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CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

CIVIL PROCEDURE CODE

TOPIC - SUIT RELATING TO IMMOVABLE PROPERTIES

COURSE INSTRUCTOR: Dr. B.R.N SHARMA

SUBMITTED BY: AMAN ADITYA

3rd YEAR, 1204

B.B.A. LL.B (H), SEMESTER V

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ACKNOWLEDGEMENT

The present project on the “Civil Procedure Code” has been able to get its final
shape with the support and help of people from various quarters. My sincere
thanks go to all the members without whom the study could not have come to its
present state. I am proud to acknowledge gratitude to the individuals during my
study and without whom the study may not be completed. I have taken this
opportunity to thank those who genuinely helped me.

With immense pleasure, I express my deepest sense of gratitude to Dr. B.R.N

Sharma, Faculty for Civil Procedure Code, Chanakya National Law University,
Patna for helping me in my project. I am also thankful to the whole Chanakya
National Law University family that provided me all the material I required for
the project. Not to forget thanking to my parents without the co-operation of
which completion of this project would not had been possible.

I have made every effort to acknowledge credits, but I apologies in advance for
any omission that may have inadvertently taken place.

Last but not least I would like to thank Almighty whose blessing helped me to
complete the project.

AKSHITA MISHRA
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TABLE OF CONTENTS

Introduction ..................................................................................................................................... 4

Research Methodology ................................................................................................................... 4

Relevant Provisions ........................................................................................................................ 5

Where To File The Case? ............................................................................................................ 5

Pecuniary Jurisdiction ................................................................................................................. 6

Territorial Jurisdiction ................................................................................................................. 7

In Case Of Suits Relating To Immovable Property..................................................................... 7

Section 16 – Suits To Be Instituted Where Subject Matter ............................................................ 7

Is Situate.......................................................................................................................................... 7

Property At Distant Places .............................................................................................................. 9

Section 17 – Suits For Immovable Property Situated Within The Jurisdiction Of Different
Courts .......................................................................................................................................... 9

Section 18 – Place Of Institution Of Suit Where Local Limits Of Jurisdiction Of Courts Are
Uncertain ....................................................................................................................................... 11

Points To Be Taken Into Consideration ........................................................................................ 11

Sale Of Immovable Property: Order 21, Rules 82-94................................................................... 12

Suits Relating To Mortgages Of Immovable Property: Order 34 ................................................. 13

Conclusion .................................................................................................................................... 15

Bibliography ................................................................................................................................. 16
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INTRODUCTION

Courts are there to settle the disputes between individual persons and to declare and establish
their rights regarding the matters in dispute. So whenever persons fail to solve a dispute among
them, they can approach the Court by filing a suit. It is called institution of suit. There are
various categories of Courts. All categories can be classified under Courts of First instance and
appellate Courts. Every suit shall be instituted in the Court of the lowest grade competent to try
it.1 Every Court has specific pecuniary and territorial jurisdiction. So we cannot file suits as per
our convenience. Rules regarding filing of suits are guided by various provisions of Civil
Procedure Code.

Where the subject matter of the suit is immovable property in a City in which a City Survey has
been completed or in a village where a Gram Panchayat is established, and the numbering of the
houses and open spaces in the jurisdiction of the said Panchayat has been made, it should also be
seen that the City Survey Numbers or Gram Panchayat numbers have been properly specified in
the plaint.2 Sections 16 to 18 deal with suits relating to immovable property.

RESEARCH METHODOLOGY

The researcher has followed the doctrinal method of research. An extensive use of the library of
Chanakya National Law University has been made. The internet sources and both primary
sources such as the Code of Civil Procedure, 1908 and secondary sources such as books, law
journals, articles, etc. have also been referred to.

1
Section 15 of Civil Procedure Code
2
Order VII, Rule 3 of Civil Procedure Code
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RELEVANT PROVISIONS
1)

 WHERE TO FILE THE CASE?

