What are appealable orders as per provision of Civil procedure code?

 Appeals from Orders

104. Orders from which appeal lies.—(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:—

[(ff) an order under Section 35-A;]

[(ffa)  an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be;]

(g) an order under Section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is expressly allowed by rules:

[Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.]

(2) No appeal shall lie from any order passed in appeal under this section.

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Important Notes on family law (Part 6)

 

1) Notes on Rights of the child born out of void and voidable marriage as per S 16 of Hindu Marriage Act

https://www.lawweb.in/2023/12/what-are-rights-of-children-born-out-of.html

2) Important provisions of Hindu Adoptions and Maintenance Act, 1956 regarding adoption of child

https://www.lawweb.in/2023/12/important-provisions-of-hindu-adoptions.html

3) Supreme Court: Procedure to be followed by family court if husband fails to file Affidavit of Disclosure of Assets and Liabilities even after grant of two chances

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 3446 of 2023 

Decided On: 06.11.2023

Aditi Vs. Jitesh Sharma

Hon'ble Judges/Coram:

Vikram Nath and Rajesh Bindal, JJ.

Author: Rajesh Bindal, J.

Citation: MANU/SC/1220/2023, 2023/INSC/981

https://www.lawweb.in/2023/12/supreme-court-procedure-to-be-followed.html

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What is the basic concept and procedure for attachment before judgment as per provisions of Civil procedure Code?

 Attachment before judgment

O 38 R 5. Where defendant may be called upon to furnish security for production of property.—(1) Where at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,—

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court,

the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.

(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.

[(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void.]

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Notes on execution of decree for restitution of conjugal rights

 32. Decree for specific performance for restitution of conjugal rights, or for an injunction.—(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced 495[in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction] by his detention in the civil prison, or by the attachment of his property, or by both.

33. Discretion of Court in executing decrees for restitution of conjugal rights.—(1) Notwithstanding anything in Rule 32, the Court, either at the time of passing a decree 499[against a husband] for the restitution of conjugal rights or at any time afterwards, may order that the decree 500[shall be executed in the manner provided in this rule].

(2) Where the Court has made an order under sub-rule (1) 501[* * *], it may order that, in the event of the decree not being obeyed within such period as may be fixed in this behalf, the judgment-debtor shall make to the decree-holder such periodical payments as may be just, and, if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder such periodical payments.

(3) The Court may from time to time vary or modify any order made under sub-rule (2) for the periodical payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may temporarily suspend the same as to the whole or any part of the money so ordered to be paid, and again revive the same, either wholly or in part as it may think just.

(4) Any money ordered to be paid under this rule may be recovered as though it were payable under a decree for the payment of money.

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Important Provisions of CPC(Part 4 ) ( O 6 to O 8 of CPC)

 ORDER VI

Pleadings Generally

1. Pleading.—“Pleading” shall mean plaint or written statement.

344[2. Pleading to state material facts and not evidence

4. Particulars to be given where necessary.—In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary , particulars (with dates and items if necessary) shall be stated in the pleading.

6. Condition precedent.—Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant, 

7. Departure.—No pleading shall, except by way of amendment raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.

8. Denial of contract.—Where a contract is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract alleged or of the matters of fact from which the same may be implied, and not as a denial of the legality or sufficiency in law of such contract.

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Important Provisions of CPC(Part 3 ) ( O 1 to O 5 of CPC)

 ORDER I

Parties to Suits

1. Who may be joined as plaintiffs.

2. Power of Court to order separate trials.

3. Who may be joined as defendants.

299[3-A. Power to order separate trials where joinder of defendants may embarrass or delay trial.—Where it appears to the Court that any joinder of defendants may embarrass or delay the trial of the suit, the Court may order separate trials or make such other order as may be expedient in the interests of justice.]

5. Defendant need not be interested in all the relief claimed.—It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.

6. Joinder of parties liable on same contract.—The plaintiff may, at his option, join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on any one contract,

7. When plaintiff in doubt from whom redress is to be sought.—Where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties.

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Important Provisions of CPC(Part 2 ) (S 96 to S 153-B of CPC)

 96. Appeal from original decree.—(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

200[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [ten]201 thousand rupees.]

