1.

Procedure for filing a suit by indigent person:

Order 33 deals with suits filed by ‘indigent persons’. The provisions of Order 33 are
intended to enable indigent persons to institute and prosecute suits without payment of any court
fees. Generally, a plaintiff suing in a court of law is bound to pay court fees prescribed under the
Court Fees Act at the time of presentation of plaint. But a person may be too poor to pay the
requisite court fee. This order exempts such person from the court fee at the first instance and
allows him to prosecute his suit in forma pauperis, provided he satisfies certain conditions laid
down in the order.

An indigent person is defined in explanation one to Rule 1 according to which is a person is an

‘indigent’ person:

 if he is not possessed of sufficient means to enable him to pay the fee prescribed by law for
the plaint in such suit, or
 where no such fee is prescribed, if he is not entitled to property worth one thousand rupees
other than the property exempt from attachment in execution of a decree, and the subject-
matter of the suit.

Any property which is acquired by a person after the presentation of his application for permission
to sue as an indigent person, and before the decision of the application, shall be taken into account
in considering the question whether or not the applicant is an indigent person.

Inquiry into the means of an indigent person

Order 33 rule 1-A states that in the first instance, an inquiry into the means of the applicant should
be made by the Chief Ministerial Officer of the court. The court may adopt the report submitted
by such officer or may itself make an enquiry.

Order 33 rule 4 states that where the application submitted by the applicant is in proper form and
is duly represented, the court may examine the applicant regarding the merits of the claim and the
property of the applicant.

Order 33 rule 6 states that the court shall then issue notice to the opposite party and to the
Government pleader and fix a day for receiving evidence as the applicant may adduce in proof of
his indigency or in disproof thereof by the opposite party or by the Government Pleader. On the
day fixed, the court shall examine the witnesses (if any), produced by either party, hear their
arguments and either allow or reject the application.

Contents of application

As per Order 33 Rule 2, every application for permission to sue as an indigent person should
contain the following particulars:

1. The particulars required in regard to plaints to suits;

2. A schedule of any movable or immovable property belonging to the applicant with the estimated
value thereof; and

3. Signature and verification as provided in Order 6 Rules 14 and 15

The application should be presented by the applicant to the court in person unless exempted by the
court. Where there are two or more plaintiffs, it can be presented by any of them. The suit
commences from the moment an application to sue in forma pauperis is presented.

Rejection of application

As per Order 33 Rule 5, the court will reject an application for permission to sue as an indigent
person in the following cases:

1. Where the application is not framed and presented in the prescribed manner; or

2. Where the applicant is not an indigent person; or

3. Where there is no cause of action; or

4. Where the suit appears to be barred by law; or

5. Where any other person has entered into an agreement with the applicant to finance costs of the
litigation.

The court may assign a pleader to an indigent person if he is not represented by a pleader. The
central government or the State government may make provisions for rendering free legal aid and
services to indigent persons to prosecute their cases. A defendant can also plead set-off or counter
claim as an indigent person.

Where permission is rejected: Rules 15-15A

Where the court rejects an application to sue as an indigent person, it will grant time to the
applicant to pay court fees. An order refusing to allow an applicant to sue as an indigent person
shall be a bar to a subsequent similar application. However, this does not debar him from suing in
an ordinary manner, provided he pays the costs incurred by the Government pleader and the
opposite party in opposing the application.

Realization of court fees

Where an indigent person succeeds in a suit, the state government can recover court fees from the
party as per the direction in the decree and it will be the first charge on the subject-matter of the
suit. Where an indigent person fails in the suit, the court fees shall be paid by him. Where the suit
abates on account of the death of a plaintiff, such court fees would be recovered from the estate of
the deceased plaintiff.
2. Jurisdiction relating to place of suing:

According to section 15 of Civil Procedure Code, 1908, every suit shall be instituted in the court
of lowest grade competent to try it. The rule laid down in this section is a rule of procedure and
does not affect the jurisdiction of the court. Hence a decree passed by a court of a higher grade
cannot be said to be without jurisdiction. It is merely an irregularity covered by Section 99 of the
Code and the decree passed by the court is not a nullity.

The object of this Section is to ensure that the higher judiciary s not overburdened with suits and
to afford convenience to the parties and witnesses who may be examined in such suits.

