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Civil Procedure code General Law Notes

Civil Procedure Code, 1908 law notes

October 30, 2020  81292  0

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Table of Contents

1. Definitions (Sec. 2)
1.1. Decree, Judgement, Order
1.1.1. Decree
1.1.2. Deemed Decree
1.1.3. Kinds of Decrees
1.1.4. Preliminary Decree
1.1.5. Final Decree
1.1.6. Partly preliminary and partly final Decree
1.1.7. The necessity of a Decree
1.1.8. Contents of a Decree
1.1.9. Drawing up of a Decree
1.1.10. Decrees in Special cases
1.2. Judgement
1.2.1. Pronouncement of a judgement
1.2.2. Copy of the judgement
1.2.3. Contents of the judgement
1.2.4. Alteration of a judgement
1.3. Foreign Court, Foreign Judgement (Sec. 13)
1.3.1. Nature and Scope of Foreign Judgments
1.3.2. Object of Recognizing Foreign Judgments
1.3.3. Jurisdiction of Foreign Courts
1.3.4. Presumption as to foreign judgments
1.3.5. Conclusiveness of Foreign Judgments
1.3.6. Foreign Judgment not by a competent court
1.3.7. Foreign Judgments not on Merits
1.3.8. Foreign Judgments against International or Indian Law
1.3.9. Foreign Judgments opposed to the principle of Natural Justice
1.3.10. Foreign judgment obtained by fraud
1.3.11. Foreign Judgments founded on breach of Indian Law
1.3.12. Enforcement of Foreign Judgments
1.4. Foreign Award
1.4.1. Effect of Foreign Judgment
1.4.2. Limitation period for Enforcement of Foreign Judgments
1.5. Other definitions: Affidavit, Suit, Plaint, Written Statement
1.5.1. Affidavits – Order 19
1.5.2. Evidence on affidavit
1.5.3. False affidavit
1.5.4. Meaning of suit
1.5.5. Plaint
1.5.6. Necessary Contents of A Plaint
2. Important Concepts
 2.1. Res Sub-Judice and Res Judicata (Sec. 10,11)
2.1.1. Nature, Scope and Objective
2.1.2. Conditions 
2.1.3. Where the matter in issue is same
2.1.4. Test
2.1.5. Suit pending in foreign court
2.1.6. Inherent power to stay
2.1.7. Consolidation of suits
2.1.8. Effect of contravention
2.1.9. Interim orders
2.2. Res Judicata meaning
2.2.1. Principle of Res Judicata
2.2.2. Prerequisites for Res Judicata
2.2.3. Nature and Scope of Res Judicata
2.2.4. Rationale
2.2.5. Failure to Apply
2.2.6. Doctrine of Res Judicata
2.2.7. Constructive Res Judicata
2.2.8. Res Judicata and Estoppel
2.2.9. Res judicata and Res Subjudice
2.2.10. Res judicata and Issue Estoppel
2.2.11. Res Judicata and Stare Decisis
2.2.12. What is Res Judicata and Collateral Estoppel?
2.2.13. Res Judicata landmark cases
2.2.14. Res Judicata landmark cases in India
2.2.15. Exceptions to res judicata
2.2.16. Can Res Judicata be waived?
2.2.17. How to defeat Res Judicata?
2.2.18. Criticism to Res Judicata
2.3. Restitution (Sec. 144)
2.3.1. Doctrine of restitution
2.3.2. Conditions
2.3.3. Who may apply?
2.3.4. Who may grant restitution?
2.3.5. What remedies can the court can grant?
2.3.6. Nature of proceeding
2.3.7. Extent of restitution
2.3.8. Inherent power to grant restitution
2.3.9. Bar of Suit
2.4. Caveat (Sec. 148A)
2.4.1. Meaning of Caveat
2.4.2. When to lodge a Caveat?
2.4.3. Who may lodge a caveat?
2.4.4. Where can a caveat be lodged?
2.4.5. How to file a caveat?
2.4.6. What does a caveat contain?
2.4.7. Right and duties
2.4.8. Rights and duties of the caveator
2.4.9. Rights and duties of court
2.4.10. Rights and duties of the applicant
2.4.11. Limitation of time
2.4.12. Common mistakes made while filing a caveat
2.5. Inherent power of Courts (sec – 148-153B)
2.5.1. Enlargement of time
2.5.2. Payment of court fees
2.5.3. Transfer of business
2.5.4. Section 151 of CPC
2.5.5. Ends of justice
2.5.6. Abuse of process of the court
2.5.7. Limitation
3. Execution of Judgement and Decree (Order 21)
3.1. Meaning, Nature and Scope
3.1.1. Execution proceedings under CPC
3.1.2. Courts which can execute decrees
3.1.3. Transfer of decree for execution
3.1.4. Execution of foreign decrees in India
3.1.5. What is a foreign judgment and a foreign decree?
3.1.6. Foreign judgment or decree needs to be conclusive
3.1.7. Mode of enforcement of a foreign judgment or decree
3.1.8. Execution of foreign decree of a reciprocating territory in India
3.1.9. Execution in case of decrees from non-reciprocating territories
3.1.10. Execution of Indian decrees in a foreign territory
3.1.11. Execution of decree at more than one place
3.1.12. Procedure in execution
3.1.13. Section 51
3.1.14. Mode of executing decree
3.1.15. Execution by appointing a receiver
3.1.16. Section 52
3.1.17. Section 53
3.1.18. Section 54
3.1.19. Powers of the transferor court
3.1.20. Powers of the transferee court
3.1.21. Powers of executing court
3.1.22. Mode of executing a decree
3.1.23. Execution by appointing a receiver.
4. Jurisdiction and Place of Suing (Sec. 15 to 20)
4.0.1. Meaning of jurisdiction
 4.0.2. Jurisdiction of Civil Court (Section 9)
4.0.3. Pecuniary jurisdiction ( Section 15)
4.0.4. Territorial Jurisdiction (Section 16 to 20) 
5. Institution of Suit (Sec. 26)
6. Pleadings: (Order 6)
6.0.1. What are the Pleadings?
6.0.2. What rules to be followed while drafting of pleadings?
6.0.3. In which stage of civil suit pleading can be amended?
6.0.4. Why do courts allow amendment of Pleadings?
6.0.5. What can be amended in pleading?
6.0.6. Can the pleadings be amended if the suit is debarred by the Limitation Act
6.0.7. Why is Order 6 Rule 17 criticized?
6.0.8. What happens when an applicant fails to amend in a prescribed time?
7. Plaint and Written Statement (Order 7,8)
7.0.1. Necessary Contents of A Plaint
7.0.2. Rejection of plaint
7.0.3. Provisions on the Rejection of Plaint under C.P.C.
7.0.4. Landmark Cases on Rejection of Plaint
8. Appearance and Non-Appearance of Parties (Order 9)
8.0.1. Appearance of defendant
8.0.2. Does the same provision apply to the non-appearance of the plaintiff due to
death?
8.0.3. Application to set aside the dismissal
8.0.4. When summon is not served
8.0.5. Ex parte appearance
8.0.6. Remedies against an ex-parte decree
8.0.7. Setting aside an ex-parte decree
8.0.8. Sufficient Cause
9. Commissions (Sec. 75 to 78 Order 26)
9.0.1. Who can be appointed as a commissioner?
9.0.2. What is the procedure for appointment of commissioner?
9.0.3. When can a commissioner be appointed by the Court?
9.0.4. Powers of the commissioner: Order 26 Rule 16-18
9.0.5. Whether the commissioner will be entitled to a Remuneration?
9.0.6. What are the limitations on the commissioner?
10. Receiver (Order 40)
10.0.1. What is the purpose of the appointment of a receiver?
10.0.2. What is the role of a receiver?
10.0.3. Who can appoint a receiver?
10.0.4. How does the court decide whether to appoint a receiver or not?
10.0.5. Who can apply for the appointment of the receiver?
10.0.6. Who can be appointed as a receiver?
10.0.7. When can a receiver be appointed?
10.0.8. What is the process of appointment of a receiver?
10.0.9. What are the powers of the receiver?
10.0.10. What are the duties of the receiver?
10.0.11. What are the liabilities of a receiver?
10.0.12. Will a receiver be entitled to remuneration?
11. Temporary Injunctions (Order 39)
12. Summary Procedure (Order 37)
12.0.1. What is a bill of exchange?
12.0.2. Promissory notes
12.0.3. Institution of summary suits
12.0.4. Contents of plaint for summary procedure
12.0.5. Detailed procedures
12.0.6. Can a summary suit be tried after the institution of an ordinary suit on the
same cause of action?
12.0.7. Setting aside decree in summary suits
13. Appeals from Original Decree ( Section 96 to 99A; Order 41)
13.0.1. Essentials of appealing cases
13.0.2. Right to appeal
13.0.3. One right to appeal
13.0.4. No right to appeal
13.1. First appeal
13.1.1. Who may appeal?
13.1.2. Appeal by one plaintiff against another plaintiff
13.1.3. Appeal by one defendant against another defendant
13.1.4. Who cannot appeal?
13.1.5. The appeal against ex parte decree
13.1.6. No appeal against consent decree
13.1.7. No appeal in petty cases
13.1.8. The appeal against Preliminary Decree
13.1.9. The appeal against a dead person
13.1.10. Forms of appeal
13.1.11. Forum of appeal
14. Appeals from Appellate Decrees (Section 100; Order 42)
14.1. Nature and Scope
14.1.1. Nature of the second appeal
14.1.2. Scope of the Second Appeal
14.1.3. Cases Laws
14.1.4. The substantial question of law
14.1.5. No letters patent appeal
14.1.6. Forum of the second appeal
14.1.7. Appeal from order
14.1.8. Appeal from Appellate decree
14.1.9. Appeal to the Supreme Court
 14.1.10. Grounds of Appeal
14.1.11. Power of High Court to decide the issue of fact
14.1.12. Procedure at hearing 
14.1.13. After hearing the appeal the appellate court may-
14.1.14. Document to be submitted with the appeal
14.1.15. Pending appeals
14.1.16. Cases
15. General Provisions relating to Appeals (Section 107,108)
15.1. Reference to High Court (Section 113; Order 46)
15.1.1. Nature and scope
15.1.2. Conditions
15.1.3. Who may apply?
15.1.4. Power and duty of referring court
15.1.5. Power and duty of the High Court
15.1.6. Article 228 and Section 113
15.1.7. Procedure at hearing
15.1.8. Costs
16. Review (Section 114; Order 47)
16.1. ORDER XLVII
16.1.1. CONDITIONS FOR APPLICABILITY
16.1.2. WHO CAN FILE A “REVIEW”
16.1.3. GROUNDS FOR REVIEW:
17. Revision (Section 115)
17.1. Meaning
17.1.1. Nature, Scope and Object
17.1.2. Who may file?
17.1.3. Conditions for Revision
17.1.4. Precedents
17.1.5. No appeal lies
17.1.6. Jurisdictional error
17.1.7. Subordinate court
17.1.8. Alternative remedy
17.1.9. Limitations on revisional jurisdiction
17.1.10. Suo moto exercise of power
17.1.11. Interlocutory Orders
17.1.12. Death of Applicant
17.1.13. Doctrine of Merger
17.1.14. Procedure of Revision
17.1.15. Recording of Reasons
17.1.16. Letters Patent Appeal
17.1.17. Conversion of Revision into Appeal
17.1.18. Law commission’s view on Revision
18. Case laws
18.1. Brijlal Ramjidas v. Govindram Gordhandas Seksaria(Judgement)
18.2. Neeta vs. Shiv Dayal Kapoor & Others(Res sub-judice)
18.3. Lowe v. Haggerty(Res judicata)
18.4. Official Trustee vs Sachindra Nath(Jurisdiction and place of suing)
18.5. Annapoorani Ammal vs G.Thangapolam(Appeals from Appellate Decree)
18.6. A Sreenivasa Rao and Ors v. Govt of Andra Pradesh(Reference to High Court)