97. Appeal from final decree where no appeal from preliminary decree.—Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

98. Decision where appeal heard by two or more Judges.

99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.—No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder 204[or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:

205[Provided that nothing in this section shall apply to non-joinder of a necessary party.]

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Important Provisions of CPC(Part 1) (S 9 to S 95 of CPC)

 9. Courts to try all civil suits unless barred.

10. Stay of suit

11. Res judicata.

13. When foreign judgment not conclusive.

14. Presumption as to foreign judgments.—

15. Court in which suits to be instituted.—Every suit shall be instituted in the Court of the lowest grade competent to try it.

16. Suits to be instituted where subject-matter situate.

17. Suits for immovable property situate within jurisdiction of different Courts.

19. Suits for compensation for wrongs to person or movables.—Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

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What are provisions regarding production of documents in CPC?

 O 7 R 14 of CPC.

14. Production of document on which plaintiff sues or relies.—(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

[(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.]

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Questions and answers on law Part 19

 

Q 1:- What is meant by deemed decree ?

Ans:- A deemed decree is one which, though not fulfilling the essential features of a decree as required by the Code has been expressly categorised as a decree by the legislature. An adjudication which does not formally fall under the definition of decree stated under section 2(2) of the Code of Civil Procedure but due to a legal fiction, they are deemed to be decrees are considered as deemed decrees. Rejection of plaint and determination of the issue of restitution of property are deemed decree. Order passed under O 21,R 58(4), R 98 and 100 are deemed decree.

Q 2:- Whether promissory note which is not duly stamped is admissible in evidence after its impounding? 

Ans:-

"promissory note" which is payable otherwise than
on demand not duly stamped as required by
ScheduleI Article 49(b) of Indian Stamp Act,
1899, is inadmissible in evidence. Same cannot be
received in evidence even on payment of deficit
stamp duty and penalty. The defect that,
promissory note is not duly stamped or
inadequately stamped, cannot be cured in view of
the proviso (a) to Section 35 of the Indian Stamp
Act, 1899, as held by this Court in the case of
M/s. Wolstenholme International Ltd., (supra).
Therefore, this Court is of the opinion that, the
view taken by the Cooperative
Court, Nanded i.e.
trial Court, is the correct view.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9317 OF 2011

Shiva Sahakari Up Jal Sinchan Sanstha Ltd. Vs The Nanded District CentralCoop.

CORAM: S.S. SHINDE, J.

PRONOUNCED ON :25/07/2012

https://www.lawweb.in/2014/12/whether-promissory-note-which-is-not.html

Q 3:- Whether benefit of probation of offenders Act can be given in cheque dishonour case?

Ans:- In the totality of the facts and circumstances of the case, learned Appellate Court was justified in extending the benefit of Section 4 of the Act of 1958 and also ordering that the complainant-petitioner is entitled to get the cheque amount deposited by the accused-Respondent No. 1 before the Trial Court. 

Rajasthan High Court

Sunil Jain vs Sugna National Engineering And ... on 29 April, 2013

https://www.lawweb.in/2014/10/whether-benefit-of-probation-of.html

Q 4:- Whether court should administer oath to accused before recording his confession?

Ans:- Section 164(5) Cr.P.C. specifically provides that no oath shall be administered to an accused while recording his confession. Administration of oath to the accused in his confessional statement is violative of mandatory provisions of Article 20(3) of the Constitution and Section 281 Cr.P.C. Thus, the Magistrate cannot administer oath to the accused before recording his confessional statement and if he does so, the statement is illegal and should be excluded from consideration.

https://www.lawweb.in/2014/05/accused-should-not-be-administered-oath.html

Q 5:- Whether JMFC can record statement of witness u/s 164 of crpc of case under MCOCA Act

There is no special provision under MCOCA for recording of statement of a witness by Court/ Judge. No doubt there is provision for giving protection to witness and pass such orders for his protection, but not similar to S. 164 Cr. P. C. Hence, provisions of Cr. P. C. are available to MCOCA judge. JMFC has jurisdiction to record such statement as it is not prohibited or no contrary provision is made in MCOCA. This Act specifically bars only those provisions which are contrary to the special provisions of the said Act. 

Q 6:- Basic concept of  Appreciation of Evidence 

Ans:- Appreciation of evidence is a term used in Indian law to refer to the consideration or examination of the evidence by the court. It involves weighing the credibility and reliability of the evidence presented in the case.

