a Court may decide all issues except those of jurisdiction or bar of suit. The amendment proposed by us-leaves the matter to the court's discretion.-- Hence no consequential changes will be required in Order 41, rule 23.

Order -11, rule 235 (New) 41.88. and 41.89. In the earlier Report' on the Code insertion of the following new rule was recommended:

"23A. Where the Court from whose decree an appeal is prefer- red has disposed of the case otherwise than on a prelimi- nary point, and the decree is reversed in appeal and a re- trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23."

1. 27th Report, page 240, "Note on Order 41, rule 22.

2. Foot notes in the 27th Report citing case law have been ommitted here.

3. Sec discussion as to Order 14:, rule 2.

4. 27th Report, page 242. and draft rule at page 32.

l'q'B{D)229}I-JfL.»]'. M} .A.--2lfa} 300 Reconimendation 41.90. We ;;g:'cc_ accoL'dingl_~g, we i'econ11r,~cn;j that rule 233-'; should be inserted as follows:

"'23.A. Where I.he_ Court from whose decree on appeal is pre- ferred has disposed of the case othe'r1.oi.se than on a preli- mi.m{'ry poi-n.I._. and the decree is reversed in up 2:11 and a re-trial -is considered necessary, the Appellate cart shall have the :<-:i._i.-.e powers as it has under rule 23."

Order 41, rule 2'2' 41.91. Order 41, rule 2? relates to taking of additional evidence in the Appellate Court. In the earlier Report an amendment' had been recommended in this rule in implementation of the recom- mendation made in the 14th Report." The object was to provide that additional evidence may be allowed by the appellate court, if the evidence could not be produced in the lower court because it was not within the knowledge, etc, 0-f--the party seeking to produce it now.

41.92. We have examined the matter and we €l.'.l,lI'E}l§,-' agree with the recommendation, ' Order 41, rule 31, Contents of Apﬂate Judgment 41.93. At present, under Order 41, rule 31, the judgment oi' a Court of first appeal or second appeal has to contain the points for determination, the decision thereon, and the reasons for the decision, and where the decree under appeal is reversed or varied, the relief to which the appellant is entitled, It was suggested to us that while these requirements are obviously necessary in the case of a Court of ﬁrst instance, their literal application to Courts of appeal may not be necessai-y in every case. It the court of appeal has nothing new to say on any of the points decided by the Court of first in- stance. repetition could be usefullv avoided In other words, the judgment of a Court of appeal could be in continuation to that of the tri.al court, since it is to be in support of the same. We con- sidered a suggestion was to make provisions on the following lines:

(a) When the arguments advanced before the Court of appeal are the same as were noticed by the Court below Wh0s=e reason. for rcrreoting or rejecting them appear to the Court of anpcal to be sound, the judgment of the Court "of appeal need only say that much, and may merely add that no fresh argument has been urged. In such_cases, the appeal would be dismissed without any discussion on the points involved.

(b) where the same arguments as were urged before the trial Court are repeated before. the Court of appeal. but the Court of appeal comes to a different conclusion on a parti-

cular point or :-o;'nf.s, the judgment of the Court of appeal could start straigshtway with a discussion of those parti- cular noint or points, followed by its decision thereon and the effect oi' that decision.

l. 537th 1'{v.port .« 1"\.i_;e' -Q1. Hr-ii--.~ do illlrrlcr -'-_-l. rule 27.

9. Mt}? RE'i7fII'i-, 'Fol. ]. natsc -"I5, ]'l.-l.!'¢'i =1-5, F-I'1'L'ﬁ3'.l(1 sial-us]-a.ra..

301

Wheie, hctore the Court of appeal, a new argument is advanced in support 0;", or against, a nnding oi' the court below, or an alto- gether new point is urged, the judgment of the court 01' appeal could start straightaway with a discussion of the particular point or points, its decision thereon, and the effect of that decision.

41.94. We have considered the suggestion, but are not inclined to recommend any amendment. The present rule is sufficiently elastic. To enact provisions on the lines suggested would make the rule cumbersome, without making any difference in practice.

Order 41, Rule 33 41.95. Under Order 41, rule 33, the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour o__i' oil or any of the res- pondents or pa-rties, although such. respondents or parties may not have ﬁled any appeal or object-ion.' The illustration to the section is as foil-ows:--

"A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y."

We are of the View that this rule should be amended to cover cross suits and also a suit _in which two decrees are passed. This is desirable in order to remoize the diﬁiculty caused by the un- certainty" in this behalf as regards res ﬁudicatc.

Recommendation 41.96. Accordingly, we recommend that the main paragraph of the rule should be revised as follows:--

"33. The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power-----

(a) may be exercised by the court notwithstanding that the appeal is as to part only of the decree, and (13) may be exercised in favour of all or any of the " respondents or parties, although such respondents or pagties may not have filed any appeal or objection, an .

(c) may, where there have been decrees in cross suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees. al-

though on appeal may not have been ﬁled against such decrees.

[- T118 1T1'01'1'ED to the rule is not material, for the present purpose.

2. Sec discussion relating to section 11.

CHAPTER 42 APPEALS FROM APPELLATE DEGREES Introductory

42.]. Procedure as to appeals from appellate decrees is dealt with in Order 42. In general the rules as" to appellate procedure in first appeals apply to subsequent appeals.

Order 42, rule 2 (New) 42.2. We have already made a recommendation,' that when a second appeal is admitted, reasons must be given, but that no reasons need be given for not admitting it.

Recommendation 42.3. Accordingly, we recommend that the following rule should be inserted in Order 42-

"2(1] When an appeal from an appellate decree is admitted, the Cowrt admitting it shall record its reasons for doing so.

('2) It shall not be necessary for the Court to "record reasons for not admitting an appeal from an appellate decree."

1. Sea discussion under Order 41, rule 1]. faragnph 41.15, supra.

302

"-'r Cusp-ran -13 ' APPEALS 1-'none oannas Introductory 43.1. Apart from appeals from original and appellate decrees which have been dealt with in separate Orders, the Code allows ap- peals from certain orders enumerated in section 104, and Order $3.. rule 1.

Order -13, rule 1--Analysis or orders listed in Order 43, rule 1 43.2. Order 43, rule 1, lists the orders that are apipealable.

For a proper consideration of the provisions of this rule, it would be convenient if the orders enumerated are grouped under a few classes. One possible classiﬁcation would be between orders which are directly or indirectly in the nature of final adjudications, and orders which are merely interlocutory.

43.3. Again, while considering the ﬁnality of orders in this con- text, one could keep several aspects separate. There are-

{'1) orders which are ﬁnal, in the sense that they put an end to the list, but are not preceded or accompanied by decrees that are themselves separately appealable;

{ii) orders which are ﬁnal inasmuch as they put an end to the list, but are preceded or accompanied by decrees that are themselves appealable;

(iii) ordlers which are ﬁnal in relation to the particular court;

(iv) other 'orders-- which may, for the sake of convenience. be referred to as interlocutory orders; and (V) originating orders.

43.3A. Accordingly, an attempt is mad: below to divide the orders enumerated in Order 43, rule 1, into a few classes, on the above basis-

Class (i) Orders which are ﬁnal, in the sense that they put an end to the list, but are not preceded or accompanied by decree:

that are themselves separately appeala!b1e---Clause (e), Clause (1'). Clause (k), Clause (1},----{refusa1 to give leave). Clause (11), Clause {t),--{in part}, (Refusing to re-admit). Clause (u}', Clause (V).

Lilli Class (iii Orders which are ﬁnal inasmuch as they put an end to the list, but are preceded or aecompaiiied by decrees that are ap- pea1able--Clause (bi, Clause {cl}, Clause (hi, Clause (In), in part---i.e_ orders i'ect'ﬁL=diI1g a cﬁmpromise. Clause (ti, in part--Refusal to re-hear.

Class (iii) Orders which are Irnal in relation to the particular court---- Clause (a).

Class (iv) Interlocutory oi-de-rs--Clause (e), Clause (g), Clause (1), Clause a(j),;_ Clause (l)----0rdei- giving leave, Clause (In), in part- Refusal to record a compronii--.e. Clause to), Clause (p), Clause (q), Clause (r), Clause (5), Class (V) Originating (}rders--Cla.use (W).

Our approach.

43.4. Our approach in making recommendations for the curtail-

ment of appeals against (Jl ders is, broadly speaking, as follows:--

(i) Where the order is accompanied or followed by another ﬁnal adjudication [usually a decree), which itself is appeal-

able,' it is desirable to abolish the appeal against the orders, but at the same time to provide for an opportunity to challenge the order in theappeal against the ﬁnal adjudi- cation. The principal object of such an approach is to _avoid_suc_cess'-.ve appeals which add to the length of the . 'litigation. 4

(ii) Where the order is not accompanied or followed by any such ﬁnal adjudication, the-I1 obviously the question of 'avoiding successive appeals does not arise, but abolition or modiﬁcation oi" the right of appeal against that order should be considered on other relevant considerations, in- cluding, in particular--(1; whether the order, if allowed to stand, would cause such hardship to the aggrieved party as to justify a right of appeal, and (2) Whether any other remedy wouldrbe equally adequate. , e We shall now indicate the choiiges needed various clauses of Order 43, rule 1.

Order 43, rule 1(a) ' 43.5. Order 43, rule 1(a), provides. for appeal against 'an order tinder-'Order '?, rule lﬂ, where"a' plaint is returned to be presented to the proper court. The only change which is necessary in this rule is, that the right nfappeal under this rule should be subject to the new restriction which we propose" ontlie right in certain cases.

1. See pa1;745V.7E:A,-sirrpro.

2. Sec Order 7, rule 1011 {New} Her:-nn1mend:tt.im1

-;.'_;_tj. .»'icco1'o;1sgly_. we .L'I3L',0IT1I1Z<.°:ld tnat in Order rule its}:

the words "subject to the -prmiisionr 0] Order 'F', rule 1I';'A". shouid be added at the end.