Subject to pecuniary or other statutory limitations suits relating to land or other immoveable
property such as recovery of immoveable property, partition of immoveable property,
foreclosure, sale or redemption of a mortgage upon immoveable property; determination of any
other right or interest in any immoveable property; compensation for wrong to immoveable
property are instituted in the Court within the local limits of whose jurisdiction the property is
situated [Section 16].

Section 16 recognises a well-established British principle that action against ‘res’ or property
should be brought only in the forum where the ‘res’ is situate. This section ensures that a court
has no jurisdiction over a matter in regard to which it cannot give effective judgment.

Where a suit relating to immoveable property is situated within the jurisdiction of different
courts, the suit may be instituted within the local limits of whose jurisdiction any portion of the
property is situated [Section 17].

According to Section 18 of Civil Procedure Code, 1908 where it is uncertain as to the local limits
of which court any immoveable property is situated, any of those courts may if satisfied that
there ground for uncertainty, record a statement to that effect and thereupon proceed to entertain
and dispose of any suit relating to that property.

A suit for compensation for wrong done to a person or to a moveable property, if the wrong was
done within the territorial jurisdiction of one court and the defendant resides or carries on
business or works personally for gain within the territorial limits of the jurisdiction of another
court, the suit may be instituted in either of the courts at the option of the plaintiff [Section 19].

Subject to the limitations aforesaid, every suit shall be instituted in a court within the territorial
limits of which the defendants or each of the defendants at the time of the institution of the suit
reside or carry on business or personally work for gain [Section 20(a)]. Furthermore, if there is
more than one defendant, then the suit can be instituted with the leave of the court at the place
where any of the defendants at the time of the commencement of the suit, reside or carry on
business or personally work for gain [Section 20(b)]. Alternatively, such suits can be instituted
where the cause of action wholly or in part arises [Section 20(c)]. From its very wording it can
be seen that this is a residuary section.
According to Section 21 of the Civil Procedure Code, 1908 no objection as to the place of suing
or no objection as to the objection as to the objection of a court with reference to its pecuniary
jurisdiction shall be allowed by any appellate or revisional 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 a consequent failure of justice.

No suit shall lie challenging the validity of a decree passed in a former suit between the same
parties on any ground based on an objection as to the place suing [Section 21A]

Under Section 120 of Civil Procedure Code, 1908 the provisions of Section 16,17 and 20 do not
apply to the High Court in the exercise of its original civil jurisdiction.

Under Clause 12 of the Letter’s Patent in the case of suits of land or other immoveable property,
the High Court has jurisdiction if such land or property is situated wholly within jurisdiction and
in case leave of the court is obtained (which should be specifically granted by the court), situated
in part. In all other cases, where the cause of action has arisen wholly within jurisdiction or
where the leave of the court is obtained in part, or where the defendant resides or carries on
business or personally works for gain. Cause of action means the entire bundle of facts which the
plaintiff must prove in order to succeed.

3. Procedure to followed while filing a suit against a government

Section 79- This Section defines the concept of suits by or against the government: Whenever a
case is filed against a government or if it is filed by the government, the plaintiff and the
defendant who will be named in the case will be as provided under:

 Whenever the case is instituted by or against the central government, the Union of India
will be represented as the required plaintiff or defendant respectively.
 Whenever the suit is filed by or against the state government, the state government will
be required to act as the plaintiff or the defendant.

Section 80- This section deals with the concept of Notice. According to this Section, there exists
no onus for the institution of a suit against the government without issuing a notice regarding the
same, this includes the state of Jammu and Kashmir. With respect to institution of a suit against a
public officer with respect to the act done by him in his official capacity, there is again a need for
issuance of notice regarding the same. Further, the notice should be served two months prior to the
institution of the suit and it should be made sure that such a notice was delivered or left at the
office of:

 Whenever the case is against the central government, and it does not relate to the
railways then, the notice should be delivered to the secretary of the government.
 Whenever a case has been instituted against the central government and it relates to the
railways then, the notice is to be served to the general manager of that railways.
 Whenever the case is instituted against any of the state governments then, the notice is
to be served either to the secretary to that government or to the collector of the district.
Jurisdiction

Under Section 79, only the court within whose local limits, the cause of action arose, has the
jurisdiction to try the suit and otherwise it cannot

Suit against Railway

If the railway is administered by the union of India or a State, then any suit to enforce a claim
against railway administration can be brought against the Union of India or State, and this may not
include making the railway administration a part of the suit. But on the other hand whenever there
is a requirement for a suit for freight for carrying goods, then such a suit can be instituted by the
Union of India.