Q 7:- What are sunshine and sunset law?

Ans:- Sunshine laws are laws allowing public access to meetings of public bodies. They basically outlaw secret meetings of public bodies to set policy or agendas.Sunset laws are laws that expire after a certain time. Like tax breaks for the rich..

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Leading SC and other HC Judgments on Civil appeal, criminal appeal, civil revision, criminal revision and remand of case (Part 1)

1)  Leading Supreme court judgment on production of additional evidence in appellate court 

Union of India (UOI) Vs.  Ibrahim Uddin and Ors.

Decided On: 17.07.2012

https://www.lawweb.in/2018/11/leading-judgment-on-production-of.html

2) When court can grant relief to party who had not preferred appeal?

Banarsi vs Ram Phal on 17 February, 2003

https://www.lawweb.in/2016/03/when-court-can-grant-relief-to-party.html

3) Leading Supreme court Judgment on cross objection

Superintending Engineer And Ors vs B. Subba Reddy on 26 April, 1999

https://www.lawweb.in/2016/07/leading-judgment-on-cross-objection.html

4) Leading Judgment on procedure to be followed by lower court after case is remanded to it

It is fairly stated that power of jurisdiction

of the Court lower in hierarchy after remand, depends on

specifications of the remand order. Whether the order of

remand lays down any limits of enquiry to be made by the

Court lower in hierarchy that Court has no jurisdiction

to entertain any question which falls outside those

limits. In other words, where the Court passes

restricted order of remand it is not open to any of the

parties or any Court to enlarge the scope of the remand

order, that too, by a side window.

 Popcorn Entertainment Corporation, V/s. The City Industrial Development  Corporation,

https://www.lawweb.in/2016/06/leading-judgment-on-procedure-to-be.html

Q 5:- Whether court to which case is remanded can take cognizance of change of law?
Ans:- ORDER OF REMAND - Interpretation of-Supreme Court remanding the case for decision in the light of a particular decision-Subordinate Court can look into the subsequent decisions also to ascertain the correct position of law.

Delhi High Court

Hardit Singh Chadha vs Jagtar Singh Grover on 1 October, 1993
https://www.lawweb.in/2015/03/whether-court-to-which-case-is-remanded.html

6) Procedure to be followed by lower court when case is remanded by higher court
Only limitation after the remand is as may be contained in the order of remand. If the order of remand restricts the jurisdiction, the Court cannot override those limitations. But if the order of remand is in fact a direction of re-hearing on merits on all issues and all contentions raised by the parties, the jurisdiction is not at all restricted.

Bombay High Court

Laxman Bapu Berad vs Sudhakar Nanasaheb Jawale on 5 August, 1997
https://www.lawweb.in/2015/03/guidelines-to-be-followed-by-lower.html

7) Whether lower appellate court can remand the case to trial court if high court has remanded said case to it?

If such a remand is directed by the second Appellate Court or by the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India, on remand of such matter before the lower Appellate Court, the lower Appellate Court has all the options open including, in turn, remanding the matter to the trial Court if it thinks that such a course is necessary in the ends of justice.

Laxman Bapu Berad vs Sudhakar Nanasaheb Jawale on 5 August, 1997
Equivalent citations: 1998 (2) BomCR 259,1998(1)ALLMR667,

https://www.lawweb.in/2021/07/whether-lower-appellate-court-can.html

8) Landmark Supreme Court Judgment on powers and duties of first appellate court while deciding first appeal

IN THE SUPREME COURT OF INDIA
C.A. No. 1117 of 2001
Decided On: 08.02.2001
Santosh Hazari vs. Purushottam Tiwai (Dead) by L.Rs.
Coram:
Dr. A.S. Anand, C.J., R.C. Lahoti and Brijesh Kumar, JJ.
Citation:(2001) 3 SCC 179.

https://www.lawweb.in/2024/08/landmark-supreme-court-judgment-on.html

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Important Caselaws of Supreme Court and other HC's on Counter claim

1) Whether composite appeal against decree passed in suit and counter claim is maintainable?

https://www.lawweb.in/2020/06/whether-composite-appeal-against-decree.html

2) Whether defendant can file counter claim by amending his written statement?

https://www.lawweb.in/2019/12/whether-defendant-can-file-counter.html

3) Supreme Court: Outer limit for filing of counter-claim is pegged till issues are framed

https://www.lawweb.in/2019/11/supreme-court-outer-limit-for-filing-of.html

4) When court should exclude counter claim filed by defendant?

https://www.lawweb.in/2019/09/when-court-should-exclude-counter-claim.html

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Whether cross objection is maintainable in a civil revision application?