In India, courts are hierarchically established. Civil Courts are created under different Acts. The
lower courts have less powers than the higher or superior courts. The appeals from their
judgement will lie before a superior court. The Supreme Court of India is at the top of the
hierarchy. There are numerous lower courts but only one High Court per State and only one
Supreme Court in the Country. The High Court is entitled to exercise its power of revision as
also superintendence over the said courts. For the aforementioned purpose, it must be borne in
mind the distinction between two types of courts viz. Civil Courts and the courts trying disputes
of civil nature. Only because a court or a tribunal is entitled to determine an issue involving civil
nature, the same by itself would not lead to the conclusion that it is a Civil Court. 3 Thus, it is
impractical to move superior courts for each and every trivial matter. Further, the subject matter
of a suit can also be of several kinds. It may be related to either movable or immovable property,
or it may be about marriage, or employment. Thus, specialty Courts are set up to deal with the
specific nature of the suit to deal with it efficiently. Similarly, it would be inconvenient for the
parties to approach a court that is too far or is in another state. All these factors are considered to
determine the court in which a particular suit can be filed. CPC lays down the rules that
determine whether a court has jurisdiction to hear a particular matter or not. (Section 3 of this
Code)

As per Section 15 of Civil Procedure Code every suit shall be instituted in the Court of lowest
grade competent to try it. Here competency refers to pecuniary jurisdiction, which shall be
determined by High Court from time to time.
Objects: the main objects of the section are:
 To reduce the burden of the higher Courts
 Afford convenience to the parties and witnesses who may be examined by them in such suits.

3
Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corpn., (2009) 8 SCC 646: (2009) 3 SCC
(Civ) 48.
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The District Judge and Sub-Ordinate Judges all have jurisdiction over all Original Suits.,
cognizable by the Civil Court subject to the condition suits are to be instituted in a Court of
lowest grade competent to try it.

These rules can be categorized as follows Pecuniary Jurisdiction, Territorial Jurisdiction, Subject
matter jurisdiction, and Original Jurisdiction. Before filing a suit one should know where or
before which Court the suit has to be filed. It is called place of suing. Place of suing is subjected
to two limitations:
1. Territorial jurisdiction of the Court
2. Pecuniary jurisdiction of the Court, Territorial jurisdiction depends upon the nature of the
suit, i.e. subject matter of the dispute.

PECUNIARY JURISDICTION
Every suit shall be instituted in the Court of the lowest grade competent to try it. 4 This is a
fundamental rule which means that if a remedy is available at a lower court, the higher court
must not be approached. More specifically, this rule refers to the monetary value of the suit.
Each court is deemed competent to hear matters having a monetary value of only certain extent.
A matter that involves a monetary value higher than what a court is competent to hear, the parties
must approach a higher court. At the same time, the parties must approach the lowest grade court
which is competent to hear the suit.

However, this rule is a rule of procedure, which is meant to avoid overburdening of higher
courts. It does not take away the jurisdiction of higher courts to hear matter of lesser monetary
value. Thus, a decree passed by a court, which is not the lowest grade court competent to try the
matter, is not a nullity. A higher court is always competent to try a matter for which a lower
court is competent. This rule applies to the parties as it bars the parties to approach a higher court
when a lower court is competent to hear the matter.
Example: Valuation

4
Section 15 of Civil Procedure Code
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TERRITORIAL JURISDICTION

Territorial Jurisdiction means the territory within a Court has jurisdiction. For example, if a
person A is cheated in Indore, then it makes sense to try the matter in Indore instead of Chennai.
The object of this jurisdiction is to organize the cases to provide convenient access to justice to
the parties. To determine whether a court has territorial jurisdiction, a matter of suits in respect of
immovable property may be analyzed accordingly. Depending upon the nature of subject matter,
suits are divided into 3 categories. They are:
1. Suits relating to immovable property.
2. Suits relating to compensation for wrongs to person and movables.
3. Other suits.

 IN CASE OF SUITS RELATING TO IMMOVABLE PROPERTY

As a general rule suits relating to immovable property shall be filed in the Court within the local
limits of whose territorial jurisdiction the property is situate, In other words, where the property
in dispute is situated. This has been elaborated below.

2) SECTION 16 – SUITS TO BE INSTITUTED WHERE SUBJECT MATTER IS

SITUATE

“Suits to be instituted where subject matter situate”5. Subject to the pecuniary and other
limitations prescribed by any law, suits:
a) For the recovery of immovable property with or without rent or profits,
b) For the partition of immovable property,
c) For foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable
property,
d) For the determination of any other right to or interest in immovable property,
e) For compensation for wrong to immovable property,

5
Section 16 of Civil Procedure Code
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f) For the recovery of movable property actually under distraint or attachment

Shall be instituted in the Court within the local limits of whose jurisdiction the property is
situated. It is also provided that:
 When suit is filed to obtain relief respecting or compensating any wrong to any immoveable
property
 And relief can be entirely obtained through personal obedience.

Explanation - In this section “property” means property situated in India.