Section 80
Contents of the Notice

Notice under Section 80, is required to contain the following aspects: name, description, residence
of the plaintiff, the cause of action and lastly the relief which the plaintiff claims. Also, the notice
is required to convey to its recipients, sufficient information to enable him to consider the
claim.The above-mentioned particulars should be given in such a way that, it enables the
authorities to identify the person giving the notice.

Effect of Non-Compliance

Non-compliance with the requisites of this Section or any omission in the plaint which is required
would result in the rejection of the plaint under Order 7, Rule 11. If the suit is against a public
official and a private individual, and no notice is served on the public officer, the plaint is not to
be rejected but the suit is carried on with the name of the public officer struck off.

Waiver of Notice

As the requirement of the notice is just procedural and not substantive, and as it is for the benefit
of the public officer or the government, it is open to government and public officers to waive it. If
the defendant wants to rely on the invalidity of the notice, it is for him to raise a specific issue on
the point.

4. Res Sub Judice

Subjudice in Latin means ‘under judgment’. It denotes that a matter or case is being considered by
court or judge. When two or more cases are filed between the same parties on the same subject
matter, the competent court has power to stay proceedings. However, the doctrine of res sub judice
means stay of suit. The Civil Procedure Code provides rules for the civil court in respect of the
doctrine of res sub judice. This rule applies to trial of a suit not the institution thereof.
The doctrine of res sub judice aims to prevent courts of concurrent jurisdiction from
simultaneously entertaining and adjudicating upon two parallel litigations with respect to the same
cause of action, same subject matter and same relief claimed.

Thus it provides that, civil court should not proceed with the trial of any suit in which the matter
in issue is directly and substantially in issue in a previously instituted suit between the same parties
and the court before which the previously instituted suit is pending is competent to grant the relief
sought.

The OBJECT of the section is to protect a person from a multiplicity of proceedings and to avoid
a conflict of decisions. It also protects the litigant people from unnecessary harassment

CONDITIONS to be complied with before the application of the principle:

1. There must be two suits one previously instituted and the other subsequently instituted.
2. The matter in issue in the subsequent suit must be directly and substantially in issue in
the previous suit.
3. Both the suits must be between the same parties or their representatives.
4. The previously instituted suit must be pending in the same court in which the subsequent
suit is brought or in any other court in Bangladesh or in any court beyond the limits of
Bangladesh established or continued by the Government or before the Supreme Court.
5. The Court in which the previous suit is instituted must have jurisdiction to grant the relief
claimed in the subsequent suit.
6. Such parties must be litigating under the same title in both the suits.

If these conditions are fulfilled, the subsequent suit must be stayed by the court where it is pending.
It must be remembered that the institution of the subsequent suit is not ‘barred’ but its ‘trial’ only.
The final decision of the former suit shall operate as res judicata in the subsequent suit.

The Effect of the doctrine is that the court may direct to stay the subsequent proceeding. But the
Court also can exercise INHERENT POWER TO STAY. It provides that, although the provision
of Section 10 is mandatory, this provision has not taken away the court’s inherent power under
Section 151 so as to stay the proceedings on the facts and circumstances of a given case to secure
the ends of justice where section 10 is not applicable. Therefore, the court may use its inherent
power to secure the ends of justice when section 10 is not applicable, even to prevent abuse of
process of the court, the court may stay ‘former suit’ too, by applying its inherent power. There is
no bar on the power of an Indian Court to try a subsequently instituted suit if the previously
instituted suit is pending in the foreign court (Explanation to s. 10).

When a decree is passed in CONTRAVENTION the decree does not convert into nullity, and
therefore, it cannot be disregarded in execution proceedings. The legal value of the decree passed
by the court remains intact, even if it is passed in disregard of this principle.

With Respect to Interlocutory/interim orders, these can be considered as an exception to the

doctrine of res sub judice. Certain orders can be passed without a trial, such as attachment. Hence,
such orders are not affected by res sub judice. So, the rule of res Subjudice only bars the trial and
does not bar the courts from adjudicating upon interlocutory orders such as the appointment of
receiver, injunction or attachment.

5. MISJOINDER OF PARTIES AND ITS EFFECT

The joinder of any person as a party to a suit contrary to the provisions of the code is called
misjoinder. Misjoinder may be misjoinder of plaintiffs; misjoinder of defendants and misjoinder
of cause of actions.