The cross­objections contemplated under O.41 R.22 are in the nature of substantive right available to the person interested in opposing the appeal cause for which would commence on service of notice upon such person. It is not merely a procedure since the procedure would normally regulate the rights and liabilities of the parties and not invest substantial rights. It is settled law that the statutory rights are exercisable when provided for and in absence of explicit conferment of such right or a remedy, it cannot be claimed. Therefore, the reliance on O.41 R.22 which does not explicitly contemplate a right to cross­objections in revision is of no benefit to the petitioner.

Gujarat High Court

Nasiruddin Fakhruddin Munshi vs Legal Heirs Of Decd. Mohammed Alam ... on 16 January, 2020

Bench: G.R.Udhwani

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Important Notes on Civil procedure Code

1) Execution of decree -Important provisions of CPC

https://www.lawweb.in/2019/09/execution-of-decree-important.html

2) Notes on Representative suit under O 1 R 8 of CPC

https://www.lawweb.in/2019/04/notes-on-representative-suit-under-o-1.html

3) Good article on Res Judicata, stay of suit and estoppelhttps://www.lawweb.in/2018/05/good-article-on-res-judicata-stay-of.html

4) Basic concepts of CPC 4 -definitions

https://www.lawweb.in/2018/05/basic-concepts-of-cpc-part-4.html

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Important provisions of Commercial courts Act 2015

1. Short title, extent and commencement.

2. Definitions.—(1) In this Act, unless the context otherwise requires,—(c) “commercial dispute” means a dispute arising out of—

(i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;

(ii) export or import of merchandise or services;

(iii) issues relating to admiralty and maritime law;

(iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same;

(v) carriage of goods;

(vi) construction and infrastructure contracts, including tenders;

(vii) agreements relating to immovable property used exclusively in trade or commerce;

(viii) franchising agreements;

(ix) distribution and licensing agreements;

(x) management and consultancy agreements;

(xi) joint venture agreements;

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What is difference between status quo and injunction?

Injunction order restrains the defendant(s) covering his legal representatives, employees, agents,his friends or any one claiming title through such defendant(s) alone. ... Whereas the status quo order binds the defendant(s) as well as the plaintiff against alteration of the existing situation/status of the property.

Status quo generally refers to the existing state of affairs or circumstances. A status quo order should be issued by a judge to prevent any of the parties involved in a dispute from taking any action until the matter can be resolved. It seeks to prevent harm or preserve the existing conditions, so that a party's position is not prejudiced in the meantime until a resolution is reached. Injunction order restrains the defendant(s) covering his legal representatives, employees, agents,his friends or any one claiming title through such defendant(s) alone.

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Commercial courts Act(Maharashtra govt gazette notification)

https://drive.google.com/file/d/1lOGG6Nax1i6o2smvMZPPtTSL6pjz0uXf/view?usp=sharing
https://drive.google.com/file/d/1YPh4Je-xl01hyChm1hQAF_GBMB7z7P5e/view?usp=sharing

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Execution of decree -Important provisions of CPC

S.39 of CPC- Transfer of decree.—

46. Precepts.—(1) Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.

(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree:

47. Questions to be determined by the Court executing decree.—(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

50. Legal representative.—(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.

Read Important judgments on Execution of decree: Click here

Read important questions on Execution of decree: 
Click here

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What are grounds for rejection of plaint?

O 7 R 11.  of CPC:- Rejection of plaint.—The plaint shall be rejected in the following cases:—

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

1[(e) where it is not filed in duplicate];

2[(f) where the plaintiff fails to comply with the provisions of Rule 9];

3[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]

^1. Ins. by Act 46 of 1999, S. 17 (w.e.f. 1-7-2002).

^2. Subs. by Act 22 of 2002, S. 8 (w.e.f. 1-7-2002).

^3. Ins. by Act 104 of 1976, S. 57 (w.e.f. 1-2-1977).

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