Definitions (Sec. 2)

Decree, Judgement, Order

Decree

The term decree is defined in Section 2(2) of Code of Civil Procedure, 1908. A
decree always follows judgement and is based upon a judgement. It is divided into
five types unlike judgement which is final in itself. A decree may be final or
preliminary. It is a formal declaration or adjudication and is conclusive in nature. A
decree is of three kinds namely, preliminary decree, final decree and partly
preliminary & partly final. A decree may be delivered with an order. The decree
contains the outcome of the suit and conclusively determines the rights of the
parties with regard to the issues in dispute in the suit. After passing the decree, the
suit stands disposed of since the rights of the parties are finally determined by the
court.

Deemed Decree

A decree shall be deemed to include the rejection of a plaint and any question
within Section 144 of Code of Civil Procedure,1908 but shall not include:

Any such sentence(adjudication) from which it appears that an appeal lies as an

appeal from an order, or any such order of discharge(dismissal) of default.
 

Kinds of Decrees

According to Section 2(2) of the Code of Civil Procedure,1908 decrees are divided
into three categories:

Preliminary Decree

In general sense, the word preliminary means preparation for the main matter,
initial, introductory, preparatory. In a legal sense, a preliminary decree is a decree
where further proceedings have to take place before the suit can be completely
disposed of. It decides the rights of the parties in respect to all or any of the
matters of discussion but it does not completely dispose of the suit. In such a
decree the rights and liabilities of the parties are stated leaving the actual result or
decision to be worked out in future proceedings. A preliminary decree is passed in
those cases where the proceedings are to be carried out in two different stages. The
first stage is when the rights of the parties are adjudicated and the second stage is
when those rights are implemented or executed.

Final Decree

In general sense, the word ‘final’ means last, ultimate, conclusive or decisive. In
legal sense, a final decree is a decree which completely disposes of the suit and
settles all the questions in discussion between the parties and nothing is left further
for deciding thereafter. It is only said to be final when such adjudication completely
disposes of the suit.

Partly preliminary and partly final Decree

A decree is said to be partly preliminary and partly final when the court decides two
questions by the same decree. For instance, if the court passes a decree in favour
of one party along with a direction of inquiry for the other party, the former part of
the decree is final while the latter part is a preliminary decree for which further
proceedings have to take place. For example, in a suit of possession of a property
with company ‘C’, if the court passes a decree of possession of the property in
favour of the plaintiff and directs an enquiry into the company ‘C’, then the former
part of the decree is final decree while the latter part is the preliminary decree.