In above case, the suit can be instituted either at:

 Court within whose local limit the property is situated.
 Court within whose local jurisdiction the defendant voluntarily resides or conducts business
or trade
The suits must be filed in the courts within the local limits of whose jurisdiction the property is
situate. This is very clear and simple and does not create any difficulty. But what will happen if
the property is situate within the jurisdiction of more than one court? Section 176 of the Code
provides for this contingency. It says that where a suit is to obtain a relief respecting, or damage
for torts to, immovable property situate within the jurisdiction of different courts, the suit can be
filed in the court within the local limits of whose jurisdiction any portion of the property is
situate provided that the suit is within the pecuniary jurisdiction of such court. This provision is
intended for the benefit of suitors and to prevent multiplicity of suits.

A case may, however, arise where it is not possible to say with certainty that the property is
situated within the jurisdiction of the one or the other of several courts. In such a case, one of
these courts, if it is satisfied that there is such uncertainty, may after recording a statement to that
effect proceed to entertain and dispose of the suit.

Here it should be noted that the pecuniary jurisdiction of Courts differ from State to State.

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Suits for immovable property situate within jurisdiction of different Courts.
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There is yet another limitation regarding the filing of suits on immovable property. It is clear
from the proviso to Section 16. The proviso relates to the suits for compensation in relation to
immovable property held by or on behalf of defendant and where the relief sought can be entirely
obtained through his personal obedience. That means, the relief for compensation is independent
of its own and has nothing to do with other relief's regarding immovable property referred to in
clauses (a) to (d) of Section 16.

1. Anand Bazaar Patrika v. Biswanath Prasad7

Held a suit for Specific performance for, contract of sale with possession, it has to be instituted
in the Court in whose jurisdiction the property is situated and cannot be filed where cause of
action arises.

2. Seetha Rama Chetty v. Kamala Amma8

In a suit filed in Bangalore for a property located in Tamilnadu, to determine right and interest in
the immoveable property, Court held that as long as the defendant is residing within the
jurisdiction of Bangalore Court, where the suit is instituted, the suit was maintainable under S.16
(d) read with the proviso.

3) PROPERTY AT DISTANT PLACES

SECTION 17 – SUITS FOR IMMOVABLE PROPERTY SITUATED WITHIN THE

JURISDICTION OF DIFFERENT COURTS
1, 2, 3, 4 are brothers. They are living at different places like A and B. They are having their
immovable ancestral properties at A, B and C. 1 prefers to file a suit for partition against 2, 3 and
4. He can file the suit at A, B or C i.e. where a portion of the property is situated. But in such
cases, the entire suit claim has to be taken into consideration for purpose of payment of court fee
and pecuniary jurisdiction. In the above example, no doubt the suit for partition can be filed at A

7
AIR 1986 Pat 57
8
1964 SCR (2) 35
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provided the total value of property situated at A, B and C is less than rupees one lakh. This is so
because only Junior Civil Judge Court is located at A. If the total value of the entire property is
more than rupees one lakh the suit cannot be filed at A. The suit can be filed at B or at C where
Senior Civil Judge is located. It is clear from the wording of Section 17 of Civil Procedure Code
which runs as follows:
“Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property
situate within the jurisdiction of different Court, the suit may be instituted in any Court within
the local limits of whose jurisdiction any portion of the property is situate: Provided that, in
respect of the value of the subject matter of the suit, the entire claim is cognizable by such
Court.”9

Illustration- ‘A’ claims for the sale of B’s two mortgaged houses situated at Chapra and
Muzaffarpur. Where the suit may be instituted in the following case?

Answer – It is to be noted here that Section 17 applies when one property is situated in the
jurisdiction of different courts – Karam v. Kunwar10 However in Luxhami Kumar v.
Krishanaram11, it was held that when property situated in more than one district are mortgaged
under separate mortgage deeds, but the recitals in the deeds show them as part of a single
mortgage transaction, Section 17 applies.
Thus, in view of the decision given in Luxhami Kumar v. Krishanaram12 it can be said that in
the given problem the houses of Chapra and Muzaffarpur may be treated as one property if the
terms of both the mortgaged houses show them as part of single mortgage transaction and suit by
‘A’ against ‘B’ may be filed either in Chapra or at Muzaffarpur in view of the law laid down in
Section 17. But if terms of both the mortgaged houses do not show them as part of single
mortgaged transaction, the suit relating to house of Chapra can be filed only in Chapra and suit
relating to Muzaffarpur may be instituted only in Muzaffarpur as case will be covered by Section
16 and not byssss Section 17.