Order 43, rule 103} , 43.7. Rule ltbl provides appeal against an order under Order 8, rule 1(H--whore the party; 1a;is to present a wintten statement within the time fixed by the court, and the court pronounces judgn"-;_n7; against him. -

43.8. We are 01 the View that an appeal against an order under Order 8, ruée 1{J pronouncing judgment against a party, should be abolished. 'lhe idea is to reduce the present two successive appeals to one. 'the defendant can, in an appeal from the decree passed as -.1 result of the order, take the same point as he can take in appeal under Order rule lib). To avoid doubts whether such a point can be taken.--doubts which may arise because the judgment pro-

nounced under Order 8, rule 10. would be regarded as ﬁnal in the appeal against the decree--an axpresg provision could be made to clarify the position. No doubt, the appellant will have to pay high court fees on the appeal. But we would recommend to State Govern- ments, that the court fees for appcais against the decree in such cases should be reduced to the Court fees for appeal against orders.

Recommendation 43.9. In short. our recommendations are as follows---

(i) Order 413, rule 1(b) should be deleted;

(ii) court fees on an appeal against the decree in cases where judgment is pronounced under Order 8, rule 10 should be reduced to the court fees for orders;'

(iii) the following rule" should be inserted as Order 43, rule 1A "1A. Where a court pronounces judgment against ct defen- dant under Order 8, rule 10. he may appeal against the decree following on the judgment on the ground that the judgment ought not to have been so pronounced."

Order 43. rule 10:) a'-3.10. Order 43. lfc) needs no change.

Order 43, rule 1(d) ==i3.11. Pole {1} (d) provid-es for appeal against an order under Osdr.-'r 9. Rule 13. rejecting an application for an order to set aside a decree passed c.:r pnrle. It requires. no change.

1. E'.m:. 4.3.8, .5-«pro.

To he inscrtli an Order 43, rule} \ 306 Order 43, rule 1{e) '£3.12. Rule 1 (e) provides for appeal against order under Order 10, rule 4, where the court postpones the hearing of a suit because the pleader refuses or is unable to answer any material question relating to the suit and directs the pa1't_v' to be present on such day.

Recommendation =i3.13_ We recommend.-

(i) abolition of the right of appeal under rule 1(a). The ground can be taken in appeal against the main decree.

{ii} insertion of Order 43, rule 1-B, as follows':-

"'1--B. Where a Court passes an order against a party under Order 10, Rule 4, the party may appeal against the decree in the suit on the ground that the court ought not be have passed such order".

Order 43, rule 1 (f) 43.14. Under rule 1 if), an order under Order 11, rule 21, is ap- pealable. The order so made appealable deals with non-compliance with an order for discovery: etc. The effect of such non-compliance is, that in the case of the plaintiff the suit is dismissed, and in case of a defendanrt. his defence is struck out.

We have, after some discussion, come to the conclusion that this right of appeal should» be retained.

Order 43, rule 1 (g) 43.15. Rule 1 {g} provides for appeal against an order under Dr- der l6, rule 10 'for attachment,--where a witness fails to comply with a summons to attend or produce a relevant document.

Appeal against arrest" is dealt with separately-

43.16, The Code does contain' a provision where under the per- son whose property is attached can apply to the court for vacating the attachment. This should suffice.

Recommendation 43.17'. We recommend therefore that appeal under rule 1 (g) should be abolished.

Order 43, rule 1 (I1) 43.18. Rule 101) provides for appeal against an order under Order 16, rule 20. Under Order 16, rule 20, if any party1 to a suit refuses to give evidence when called on by the court, the court may Eronounce judgment against him or make such order as it thinks t.

1. To be inserted as Order 43, rule ]-B.

2. Section 1o4(1)(h).

3. Order 16, rule 11.

1-."

3 tr} 43.19. We are of the V1E'W that the appeal under Order 43, rule 1(h) should be abolished. The defendant can, in an appeal from the decree passed as a result of the order, take the same point as he can take in appeal under Order 43, rule 1(h). To avoid doubts whether such a: point can be taken. the matter could be provided expressly'. The idea is to reduce the present two successive appeals to one.

43,211 We would also recommend to State Governments, that court fee for appeals against the decree in such cases should be re- duced' to the Court fees for appeal against orders Recommendation 43.21. In short, our recommendation is---

(i) to delete Order 43, rule 1(h)j.

(ii) to reduce court fees. as indicated above";

(iii) to insert Order 43, rule 1-C, as follows':---

"'1-C. Where a. court pronounces judgment against a party under Order 16, 'rule 20, he nmy appeal against the decree following on the judgment on the ground, that judgment ought not to have been so pronounced".

Order 43, rule 1 (1) 43.22. Under rule 1(i), an appeal is allowed against an order made under Order 21, rule 34, on an objection to the execution of a decree and the draft of the document prepared by the decree--ho1der or the endorsement of the negotiable instrument.

The scope of Order 21, rule 3-1, is now proposed to be limited'. However, no change is needed in the rule relating to appeal.

Order 43, rule 1 (j) 43.23. Order 43, rule 1(j] provides for appeal against an order under Order 21, rule 'F2 or rule 92 setting aside or refusing to set aside a sale, where a decree-holder purchases property in execution without the permission of the Court. No change is needed in this rule."

43.24, On the question whether an appeal lies from an order dis- missing, for default, an application under Order 21, rule 90', the de- cisions were conﬁicting. In an earlier Calcutta case', it was held that the language of Order 43, rule 1(j), is wide enough to cover such cases, as the effect of such an order is to conﬁrm the sale under Order 21, rule 92. It may, however be pointed out that under clause (.j) of Order 4:3, rule 1, an appeal lies against an order refusing to set

1. Of. Discussion as to Order 43, rule 1 {_b).

2. Peru, 4: 3.21] supra.

3. To be inserted as Order 43, rule 1-0.

4. See discussion as to Order, 21. rule 3!.

5. It has been considered dssireuble to retain Drdlr 21, :11: '72.

6. Kali Konta Ghuckerbatty Y. Shyam LII. 1.1.11. 191'! GIL 815, following (llllj 8| I. 9.

-£92 and {I910} 45 I. G. 493.

308

aside a sale and not against an order conﬁrming the sale. This deci- sion was followed in another Calcutta High Court case', where also it was held that the cifect of the dismissal of an application under rule BU is to confirm the sale under rule 92, and hence an appeal lies againt the Order.

=l:a'.24A. The Patna High Court' has, following two Calcutta cases'--', held that an order dismissing an application under Order 21, rule 90 for non-prosecution is ap-pealable under Order 43, rule 1(j}', 'lithe reason given being that if the application is disposed of on merits and: is dismissed the result is that the sale is conﬁrmed, likewise if the application is dismissed for non--prosecution, the result is the same. Further, the question of appealability under Order 43, rule 1(j) does not depend upon v.-'hethcr the order under Order 21, rule 92 re- sults in the confirmation of the sale, but on the fact whether the or- der is one refusing to set aside the sale or setting aside the sale.

43.25. On the other hand; in another Calcutta decision", it was held that an order of dismissal for default is not a conﬁrmation of the sale, and does not preclude the party from making a fresh appli- cation, and that such an order is not appealable under Order 43, Rule 1(j). In that case. Page J , observed that in dismissing the application for default when neither party appears on the case being called for hearing, the Court does not refuse to set aside the sale, but in the ab- sence of the parties refuses to consider whether the sale should he set aside 01- not. It was observed further, that it is not every order of rejection that has been made appealable under Order 43, Rule l(j), but only that order of rejection by which the Court, on a demand being made by' a person to set aside a sale, refuses to set aside the sale. This stands to reason, as a party who has allowed his application _to be rejected for default or non-prosecution, cannot really. complain that the Court has refused to set aside the sale on prayer.

43.26. In a Madhya Pradesh case", in a proceeding for the execu- tion of a money decree against the respondent judgment debtors, cer- tain property belonging to the judgment-debtors was sold and pur- chased by the second appellant Rajaram. Thereupon, the judgment debtors ﬁled applications under Order 21, Rule 90 for setting aside the sale. The application was dismissed by the executing court for de- fault of appearance of the judgment-debtors. Thereafter, the judg- ment-debtors ﬁled applications for restoration of their applications under Order 21, Rule 90 and section 4?. These applications were re- jected, by. the District Judge. A revision petition against this order of _the District Judge was dismissed by the High Court by a single Judge decision, Thereafter, the judgment debtors ﬁled an appeal in the High Court against the order of the District Judge, Tare J ., who heard the

1. .-'\"rt-rm.-from.-itfa. v. Reiltlaizl Doss-, A.l'.R. 1925, Gal. Ell). . i'i':n'rz__nmfr:.p 1.-'. Trifakziraﬁh. ALR. 1957 Pat. 465'.

. Brtmnf Kcmxtr \". Kliirnrfr tlhdlzdm, A.I.R.. 1923 Cal. 25. .. .AT.=1.vrrlrr': \'-'. a'}'.i'ti.-ri Sirnliizr. .-'L.LR. 1929 Cal. -107.

. iirisrtrafnlla v. Rrr1_:z-iufrlin. .-1.1.3. 'L926 Cal. 733.

5. Gap? La? '9'. S'itm'nm, ALR. 1968 ';'l..P. 196 {D.B.} L1-LL-LJID ''14 1-4'.

309 5

appeal, took the view that the appeal was nottenable, in view of the dismissal by the High Court of the revision petition filed by the Judg- nient-debtors. Apparently. the single Judge, while deciding as above, expressed some opinion on the correctness of the orders of the District Judge.

43.27. Letters Patent appeals were preferred by the decree--hol- der and the auction-purchaser. Although they were not aggrieved by the actual conclusion reached by the Single Judge (dismissing the appeal of the judgment-debto1's), their grievance was that having held that the appeal preferred by the judgment debtors was not tenable, the single Judge was not justified in expressing an}; opinion on the correctness of the orders passed by the District Judge.

