Important Matters & Aspects involved in Civil Proceedings

Proceedings in Superior Courts Appeal, Reference, Review & Revision (Parts VII & VIII C.P.C.)

Appeals (Part VII) From Original Decrees (S.96):- Appeal lies from:- Original Decrees (including) Ex-parte Decree, But not from consent Decrees;

Powers of Appellate Court To determine case finally; To remand a case; To Frame Issues & refer for trial; To Take or require to take additional evidence; Appeal is treated as a continuation of the suit

Appeals From Orders (S. 104) Orders generally cannot be appealed against, excepting the Appealable ones; But no second appeal from Appealable Orders;

Review & Revision Review:- Of Judgement in the same Court, within 30 days (S. 114 & O. O.XLVII); Normally introduction of new matter / evidence not allowed; Revision:- Before Superior Court within 90 days on jurisdictional irregularity (Ss. 115 & 115A);

Suits by & against Minors / Persons of unsound mind (O. XXXII C.P.C.)

Suits by/ against minors-I Minor – Person not having attained majority in terms of S. 3 of Indian Majority Act; To sue by next friend – if plaintiff (R.1);

Defending Minor in a Suit Minor to be defended in a suit by a Guardian (R.3) :- Court to appoint Guardian; Guardian to have no interest adverse to minor; Any person may be appointed Guardian by Court if there is no declared Guardian or other natural Guardian for minor ;

Suits by & against Persons of unsound mind All the above provisions pertaining to minors apply almost exactly to persons of unsound mind (R. 15);

Interlocutory Matters & Injunctions

(O. XXXIX C.P.C.) Interlocutory orders:- Broad scope - any reasoned order on a party’s petition; Narrow perspective - peculiar to interim relief / temporary injunction;

Injunctions Scope of order Directing any party to do an act - “Mandatory” - comparatively uncommon; Restraining a party from doing any act - “ Prohibitory /Preventive” - most common & frequent;

Necessary ingredients for granting a Temporary injunction Prima facie case; Balance of convenience; Irreparable loss and injury;

Consequences of Disobedience / Breach of Temporary Injunctions (R.2A) Disobedience or breach in the nature of a “Civil Contempt”; Detention in civil prison up to 3 months; Attachment of property up to 1 year after which if disobedience / breach continues, it may be sold ; Court otherwise can also enforce its injunction order by any other means;

Commissions

Commissions & “ Commissioners” Commissioners - Officers appointed by Court to perform certain specialized tasks; Tasks performed mainly outside of Court; Commissioners generally appointed from:- i) Lawyers, or ii) Others with specialized skills;

Issuance of Commissions-I (O. XXVI) Commissions Issued for various purposes, such as:- Examination of witnesses (R.1); Local investigation (R.9); Scientific investigations (R. 10 A); Ministerial Acts (R. 10 B); Sale of movable properties (R. 10 C); Examining or adjusting accounts (R. 11); Partition of immovable properties (R. 13);

Issuance of Commissions-II Commissions also issued under O. XXXIX R. 7 CPC for inspection of property;

Issuance of Commissions-III U / O. XXXIX the appointed commissioners can:- Enter upon any property in possession of any party to suit; Take any samples; Make observations or experiments for obtaining full information / evidence;

EXECUTION

Execution Scheme under the Code Substantive Law - Part II (Ss.36 to 74); Procedural Aspect - O. XXI Decrees and Orders are “Enforced / implemented” through execution

Powers of Court to enforce Execution (S. 51) Means of Execution:- Delivery of property specifically decreed; Attachment & sale / sale without attachment; Arrest and detention in prison ; By appointment of receiver; In any other manner as the nature of relief granted may require;

Arrest & Detention (S. 55 ) Judgement debtor may be arrested in execution of decree at any hour on any day (subject to compliance of prescribed formalities); To be brought before Court as soon as practicable; Women exempted from arrest / detention in execution for payment of money (S. 56);

Arrest and Detention- II Period of detention (S. 58):- Up to 3 months if value of decree exceeds Rs. 5,000/-; Up to 6 weeks if value exceeds Rs. 2,000/-; No detention if decretal amount is below Rs. 2,000/- [S.58 (1A)];

Attachment Concept of “Attachment” envisages taking over the properties / assets of judgment debtor to satisfy decree;

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