The necessity of a Decree

The Code of Civil Procedure requires the passing of a decree in all the suits. A
decree is based upon judgement and it also follows a judgement which is the reason 
why it is an indispensable and essential requisite. The decree is indispensable or an
absolute requisite. It is an essential part of the ultimate outcome of the suit. An
appeal can be made against a decree and not against a judgement. If the decree is
absent an appeal cannot be ‘put in motion’.

Contents of a Decree

A decree always follows the judgement, coincide with it and contains:

1. The suit’s number – Every suit has a particular number and it should be
mentioned in the decree.

2. The names, description and registered addresses of the parties – Every decree
shall have the names of all the parties of that particular suit, the proper
description of the parties of the suit, and the registered addresses of all the
parties of the suit.

3. The particulars of the parties claims or defence – Every decree shall contain the
details of the claims and the defences the parties are claiming as an outcome of
the said suit.

4. The relief or the remedy granted to the aggrieved party – The decree should in
particular mention the relief granted to the particular party as a remedy and not
a reward.

5. The total amount of cost incurred in the suit-

1. by whom; or

2. out of what property; and

3. in what portions are they paid or are to be paid.

6. The judgement’s date of pronouncement or delivery date of the judgement – The

decree should mention the date on which the judgement was delivered followed
by the decree.

7. The judge’s signature on the decree – The judge’s signature is an essential and
indispensable element of any decree. The signature of the judge delivering the
judgement is an essential requisite.

Drawing up of a Decree

Rule 6A Order XX of Code of Civil Procedure,1908 states that a decree shall be

drawn within 15 days of the judgement. An appeal can be favoured or preferred
without filing a copy of a decree if it is not drawn within 15 days of the judgement.

Decrees in Special cases

In a lawsuit for the recovery or process of regaining or repossession of an

immovable property(real estate), the decree shall include a description of such
property so that it is sufficient to recognise or identify it.

In a decree for movable property(personality), it must mention the exact amount

of money to be paid as an alternative in case the delivery is not made due to any
reason either it be reasonable or appropriate.

In a decree for payment of money, the Court may order that the payment of
decretal amount i.e., the amount mentioned in the decree shall be:

1. postponed which is delayed to a future date; or

2. made by installments with or without interests.

In a suit for the recovery or process of regaining or repossession of immovable

property, the Court may pass a decree- for possession or gaining of property.

for past rents or mense profits. (mesne profits are the profits of an estate received
by a tenant in wrongful possession and recoverable by the landlord) that is a final
decree in respect of rent or mesne profits in accordance with results of such enquiry
as mentioned.

Rule 12A of the Code of Civil Procedure,1908 states that a decree for specific
performance of a contract for sale or lease of an immovable property which can also
be termed as real estate shall specify the exact period within which the amount of
money or other sum is to be paid by the purchaser or lessee. 

Rule 13 of the Code of Civil Procedure,1908 states that the final decree shall be
passed or delivered in accordance with the result of preliminary enquiry i.e., in a
lawsuit for an account of any property either movable or immovable and for its due
administration under the decree of Court, before passing a final decree, the court
should pass a preliminary decree ordering accounts to be taken and enquiries to be
made.

Rule 14 of the Code of Civil Procedure,1908 states a decree in a pre-emption suit, it

is a suit where the displacement of a lower jurisdiction’s laws when they conflict
with those of a higher jurisdiction, where the purchase money has not been paid
into Court, shall specify a particular day on or before which the purchase money has
to be paid and direct that on payment to Court, the defendant shall deliver property
to the plaintiff, but if the payment is not made on a specific day, the lawsuit shall be
dismissed with costs. In cases the Court has settled upon rival claims to pre-
emption, the decree shall direct:

The claim or defence of each pre-emptor shall take effect proportionately if the
claims decreed are equal in degree.

The claim or defence of the inferior pre-emptor will not take place till the superior
pre-emptor fails to make the payment if the claims decreed are different in degree.

In a lawsuit for dissolving of partnership or taking of partnership accounts, the

Court can pass a preliminary decree before passing a final decree declaring the
exact shares of all the parties, fixing of a particular day on which the partnership
shall become dissolved and directing the accounts to be taken and other necessary
actions to be done. In a lawsuit for accounts between a principal person and agent,
the Court can pass a preliminary decree before passing a final decree directing the
accounts that have to be taken and it can also provide special directions in regards
to the mode of taking accounts as well. In a decree passed in a lawsuit for partition
of property either movable or immovable or for separate possession of share in the
property, The decree shall declare the rights of several parties interested in that
property but shall direct partition or separation to be made by collector and in other
cases of immovable property in case the estate is assessed to the payment of
revenue to the government.

The Court shall pass a preliminary decree declaring all the rights of the parties in
estate and giving necessary directions and then the final decree is passed, if
separation or partition cannot conveniently be made without further inquiry.

A decree where the defendant has been allowed leave or start with a counterclaim
against the initial claim of the plaintiff shall state with what amount is due to the
plaintiff and what amount is due to the defendant thereafter.

Judgement
The term Judgement is defined in Section 2(9) of the Code of Civil Procedure, 1908.
A judgement contains facts of the case, the issues involved, the evidence brought
by the parties, finding on issues (based on evidence and arguments). Every
judgement shall include a summary of the pleadings, issues, finding on each issue,
ratio decidendi and the relief granted by the court. On a daily basis, numerous
judgements are pronounced and various cases are disposed of. Judgements play a
very important role in the working of our judicial system because they act as
precedents for cases to come in the near future. A judge in the judgement
pronounced, always states the reasons for such a decision. 

Pronouncement of a judgement

The word pronouncement means to make an official public announcement.

Pronouncement of a judgement means that after the hearing is completed i.e. after
the Court has heard the pleadings of the parties, the judgement shall be announced
by the Judges in an open Court, either at once or at some future day, after
providing due notice to the parties or their learned counsels.

If a judgement is not pronounced immediately then it must be pronounced within

30 days from the date of the conclusion of hearing. However, sometimes it so
happens that due to exceptional and some extraordinary reasons like a bank
holiday, strike or some other situation it may be delivered within 60 days from the
conclusion of the hearing. It is not mandatory for a judge to read out the whole
judgement and it would be enough if only the final order is pronounced. The judge
shall put the date on which the judgement was pronounced along with his
signature. Rule 2 Order XX of Code of Civil Procedure, 1908 provides a judge with
the right to pronounce the judgement which is already written but is not
pronounced by his predecessor.

After the Amendment Act of 1976, the time limit was provided between the hearing
of the arguments and the pronouncement of the judgement. Prior to this
amendment no time limit was provided as such. Such a time limit was provided
because there was indefinitely continuous imposition from all over India.

Copy of the judgement

Once the judgement is pronounced the copies of that particular judgement should
be immediately made available to the parties on payment of costs as specified, by
the party applying for such copy, of such charges as may be specified in the rules
and orders made by the High Court (H.C.) Such a rule is specified in Order XX Rule
6-B of the Code of Civil Procedure, 1908.

Contents of the judgement

According to Rule 4 Order XX of Code of Civil Procedure, 1908:

Judgements of a Court of Small Causes are satisfactory if they contain the points for
determination and the decision thereon.