Misjoinder of Plaintiffs

Where two or more persons may have been joined as plaintiffs in one suit but the right to relief
alleged alleged to exist in each plaintiff does not arise out of the same act or transaction and if
separate suits were brought by each plaintiff no common question of fact or law would have been
arisen, there is misjoinder of plaintiffs. The objection on the ground of misjoinder of the
plaintiffs, should be taken at the earliest possible opportunity; if not, it is be deemed to have been
waived.

Misjoinder of defendants

Likewise, where two or more persons have been joined as defendants in one suit but the right to
relief alleged to exist against each defendant does not arise out of the same act or transaction and
if separate suits were brought against each defendant, no common question of fact or law would
have arisen, there is misjoinder of defendants.

CHAPTER 2: NON-JOINDER OF THE PARTIES AND ITS EFFECT

When a person who is a necessary party to a suit has not be joined as a party to the suit, it is a
case of non-joinder. As regards the non-joinder of parties, a distinction has been drawn between
the non-joinder who ought to have been joined as a party and the non-joinder of a person whose
joinder is only a matter of convenience or expediency.

A suit is not to be dismissed only on the ground of non-joinder of parties. The court may allow
necessary parties to be joined, in at a later stage. The court may in every suit deal with the matter
in controversy so far as regards the rights and interests of the parties actually before it.

According to the proviso of the Rule 9 of Order 1 nothing in the said rule applies to non-joinder
of a necessary party. A necessary party is that in whose absence the court cannot pass an
effective decree. If the decree cannot be effective without the absent party, the suit is liable to be
dismissed. However, where the joinder of a person is only a matter of convenience and he has
not be joined as a party, he may be added at any stage or the suit may be tried without
impleading him. The allowing of the suit depends on whether a party who has not been joined is
a necessary party or merely a proper party. If a necessary party is not joined, then, the suit is
liable to be dismissed.
CHAPTER 3: OBJECTIONS AS TO MISJOINDER AND NON-JOINDER OF PARTIES

As per Rule 13 of Order 1 of the Code of Civil Procedure, all objections on the ground of non-
joinder or mis-joinder of parties shall be taken at the earliest possible opportunity and, in all
cases where issues are settled, at or before such settlement, unless the ground of objection has
subsequently arisen, and any such objection not so taken shall be deemed to have been waived.

The Supreme Court in various cases held that an objection to non-joinder and misjoinder of
necessary party should be taken at the earliest opportunity before the settlement of issues. An
objection as to non-impleadment of a party, in a writ petition has to be taken at the stage of
second appeal.

An issue of non-joinder of a necessary party can be raised in appellate court. An objection as to

non-impleadment of a necessary party, which was not taken in the first appeal cannot be allowed
to be taken at the stage of second appeal.

Objection as to misjoinder, when not raised in court of first instance is no ground for reversing a
decree when they do not affect the merits of the case

12 MARKS.

1. The prescribed modes of service of summons are as follows:

1. Personal or Direct Service:

Wherever it is practicable, service should be made on the defendant in person, unless he has an
agent empowered to accept service in which case service on such agent shall be sufficient.
Where there are two or more defendants, service should be made on each defendant. (O. 5, rr. 10,

service is made by delivering a copy thereof to the defendant personally, or to an agent or other
person on his behalf, and the signature of the person to whom the copy is so delivered is obtained
to an acknowledgment of service endorsed on the original summons.

2. Service by affixing a copy of summons on defendant’s house without an order of the

court:

the serving officer shall affix a copy of the summons on the outer door or some other
conspicuous part of the house in which the defendant ordinarily resides or carries on business or
personally works for gain, and then shall return the original to the court from which it was
issued, with a report endorsed thereon stating that he has so affixed the copy, the circumstances
under which he did so, and the name and address of the person (if any) by whom the house was
identified and in whose presence the copy was affixed.. (O. 5, R. 17)

3. Service by registered post in addition to personal service:

The court shall, in addition to, and simultaneously with the issue of summons for service also
direct the summons to be served by registered post, acknowledgment due,

4. Delivery of summons by Court. (O. V, R. 9):

(1) Where the defendant resides within the jurisdiction of the court in which the suit is instituted,
The proper officer may be an officer of a court other than that in which the suit is instituted and,
where he is such an officer, the summons may be sent to him in such manner as the court may
direct.