9
Section 17 of Civil Procedure Code
10
AIR 1942 A 387
11
AIR 1954 M.B. 156
12
AIR 1954 M.B. 156
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4) SECTION 18 – PLACE OF INSTITUTION OF SUIT WHERE LOCAL LIMITS OF

JURISDICTION OF COURTS ARE UNCERTAIN

When it is uncertain as regards under which of the two or more Courts, the territorial jurisdiction
falls into, and one of such Courts has also ascertained such uncertainty, then it may proceed to
entertain and dispose the suit related to the property; after recording the existence of such
uncertainty.

Where no such statement has been recorded and objection is raised in appeal or revision, the
Higher Court will not allow such objection unless:

1. At time of institution of suit, no reasonable ground for uncertainty as to Court was there, and,
2. It has resulted in consequent failure of justice.

In these cases, apart from the uncertain territorial jurisdiction, the Court should be competent as
regards the following:

1. Nature of suit
2. Pecuniary jurisdiction.

5) POINTS TO BE TAKEN INTO CONSIDERATION

 Where the suit is of the nature of recovery of / partition of / foreclosure, sale / redemption of /
mortgage of / charge upon / determination of any right or interest in / compensation for
wrong to; immovable property, the suit will be filed in those courts within whose jurisdiction
the immovable property is situated.
 Where the suit is for a relief in respect of or compensation for wrong to immovable property
held by or on behalf of the defendant; where the relief sought can be entirely obtained
through his personal obedience, the suit is to be filed in the court within whose jurisdiction
the immovable property is situated or the defendant resides or carries out business or
personally works for gains.
 Where the suit is for a relief in respect of or compensation for wrong to immovable property
situated within the jurisdiction of different courts, the suit is to be filed in the court within
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whose jurisdiction any portion of the property is situated, provided that the entire claim is
within the pecuniary jurisdiction of such a court.
 Where it is uncertain within the jurisdiction of which two or more courts any immovable
property is situated, the suit may be filed in any of those courts provided that the court has
pecuniary jurisdiction and jurisdiction as regards the subject matter of the suit.

6) SALE OF IMMOVABLE PROPERTY: ORDER 21, RULES 82-94

Rules 82 to 94 of Order 21 deal with sale of immovable property. Rule 83 enables the executing
court to postpone sale to enable the judgement debtor to raise decretal dues by private alienation.
Rules 84 and 85 provide for payment of purchase money by auction-purchaser. Rule 86 covers
case of default by auction-purchaser in making requisite payment and resale of property. Rules
89 to 91 and 93 deal with setting aside sale and effect thereof. Rules 92 and 94 provide for
confirmation of sale and issuance of sale-certificate. Section 65 declares the effect of sale.

The term “immediately” occurring in Order 21, Rule 84 of the Code has two meanings. One,
indicating the relation of cause and effect and the other, the absence of time between two events.
In the former sense, it means proximately, without intervention of anything, as opposed to
“mediately”. In the latter sense, it means instantaneously. The term “immediately” is thus
required to be construed as meaning with all reasonable speed, considering the circumstances of
the case. Ina given situation, the term “immediately” may mean “within reasonable time”. Where
an act is to be done within reasonable time, it must be done immediately.13

Twin conditions precedent for setting aside sale, held are:

i. Establishing a material irregularity or fraud, and

ii. Establishing to the satisfaction of the court that the material irregularity or fraud had resulted
in substantial injury to the applicant. Fulfilling of only one of the said two conditions, held,
not sufficient.14

13
Rosali V. v. TAICO Bank, (2009) 17 SCC 690: (2011) 2 SCC (Civ) 626.
14
Saheb Khan v. Mohd. Yousufuddin, (2006) 4 SCC 476.
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Sale can be set aside on ground of material irregularity but not mere irregularity. Non-application
of mind by the executing court to mandatory requirements under the Code amounts to material
irregularity.15

Where the person making application under Rule 90 did not intend to purchase the property
himself but had merely set up a prospective purchaser, lack of notice under Sections 2 and 3,
Partition Act, held, immaterial. More so, when the applicant had no grievance with the upset
price and the purchaser had paid a price higher than that but the prospective purchaser set up by
the applicant allegedly offering a still higher price never appeared before the court despite being
given several opportunities.16

Confirmation of sale in less than 30 days does not by itself vitiate sale.17

7) SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY: ORDER 34

Order 34 lays down procedure with regard to suits relating to mortgages of immovable property.
It provides for the frame of the suit relating to sale, foreclosure and redemption of mortgage
property and also to enforce charges. The procedure laid down in Order 34 is distinct and
different for execution of decrees in mortgage suits than the procedure prescribed in Order 21 for
execution of decrees passed in other suits.18

Mortgage is defined in the following words:

“A mortgage is the transfer of interest in specific immovable property for the purpose of securing
the payment of money advanced or to be advanced by way of loan, an existing or future debt or
the performance of the engagement which may give rise to a pecuniary liability.

