The Code of Civil Procedure, 1908

Purpose: To provide a concise overview of key procedural aspects related to civil litigation, focusing on jurisdiction, property attachment and sale, execution of decrees, and special considerations for certain parties or suits.

I. Fundamental Principles and Scope

The Code of Civil Procedure, 1908, establishes the framework for civil litigation, dictating procedures from the institution of a suit to the execution of a decree. It aims to ensure orderly and just resolution of civil disputes.

• Pecuniary Jurisdiction (Section 6): The Code explicitly limits the jurisdiction of courts based on the monetary value of the subject matter of the suit, stating, “Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.”
• Territorial Jurisdiction (Sections 17-18): Suits concerning immovable property must generally be instituted in the court where the property is situated. However, exceptions exist where relief can be obtained through the defendant’s personal obedience, allowing the suit to be filed where the defendant resides or conducts business. Section 18 addresses uncertainty in territorial jurisdiction, allowing a court to proceed if there are “reasonable ground for uncertainty” and no “consequent failure of justice.”
• Applicability and Amendments: The document highlights various amendments and extensions of the Code’s applicability to different regions and special laws over time (e.g., Khondmals District, Manipur, Lakshadweep, commercial disputes). This underscores its evolving nature and widespread implementation.

II. Attachment and Sale of Property

A significant portion of the Code details the process of attaching and selling property in execution of a decree. This is a critical mechanism for enforcing court judgments.

• Property Liable to Attachment (Section 60): Generally, “saleable property, movable or immovable, belonging to the judgment-debtor, or over which…he has a disposing power” is liable to attachment and sale.
• Exemptions from Attachment (Section 60 Proviso): The Code safeguards certain essential assets from attachment, including:
• “the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children”
• “such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman”
• “books of account”
• “a mere right to sue for damages”
• “any right of personal service”
• “stipends and gratuities allowed to pensioners of the Government…or of any other employer”
• “the wages of labourers and domestic servants, whether payable in money or in kind”
• Certain houses occupied by “an agriculturist or a labourer of a domestic servant.”
• Void Private Alienation (Section 64): Once property is attached, “any private transfer or delivery of the property attached or of any interest therein” is rendered void. This prevents judgment-debtors from frustrating the execution process.
• Procedure for Attachment and Sale (Order 21, various rules):Attachment of Debts/Shares (Rules 46, 46A-I): Detailed procedures exist for attaching debts and shares not in the judgment-debtor’s possession, including notice to garnishees and adjudication of disputed questions.
• Seizure of Property (Section 62): Specific rules govern the seizure of property within a dwelling house, emphasizing minimal intrusion.
• Sale Process (Rules 64-71, 82-89): The Code outlines the power to order sale, who conducts sales, proclamation procedures (“Proclamation of sales by public auction”), time of sale, adjournment, and consequences for defaulting purchasers.
• Delivery of Property (Rules 79-81): Procedures for delivering movable property, debts, shares, and other property to the purchaser are specified, including “Vesting order in case of other property.”
• Setting Aside Sale (Rule 89): Provisions allow for setting aside a sale on deposit.

III. Execution of Decrees and Enforcement

The Code provides comprehensive procedures for the execution of decrees, addressing various scenarios and potential challenges.

• Application for Execution (Order 21, Rule 11, Form No. 6): A standardized application form is provided, requiring details such as “Names of parties,” “Date of Decree,” “Amount with interest due,” and “Mode in which the assistance of the Court is required.”
• Detention and Release (Sections 57-59, Order 21, Rule 30): The Code addresses subsistence allowance for judgment-debtors, as well as their detention and release, including “Release on ground of illness.”
• Adjudication of Claims/Objections to Attachment (Section 58, Order 21, Rule 58): If a third party claims interest in attached property, the court must “proceed to adjudicate upon the claim or objection.” Such claims are not entertained if the property has already been sold.
• Resistance to Possession (Order 21, Rule 97-103): If a decree-holder is obstructed in obtaining possession, they can apply to the court. The court “shall proceed to adjudicate upon the application” and determine “All questions (including questions relating to right, title or interest in the property) arising between the parties.” Orders resulting from these adjudications are treated as decrees.
• Warrants and Orders (Appendix B, various forms): The document includes numerous standardized forms for judicial processes, such as:
• “SUMMONS FOR DISPOSAL OF SUIT” (Form No. 1)
• “WARRANT OF ATTACHMENT OF MOVABLE PROPERTY” (Form No. 8)
• “WARRANT TO THE BAILIFF TO GIVE POSSESSION OF LAND, ETC.” (Form No. 11)
• “WARRANT OF COMMITTAL OF JUDGEMENT-DEBTOR TO JAIL” (Form No. 14)
• “ORDER FOR THE RELEASE OF A PERSON IMPRISONED” (Form No. 15)
• “PROHIBITORY ORDER, WHERE THE PROPERTY CONSISTS OF IMMOVABLE PROPERTY” (Form No. 24)
• “SUMMONS TO APPEAR AND ANSWER CHARGE OF OBSTRUCTING EXECUTION OF DECREE” (Form No. 40)
• “WARRANT OF COMMITTAL (O. 21, r. 98)” (Form No. 41)

IV. Special Jurisdictional and Party Considerations

The Code includes specific provisions for certain types of parties or circumstances to ensure fair legal processes.