43.28. It was observed that the ﬁrst question which the single Judge had to consider was, whether the earlier appeal {the appeal preferred by the judgi-nent-debtors) was competent or not; it was only after holding that the appeal was tenable that the Single Judge could have entered into the merits of the orders passed by the District Judge.

43. 2.9. The High Court agreed with the reasoning of the Calcutta case' referred to above", where i-t was observed that when an applica- tion under Order 21, Rule 90 is dismissed for default. the court does not "refuse" to set aside the sale. Hence, an order dismissing an app- lication under Order 21, Rule 90. for default is not appealable under Order 43. Rule lfjl. It was observed further, that it is not that a per- son whose application under Order 21, Rule 90 is dismissed for de- fault has no remedv. Such a dismissal by the Court is in the exercise of its inherent powers. and the application can be restored by the court in the exercise of its inherent powers.

43.30. This appears to be the view likely to prevail, and the matter could be left as it is.

Order 43, rule 1 f 1:) 43.31. Rule 1(k} provides for appeal against an order under Order

22. rule 9. where the plaintiff or his representative applies to set aside the abatcniert or dismissal of the suit and this application has been refused. it needs no chaIii;e_ Order 43, rule 1 (1) 4332. Rule 11' 1}: provides for appeal against an order under Order

22. rule 10. giving or refusing to give leave to continue suit in case of assignment of interest before ﬁnal order in the suit. No change is re- quired in this respect.

Order 43, rule 1 (in) 43.33. Rule 1 (mi provides for appeal against an order under Dr. rler 23 rule 3, recording or refusing to record an agreement. compro- r-=.?se or satisfaction.

1'. Rasaraiulla V. Rmsw_.:Fr?.7-ii, .~1.I.R. H126 Ca]. 773.

2. Para. 4-3.25, .~mj-mi.

310

43.34. Our views on this rule are as follows---

H) No appeal should be allowed against an order recording or refusing to record a compromise. The trial should go on.

(2) But, in the appeal against the decree, the fact that a compro- mise ought to have been recorded or ought not to have been recorded, should be permitted to be taken, as a ground of appeal.

(3) The object behind the above amendment is to avoid suc- cessive appeals concerning the same suit.

Reoommendation 43.35. Accordingly, we recommend that the following rule should be added' as Order 43, rule 1-D:--

"1--D_ (.1) In an appeal against the decree in a. suit passed after recording a compromise, it shall be open to the appellant to contest the decree on the ground that a compromise ought not to have been recorded in the suit:

(2) In an appeal against the decree passed in a suit in which the court has refused to "record a compromise, it shall be open to the appellant to contest the decree on the ground that a compromise ought to have been recorded".

Order 43, rule 1 (11) 433.36, Under rule l[n), an appeal is allowed against an order re- jecting an application "for an order under Order 25, rule 2 to set aside the dismissal of suit for failing to furnish security. It needs no change.

Clrdcr 41. rule 1 (tin) (New)-recommended 43-37'. As already recommended', the orders under Order 33, Rule 5 and Rule 7, rejecting the application for permission to sue as an indigent person. should be made appealable.

Order 43, rule I (0)

--43.3'?A. Under Order 43, rule 1(0), an appeal is allowed against an order under Order 34, rules 2, 4 or 7, refusing to extend the time for the payment of mortgage-money.

Recommendation to delete Order 43, rule 1(0) We recommend that this right of appeal should be abolished, in view of the changes proposed inthe scheme of Order 34, where- under such orders will now be passed after the decree'.

1. To be inserted an Order 43, Rule 1-D.

2. Has discussion as to Older 33, Rules 5 55 7.

3. See discussion IEI to Urdu: 34.

1... -n-----.--w

4.':

311

Order 43, rule 1 (p) 43.38. Orders under Order 35, rule 4 or rule 6 in interpleader suits are appealable under Order 43. rule lifp). Roughly stated, the situations covered are--

(1) where the court declares that the plaintiﬁ is discharged from all liability and awarded costs;

(2) where the court adjudicates title to the thing claimed, on admissions or other evidence;

(3) where the court frames issues for trial, or where any claimant is made plaintiff in lieu of or in addition to the original plaintlﬁ;

(4) where the costs of the plaintiff are given as a charge on the thing claimed or in some other effectual way.

We recommend no change in this provision.

Order 43, rule I (q) 43.39. Rule l(q) allows appeal against orders under Order 38, rules 2, 3 or 6 regarding security by the defendant, on application by the surety to be discharged or on application by the defendant against attachment of property on showing cause for furnishing secu-

rity.

It needs no change.

Order 43, rule 1 (r) 43.40. Rule 1(r) allows appeal against an order under Order 39, rules, 1, 2, 4 or 10, regarding temporary injunction; injunctions to res- train repetition or continuance or breach of contract or other injury of any kind, varying, discharging or setting aside an order for injunc- tion; or where the court orders the money etc. to be deposited in court etc.

It needs no change.

Order 43, rule 1 (s) 43.41. Rule 1(s) permits appeals against orders under Order 40, rule 1 or 4 for appointing receivers. and for enforcement of receiver's duties. -

It needs no change.

Order 43, rule 1 (is) 43.42. Rule 1 (t) allows appeal against an order refusing, under Order 41, rule 19, the re--adrnission of an appeal dismissed for default or refusing, under Order 41, rule 21, to re-hear an appeal, on the appli-

cation of a respondent against whom an ear parte appellate decree was made.

It needs no change.

3.12 ~l3m':'i and '£3.44. Rule 1[i1} allows appeal against an order under Order 41, rule 23, remanding a case '.=.-'here an appeal would lie from the decree of the appellate court. Although we are recommending an amendment whereunder all i-=.sues; are to be decided by the court, there will be an exception as to issues of jurisdiction or bar of suit'. Hence the provision in mic 1(u) will still be needed. It should, there- fore, be retained.

Urder 43, rule l(v)

-13.45. Under Order 43, ;.11e 10.'), an order under Order -15, rule {i made by any court other than a High Court refusing the grant of a certiﬁcate to appeal to the Supreme Court. is appeal- '.a':)1I:'.

iiecnmmendation 43.45. The appeal contemplated by Order 43 rule lit-'} is obso- iete. and should be abolished. We 1'ECD1'ﬂ1'!'.=i-'1'.\Cl accordingly, Order 43. rule MW) 434?. Order 43, rule Hw} provides for appeal agaiiist an order under Order 4?. rule 4, granting an application for review. The text of this rule needs: no change. But. we are recommending; cer- tain changes in Order 47, rule 7. which will have the effect of expanding the scope of this appeal.

Order :13, rule 1-3 (New)

-13.48. A new rule 1-13', is p1'(2IpOsEC.l to be inserted" in Order 43.

Order 43 rule 1-15 {New} 43.49. A 11-aw rule 1--B is proposed' to he ins;-.i-ted in O1'dn:- 43.

Order 43, rule 1-0 (new) 43.50. A new rule 1C is Iiroptused' to be ins-cried.

flrdcr 43. rule I-D (now) 43.5]. A new rule l--D is proposed to be inserted."

1. Sec 1'li:sc-113$-ion as to Order 14, rule 2.

:3. See dfseuseion as to Order 47, rule 7.

Sec disciisusinn as to Order -£3, rule 1f_b]., -rupm. F}:-v rlisaousa-ii-'H1 an to Uwler 43. rule lfn), 31'!-pftir. Hen discussiun as to Order 43, rule l(h), .~=1rg.rm.. Sen dfscussinui as. to Order 13, rule Hm), -'8'-".J'.lJ'!l.

..'. ;1 -- L:

''-''l- -u.-..:A.A_u..

..--,.--. n. ......-~ 7':

CHAPTER 44:

APPEALS BY INDIGENT PERSONS Introductory '$4.1. Appeals by indigent persons (described in the Code as "paL'pers"") form the subject--matter of Order 44.

There is on1_x,- one important point to be considered under this rule, which we discuss below. Verbal changes to substitute the ex- pression "indigent person" will, of course, be needed.' Order 44, rule 1(2) 44.22. With reference to Order 44, rule 1(2), the following dis-

cussion is found in the earlier Report.' "Order 44, rule 1(2) provides that an application by a pauper for leave to appeal as a pauper must be rejected unless he can show that the decree is contrary to law or usage having the force of law or is otherwise erroneous or unjust etc. A suggestion has been put forth that this provision is unconstitutional under article 13 and 14 (since no such restriction is applicable to appeals by non-paupers.) It is however, felt that the existing provi- sion is prime focie reasonable. as it is intended to prevent frivolous appeals by a pauper. It can be justified on the ground that a person who has failed in one court should show a prima. facie case before he can be permitted to appear."

Recommendation 44.3. We are however, of a diﬁerent view. We think that the present restriction cannot be regarded as jiustiﬁable or reasonable, and is likely to be regarded as discriminatory and is even otherwise uniust and unfair. It should be removed. as no rational basis can be advanced' in its support.

We therefore, recommend that Order 44.-, rule 1, sub-rule (2), should be deleted.

Order 44, Rule 2

443. Order 44, Rule 2, contemplates an inquiry into pauperism of the appellant (who wishes to appeal as a pauper') by or under the C-1'dE.'I'S of the appellate court. In the interests of expedition, we recornmenrl the follox-.=in..r_r small amendments-

(i) Where the person applying for leave to appeal as a pauper '-3.-'as allowed to sue as a pauper. such inquiry I. Sci» discussion as to Order 33.

2. 271.}: Report. page 24¢, note on Order -14, rule 1(2).

313

i.;s(ii}229i{..1'1.mr.4.42 314:

should be ordered if he makes an aﬁidavit that he has not ceased to be a pauper after the decree of the ﬁrst court, unless the affidavit is challenged later .