5. Summons given to the plaintiff for service (O. V, R. 9-A):

(1) The court may, in addition to the service of summons under rule 9, on the application of the
plaintiff for the issue of a summons for the appearance of the defendant permit such plaintiff to
effect service of such summons on such defendant and shall, in such a case, deliver the summons
to such plaintiff for service.

6. Substituted service:

the court shall order the summons to be served by affixing a copy thereof in some conspicuous
place in the court house and also upon some conspicuous part of the house (if any) in which the
defendant is known to have last resided or carried on business or personally worked for gain, or
in such other manner as the court thinks fit. Service may be ordered to be effected by publication
in a local daily newspaper. (O. 5, R. 20).

8. Simultaneous issue of summons for service by the court-controlled process. (O. V, R. 9-

A):

The summons shall, unless the court otherwise directs, be delivered or sent to the proper officer
in such manner as may be prescribed by the High Court to be served by him or one of his
subordinates.

The proper officer may serve the summons by registered post acknowledgment due, by speed
post, by such courier service as may be approved by the High Court, by fax message, by
Electronic Mail Service or by such other means as may be provided by the rules made by the
High Court.

9. Service of summons where defendant resides within the jurisdiction of another court. (O.
V, R. 21):

A summons may be sent by the court by which it is issued, whether within or without the state
either by one of its officers or by post or by such courier service as may be approved by the High
Court, by fax message or by Electronic Mail Service or by any other means as may be provided
by the rules made by the High Court, to any court (not being the High Court) having jurisdiction
in the place where the defendant resides.
10. Service on defendant in prison. (O. V, R. 29):

Where the defendant is confined in a prison, the summons shall be delivered or sent by post or
by such courier service, by fax message or by Electronic Mail Service to the officer-in-charge of
the prison for service on the defendant.

11. Substitution of letters for summons (O. V, R. 30):

The Court may, notwithstanding anything hereinbefore contained, substitute for a summons a
letter signed by a Judge or such officer as he may appoint in this behalf, where the defendant is
in the opinion of the Court, of a rank entitling him to such mark of consideration.

A letter so substituted may be sent to the defendant by post or by a special messenger selected
by the court, or in any other manner which the Court thinks fit, and where the defendant has an
agent empowered to accept service, the letter may be delivered or sent to such agent.

2. Pleadings

Pleadings are the backbone of legal profession. It is the foundation stone on which case of a
party stands. The case of a party must be set out in the pleadings. Moreover, the relief cannot be
claimed on the grounds which are not contained in the pleadings. The immaterial or vague or
ambiguous matter should be avoided and pleadings should be properly framed. In Devki Nandan
v. Murlidhar,(1) it was held that a finding cannot be sustained which is based on no pleading and
no evidence.
Pleadings are those materials or essential facts which are necessary to be averred in order to put
forward a cause or to establish a defence in a judicial proceeding.It includes allegations and
counter allegations made by one party and denied by the other

Amendment of Pleadings
Amendment is the formal revision or addition or alteration or modification of the pleadings.
Provisions for the amendment of pleadings are intended for promoting the ends of justice and not
for defeating them. Rules 17 and 18 of Order VI of Code of Civil Procedure, 1908 deals with
provisions regarding amendment of pleadings and failure to amend after order respectively. Rule
17 of the Code of Civil Procedure, 1908 provides that, “The Court may at any stage of the
proceedings allow either party to alter or amend his pleadings in such manner and on such terms
as may be just, and all such amendments shall be made as may be necessary for the purpose of
determining the real questions in controversy between the parties.

Proviso to the Rule 17 of Order VI of Code of Civil Procedure, 1908 as inserted by the Code of
Civil Procedure (Amendment) Act, 2002 restricts and curtails power of the Court to allow
amendment in pleadings by enacting that no application for amendment should be allowed after
the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence,
the party could not have raised the matter before the commencement of trial.
Amendment of pleadings when granted:- Amendment of pleadings can be granted by the Court
in two situations namely, (i) where the amendment is necessary for the determination of the real
question in controversy; and (ii) can the amendment be allowed without injustice to the other
side.

Amendment of pleadings when refused:- Amendment of pleadings can be refused in many

circumstances. Following are the situations or circumstances when amendment of pleadings can
be refused by the Court:-(32)
(1) When the proposed amendment is unnecessary.
(2) When the proposed amendment causes an injury to the opposite party which cannot be
compensated for by costs.
(3) When the proposed amendment changes the nature of the case.
(4) When the application for amendment is not made in good faith.
(5) When there has been an excessive delay in filing the amendment application.