Judgments of other Courts shall contain:

Summary of the pleadings which is a concise statement of the case;

Issues which are the points for determination;

Findings on each issue and the decision thereon;

Ratio decidendi (reasons for such a decision); and

The remedy, which is the relief granted.

Alteration of a judgement

Once a judgement is dated and signed by the judge it can only be altered or
amended if:

There are arithmetical or clerical errors. (clerical errors refer to the errors made by
clerks and arithmetical errors refer to errors made in numbers such as addition,
subtraction, multiplication and division). There are errors due to accidental slips or
omissions (these errors take place when some essential element is left unnoticed)
(Section 152) on review (Section 114).

Foreign Court, Foreign Judgement (Sec. 13)

The Indian Code of Civil Procedure, 1908 (CPC) lays down the procedure for
enforcement of foreign judgments and decrees in India. CPC, 1908 had defined the
following as-
Section 2(5) “foreign Court” means a Court situated outside India and not
established or continued by the authority of the Central Government. 

Section 2(6) “foreign judgment” means the judgment of a foreign Court.

Nature and Scope of Foreign Judgments

Section 13 embodies the principle of res judicata in foreign judgments. It embodies

the principle of Private International law that a judgment delivered by a foreign
court of competent jurisdiction can be executed and enforced in India.

Object of Recognizing Foreign Judgments

The judgment of a foreign court is enforced on the principle that where a foreign
court of competent jurisdiction has adjudicated upon a claim, a legal obligation
arises to satisfy that claim in the country where the judgment needed to be
enforced. The rules of private international law of each state differ in many
respects, but by the comity of nations certain rules are recognized as common to
civilized Jurisdictions. Through part of the judicial system of each state these
common rules have been adopted to adjudicate upon disputes involving a foreign
element and to enforce judgments of foreign courts, or as a result of International
conventions. Such a recognition is accorded not as an act of courtesy but on
consideration of basic principles of justice, equity and good conscience. An
awareness of foreign law in the parallel jurisdiction would be a useful guideline in
determining our notions of justice and public policy. We are a Sovereign Nation
within our territory but “ it is not derogation of sovereignty to take accounts of
foreign law”.

“We are not provincial as to say that every solution of the problem is wrong because
we deal with it otherwise at home”.Therefore, we shall not brush aside foreign
judicial processes unless doing so, “would violate some fundamental principle of
justice & deep-rooted traditions of common weal”.

Jurisdiction of Foreign Courts

In Private International Law, unless a foreign court has jurisdiction in the

international sense, a judgment delivered by that court would not be recognized in
India. But it considers only the territorial competence of the court over the subject-
matter and defendant. Its competence or jurisdiction in any other sense is not
regarded as material by the court in this country.

Presumption as to foreign judgments

Section 14 states the presumption that an Indian court takes when a document
supposing to be a certified copy of a foreign judgment is presented before it. The
Indian Courts presume that a foreign Court of competent jurisdiction pronounced
the judgment unless the contrary appears on the record, but by proving want of
jurisdiction may overrule such presumption.

Section 14. Presumption as to foreign judgments – The Court shall presume, upon
the production of any document purporting to be a certified copy of a foreign
judgment, that such judgment was pronounced by a Court to competent
jurisdiction, unless the contrary appears on the record; but such presumption may
be displaced by proving want of jurisdiction[6].

Conclusiveness of Foreign Judgments

Section 13 lays down the fundamental rules which should not be violated by any
foreign court in passing a decree or judgment. The decree or judgment of foreign
court will be conclusive except where it comes under any of the clauses (a) to (f) of
Section 13.

When foreign judgment is not conclusive-A foreign judgment shall be conclusive as

to any matter thereby directly adjudicated upon between the same parties or
between parties under whom they or any of them claim litigating under the same
title except,—

(a) Where it has not been pronounced by a Court of competent jurisdiction;

(b) Where it has not been given on the merits of the case;
(c) Where it appears on the face of the proceedings to be founded on an incorrect
view of international law or a refusal to recognize the law of India in cases in which 
such law is applicable

(d) Where the proceedings in which the judgment was obtained are opposed to
natural justice;

(e) Where it has been obtained by fraud;

(f) Were it sustains a claim founded on a breach of any law in force in India.

Foreign Judgments when cannot be Enforced in India

Before enforcing a foreign judgment or decree, the party enforcing it must ensure
that the foreign judgment or decree must not fall under these 6 cases. If the foreign
judgment or decree falls under any of these tests, it will not be regarded as
conclusive and hence not enforceable in India. Under Section 13, there are six cases
when a foreign judgment shall not be conclusive. Six tests are discussed below.

Foreign Judgment not by a competent court

It is a basic fundamental principle of law that the judgment or order passed by the
court which has no jurisdiction is void. Thus, a judgment of a foreign court to be
conclusive between the parties must be a judgment pronounced by a court of
competent jurisdiction. Such judgment must be by a court competent both by law
of the state which has constituted it and in an international sense and it must have
directly adjudicated upon the matter which is pleaded as Res judicata.

In the case of R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar, it was alleged by
the respondent that since he was not a subject of the foreign country, and that he
had not submitted to the jurisdiction of the Foreign Court (Singapore Court), the
decree could not be executed in India. The Appellant, in defense of this argument,
stated that the Respondent was a partner of a firm which was doing business in
Singapore and had instituted various suits in the Singapore Courts. Therefore, the
Respondent had accepted the Singapore Courts jurisdiction. The Court held that it
was the firm which had accepted the jurisdiction of the foreign Court and the
Respondent, in an individual capacity, had not accepted the jurisdiction. Thus, the
High Court held that the decree against the Respondent was not executable.

PROPOSITION

Under Section 13(a) of CPC, the following proposition may be laid

In case of actions-in-personam, a foreign court may pass an order or judgment

against an Indian defendant, who is served with the summons but he remains ex
parte. But it may be enforceable against such Indian defendants, by fulfilling any
of the following conditions.

If the person is a subject of the foreign country in which the judgment or decree
has been obtained against him on prior occasions.

If the person is a resident in foreign country when the action is commenced.

If a person selects the foreign Court for taking action in the capacity of a plaintiff,
in which he is sued later

If the party on being summoned voluntarily appears before the foreign court

If by an agreement a person has contracted to submit himself to the Court in

which the judgment is obtained.

Foreign Judgments not on Merits

In order for a foreign judgment to operate as Res Judicata, it must have been given
on merits of the case. A judgment is said to have been given on merits when after
taking evidence and after applying his mind regarding the truth or falsity of the
case.

The Actual test for deciding whether the judgment has been given on merits or not
is to see whether it was merely passed as a matter of course, or by way of penalty
of any conduct of the defendant, or is based upon a consideration of the truth or
falsity of the plaintiff”s claim.
In the case of Gurdas Mann v. Mohinder Singh Brar,he Punjab & Haryana High Court
held that an ex parte judgment and decree which did not show that the plaintiff had 
led evidence to prove his claim before the Court, was not executable under Section
13(b) of the CPC since it was not passed on the merits of the claim.

PROPOSITION

Under Section 13(b) of CPC the following proposition may be laid

A judgment or decree passed by a Foreign Court against an Indian defendant, who

has remained ex-parte, may not be enforceable against him, unless it can be shown
that the said judgment was passed after investigation into the plaintiff’s claim.