(ii) Inquiry that a person has now become a pauper should ordinarily be made by the appellate court (and not by the lower court];

(iii) Inquiry by an oflicer of the appellate Court to whom the power is delegated by the court. should also be permitted.

Recommendations 44.5. Accordingly, we recommend that rule 2 should be revis- ed as follows:----

"2. The inquiry into the question whether the applicant is an indigent person may be made either by the appellate court or, under the orders of the appellate court, by an oﬁicer of that court or under such orders by the court from whose decision the appeal is preferred.

Provided that: if the applicant was allowed to sue or appeal as an i-ndigeni. person. in the court from whose decree the appeal is preferred, no further inquiry in respect of the question whether he is an indigent person shall be neces- sary. if the applicant has made an aﬁidaoit stating that he has not ceased to be an indigent person since the date of the decree appealed from: but if the Governmem pleader or the respondent disputes the truth of such. statement, in the aﬁidaoit, an inquiry into the question whether he is an indigent person shall be held.

Provided. fartlier, that, where it is alleged that a person has become an indigent person since the date of the decree appealed from, the inquiry shall. be made only by the appellate court or by an officer of that court under its orders. unless the appellate court considers it necessary in the circumstances of the case that the inquiry should be held by the court from whose decision the appeal is pre_fcrred."

«P1.

CI-I&P1'ER 45 APPEALS TO THE SUPREME COURT Introductory 45.1. Procedure in appeals to the Supreme Court, in so far as me ;:i'm,'eedings leading in such appeal take CuLi1'1.'. its deal'. with in Order 45.

4.5.2. Oi-iginally. Order 45 dealt with appeals to the King in Council, that is to say, the Judicial Committee of the Privy Coun--

cil_ tn wlinni. in Cases of a certain amount. there was an appeal in [ﬁg last resi;-1': f1'(;m i,l'1:"' judgments of the CO1.11"1.' Of British India (and of all the other dependencies and colonies of the realm). This (Lhapte-1' 1-epmduced the provisions of an Act' of 1374. which had been. as a submitted to. and approved by, the Judicial Cem- inittee, and which v.-'as repealed and re-enacted by the Code 01' 2871'. With minor modiﬁcations. the Order has continued in sue eessive Cedee. It needs no change."

1. The I'rix'_\_: C(|L1tl('li App4.~a.l Act 197-'i-. L'. ;'L.~'. tn the hiBt.0r_y of artic'rr,- I33 rif ihu (.luusti1.utjnn, 594- 45111 Ra-purl 01' the Law Com. missiun. ;.m.i':tm':i]1h:-i 'T :iml 8. I 315 L{B(D]229MofIJ&i' .\_ _ £.'.'(a] place in the High CHAPTER 46 REFERENCE Introductory 46.1. Order 46 deals with reference to the High Court.

The Court trying any suit or appeal in which the decree is ﬁnal, i.e. which cannot come before the High Court on appeal, may either of its own motion or on the application of any of the parties, draw up a statement of the facts and the question, and refer such statement, with its own opinion on the point, for the decision of the High Court.

Order 46, Rule 1 46.2. Order 46 rule 1. is as follo-ws:--

"Where, before or on the hearing of a suit or on appeal in which the decree is not subject to appeal, or where, in the execution of any such dec'ree_. any question of law or usage having the force of law arises. on which the Court trying the suit or appeal or executing the decree entertains a reasonable doubt, the Court may, either of its own motion or on the application of any of the par- ties, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court."

46.3. A suggestion was made during our discussion that a sub- ordinate court should have power to refer to the High Court a substantial question of law of ﬁrst impression even where the case is one in which appeal lies. We have discussed it at some length, but are unable to accept it. The likely effect of such an amend- ment would be that numerous references would be made to the High Court on the slightest pretext, and the situation resulting from it would be impossible to deal with. No doubt, it would be in the interests of the public if questions of law could be settled by a ﬁnal and binding decision of the highest court of the State. But there are overriding practical considerations in the way of the proposed amendment. Moreover. the suit would remain pending till the High Court decides the issue. Lastly, it is not correct to assume that the trial court will decide the question wrongly in every case. .

We do not, therefore, recommend any such change.

31ﬁ is CHAPTER 47 REVIEW Introductory 47.1. Order 4'? provides for review of judgments. Review is limited to speciﬁc grounds. and the scope is much limited com- pared with the scope of review under some other systems.

4'12. For example, Order 41 of the Third Schedule to the Court Ordinance of the Gold Coast provides as follows' "1.Anv judgc, magistrate, or other judicial officer, may, upon such grounds as he shall consider sufficient, review any judgement or decision given by him (except where either party shall have obtained leave to appeal, or a reference shall have been made upon a special case, and such appeal or reference is not withdrawn], and upon such review it shall be lawful for him to open and re- hear the case wholly or in part, and to take fresh evi- dence, and to reverse, vary, or conﬁrm his: previous judgment or decision. or to order a non-suit.

2. Any application for review of judgment must be made not later than fourteen days after such judgment. After the expiration of fourteen days on application for review shall not be admitted. except by special leave of the court, on such terms as seem just."

Order 4'3', rule 1 47.3. According to some High Courts", the fact that the view of the law taken in a judgment has been altered bv the subsequent decision of a superior court in another case, is not a ground for review of the judgment. According to the Kerala High Court, how- ever, it is a ground for review".

47.4. In the Kerala case', Raman Navar .l'. held that the fact that a subsequent binding authority took a diﬁerent view of the law from what had been taken in the decision sought to be review- ed, was a good ground for review. For, it would be the "discovery of a new and important matter", and in any case, "an error apparent on the face of the recor ", within the meaning of Order 47, rule 1:

I. See Koﬁ Fnrﬁc v. S'».ifaJr' (1953) l?V.L.R. 52, 54 (P. C.)

2. (ct) Liaqaﬂ Hwaain v. ilfoflmnad Rnzi. ALB. I944 Uvdh 198 {'D.]l.'):

(Kb) Lacig.-mi v. If'}'.hi-8:1, A.l.R.. 1960 Punj. 43, 45, para.-1:

[8] Patel Naranbirai v. Patel Copaidas, ALR. 1972 G-uj. 229, _r;_ (E) 3,53,-03,. V, ﬁlo-nl'mrrm }\.'mT-r, J-L'l'.'.R.. 1969 Ker. 186; (Pu) Ohnndrcshskamn i\'a.yrr-'r v. P. Nair, {I969} K.L.T. 657.

4. Poﬁirosr 1.'. So-nkm-an Nair. A.l.R. 1969 Kent. 136.

311

.1] H In his opinion, this would be a case r.~."he1'e, withom. an; r-iuorii-ate argument, one could point to an error regarding which =.:1ere Uiuld reasonably be no two opinions entertained. That the pl1'r:isi? "ei'1'o)"

apparent on the face of the record" is not limited to errors of fact. but extends to errors of law, was, in his view. a position well-settled', and found statutory recognition in the Court Fees Act." He pointed ort that the phrase 'I\.'[ist.ake apparent from the record' occurring in section 35 of the {ndian income-tax Act. 1922. is synonymous with the phrase, "Inistake or error apparent on the tact of the record".

It was also pointed out that the Supreme Court had held that a mistake of lau which is glar-ing and obvioiu: is £1 "mista7:e ap;.:i:zi"eni from the record."

-17.5. Further, it makes no difference whether the 'oindiug autho- ritj,-' demonstrating the error was a decision rendered before. or Unc rendered after. the decision in which the error occurred. for a judicial decision only declares the law and does not make or rliange it. A binding judicial authority is analogous to a statute which changes the luv; with 1-eti-ospective effect, FO1lO'.'.'i:1j2,' the Supreme Court case". it vcas held in the Kerala case that if a subsequent legislation rendering a decision erroneous is a good ground for review. there is no reason whv a subsequent binding' decision dec- larin,c_§ to he erroneous should. not be a goocl ground.

47.6. in an Andhra case'_ the facts were as follows:----

An order was passed by the Andhra Pradesh High Court under Article 236 of the Constitution on 1-2-1968. foils-w-- ing a Supreme Court decision. The decision of the Sup- reme Court which was relied on had been reversed b_'\-' the Supreme Court on 25-ltl-1961 but was not Eriigz re- ported b_V l--2-1968, and was not brou_;'}1t to the 11<1tiE£--? of the High Court. It was held, that there was an error ap- parent on the face of the record in the order dated 1-2-1968, justifying review of the order. An error of counsel was Sufﬁcient ground for review.

The Andhra case is based on error of -counsel as a _g|'-.:'iunr_1 of revi_ew. But the Kerala ruling to which we have referred above" is a direct one.

Recommendation 47.7. It is felt that the position should be settled on this paint, If the law is altered by judicial pronouncement of a higher court'! the part}.-' affected should not. in our opinion. have a right to act the" judgment reviewed.

I. T'.-z:i.t'ufatilrJZw-i-it I.T.0. 1:. Bmiitwy D.daJrf. i".'o. LtrI.. A.I.R. 195% 5;. F5. 875. referrt-cl to. .3. ﬁvctiori 15. Co1:1'i.]7'r-es .-'tot, 1370. 3 l'Hi.tz1ru.«-Fi'rTi'-3'»; ;'_'!".r.'. lfroirziiay D. d- .11'. Co. A_l.l'.. ]'.u'i-1 '-2_{'_ S73. 4- xr- T. U[{1'c'.n'-i' \'. 'CI'-iirt-'-'rlﬁrl -'i'H'H'. A.l.T{. l!-N39 A..P. 4-4|. 44-3_ ]J&;t1d. 'g''_ 7]. Porn 47.5, supra.

. As to the eifect ufsuhsequent legislation, see ALR. 1963 A1154}.