3. An appellate court has the power—

(1) To determine a case finally where the evidence on the record is sufficient;

(2) To remand a case where the lower court has disposed of the suit upon a preliminary point
and the decree is reversed in appeal;

(3) To frame issues and refer them for trial where the lower court has omitted to frame or try any
issue or to determine any question of fact which appears to the appellate court essential to the
right decision of the suit upon the merits; and

(4) To take additional evidence or to require such evidence to be taken when the lower court has
refused to admit evidence which ought to have been admitted or when the appellate court
requires any document to be produced or any witness to be examined to enable it to pronounce
judgment, or for any other substantial reason.

In addition to the above, the appellate court has the same powers as have been conferred by the
Code on courts of original jurisdiction, in respect of suits instituted therein.

The appellate court has however, to bear in mind that it has not the advantage which the trial
judge had in having the witnesses before him and of observing the manner in which they deposed
in court.

This certainly does not mean that when an appeal lies on facts, the appellate court is not
competent to reverse a finding of fact arrived at by the trial judge. The rule is and it is nothing
more than a rule of practice—that where there is conflict of oral evidence of the parties on any
matter in issue and the decision hinges upon the credibility of the witness, then unless there is
some special feature about the evidence of a particular witness which has escaped the trial
judge’s notice or there is a sufficient balance of improbability to dispute as to where the
credibility lies, the appellate court should not interfere with the finding of the trial judge on a
question of fact. [Saijupershad v. Raja Jwaleshwari Pratap Narain Singh, 1951 A.L.J., p. I. S.C.,;
A.I.R. 1951 S.C. 120, 121).

In an appeal against a trial court decree, when the appellate court considers an issue turning on
oral evidence, it does not enjoy the advantage which the trial court had in having the witnesses
before it and of observing the manner in which they gave their testimony.

When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the
credibility of the witnesses, the general rule is that the appellate court should permit the findings
of fact rendered by the trial court to prevail, unless it clearly appears that some special feature
about the evidence of a particular witness has escaped the notice of trial court, or there is a
sufficient balance of improbability to displace its opinion as to where the credibility lies, or the
appraisal of the evidence by the trial court suffers from a material irregularity or is based on
inadmissible evidence or on a misreading of the evidence or on conjectures and surmises.

This approach should be placed in the pre-front in considering whether the High Court proceeded
correctly in the evolution of the evidence before it when deciding to reverse the finding of the
trial court. The principle is one of practice and governs the weight to be given to a finding of fact
by the trial court. (Madhusudan Das v. Smt Narayanibai (deceased) by L.R.Rs. & Ors. (1983) 1
S.C.C. 35).

4 executing court cannot question the validity of a decree

The executing court cannot question the validity of a decree. It has to take the decree as it stands
and has to execute it according to its terms. The executing court must abide by the directions
contained in the decree. It is beyond its province to question its legality or correctness.

The executing court cannot enter into criticism of the decree or give relief against its rigour. It
cannot allow objections that the decree was obtained by fraud or passed against a wrong person
or against a minor, who was not properly represented. Such pleas can be raised not in the
executing court but by means of a separate suit or by means of an appeal, if the same is
permissible.

There are, however, three cases where the executing court can go behind the decree. They are as
under:

1. Where the decree is a nullity. The objection of the judgment-debtor that the decree is a nullity
because it was passed against a dead person, without bringing his legal representative on the
record is an objection which can be entertained by the executing court, for in such a case if the
objection Is proved there is no executable decree all.

2. Where the decree is ambiguous, i.e., a decree instead of meaning one thing may mean two or
more different things. In such a case it is the duty of the executing court to go behind the decree
and seek to ascertain from the judgment and pleading the true implication of the decree. This is
necessary to enable the executing court to execute the decree.
3. Where the decree has been made by a court without jurisdiction, i.e., in respect of territorial or
pecuniary jurisdiction or in respect of the judgment-debtor’s person. An objection based on the
ground of jurisdiction can be entertained by the executing court for if the decree has been passed
without jurisdiction by a court, there is no executable decree.

5. the law assists those that are vigilant with their rights, and not those that sleep thereupon.

Law will help only those who are vigilant.

Law will not assist those who are careless of his/her right. In order to claim one’s right, she/he
must be watchful of his/her right. Only those persons, who are watchful and careful of using his/her
rights, are entitled to the benefits of law. Law confers rights on persons who are vigilant of their
rights.