Foreign Judgments against International or Indian Law

A Judgment which is contrary to the basic fundamental rules of International law or

a refusal to recognize the law of India where such law is applicable is not
conclusive. Where a suit instituted in England on the basis of contract made in
India, the English court erroneously applied English law, thus, the judgment of the
court is covered by this clause as the general principle of Private International Law
is that the rights and liabilities of parties to a contract are governed by the place
where the contract is made (lex loci contractus).[12]

In the case of I & G Investment Trust v. Raja of Khalikote, a suit was filed under the
English Jurisdiction to avoid the consequences of the Orissa Money Lenders Act. The
Court held that the judgment was passed on an incorrect view of the international
law. The Court further observed that, although the judgment was based on the
averment in the plaint that the Indian law did not apply, however, there was no
“refusal” to recognise the local laws by the Court.

PROPOSITION

Under Section 13(c) of CPC, the following proposition may be laid

A judgment passed by a foreign Court upon a claim for immovable property,

situated in the Indian territory may not be enforceable since it violates International
Law. A judgment passed by the foreign Court, where before a contrary Indian law
had been shown, but the Court had refused to recognize such law, then that
Judgment or decree may not be enforceable, except where the proper law of
contract is the foreign law.

Foreign Judgments opposed to the principle of Natural Justice

It is the essence of a judgment of court that it must be obtained after due

observance of the judicial procedure i.e., the court rendering the judgment must
observe the minimum requirements of natural justice. It must be composed of
impartial persons, who must act in a fair and justified manner, without bias, and in
good faith, it must give reasonable notice to the parties to the dispute and each
party should be given equal opportunity to present their case. A judgment which
suffers from such infirmities on the part of a judge will be regarded as a nullity and
the trial “coram non judice”

In the case of Lalji Raja & Sons v. Firm Hansraj Nathuram, the Supreme Court held
that just because the suit was decreed ex-parte, although the defendants were
served with the summons, does not mean that the judgment was opposed to
natural justice.

PROPOSITION

Under Section 13(d) of CPC, the following proposition may be laid The foreign court
must follow the principle of natural justice while delivering the judgment.
Judgement must be impartial, given fairly, moreover, the parties to the dispute
should be given appropriate notice of the initiation of legal proceedings. Equal
opportunity of presenting their case, in order to avoid any allegation of not fulfilling
the principles of natural justice in case the judgment or decree comes to the Indian
court for enforcement. Unless this is done the judgment or decree passed by a
foreign Court may violate the Principles of Natural Justice.

Foreign judgment obtained by fraud

It is a well settled principle of Private International Law that if foreign judgments
are obtained by fraud, it will not operate as res judicata. 

It has been said “Fraud and Justice never Dwell together” (fraus et jus nunquam
cohabitant); or “ Fraud and deceit ought to benefit none” (fraus et dolus nemini
patrocinari debent).

In the case of Satya v. Teja SingH, the Supreme Court held that since the plaintiff
had misled the foreign court as to its having jurisdiction over the matter, although it
could not have had the jurisdiction, the judgment and decree was obtained by fraud
and hence inconclusive.

In S.P. Chengalvaraya Naidu v. Jagannath, Supreme Court held that it is a well

settled proposition of law that a judgment or decree obtained by playing fraud on
the court is a nullity and non est in the eyes of law.

PROPOSITION

Under Section 13(e) of CPC, the following proposition may be laid -Where the
plaintiff misleads the Foreign court and the judgment or decree is obtained on that
basis, the said Judgment may not be enforceable, however, if there is some error in
the judgment then the Indian courts will not sit as a Court of appeal to rectify the
mistake or error.

Foreign Judgments founded on breach of Indian Law

When a law in force in India is wrongly construed so as to form the reasoning
behind a judgment delivered by a foreign court, in such cases the enforceability of
the foreign judgment in Indian courts will be under question.

China Shipping Development Co. Limited v. Lanyard Foods Limited, wherein the
High Court held that a petition for winding up of an Indian company would be
maintainable on the basis of judgment of foreign Court. In this case, the foreign
company delivered cargo to the Indian company in compliance with requests made
by the Indian company and in the process the foreign company had incurred certain
liabilities towards third parties and it had to pay certain amount in legal proceedings
and therefore, in terms of the letter of indemnity issued by the respondent Indian
company, the foreign company claimed the amount from the respondent Indian
company, which denied its liability and therefore the foreign petitioner company
initiated legal proceedings against the Indian company in the English Courts as
provided in the Letter of Indemnity.

The respondent Indian company did not file defence and therefore the English Court
passed an ex-parte order awarding a certain amount in favor of the petitioner
foreign company on consideration of evidence and on the merits of the claim filed
by the foreign company. By a notice issued under sections 433 and 434 of the
Companies Act, 1956, the petitioner foreign company called upon the respondent
Indian company to pay the amount due under the order of the English Court.

After the respondent Indian company failed to honour the amount, the petitioner
Foreign Company filed a petition for winding up of the Indian company. In the above
circumstances since the records of the case manifestly revealed that the respondent
Indian company was unable to pay its debts, the petition for winding up was
admitted vide order dated 4.4.2007 under sections 433 and 434 of the Companies
Act, 1956.

PROPOSITION

Under Section 13(f) of CPC, the following proposition may be laid -A judgment
passed by a foreign court, which breaches any law in force in India may not be
enforceable, except where it is based on a contract having a different “proper law of
the contract”.

Enforcement of Foreign Judgments

A foreign Judgment which is conclusive and does not fall within section 13 (a) to (f),
may be enforced in India in either of the following ways.

By instituting execution proceedings

A foreign Judgment may be enforced by proceedings in execution in certain
specified cases mentioned in Section 44-A of the CPC. 

Section 44A – Execution of decrees passed by Courts in reciprocating territory[20].-

(1) Where a certified copy of a decree of any of the superior courts of any
reciprocating territory has been filed in a District Court, the decree may be executed
in India as if it had been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from
such superior court stating the extent, if any, to which the decree has been satisfied
or adjusted and such certificate shall, for the purposes of proceedings under this
section, be conclusive proof of the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the
decree apply to the proceedings of a District Court executing a decree under this
section, and the District Court shall refuse execution of any such decree, if it is
shown to the satisfaction of the Court that the decree falls within any of the
exceptions specified in clauses (a) to (f) of section 13.

Explanation I: “Reciprocating territory” means any country or territory outside India

which the Central Government may, by notification in the Official Gazette, declare to
be a reciprocating territory for the purposes of this section, and “Superior Courts”,
with reference to any such territory, means such courts as may be specified in the
said notification.

Explanation II: “Decree” with reference to a superior Court means any decree or
judgment of such court under which a sum of money is payable, not being a sum
payable in respect of taxes or other charges of a like nature or in respect of a fine
or other penalties, but shall in no case include an arbitration award, even if such an
award is enforceable as a decree or judgment.

Moloji Nar Singh Rao vs Shankar Saran, Supreme Court held that a foreign
judgment which does not arise from the order of a superior court of a reciprocating
territory cannot be executed in India. It ruled that a fresh suit will have to be filed
in India on the basis of the foreign judgment.”