03 319

47.8. An amendment adopting the Kerala View will create a serious practical problem. It will keep alive the possibility of ieview indeﬁnitely. Under the Limitation Act} the period of limi- tation for an appilcation for review has been prescribed, but the delay can, "for sufficient cause", be condoned by the Court under that Act'. Where an application for review is made on the ground of a later binding authority, the part',-' applying for review will usually be able to plead "sutﬁcient cause." because it is only when the superior court has made a pronouncement that he will have a ground for revir:\=.-': and he can, therefore, argue with considerable force that there was "sufficient cause" for his not making' the application earlier.

Recommendation 4729. We. therefore. recommend that the following Explanation should be added below Order 47. Rule ]--

"E:-rplanation--The fact that the view taken on a. question of law in the judgment of a Court has been reversed or modified by the subsequent decision of £2. superior com-I: in another case is nor. .3 ground for -review of the judgment."

Order -17, rule 7 47.10. There is one point concerning Order 47, rule '7. which was discussed in the earlier Report" in these words:--

"Under Order 43, rule l(w), an appeal lies from an order under Order 4?, rule 4 granting an application for review. but the scope of such appeal is limited to the grounds speciﬁed in clauses (b) and (c) of Order 47. rule 7(2). It follows, that Where a review is granted on the ground of a mistake or error apparent on the face of the record, or "for any other sufﬁcient reasons", no appeal would lie against the order granting review. This is not a satisfac- tory position. There does not seem to be any valid reason why an appeal should lie when a review is granted on certain grounds, and not where it is granted on other grounds. We recommend, that the restriction at present imposed by Order 47, rule '7 on the right of appeal against an order granting review should be removed."

47.1{lA. We agree with the View taken in the earlier Report. namely, that the restriction at present imposed by Order 47, rule 7. on the right of appeal against an order granting review should be removed.

l . Article 124. Limitatinri Act, lllfii-I.

2. Section 5, Limitation Act. 1963.

3. 27th Report... page 32. wirngraph 7!. Also see. pages 243-244 [Notes], and drs.1't- amend. uncut at page 34-.

CHAPTER 48 MISCELLANEOUS Introductory

-$8.1. Order 48 deals with miscellaneous matters and needs change.

329

1'10 1"

CHAPTER 49 CHARTERED HIGH COURTS Introductory 49.1. Order 49 deals. with chartered High Courts. No changes are recommended in this Order.

351

CHAPTER 50 PROVINCIAL COURTS OF SMALL CAUSES Introductory 50.1. Order 50 deals with courts of Small Causes outside P1-esir1enc_v Towns. No changes are recommended in the Order.

the '\.f"

.93 '*1 CHAPTER 51 PRESIDENCY COURTS OF SMALL CAUSES Introﬂuctory 51.1. Order 51 deals with courts of Small Causes in the Presi- dency Towns.

If needs no change.

Cnarma 52 FORMS Introductory 52.1. The various Appendices to the Code contain a number of I'-arms-. We shall deal in this Chapter with such of them as require amen dment.

Appendix I5 Form No. 2.

52.2. In the Commission's lath Report,' a recommendation was made that instead of a separate order requiring the defendant to file

-.2 written statement, the summons by which the plaint is served on the defendant should itself require him to ﬁle a written statement within a speciﬁed time. The Commission, in its Report on the Code." did not consider such an amendment to be useful; but we think that it would be useful. as likely to reduce delay.

Recommendation 52.3. We, therefore. recommend that the necessary amendment should be made for that purpose Appendix B. Form No. 2 should be '.'-"".'lS'€d. as follows--

"No. 2

SUi-.#ll\.'IONS FOB. SETTLEMENT OF ISSUES [Order 5. Rules 1 and 5) (Title) To (Name. description and place of residence) Whereas ....... ._ has instituted a suit against you for you are hereby summoned to appear in this Court in person, or by a pleader who is duly instructed, and able to answer all material questions relating to the suit, or who shall be accompanied by some person able to answer all such questions. on the day oi......... l9,..............at,........._....o'clock in the __________ ,_ noon, to answer the claim: and you are hereby further direct- ed to file on that day 0. written statement of your defence, and to produce on the some day all documents in your possession or power upon which you base -your defence or set-off or countef-CIaim_ and where you rely on any other document whether in your possession or power or not, as evidence in support of your defence or set--oﬂ or counter-cloim, uou shall enter such documents -in a list to he added Or annexed. to the written statement.

lk. lul-Lii"l:l/':].11)--r:t., 1, page 302, paiut ll.

2. 27th Report-, page 12. para, 25.

325

Take notice that in default of Your appearalme On t'he.d--a3' before mentioned the suit Wilt be hE'3I"d and deterrﬁmed in your absence.

\ ' Given under my hand and the seal of the Court. HHS ---- ..d«'=1Y Of _ . .19 Not-ice--1. Should you apprehend your Vi-'iU'1€SSE'S Will not attend of their own accord, you can have a summons from this Court to compel the attendance of an? Wltness and the production of any document that you have a J, . -- right to call on the witness to produce, on applifing "-3 the Court and on depositing the 1:ecessary expenses.

2. If you admit the claim. you should pa_'.-"_Vf19 1'I1'3"";'.V "'-1-') Court together with the costs of the suit. to Sf!-"Did exe- cution of the decree which may be a_e,a1nst your p.".1'50n Rt" or property. or both."

Appendix 1! Form No. 4

52.4. We recommend' that for the existing Form No. 4 in Appendix B, be substituted as Form No 42- "No. 4 SUMMONS IN SUMMARY SUIT (Order 3'7, Rule 2) (Title) To A_}' (Name. description and place of residence].

WHERAS has instituted a suit against you under Order 37 of the Code of Civil Procedure, 1.903, for Rs. and interest, you are hereby summoned within ten days from the service hereof, to cause an appearance to be entered for you, in default whereof the plaintiﬁ will be entitled after the ex;.:i1'atio1i of such ten days to obtain a decree for any sum not exceeding the sum of Rs. and the sum of Rs. for costs together with such interest, if any as the Court may or er.

If you cause an appearance to be entered for _\.-'[)U_ the -plain-

_» tiff will thereafter serve upon you a summons for judg-

-- ment at the hearmg of which you will be entitled to ask the Court for leave to defend the suit.

Leave to defend may be obtained if you satisfy the Court by aﬁidavlt or otherwise that there is a defence to the suit on the merits or that it is reasonable that you should be allowed to defend. ' Given Under my hand and the seal of the Court. this day of , QEEE _"

1. This is oonacqiientiai on Hm eh-.uir_ge proposed t.r. ()1-der -37! Huh: 2, 325 Appendix B Form No 4A {HEW} 52.5. We recommend" that after Form No. 5; in the Appendix B the following form be inse1'ted--

"No. {A SUMMONS FOR JUDGMENT IN SUMMARY SUIT (Order 37, Rule 3] (Title) In the Court. at suit No. of 19 X Y Z Piaintiﬁ Versus A B C Defendant Upon reading the affidavit of (the plaintiff 01' as may be).

Let all parties concerned attend the (Judge ur Civil Judge, as may be} on day the day of 19 , at o'c1uc1-:in the noon an the hearing of an application on the part of the plaintiﬁ that he he at liberty to sign the judgment in this suit against the de- fendant (or if against one or some Or several, insert names) for R3. for and interest and costs.

Dated the day of 19 was taken out by Pleader for . This su mmuns 5! I. This is cons:-suur-.ntinI an the change p1'upoaed. to Order 37, rule 3.

_-n'.-1.9..-v:

.1' \,_« Cmrrm 53 NEED FOR NATIONAL ACADEMY FDR JUDICIAL TRAINING Introductory

53.1. As already indicatedin the Chapter or} our approach'. we now proceed to discuss certain matters to wh1ch_we attach_con- siderable importance. These concern the remuneration and training of members of the judiciary.

Importance of role of Judges 53.2. Although we have attempted to examine the C1U€5t1011 Of introducing reasonable changes in the Code of Civil Procedure, as cmnprehensiveiy as we could, within the time at our disposal, we ought to indicate some other important aspects_wh1_Ch m33'~ 01? 3 superﬁcial view. appear to be collateral to our 1nqu11'}'_. but which we regard as an integral part of the basic purpose of our inquiry.

It is plain that a Code of Civil Procedure is a means towards speedy administiation of justice by civil courts; however. the role which reforms of Civil Procedure Code can play for the legal system as a whole is limited. Apart from the part which rational procedure will play in making the administration of justice speedy, less costly and less unpredictable, the role of Judges in this direction is undoubtedly crucial. That is why we are expres- sing our views on this aspect of the matter emphatically in the present Chapter.

53.3. Even at the cost of repetition, we wish to emphasise that the success of any system, and particularly the judicial system. depends on the men who work the system. Judges play an impor- tant role in its working, and we must. therefore, make some re- commendations for adequately preparing our junior judges for their task.

But the Members of the Bar have also a vital contribution to make, and their willing and unstinted. cooperation can contribute to the successful working of the system.

As has been lucidly stated",-----

"After all, the success or failure of any procedural systein depends upon the men who administer it. Of the three groups that comprise the judicial branch of govern- ment--secretariat. judiciary and counse1--the last is the most important, the judiciary perform a vital function. but they are recruited from the ranks of counsel and their performance depends upon, and seldom rises above, that of counsel. In an adversativ system it is the adver- saries who do the bulk of the wor ."

"1. Uhaptcr-tflr B.' 3-upru.

2- David Kilgour, "Prnnr-.dnre and J'udic'Ia] Administration in Canada" in Huwllinm-_1_; (P-d.) Canadian J'urispr11d.anc:-, (I953). 301, 312.

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Renlunerstion of judicial oﬂicers In this connection. we must, ﬁrst and foremost. refer to the question of adequate remuneration to members of the judiciary which has been discussed more than once. It is obvious that ill--paid judicial oﬁicers cannot give their best.