Usually, law prescribes statutory limitations for enforcing one’s relief against another. One cannot
institute a suit after the prescribed statutory period. A person who has kept mum during the
statutory period cannot claim for the enforcement of right after the statutory limitation.

Illustration

Art. 19 of The Limitation Act of 1963 says that for money payable for money lent – Period of
limitation is 3 years – Time from which period begins to run: When the loan is made.This means,
when the money is lent as loan, a suit for recovery of that amount has to be filed within three years
from the day on which the money was lent.

If X lent Rs.1,00,000/- to Y on 01.01.2000, if X want to file a suit against Y for the recovery of
the same, he/she need to file the suit within three years, i.e., 31.12.2002. If the suit is filed after
31.12.2002, the Court will dismiss the same on the ground that the claim is barred by limitation.

Case Reference

Tilokchand Motichand & Others vs H.B. Munshi & Another [(1955) 1 S.C.R. 168]

In this case forcement of the maxim, Vigilantibus, non dormientibus jura subveniunt. Under
peculiar circumstances, however, excusing or justifying the delay, courts of equity would not
refuse their aid in furtherance of the rights of the party; since in such cases there was no presence
to insist upon laches or negligence, as a ground for dismissal of the suit; and in one case carried
back the account over a period of fifty years.

B.L. Sreedhar & Ors vs K.M. Munireddy (Dead) And Ors. [AIR 2003 SC 578]

In this case it was held that Delay defeats equities, or, equity aids the vigilant and not the indolo
Vigilantibus, non dormientibus, jura subveniunt.”
Smt. Vanka Radhamanohari vs Vanke Venkata Reddy And Ors. [1993 (2) BLJR 875]

In this case it was held that The general rule of limitation is based on the Latin maxim: vigilantibus,
et non dormientibus, jura subveniunt (the vigilant, and not the sleepy, are assisted by the laws).
That maxim cannot be applied in connection with offences relating to cruelty against women.

Beg Ram And Anr. vs Charan Das And Others [16th May 1955]

In this case it was mentioned that On the principles, however, that the interests of the State require
that a period should be put to litigation (Interest reipublicae ut sit finis litium), and that a party
who is not prompt in asserting his claim does not deserve the aid of the State in enforcing it
(Vigilantibus, non dormientibus jura subveniunt) it is necessary that the exercise of every right
should be subject to a period of limitation. A right of revision, though more limited in scope than
a right of appeal, is nonetheless a right, so that, if no period of limitation is specifically prescribed
therefore in the Limitation Act it is expedient that the ninety-days rule of limitation in the case of
an appeal should also be adopted in the case of a revision.

7marks .

The Inherent Powers of the Court

The abuse of the process of the court must be prevented by court as an inherent duty of the court.
The Code of Civil Procedure is not exhaustive, the reason for this is that the legislature cannot be
expected of pre-empting all possible circumstances which may arise in future litigation, and thus
for providing the procedure for it. The court has as a result in quite a number of cases, where it is
required by the circumstances, acted upon the assumption of possession of inherent power. This
well known principle of law has been legislatively recognised in Section 151 of the Code of Civil
Procedure, 1908 which states that:

S. 151. Saving of inherent powers of the Court.- Nothing in this Code shall be deemed to limit or
otherwise affect the inherent power of the Court to make such orders as may be necessary for the
ends of justice or to prevent abuse of the process of the Court.

When Can An Inherent Power Be Exercised

Under S. 151 there are two major principles the court must take into consideration while
exercising its inherent powers. The first being that the powers are to be exercised only for the
ends of justice and second, it should be to prevent abuse of process of the court. Such power
must not be exercised when prohibited or excluded by the Code or other statutes and in situations
when there exist specific provisions in the Code applicable to the litigation at hand.
When There Are Specific Provisions In The Code

Where the CPC has express provision with regards to a particular matter, the provisions should
normally be regarded as exhaustive.S.151 gives inherent power to the court to make such order
as may be necessary for the ends of justice or o prevent abuse of the process of the court;
however same is required to be exercised by the court when there is no other statutory remedy
available to parties to redress their grievances. If there are express provisions exhaustively
covering a particular topic, they give rise to a necessary implication that no power shall be
exercised in respect of the said topic otherwise than in the manner provided by the said
provision. The limitations imposed by construction on the provision of section 151 do not control
the undoubted power of the court to make a suitable order to prevent abuse of the process of the
court.