Therefore Under Section 44A of the CPC, a decree or judgment of any of the
Superior Courts of any reciprocating territory are executable as a decree or
judgment passed by the domestic Court. The judgment, once declared, will be
executed in accordance with section 51 of the Code. Thereafter, the court may order
measures such as attachment and sale of property or attachment without sale, and
in some cases arrest (if needed) in enforcement of a decree. This is done by the
methods discussed below.

By instituting a suit on such foreign judgment

Where a judgment or decree is not of a superior court of a reciprocating territory, a

suit has to be filed in a court of competent jurisdiction in India on such foreign
judgment. The general principle of law is that any decision of a foreign court,
tribunal or any other quasi-judicial authority is not enforceable in a country unless
such decision is embodied in a decree of a court of that country. In such a suit, the
court cannot go into the merits of the original claim and it shall be conclusive as to
any matter thereby directly adjudicated between the same parties. Such a suit must
be filed within a period of 3 years from the date of judgment[23].

In Marine Geotechnics LLC v/s Coastal Marine Construction & Engineering Ltd, the
Bombay High Court observed that in case of a decree from a non-reciprocating
foreign territory, the decree-holder should file, in a domestic Indian court of
competent jurisdiction, a suit on that foreign decree or on the original, underlying
cause of action, or both.

However, in both the cases, the decree has to pass the test of Section 13 CPC which
specifies certain exceptions under which the foreign judgment becomes inconclusive
and is therefore not executable or enforceable in India.

Foreign Award
An award passed by foreign arbitrator is enforceable in a country where it was made
and can also be enforced in India. Courts may refer to CPC or any other statute
while considering the procedure to be followed for enforcement of foreign awards
under Foreign Awards (Recognition and Enforcement) Act (45 of 1961) 

Effect of Foreign Judgment

A foreign judgment is conclusive for any matter adjudicated between the parties.
Such judgment is conclusive and would create Res judicata between the same
parties or between parties under whom they or any of the claims.

Limitation period for Enforcement of Foreign Judgments

As per the provisions of the Code, foreign judgments from reciprocating territories
are enforceable in India in the same manner as the decrees passed by Indian
courts. The Limitation Act, 1963 prescribes the time limit for execution of a foreign
decree and for filing of a suit in the case of judgment passed by foreign court.

Three years, commencing from the date of the decree or where a date is fixed for
performance; in case of a decree granting a mandatory injunction; and

Twelve years for execution of any other decree commencing from the date when
the decree becomes enforceable or where the decree directs any payment of
money or the delivery of any property to be made at a certain date, when default
in making the payment or delivery in respect of which execution is sought, takes
place.

A judgment obtained from a non-reciprocating territory can be enforced by filing a

new suit in an Indian court for which a limitation period of 3 years has been
specified under the Limitation Act, 1963 commencing from the date of the said
judgment passed by foreign court.

Other definitions: Affidavit, Suit, Plaint, Written

Statement

Affidavits – Order 19
Affidavits are dealt under Order 19 of the Code. It is a sworn statement made by
the person who is aware of the facts and circumstances which have taken place.
The person who makes and signs is known as ‘Deponent’. The deponent makes sure
that the contents are correct and true as per his knowledge and he thereby
concealed no material therefrom. After signing the document, the affidavit must be
duly attested by the Oath Commissioner or Notary appointed by the court of law.

The person who gives attestation to the affidavit shall make sure that the sign of
the deponent is not forged. The affidavit shall be drafted as per the provisions of
the code. It must be paragraphed and numbered properly.

Even though the “affidavit” has not been defined in the code, it basically means “a
sworn statement in writing made specifically under oath or affirmation before an
authorized officer or Magistrate.”

Essentials

There are some basic essentials which are required to be fulfilled while submitting
the affidavit in the court:

It must be a declaration by a person.

It shall not have any inferences, it shall contain facts only.

It must be in the first person.

It must be in writing.

It must be statements which are taken under oath or affirmed before any other
authorized officer or a Magistrate.

Contents of affidavit

As per Rule 3, an affidavit shall contain only those facts to which the deponent is
aware of as true to his personal knowledge. However, interlocutory applications can
be filed wherein he can admit his belief.
Evidence on affidavit

As per section 3 of the Evidence Act, affidavits are not considered as evidence.
When there is a need to prove the facts, oral evidence is normally taken into
consideration by the court. However, Rule 1 Order 19 is invoked by the Court when
it finds that it is necessary to make an order for any particular fact which may be
proved by affidavit. If a person provides evidence under the affidavit then the
opposing counsel has the right to cross-examine or reply-in-affidavit.

Further, the person who is making an affidavit shall put on those facts only to which
he has true personal knowledge. If he gives a statement, not to his personal
knowledge then in such case he shall mention the true source. The counsel shall
advise the deponent to make sure that he puts facts which he knows rather than
what he believes.

The court can reject the affidavit if it is not properly verified and not in conformity
with the rules of the code. At the same time the court can also give an opportunity
to the party to file the affidavit properly.

In the interlocutory applications like interim injunctions, the appointment of

receiver, attachment of property wherein the rights of the parties are not
determined conclusively, can be decided on the basis of the affidavit.

False affidavit
Under Section 191, 193, 195, 199 of IPC,1860, filing a false affidavit is an offence.
Giving a lenient view will undermine the value of the document and it will harm the
proceedings and will provide no justice to the parties. Criminal contempt of court
proceedings can be initiated by the court against the person who files false
affidavits in the court of law. Strict actions are taken against public officials who
files false affidavits.

As per section 193 of the IPC:

a person who intentionally gives false evidence or fabricates false evidence

during a judicial proceeding, he shall be punished with seven years of
imprisonment and fine;

and whoever intentionally gives or fabricates false evidence in any other case,
shall be punished with imprisonment of either description for a term which may
extend to three years, and shall also be liable to fine.

Meaning of suit

The word suit has not been defined anywhere in the Code, but it is a proceeding
which is commenced by presentation of a plaint. In Hansraj Gupta and Ors. vs.
Official Liquidators of the DehraDun-Mussoorie Electric Tramway Co.Ltd., the Privy
Council has defined the expression “suit” as a civil proceeding instituted by
presentation of a suit.

In Pandurang Ramchandra vs. Shantibai Ramchandra, the Supreme Court has

stated suit is to be understood to apply on any proceeding in a court of justice by
which an individual pursues that remedy which the law affords.

Plaint

A Plaint is a legal document that contains the content of any civil suit which shows
the Plaintiff’s claim after filing suit. The plaintiff is the first step of the Plaintiff in the
form of a legal document for the commencement of suit and it shows what a
Plaintiff wants from that suit. The concept of a plaintiff is mentioned in the Civil
Procedure Code. Through the help of the plaintiff, the plaintiff narrates or describes
the cause of action and related information which is considered as essential from
the viewpoint of the suit.

In the case of the plaintiff, the cause of action consists of two divisions, first is the
legal theory (the factual situation based on which the plaintiff claims to have
suffered) and second is the legal remedy that the plaintiff seeks from the court. A
plaint is considered an important concept because it is the foremost and initial stage
to initiate any lawsuit and helps to find a civil court of appropriate jurisdiction.
Order VII of the Code of Civil Procedure deals, particularly with plaint. In Order VII
of CPC, there are many different rules which deal with different constituents of 
plaint. Rules 1 to 8 deal with the particulars of the plaint. Rule 9 of CPC deals with
how the plaint will be admitted and after that Rule 10 to 10-B talks about the return
of the plaint and the appearance of parties. And the main Rules i.e 11 to 13 deal
with the rejection of the plaint and in which circumstances the plaint can be
rejected.