53.5. What is more important is, poor remuneration for junior iudicial officers can never attract competent lawye1's to join the judicial service. We confess that we are unable to decide how We should express our ﬁrm belief in this matter, in order to convince zhe Union Government and the State Governments that they are ill--serving judicial administration by 1-efusing to recognize the patent truth that for the srccess of the judicial process, we must attract competent lawyers to join the judicial service, and that :ompetent lawyers just will not be attracted to the judicial service .1nless the terms of'their service are radically improved.

53.5.A. We are julljt; conscious that the subject of the terms and 30ﬂdtti{J'It3 of service of the subordinate i'u.r1'.ici.a-ry -is a matter for the State Governments to d.ec'Ed.e_ but we -would urge the Union Trove-rnment to pe-rsuade the State Gooernmen1:s to take the neces- sary action nu:-zthout delay before the _jit.rl%,cial process falls into :0-mplete d'-'srepute by its inefficienc-y and u.nsott.efactory 'LUO'rlci1t_rJ_ If the rule of law is to become and continue to be a reality in our national' life, our courts must be manned by competent and ex- periencccl and fearless judges, It is in this context that we proceed to make our recommendations.

Number of Judges 53.6. We should also re-iterate here what was said in the ear- lier Report', as to the need for increasing the number of judges. Discussimr; the causes of delay, the Commission observed:--

"{1} There is congestion of work in several courts. The only way of removing such congestion is to appoint additional judges. Unless the arrears in anv court are wiped out by the appointment of additional Judges, any improvements in procedure will not result in the expeditious disposal of cases in that Court.

{2} The remuneration at present payable to Judges is grossly inadequate. The Law Commission, has in its Fourteenth Report. made certain recommendations on this subject. If Judges are expected to work efficiently and honestly, they should be properly paid. having regard to their status and the nature of work done by them.

(Si A great deal of preliminary work for getting cases ready For disposal is done by the ministerial staff. The minis- teriel staff should be of suﬂicient strength to handle such work properly and expeditiously, The emoluments paid to the ministerial staff to subordinate courts are near the starvation level. A great deal of corruption among I, 27th R.epo1't-_. page I'll. pars. 16(1) and 13(2).

.._i_-.... do .L-"«'-/=I-av»

-at 329 the ministerial staﬁ in subordinate courts is due to this factor. It is, therefore, imperative that the conditions of service of such ministerial staif should be improved."

Training of judicial oﬁicers 53.7. We would, also, like to emphasise the need for the train- ing of judicial oiﬁcers, who join judicial service in the lowest cadre. We attach vital importance to the question of proper train- ing. Although this topic is outside the purview of the Code of Civil Procedure, we are dealing with it here because, in our view. no amount of reform of the law of procedure will succeed if those who administer the law are not properly equipped for their task.

53.8. The quality and output of work of judicial officers will, to a great extent, depend not only on the mental and intellectual equipment which they posses, but also on their ideals and sense of service. The State should, therefore, do its maximum to ensure that they enter on their duties with the best equipment and with the highest sense of service.

Institute recommended 53.9. In the relatively isolated atmosphere of the law school, it is not possible to impart familiarity with the real life drama in the court. It is, therefore, eminently desirable that those who will be called upon to face that drama and to pronounce verdict on it should be adequately prepared for it. We, therefore, recom- mend, as a ﬁrst step, the establishment of an institute for the pur- pose' of training of judicial ofiicers.

Training needed to raise' intellectual calibre 53.10. The training to be imparted at the institute should be such as to ensure that members of the lower judiciary have an intellectual equipment of the best order. It should be borne in mind that enrichment of the calibre of subordinate judiciary is a measure necessary to ensure bettter judicial qualities in the higher judiciary, because many members of the latter are drawn from the former.' 'Training to be on all-India basis 53.11. It is desirable in the national interest that the training should be organised on an all-India basis, and the proposed Insti- tute should. therefore, be an all-India Institute. The appoint- ments to judicial services should of course, continue to be made by the States: but it is desirable that the training should have an "all--In-dia' character, for more reasons than one. In the ﬁrst place, it is the task of the judiciary to apply and interpret the law and familiarise itself with the process of weighing evi- dence. In India, because of the federal structure and also because of the vastness of the country, it is specially necessary that the unity of the legal system based on the several Codes of substan- tive and procedural law, should bellpreserved and maintained as a balance against diversities of interpretation. Judicial outlook 330 towards the i1'1terpi'etati0n of statutes should, in its broad features, be uniform. Initial training on an 'all--India' level would prove to be a great step towards maintaining the uniformity referred to ohm-'e.

lo the second place, the meeting together of officers from various States---oi'liccrs who will, in the course of their work, come in daily contact with the average citizen,--coi:ld_. in the long run, foster national integration. Mutual discussions and activities pur- sued together are bound to foster an understanding of the habits and cultures of people of the several States; it is such understand- ing which, more than anything else, will pave the way for integra- tion of hearts, and is much more valuable than mere mechanical integration.

Lastly.-'. the level of judicial officers should also be uniform, as far as possible, throughout India.

Director and staif 53.12. It is desirable that the Institute which we recommend should he headed by a person of the status of sitting Supreme Court Judge; and on the staff there should be at least some per- sons who are of the status of High Court Judges and senior Dis- trict Judges. All the ofﬁcers, including the Director, should be on a tenure basis. 1 'Training to be condition precedent to conﬁrmation 53.13. We further recommend that the successful completion of the training which we have proposed should be a condition prece- dent to confirmation to appointment in the judiciary.

Principles to he kept in mind in framing syllabus 53.14. We would like to indicate broadly the principles which should be kept in mind when framing the course of training.

In this connection. we may refer to the two "commandments", enunciated by Whitehead.

The two Commandments enunciated by Whitehead in his famous essay on the Aims of Education were'---'do not teach too many subjects' and 'What you teach. teach thoroughly'. "The result of teaching small parts of a large number of subjects is the passive receintion of disconnected ideas not illuminated with any spark of .vitalit_v. Let the main ideas which are introduced .......... ..be few and important. and let them be thrown into every combination possible".

Subjects 53.15. The subjects to be included should be such as to deal with the relationship of law to other social sciences, including, in particular. economics and sociology.' The emphasis should not be i l. 't'i"hiteh.eVa1Vi,7:J-lduca.tio1:. in the "Age of Science" (Winter. T959} Deadalua, page 193..

as quoted hy Kamlu Ghowdhry, "Developing Administrators for Tomorrow {April-June, liﬂﬂ, l5 Indian Joiirnal of Public Administration, page 226.

2. For details, see para. 53.19 to 53 .26, infra.

-vi 331 on technical law or procedure, but on_ law as a part of an inter- disciplinary study and on the application of the law to the facts of a particular case.

Report of UK. Committee 53.16. In the Report of the Committee 011 Civil _Service'in U.K..,' two main attributes were considered essential,-*1n varying combinations, for work in the Government service.

"Clne is being skilled in one's job--skill which comes from training and sustained experience. The other in having the fundamental knowledge of and deep familiarity with a subject that enable a man to move with ease- among its concepts. Both spring from and re-inforce a constant striving for higher standards."

It is this "constant striving for higher stattdards" which will be fostered by proper training. It may, therefore, become neces- sary to provide, to prospective members of the judiciary, some familiarity with the social background' in which the laws which they have to administer, operate.

Objectives of training 53.17. The eﬁectiveness and success of the service aﬂorded by the administration of justice must largely depend upon the degree to which it can ef'r'ective1y respond to the genuine needs of the communitv. And this pre--supposes suﬁcient knowledge of the pro- blems and difﬁculties of the community, The importance of educa-- tion in these aspects is, therefore, obvious.

The almost exclusively legal Universe in which those concern- ed with the law function should not become an ivory tower, so as to lead to these needs being ignored. With the growth of the wel- fare element in State activities. these aspects will assume more and more importance.

Indications as to subjects 53.18. Bearing in mind the considerations mentioned above, we indicate the guidelines which should be followed in framing the syllabus for the training proposed above.

Social change and legal institutions 53.19. A subject of importance is the effect of social change on legal institutitns. It is now well recognised that many of the fun- damental legal concepts have undergone modiﬁcations owing to social changes.

3. ltepiirt of the {Fulton} Committee [U.K.] The Central Service (1965).

2. See also pars. 53.19 to 53.26, infra.

L_.'BI_ D]229.'v'[ ifLJ&;['-..~'\_./i'?3[a) 332 Views of Rescue Pound 53.20. In this connection. we may refer to the observatiﬂﬂs made by Roscoe Pound':

"I amzcontent to see in legal history the record of a conti- nually wider recognising and satisfying of human wants or claims or deS"1"es through social control: a more em- braci.ng_ar1d more effective securing of social interests; a continually more complete and effective elimination of Waste and precluding: of friction in human enjoyment of the goods of existence--in short. a continually more effi- cacious social engineering."

53.21. Looked at from this broad point of view, the conclusion inevitably follows that:

"Jurisprudence, ethics, economics politics and sociology, are distinct enough at the core but shade out into each other............All the social sciences must be coworkers, and emphatically all must be co-workers with jurispru- dense"?

It is in the light of this jurisprudential view of the judicial role that we pI'1:Ip0Se to describe the scope and nature of the work to he done at the Institute which we have in mind.

Eﬁect of pulls competing for recognition 53.22. The law is predornina-ntl§,'. as an instrument o'f social engineering in which conflicting pulls of political philosophy,.eco- nornic interests, ethical values, struggle for recognition. This strug- gl.e has to be viewed against the background of history, tradition and development of legal techniques. A working knowledge of those disciplines is therefore essential.

We shall indicate below, by way of illustration, the effect of these pulls upr'-n a few branches of the law.

Prouerty and contracts 53.23. Takiritf ﬁ1";L, the field of property, it may be noted that the concept oi nroperty has been gradually widened, but at the same time the principles ,F{overnin,<_: the power and the use of ero- perty have been profoiindly modiﬁed under the impact of new social ideas.