15
Desh Bandhu Gupta v. N.L. Anand, (1994) 1 SCC 131, 150.
16
Saheb Khan v. Mohd. Yousufuddin, (2006) 4 SCC 476.
17
Rosali V. v. TAICO Bank, (2009) 17 SCC 690: (2011) 2 SCC (Civ) 626.
18
S. Sivaprakasan v. B.V. Muniraj, (1997) 9 SCC 636.
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The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest
of which payment is secured for the time being are called the mortgage money and the
instrument (if any) by which the transfer is effected is called a mortgage-deed.”19

From the above definition, it becomes clear that there are always two parties to a mortgage
transaction: (i) mortgagor; and (ii) mortgagee. The mortgagor has a right to redeem his property
from the mortgage encumbrance while the mortgagee has the right to sell the mortgaged property
and the right to foreclose by depriving the mortgagor of his right of redemption. The provisions
of Order 34 have been enacted with the avowed object of avoiding multiplicity of suits by
deciding all claims in the presence of the interested parties.

Conditional sale in default of redemption of mortgage within such period would be a clog and is
not valid in law. The document would not be a conditional sale but it is only a usufructuary
mortgage and the provisions of Order 34 CPC would be applicable for redemption of mortgage.20
Where in suit for realization of rent filed by the mortgagee money decree was passed and in
execution of decree the mortgagee purchased the property, it merely created trust, the
relationship of mortgagor and mortgagee continued. The mortgagor had right to redeem the
property.21

In respect of a suit in enforcement of a mortgage, the bar under Order 2, Rule 2 has been kept out
by Order 34, Rule 14 CPC. Rule 15 of Order 34 makes the rules of Order 34 applicable to a
mortgage by deposit of title deeds. The suit to enforce the equitable mortgage was not hit by
Order 2, Rule 2 CPC in view of the earlier suit for recovery of the mid-term loan, especially in
the context of Order 34, Rule 14 CPC.22

19
S. 58(a), Transfer of Property Act, 1882.
20
Mannathan v. Chinnu, AIR 2012 Mad 210 (213, 214)
21
Ram Pyari Devi v. Nazimal Haque, AIR 2013 Pat 23 (24,25)
22
S. Nazeer Ahmad v. State Bank of Mysore, (2007) 11 SCC 75
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CONCLUSION

The whole discussion may be summarized as under:

 Regarding suits relating to immovable property, place of cause of action is immaterial. Place
of residence of defendants and plaintiff is immaterial. Where the property is situate, there the
suit should be filed. This is the most fundamental principle.
 Where the immovable property is situated at different places and within the territorial
jurisdiction of different Courts, there also place of cause of action is immaterial. Place of
residence of plaintiff or defendant is also immaterial. Suit can be filed where any portion of
the immovable property situates.
 As far as suits regarding compensation for wrong to immovable property held by defendant,
the place of residence of plaintiff is immaterial. Suits can be filed where the defendant
resides, or wrong was done in relation to immovable property.
 All the above suits are subjected to pecuniary jurisdiction of the Court.

If we carefully observe, in all cases, the place of residence or where the plaintiff is residing is
immaterial. No suit can be filed exclusively on the basis of place of residence of plaintiff. The
reason is obvious. Plaintiff is the person who files the suit and drags the defendant to court. If he
is allowed to file the suit as he pleases, he may take advantage of it and may harass the defendant
by simply filing suits within the local jurisdiction of court where he resides.
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BIBLIOGRAPHY

PRIMARY SOURCES

Code of Civil Procedure, 1908

SECONDARY SOURCES

1. Civil Procedure with Limitation Act, 1963, Seventh Edition, Eastern Book Company by
C.K. Takwani
2. Mulla The Code of Civil Procedure, B M Prasad, Manish M. Valechha, LexisNexis
Butterworths, 18 Ed Updated 2013
3. The Code of Civil Procedure (C.P.C) by M P Jain, LexisNexis Butterworths, Third
edition, 2011,

WEBLIOGRAPGHY

1. Civil Court Pleadings in India, available at http://legalserviceindia.com/laws/index.html

2. Suits relating to immovable property, available at http://www.mylegaladvisor.in/bare-
acts/limitation-act/part-v-suits-relating-to-immovable-property/
3. Period of Limitation, available at
http://www.karmayog.org/centralgovtacts/centralgovtacts_6601.htm