Section 26 of the Code of Civil Procedure states “Every suit shall be instituted by
the presentation of a plaint or in such other manner as may be prescribed.” This
section clearly shows that plaint is very much necessary for the establishment of a
suit before the civil or commercial court.

Necessary Contents of A Plaint

A plaint is a legal document that contains a lot of necessary contents in the absence
of which, it cannot be considered as a plaint. The contents necessary for a plaint are
mentioned in Rules 1 to 8 of Order VII of CPC. These are mentioned below:

Plaint should contain the name of the commercial or civil court where a suit will
be initiated.

Plaint should contain details of the plaintiff such as the name, address, and
description.

Plaint should contain the name, residence, and description of the defendant.

When a plaintiff has some defects or problems in health or any type of disability,
the Plaint should contain a statement of these effects.

Plaint should contain the facts due to which cause of action arises and where the
cause of action arises it should also be mentioned.

Plaint should not only mention facts due to which cause of action arises but also
those facts which help in recognizing the jurisdiction.

Plaint should also contain about that relief which the plaintiff seeks from the
court.

When the plaintiff is ready to set off a portion of his claim, the Plaint should
contain that amount which has been so allowed.

Plaint should contain a statement of the value of the subject-matter of suit not
only for the purpose of jurisdiction but also for the purpose of court-fees.At last,
the content that should be on plaint is the plaintiff verification on oath.

This shows that the plaint is a necessary component for the successful initiation of
suits in commercial or civil courts and plays a very important role throughout the
suit. Some additional particulars which were not mentioned above include the
following: Plaintiff shall state the exact amount of money to be obtained from the
defendant as given under Rule 2 of order VII whereas Rule 3 of order VII of CPC
states that when the plaint contains subject matter of immovable property, then the
property must be duly described.

Important Concepts

Res Sub-Judice and Res Judicata (Sec. 10,11)

Nature, Scope and Objective

The principle of res sub-judice prevents the court from proceeding with the trial of
any suit in which the matter in issue is directly or substantially the same with the
previously instituted suit between the same parties and the court where the issue is
previously instituted is pending has the power to grant the relief sought.

This rule is applicable to the trial of the suit and not the institution. It does not
restrict the court from passing interim orders like injunction or stay. However, it
applies to revisions and appeals.

The purpose behind this rule is to prevent multiplicity of cases in courts. It is also
sought to prevent the plaintiff from getting two separate decisions from different
courts in his favour or two contradictory judgements. It also ensures to protect the
litigant from unnecessary harassment. The policy of law is to restrict the plaintiff to
one legislation, thus obviating the possibility of two conflicting verdicts by one and
the same court in respect of the same relief. 

Conditions
Section 10 of the Civil Procedural Code, 1908 deals with the conditions required to
apply the principle of res sub judice. The conditions in the process of application of
res sub-judice are:

Where the matter in issue is same

Section 10 clearly states that the matter in issue in both the suits must be directly
or substantially be the same.In other words there must be two suits one that is
previously instituted and another that is subsequently substituted. The issues of
both the suits should be the same to get the benefit of this principle, it is not
sufficient if only one or two issues are common. In the circumstances where the
entire issues are not the same, the court may exercise its power under Section 151
and stay the trial in a subsequent suit or the trial of the suit may be consolidated.
The power of courts to stay the trial under Section 151 is discretionary in nature
and can be exercised only when there is an abuse of process of court and if it
defeats the ends of justice.

According to Indian Evidence Act, 1872 “matter in issue” are of two kinds:

Matter directly and substantially in issue– Here “directly” means immediately i.e.
without any intervention. The word “substantially” implies essentially or materially.

Matter collaterally and incidentally in issue– It is just contrary to the matter directly
or substantially in issue.

Where the parties in suits are same

The two suits should have the same parties or their representatives.

Where the title of the suit is same

The title of both the suits for which the parties are litigating should also be same.

Where the suit must be pending

The former suit must be pending in the court while the latter suit is instituted. The
word pending is for the previously instituted suit, where the final decision has not
been arrived at.

In a competent court

Section 10 also specifies that the former suit must be pending before a court which
is competent to carry out the trial. If the former suit is pending before an
incompetent court, no legal effects can flow from it.

Illustrations:

‘X’ and ‘Y’ decide to enter into a contract for the sale of machines. ‘X’ is the seller
and ‘Y’ is the purchaser. Y defaulted in paying the amount of the sale to X. X first
filed a suit for recovery of the entire amount in Bangalore. Subsequent to this, X
filed another suit at Bombay High Court demanding Rs. 20,000 as outstanding
balance. In X’s suit Y took the defence that X’s suit should be stayed since both the
suits are on similar issue. However, the Bombay court held that since X’s first suit
and the second suit have similar issues similar to the first suit, the subsequent suit
is liable to be stayed.

‘P’ was an agent in Patna who agreed to sell goods in Odisha to ‘M’. ‘P’ the agent
then filed a suit for balance of accounts in Patna. ‘M’ sues the agent ‘P’ for accounts
and his negligence in Odisha; while the case was pending in Patna. In this case,
Patna court is precluded from conducting trial and can petition Odisha Court to
direct a stay of proceedings in Patna Court.

The moment the above conditions are satisfied, a court cannot proceed with the
subsequently instituted suit since the provisions contained in Section 10 are
mandatory and the court cannot exercise its discretion. The order of stay can be
made at any stage of the proceedings. 

However, Section 10 takes away the power of the court to examine the merits of the
case thoroughly. If the court is satisfied with the fact that the subsequent suit can
be decided purely on legal point, it is open for the court to decide in such a suit.

Test

The test of applicability for Section 10 is whether the decision in a former given suit
would operate as res judicata(decided case) in the subsequent suit. It this happens,
then the latter suit must be stayed. This can also be inferred from S.P.A Annamalay
Chetty vs. B.A Thornbill.

Suit pending in foreign court

The explanation clause of Section 10 clearly provides that there is no limitation on
the power of an Indian court to try a subsequent instituted suit if the previously
instituted suit is pending in a foreign suit. This also means that the cases can be
carried on simultaneously in two courts.

Inherent power to stay

The word inherent has very wide meaning which includes an inseparable part of
something or an attribute or quality which is permanent and essential. It is
something which is intrinsic and attached to a person or object. Therefore, inherent
powers are the powers of the courts which are inalienable i.e., something which can
be separated or taken away from the courts and they exercise it in order to provide
complete justice to the parties.

Even where the provisions of Section 10 do not strictly apply, a civil court has
inherent power under Section 151 to stay a suit to achieve justice. Additionally
courts can also consolidate different suits between the same parties in which the
matter of issue is substantially the same. In Bokaro and Ramgarh Ltd. vs. State of
Bihar and Another(1962) the matter in issue was regarding the ownership of a
property. The court in this case used its power and consolidated different issues
having the same matter.