Again, in the law of contracts. the emphasis on contract as an instrument of free bororzi'n.ing between the parties has been largely modiﬁ.ed,--sometimes by the operation of commercial forces (e.g. the emergence of standardised contracts), sometimes by econmic pressures (cg, the evolution of collective agreements) and sometimes by the impact of positive legislation (e.g. through the imposition of statiitrnﬁv conditions on contracts].

1. Roscoe T.'oun.d, "A11 I*.=.tror1uct»ion tn the Pliilosvnphy of I.e1w", page 5'7. 2'3. Roscoe Pound, "An Introduction to the Philosophy of I.a1.r", p. 57.

-v"'"5_.'-Fu_' Torts 53.24. A similar phenomenon is noticeable in torts. At common law. the rules of the law of torts, which were designed to adjust the consequences of loss, placed the liability on the person who caused the harm. But the shifting of this liability started with the emer- gence of vicarious responsibility, and now, on a vastly wider scale, with the progress of insurance. This change in liability reflects, in the realm of torts, the operation of private as well as of social forces similiar to those operating in the ﬁeld of contract.

Criminal law 53.2.5. Criminal law has also witnessed several developments dur- ing recent times. The most interesting_.of course, is the diﬁerentiation between the old-style type of criminal offence and the new type of public welfare offence. 1'he yardstick in both cases is the gravitylof the interest that has been injured. But new types of interest deserv- ing of protection by the State and unknown to the older criminal law have emerged. Some--but not all--oi these can be measured in terms of older concepts of criminal law. Some require a new approach. Both

1.i1e traditional 'criminal' type of offence and the new 'public Welfare' type of offences have, therefore. been employed in order to protect the new types of interests.

Recent penological trends are also well-known, and we need not here enter into their details.

53.26. We are mentioning these developments in order to give a concrete though illustrative indication of matters which could be usefully included under the subject of law and society (or any other similar appellation which is considered suitable.) Statutory interpretation 53.27. Another subject of importance is that of statutory interpre- tation. This subject is at present included in the courses leading to the law degree of most Indian Universities. But the emphasis in the training which we propose will be on the practical application of rules of interpretation, covering enacted' rules of interpretation as well as others.

53.28. As regards the process of interpretation of statutes, it is pertinent to note that. because perfect generalization for the future is impossible, no generalization is complete in any legislative mea- sure. As Judge Breitel has observed",-

"Aware of this impossibility, legislatures often do not more than purport to lay down the most general statements of law, intending that the courts and other law-applying agen- cies shall creatively adapt the general principle to speciﬁc I. Soc the G-eneral Clauses Ant. lS9T.

2. Judge Erciiiel "Courts and Law:-making" Columbia Law Fl:-lmrsl C'4~.1itcnnialSyn1p0- sium (1959).

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cases. Thus, every time a statute uses a rule of reason, or a standard of fairness without speciﬁcations, there is con- scious and deliberate delegation of this responsibility to the courts......".

However, exhaustive a statute may be, there will still remain a group of cases where the purpose of the legislature is not easy of per- ception. "And here society and the legislature both entrust themselves to the law making powers of the courts'"." The judiciary will, there- fore, always have to concern itself with these 'interstices' of legisla- tion". One may call this process a ci'eativs=.' one, or only a process of unfolding what is latent. The name does not matter.

Ca.rdow's View 53.29. In the following passage, Mr, Justice Cardozo expressed his views, formed on the basis of his personal experience', as to the judicial process. " ....... ._logic and history, and custom, and utility and the accepted standards of right conduct. are the forces which, singly or in combination, shape the progress of the law. Which of these for- ces shall dominate in any case, must depend largely upon the compa- rative importance or value of the social interests that will be thereby, promoted or impaired. One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savour-s. of prejudice or even arbitrarywhim or mini- ness. Therefore in the main there shall be adherence to precedent. There shall be symmetrical development, consistently with history or custom when history or custom has been the motive force, or the chief one, in giving shape to existing rules, and with logic or philoso- phy when the motive power has been theirs. But symmetrical develop- ment may be bought at too high a price. Uniformity ceases to he a good when it becomes uniformity of oppression. The social interest served by symmetry or certainty must then be balanced against this social interest served by equity and fairness or other elements of so- cial we1fare_ These may enjoin upon the judge the duty of drawing the line at another angle, of staking the path along new course, of marking a new point of departure from which others who come af- ter him will set out upon their journey.

If you ask how he is to know when one interest outweights ano- ther, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself. Here indeed, is the point of contact between the legis- lator's work and his".

Exercise of judicial discretion 53.30. Yet another subject which should be included is the exer. else of judicial discretion in several branches of litigation. {A trainee could of course, be allowed to choose one of them').

V 1. James M. Landie, "Note on statutory ll'l't-1'I'p1'f§f3flOY'_'" (1929) 4.3 Harv.-"Ii. Bey-iew SE6, 393.

2. Cf. Sauthem Paciﬁc (Jo. 'V. Jensen, 2441- U. S. 205, 22] {Holmes J.)

3. ii'-ardozo, The Nature of the Judicial Pieces: (1921), page 112-113.

4. E. g. Sentencing, or family law, or oquita his relief.

'\'H.'_ ."--I 335 53.31. For example, there are several factors to be taken as guides for the exercise of the discretion to grant matrimonial relief; (a) the position and interest of the children; (hi the interest of the party with whom the petitioner has committed adultery (where relief 15 claimed on that ground}. with special regard to their future marriage;

(c) the prospects of reconciliation; (d) the interests of the petitio- ner, particularly his prospects of re--marriage; (e) the interest of the community at large, balancing the sanctity of marriage against social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down'.

5.3.32. Similarly, there is suiﬁcient scope for the exercise of discre- tion in the ﬁeld of equitable relief and also in regard to the award of costs and (in criminal cases) in the grant of bail and sentencing.

Duration of the course 53.33. We now come to the duration of the course. In our opinion, the total duration of the course should be one year; during the first three months, the probationers will undergo intensive course of train- ing in the well--arranged curriculum; in the next six months they will be attached to the respective trial courts in their states. where they will gather experience about the working of the courts; "and. in the last three months, they will once again he in the Institute, where they will receive training in the shape of lectures. seminars and group discussions. At the end of the year. the probationers will appear for an examination. and it is only on passing the examination that they will be conﬁrmed and posted to the respective courts.

Conference to be held periodically 53.34. We also recommend that conferences should be held periodically. to supplement the training which we have recommen- ded.

Question of expenses 53.35. We are fully conscious that our recommendation to start an All-India Institute will involve expenditure and we anticipate that an objection may be raised on this ground; but. we would like to emphasise the fact that Government have always thought it neces- sary to train their administrative officers in order that the general administration of the country should be efficient and for that pur- pose. administrative training centre. properly manned with a good curriculum and a well--planned out programme of the education of the probationers. has been in existence for many years. We are sur- prised that it did not occur to the Government so long to train judi- cial members who enter judicial service on lines especially suited for judicial work. We are. therefore. conﬁdent that the recommendations we have made will be accepted b_v the Union Government and that the Union Government will be able to persuade the State Govern- ments to give their cooperation in imnlementing our recornmenda- tions. without any delay. As We have indicated in the course of our l. Cf. Blunt V'. Blu.-at {19-13] A.C. 517 (Lord Simon, L.f'».} 3313 clicussion', the establishment of an A1l--India Institute of this charac- ter for the training of judicial ofﬁcers will indirectly but inevitably contribute to national integration. We also feel that it will create an espvrlrit dc corps amongst our junior judicial officers throughout India and we wish to emphasis that these espirit dc corps and the sens:-fof national integration reinforced with the sense of idealism and a spirit of service will inevitably lead to a considerable improvement in the quality of administration of justice.

1. Paragraph 53.11, supra.

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CHAPIER 54.

CONCLUSION Introductory 54.1. We have now come to the end of our Report. We shall take the opportunity of making certain general observations which are of , importance in connection with the present inquiry.

Ultimate object of reform in procedure 54.2. The ultirnate object of reform of procedure must he to make the trial of 3 cause in court a judicial investigation for the ascertain- ment of truth upon which to rest a righteous judgment, rather than merely a sporting contest of lawyers in the use of rules often adapted to obscure the truth and cause justice to mis-earry_ We hope that the recommendations which we have made will help in the realisation of this ultimate object.

54.3. It is also hoped that our recommendations will enable judi- cial officers to bring to bear on their work the best judicial qualities. A famous writer' has, while describing the qualities needed in a Judge, expressed himself thus:--

"'These_, thou are those faults which expose a man to the danger of srniting contrary» to the law: a Judge must be clear from the spirit of party, independant of all favour, well inclined to the pop-ular institutions of his country; ﬁrm in applying the rule, merciful in making the exception; patient, guarded in his speech, gentle and courteous to all. Add his learning, his labour. his experience, has probity, his practised and acute faculties, and this man is the light of the world, who adorns human life. and gives security to that life which he adorns."

Recommendations to be taken as a whole 54.4. We should, ﬁnally, emphasise that our recommendations in this report should be read as a whole. They are not a series of detached suggestions, but parts of an integrated scheme, and have been made 21:11 pursuance of our general approach which we have explained at t e outset.

We should, before we part with this Report, place on record our warm appreciation of the assistance we have received from Mr. Bakshi, Secretary of the Commission, in dealing with the problem covered by the Report. As usual, Mr. Bal-zshi ﬁrst prepared a draft which was treated as a Working Paper, The draft was considered by the Commission point by point, and, in the light of the decisions

1. Sydney Smith The Judge that smitoe contrary to the law {l924). qtlntctl in 29 Canadian Bar Review, 344. ' '. - ' ..= 338 takcn tentatively by the Commission, Mr. Bakshi prepared a ﬁnal draft for considcration which was after elaborate discussion approved by the Commission. Throughout the study of this problem, Mr. Bakshi took an active part in our deliberations, and has rendered very valuable assistance to the Commission. ' P. B, GAJENDRAGADKAR Chairma-n V. R. Ksrsum IYER Member _ P. K. TRIPATHI Member ""'~-*'"'"' S. S. DHAVAN Member P. M. BAKSHI Sec-retizry -

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NEW Damn;

The 6th February, 1353.

