Important Matters & Aspects involved in Civil Proceedings

1. Important Matters & Aspects involved in Civil Proceedings

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

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

4. Powers of Appellate Court • (S.107) • To determine case finally; • To remand a case; • To Frame Issues & refer for trial; • To Take or require to take additional evidence; • Appeal is treated as a continuation of the suit

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

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

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

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

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

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

11. Interlocutory Matters & Injunctions

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

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

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

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

16. Commissions

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

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

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

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

21. EXECUTION

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

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

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

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

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

27. Thank You