Consolidation of suits
The objective behind Section 10 is to avoid two contradictory decisions in the same
matter by different courts. To overcome this the courts can pass an order of
consolidation of both the suits. In the case of Anurag and Co. and Anr. vs.
Additional District Judge and Others, it was explained that consolidation of suits is
ordered under Section 151 for meeting the ends of justice as it saves the party from
a multiplicity of cases, delays and expenses. The parties are also relieved from
producing the same evidence at two different places.

Effect of contravention

Any decree passed in contravention of Section 10 is not null and therefore cannot
be disregarded completely. It is to be clearly understood here that it is only the trial
and not the institution of the subsequent suit which is barred under this section. But
this right which is given in favour of parties can be waived by them. Hence, if the
parties in a suit decides to waive their rights and ask the court to proceed with the
subsequent suit, they cannot afterwards challenge the validity of the subsequent
proceedings.

Interim orders
Interim orders are the temporary orders which are passed for a limited duration just
before the final order. An order of stay under Section 10 does not take away the
power of the court to pass interim orders. Therefore, the courts can pass such
interim orders as it thinks fit like attachment of property, injunction etc.

Res Judicata meaning

Res means “subject matter” and judicata means “adjudged” or decided and
together it means “a matter adjudged”.
In simpler words, the thing has been judged by the court, the issue before a court
has already been decided by another court and between the same parties. Hence, 
the court will dismiss the case as it has been decided by another court. Res judicata
applies to both civil and criminal legal systems. No suit which has been directly or
indirectly tried in a former suit can be tried again.

Res Judicata example

‘A’ sued ‘B’ as he didn’t pay rent. ‘B’ pleaded for the lessening of rent on the ground
as the area of the land was less than the mentioned on the lease. The Court found
that the area was greater than shown in the lease. The area was excess and the
principles of res judicata will not be applied.

In a case, ‘A’ new lawsuit was filed in which the defendants requested that the Court
dismiss the lawsuit with a plea of res judicata. She was barred from bringing a claim
of res judicata because her previous claim was dismissed for fraud. The Court said
that the defence of res judicata must be proved by evidence.

Principle of Res Judicata

The principle of res judicata seeks to promote the fair administration of justice and
honesty and to prevent the law from abuse. The principle of res judicata applies
when a litigant attempts to file a subsequent lawsuit on the same matter, after
having received a judgment in a previous case involving the same parties. In many
jurisdictions, this applies not only to the specific claims made in the first case but
also to claims that could have been made during the same case.

Prerequisites for Res Judicata

A judicial decision by proficient court or tribunal,

Final and binding and

Any decision made on the merits

A fair hearing

Earlier decisions right or wrong are not relevant.

Nature and Scope of Res Judicata

Res judicata includes two concepts of claim preclusion and issue preclusion. Issue
preclusion is also known as collateral estoppel. Parties cannot sue each other again
after the final judgment on the basis of merits has reached in civil litigation. For
example, if a plaintiff wins or loses a case against the defendant in the case say A,
he cannot probably sue the defendant again in case B based on the same facts and
events. Not even in a different court with the same facts and events. Whereas in
issue preclusion it prohibits the relitigation of issues of law that have already been
determined by the judge as part of an earlier case.

The scope has been decided in the case of Gulam Abbas v. State of Uttar Pradesh.
In this case the court incorporated the rules as evidence as a plea of an issue
already tried in an earlier case. Judgment of this case was difficult as the judges
should apply res judicata. It was decided that res judicata is not exhaustive and
even if the matter is not directly covered under the provisions of the section it will
be considered as a case of res judicata on general principles.

Rationale

The principle of res judicata is founded upon the principles of justice, equity, and
good conscience and it applies to various civil suits and criminal proceedings. The
purpose of this principle was to inculcate finality into litigation.

Failure to Apply
When a court fails to apply Res Judicata and renders a divergent verdict on the
same claim or issue and if the third court faces the same issue, it will apply a “last
in time” rule. It gives effect to the later judgment and it does not matter about the
result that came differently the second time. This situation is typically the
responsibility of the parties to the suit to bring the earlier case to the judge’s
attention, and the judge must decide how to apply it, whether to recognize it in the
first place.
Doctrine of Res Judicata

The double jeopardy provision of the Fifth Amendment to the U.S. Constitution
protects people from being put on a second trial after the case has been judged. So
the doctrine of res judicata addresses this issue and it bars any party to retry a
judgment once it has been decided.

Section 11 of the Civil Procedure Court incorporates the doctrine of res judicata also
known as “ rule of conclusiveness of judgment”. The doctrine of res judicata has
been explained in the case of Satyadhyan Ghosal v. Deorjin Debi. The judgment of
the court was delivered by Das Gupta, J. An appeal was made by landlords who
attained a decree for ejectment against the tenants who were Deorajin Debi and her
minor son. However, they have not been yet able to get possession in execution
soon after the decree was made. An application was made by the tenant under
Section 28 of the Calcutta Thika Tenancy Act and alleged that they were the Thika
tenants. This application was resisted by the landlords saying they were not Thika
Tenants within the meaning of the Act.

The tenants moved to the High Court of Calcutta under the Civil Procedure Code.
The court applied the principle of res judicata to achieve the finality in litigation. The
result came that the original court, as well as the higher court, can proceed for any
future litigation on the basis that the previous decision was correct.

The doctrine of res judicata says –

That no person should be disputed twice for the same reason.

It is the State that decides there should be an end to a litigation

A judicial decision must be accepted as the correct decision.

Constructive Res Judicata

The rule of constructive res judicata in Section 11 of the Civil Procedure Code is an
artificial form of res judicata. It provides that if a plea has been taken by a party in
a proceeding between him and the defendant he will not be permitted to take pleas
against the same party in the following proceeding with reference to the same
matter. It is opposed to public policies on which the principle of res judicata is
based. It would mean harassment and hardship to the defendant. The rule of
constructive res judicata helps in raising the bar. Hence this rule is known as the
rule of constructive res judicata which in reality is an aspect of augmentation of the
general principles of res judicata.

In the case of State of Uttar Pradesh v. Nawab Hussain, M was a sub-inspector and
was dismissed from the service of D.I.G. he challenged the order of dismissal by
filing a writ petition in the High Court. He said that he did not get a reasonable
opportunity of being heard before the passing of the order. However, the argument
was negative and the petition was dismissed. He again filed a petition on the ground
that he was appointed by the I.G.P. and had no power to dismiss him. The
defendant argued that the suit was barred by constructive res judicata. However,
the trial court, the first appellate court as well as the High Court held that the suit
was not barred by the doctrine of res judicata. The Supreme Court held that the suit
was barred by constructive res judicata as the plea was within the knowledge of the
plaintiff, M and he could have taken this argument in his earlier suit.

Res Judicata and Estoppel

Estoppel means the principle which prevents a person from asserting something
that is contrary to what is implied by a previous action. It deals in Section 115 to
Section 117 of the Indian Evidence act. The rule of constructive res judicata is the
rule of estoppel. In some areas the doctrine of res judicata differs from the doctrine
of estoppel –

Estoppel flows from the act of parties whereas res judicata is the result of the
decision of the court.

Estoppel proceeds upon the doctrine of equity, a person who has induced another
to alter his position to his disadvantage can not turn around and take advantage
of such alteration. In other words, res judicata bars multiplicity of suits and
estoppel precludes multiplicity of representation of cases.