"F A1=rEN1'.:Ix QUESTIONNAIRE OF THE LAW COMMISSION OF INDIA ON THE CODE OF CIVIL PROCEDURE (Issued March, 1972) Introductory Note This questionnaire deals with some aspects of 1'eviSi0I1 of the Code of Civil Procedure, 1908. It may be stated that revision of the Code was considered at length by one of the previous Law Commis- sions, which duly forwarded to Government a detailed Report on the Code.' A Bill intended to implement this Report was in due course introduced in Parliament; but the Bill lapsed. Whsn the question of re-introduction of the Bill arose, the Government of India considered it desirable to request the present Commission to examine the Code afresh from the "basic angle of minimising costs and avoiding delays in litigation and taking into account its revised terms of reference".

The scope of the present inquiry will-_. therefore, be conﬁned to a consideration of the major changes needed in the Code from the following points of view:--

(1) minimising costs;

(2) avoiding delays in litigation; and (3) the revised terms of reference of this Commission, the most important of such terms being the implementation of the directive principles.

It is not proposed to examine again questions arising from the mass of case-law on the Code, the local amendments made in the various provisions of the Code. as well as the reforms introduced in other countries,---including, in particular, the changes made in England in 1962 by way of revision of the Rules of the Supreme Court,----as these have been already considered by the previous Com- mission It ought, however, to be emphasised that the questions in- cluded here are illustrative only, and any suggestions for amendment of the Code on other matters from the point of View of the present terms 01 reference will be thankfully received.

Costs occasioned by - delay''

1. Would you favour the insertion of a 'provision to the effect that the court shall, while passing an order for costs, make the party responsible for delay with reference to any step in the litigation, pay the cost proportionate to that delay, whatever may be the ultimate event of the suit'?

1. 27th Report of Law Commission.

The Ctueatiﬂnl have been arranged, as far as possible, in the order in which the relevant- p1'I')Yl3l$ﬂI appear in the Code.

359

_DJ _-J 3-1U Arrest in execution of a Inoney decree Do you consider an}; change; l'lCC\";SSEi:_'_.,' in the present position regarding ii-,bi.it_w,- to arrest in execution or a money decree'? Suits am; execution or against the Government Do you lavour repeal of section 80 of the Code, which requires that two months' notice should be given of the institution of a suit against '.;hc- 6:.-.cr'-:n1=:r.nt or a pubiic officer, etc?

What Changes ouloi you suggest in section 82 so as to expedite a .

execution against the Government?

Pre-trial inquiry Would you favour the insertion of a provision to the effect that particularly in suits by or against the Government, the court shall hold a pro-trial inquiry, with a view to narrowing down the scope of the contrmersjy', and. (where such a course is practi-

cable), [or the settlement of the suit without trial'? Appeals against decrees, A5 regards the right of ﬁrst appeal, would you favour any limitations based on the nature of the questions at issue, or on any other criterion?

There is a suggestion that from the judgments of lowest courts of ﬁrst instance, an appeal on facts should be excluded in petty.

cases, say, cases of 3 nature triabie by a court of small Causes 'from the point of view of subject-matter; where the amount or value of the subject-matter of the dispute in the court of ﬁrst instance and still in dispute on appeal was and is not more than three thousand rupees (or such other sum as may be considered proper), and the decree or order does not involve directly or in- directly some claim or question respecting property of an amount or value, exceeding three thousand rupees (or such other sum as may he considered proper).

The proposal is that in these petty cases, the first appeal should be allowed only if the appeal court certiﬁes that a ques- tion ot law is involved, and the issue of such certiﬁcate should he decided either in charnbers or in open court as the appeal court may think proper.

What are your views in the matter? Would you agree with the suggestion'? ' Do you agree that a second appeal should be allowed only if a substantial question of law is involved?

Appeals in execution Do you consider it czlvisable that the right of appeal against all interlocutory orders made under section 4'? should be abolished?

,'.......

10. ll.

12.

13.

14. 15-

16.

18. '20.

341

would you, as regards appears against ﬁnal orders under section 47, favour adoption of the pL'iI1cip1e that no Such Order Shall be reversed or substantially 1-'aried_ nor shall any case be remand- ed, in appeal on account of any error, defect or irregularity in an_v proceedings not. aﬁecting the merits of the case or the juris- diction of the Court?

Have you an__t_- other :s';ggestio1is ft.'-r restricting the right of appeal in rcspe.ct of o"dc1*s falling under section 4??

Appeals in general Have you any other multiplicity of appeals'?

ta) Would you favour total deletion of siaction 115, Civil Pro- Cedurc Code. {revision} leaving the High Court free to interfere under article 227 of the Constitution in cases of gross miscarriage oi justice?

In the alternative, do you favour any curtailment of the right of revision'.' If so, in What direction?

In particular, do you favour any curtailment of the right of revision in the case of inter-locutory orders'? If so, in what respects?

suggestions to make for reducing the {b} to) Service of sutnmonses Would you favour postal service of summonses in all cases?

Do you consider it desirable to allow service on the pleader of a party of all processes issued after the defendant enters ap- pearance? ' Do vou favour an amendment permitting service of summonses by a party'?

Do you favzur the 'doptlon of 3.15'. or more of these methods of service simultaneously'?

Would you permit the service of summons:-s on an agent nomi- nated by the Government. a public corporation or a public company, in the case of a suit by or against them'?

Arguments _Dr_:syou-favour the introduction of Written arguments in suits or appeals and if so, what make in this behalf?

Judgment and decree {a} Do you think it desirable to provide that the last para- graph of the judgment should be so drafted as to indicate the relief granted in precise terms, thereby facilitating the drawing up of a formal decree without loss of time?

(h) Would you approve of the suggestion that in case a decree is not drawn up within a speciﬁed period. the aggrieved party may appeal against the judgment without ﬁlting a copy of the decree, treating the copy of the last paragraph of the judgment a5 the decree'?

concrete suggestions would you

21.

22.

23.

26.

27. . Would you make the imposition of security comp-ulsor 34:3 Execution of money decrees What changes would you suggest in the existing procedure re- lating to the execution oi" inotiey decrees, with a View to-- {a} avoiding delay, and {bi Simplifying the procedu1"e'.' Do you agree with the suggestion that where a decree for the payment of money remains unexecuted inspite of the best efforts of the decree holder, the State should assume responsi-

bility for its payment upto a speciﬁed amount----

{a} if the decree is for damages for tort, for maintenance or arrears of maintenance, or

(b) the decree is against a public corporation, or

(c) the decree is for a debt and its non-executability is certi-- ﬂed by the executing court as due to a refusal or neglect by the judgment debtor to pay notwithstanding the fact that he has had means to pay it?

(a) Do you suggest any liberalisation of the provisions as to suits by poor persons?

{b} Would you approve of the suggestion that the present defi-

nition of "pauper" be widened so as to include a person who is on-;--:b'.c to pay a port of the corrt fees?

Temporary injunctions ta} Would you favour any limitations on the courts power to issue temporary injunctions? In particular, do you favour an amendment to the effect that an ex porte interim in- -

junction should not be granted save in exceptional cases, and for reasons to be recorded in that behalf? e

(b) Would you favour the suggestion that in case an en: parts injunction is granted, it shall be discharged by the court if it is satisﬁed that the party which obtained the injunc- tion is not taking diligent action to serve the opposite party or other steps necessary for the progress of the suit?

Stay of execution before stay of execution is granted under Order 21, Ru],e_ am or Order 41, Rule 5(4)'? , --- ' Execution--need for radical changes It was observed by the Privy Council that the troubles of a litigant in India begin when he obtains a decree. Bearing this in mind, would you suggest any radical changes with reference to the provisions relating to execution, in order to reduce any delay expense and inconvenience that is caused by the present provisions?

Appeals against orders Would you favour any curtailment of the list of appealahle orders as given in Order 43, Rule 1?

29. 343 Appeal by poor persons Would you favour removal of the present restriction in Ordei

-14, Rule 1(2) on the right of appeal of a pauper'?

Delay Have you any other suggestions to make for reducing delay in the disposal of cases in so far as such delay is due to ciefecis in the Code of Civil Procedure?

Poor persons Ilr persons with inadequate means--I.ega1 aid and 3D.

31.

33.

34. process fees How far do you consider it the duty of the State to provide,----

(a) to a person without any means; or

(b) to a person with inadequate means, the following facilities or concessions in full or port--

(a) legal aid;

(lo) exemption from payment oi process fees} Court-fees--general

(a) What suggestions would you make for reducing the amount of court fees'?

(la) In particular. do you agree with the view that court fees should be nominal and should not be a source of reimburse- ment to the State and certainly not a source of proﬁt to the State'?

Court-tees in appeal Would you favour the insertion of a provision to the eﬁect that at the time of ﬁling of the appeal. only one--fourth of the prescribed courtsfee need be paid, and the remaining may be paid when the appeal is admitted'?

Expenses other than lawyers fees and court-fees What concrete suggestions would you like to make as regards reduction of the expenses of litigation, in so far as such re- duction could be achieved by an amendment of the Code of Civil Procedure?

other amendments Have you an-V other suggestions to make for amendment of the Code of Civil Procedure in the light of the scope of the present inquiry?"

1. See present restriction in Order 33, Rule R.

2. See Intrucluetoxy note.

L'l7H_D)229}I-:-FL J3:CA~2.0fHL--3--EH3/-GTPS

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The Code Of Civil Procedure,1908