• Suits Against Foreign Rulers, Ambassadors, and Envoys (Sections 86-87A): Generally, a “foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government.” This consent is also required for suing ambassadors, envoys, and High Commissioners of Commonwealth countries. These provisions define “foreign State” and “Ruler.”
• Suits by or Against Military or Naval Men or Airmen (Order XXVIII): Allows officers, soldiers, sailors, or airmen who “cannot obtain leave may authorise any person to sue or defend for them.”
• Death, Marriage, and Insolvency of Parties (Order XXII): While details are omitted in these excerpts, the Order heading indicates procedures for handling changes in party status during litigation.
• Validity of Statutory Instruments (Order I, Rule 1A-4): Requires “Notice to the Attorney General or the Advocate-General” in suits involving the validity of any statutory instrument, and allows the court to “add Government as party.”
• Commercial Disputes: The Code explicitly notes that certain provisions “Shall be applicable to commercial disputes of a specified value by Act 4 of 2016.” It defines a “commercial transaction” as one “connected with the industry, trade or business of the party incurring the liability.”
• Summonses to Foreign Countries (Order V, Rule 26A): Facilitates service of summonses on defendants residing or carrying on business in foreign territories through specified government officers.
• Suits Against Businesses in Other Names (Order XXX, Rule 10): Allows suing “Any person carrying on business in a name or style other than his own name, or a Hindu undivided family carrying on business under any name…as if it were a firm name.”
• Savings Clauses (Order XXXII, Rule 16): Specifies that provisions relating to minors or persons of unsound mind may be subject to “any local law for the time being in force.” It also notes that the Order does not apply to “the Ruler of a foreign State suing or being sued in the name of his State.”

V. Miscellaneous Procedural Aspects

The excerpts also touch upon other procedural rules crucial for the smooth functioning of civil courts.

• Interest on Decrees: If a decree is silent on further interest from the date of the decree to the date of payment, “the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie.”
• Set-off (Order VIII): Allows a defendant to claim a set-off against a plaintiff’s demand, provided both sums are “definite pecuniary demands.” However, it clarifies that joint debts cannot be set off against individual debts.
• Injunctions (Appendix F, Forms 14-16): Provides templates for various types of injunctions, such as “INJUNCTION AGAINST PRIVATE NUISANCE,” “INJUNCTION AGAINST BUILDING HIGHER THAN OLD LEVEL,” and “INJUNCTION RESTRAINING USE OF PRIVATE ROAD.”
• Mortgage Decrees (Appendix D, Forms 7-11): Contains various preliminary decrees for mortgage cases, including “PRELIMINARY DECREE FOR FORECLOSURE OF SALE,” “PRELIMINARY DECREE FOR REDEMPTION,” and “PRELIMINARY DECREE FOR SALE,” outlining calculations for principal, interest, and costs.
• Receiver Appointment (Appendix F, Form 9): Provides a form for the appointment of a receiver for attached property, outlining their powers and requirement to render accounts.
• Appeals (Order 41, Rules 1-13; Order 45): Includes forms for “MEMORANDUM OF APPEAL,” “SECURITY BOND TO BE GIVEN ON ORDER BEING MADE TO STAY EXECUTION OF DECREE,” and “NOTICE TO SHOW CAUSE WHY A CERTIFICATE OF APPEAL TO THE [SUPREME COURT] SHOULD NOT BE GRANTED.” This highlights the appellate process and security requirements.
• Documents and Evidence: Mentions “LIST OF DOCUMENTS PRODUCED” (Form No. 5) and “NOTICE TO PRODUCE DOCUMENTS” (Form No. 7), indicating rules for documentary evidence.
• Family Matters: Refers to “a suit or proceeding relating to any other matter concerning the family in respect of which, the parties are subject to their personal law.”

Conclusion:

The provided excerpts from “The Code of Civil Procedure, 1908,” demonstrate a comprehensive and meticulously structured legal framework governing civil litigation. Key themes revolve around establishing proper jurisdiction, detailed procedures for property attachment and sale to enforce decrees, specific rules for different categories of litigants (e.g., foreign states, military personnel), and a robust system for appeals and enforcement. The extensive use of standardized forms underscores the Code’s emphasis on uniformity and clarity in judicial processes.