Trail Of Suits And Execution Of Decree
ORDER V CIVIL PROCEDURE CODE (Rule 1 to 30)
Rule 1 –Summons
When the suit is filed, a note will be sent to the defendants to answer the claim filed by the plaintiff. This process is said to be summoning.
Issue of Summons
If the defendant appeared accepting the claim, then there is no need of issuing summon. It is issued to direct the defendant to file a defence with written statement and the details of his presence and make entry to the effect in summons. The defendant may appear himself or a party who plead or a third party with pleader responding to the summon issued under sub rule (1). Summon should be issued by the Judge or an authority appointed by the Judge with the seal of the Court.
Documents with Summons
Summon shall be sent with the copy of the plaint and a brief statement if allowed. Court may order the presence of plaintiff and defendant if required. In case the person resides outside the limits of the original jurisdiction then that person cannot be ordered to appear in person.
Summon shall be issued for the settlement of disputes or to disposal of the suit which should be decided by the court and shall be sent with the direction order. The date for the appearance of the defendant shall be fixed with the existing business of the Court. The documents related cases can also be summoned by the court from the possession of defendant. When summon is issued for the final disposal, the direction of the defendant’s appearance, and submission of witness and the evidences relying his points can also be ordered by the Court.
Service of the Summons (Section 27 of CPC)
The delivery of summon is done as directed by the court with the consideration of the jurisdiction as served by the proper official or some other subordinates directed by him or delivered by the post in the direction of the court. The summons may be given to the plaintiff of the service (9A).
The service of summon is done with the order of court signed by the judge with the seal of the court. If the defendant is more than one, then separate summon shall be sent to each. authorized The practicable service in person shall not be made on the defendant when he has the authorized acceptable service otherwise the agent service is sufficient.
If the suit is regarding the any business work and the defendant is out of the jurisdiction, the manager who is carrying the works in that business can receive on behalf in a good service. If the suit is made on the immovable property, no service made in person or authorised through agent. The defendant in charge of the property should receive summon.
When the defendant is absent, the service of summon can be made with the adult member of the family. Summon served must be acknowledged with the signature of the defendant. In case the defendant is not found, then the copy of the summon can be affixed in the doors of his house or the place of his regular business and report it to the court.
The time and the manner of service shall be endorsed, the person’s details for witnessing shall be noted during the delivery of summon. The service officer shall be examined who took the oath and proceeding shall be made when the service is done as per the rule 17.When the service is done through postal service with the acknowledgment addressed through defendant and the delivery of the summon is done (19A)
If the defendant purposefully avoided summons and it is recognised by the court, then the court shall affix the copy in the place where he recently resides and carried out business and give advertisement in the news paper if it think fits. The court shall serve summon to the defendant personally and order his presence. Serving summon through post (20A).
When the defendant lives in jurisdiction of another court, summon shall be served by the authority of the court (not high court) in the place where the defendant lives. In case of presidential towns, summons shall be forwarded to small causes. The courts when service of summons is done under rule 2 and 22 shall return the record of delivering to the court where the issue is raised. If the defendant is in prison then the service if summon is done by post or issued to the office in charge.
If the person is situated outside the country then summons shall sent by the post to where the defendant resides. In case of the foreign territory, summons shall be sent to the appropriate foreign authority (26A) through post or through the ministry of the foreign affairs, and summons served, endorsement in done as for the evidence.
In case the defendant is a public officer (not soldier) civil authority, summon shall be sent to the head authority with a copy to defendant by the order of court. In case of soldier (including navy and air force), sailor and airmen the service of summon is issued to the commanding officer. The person issuing summon will have to get the signature and full endorsement of delivery.
The court may substitute for the letter of summon by the judge signing or someone in his behalf authorised by him for mark as consideration. All details to be stated in summons. The substituted letter may be sent to defendant with special message decided by the court.
SUMMONING AND ATTENDANCE OF WITNESSES
ORDER XVI OF CPC
- The rule (1) to (21) deals with the summoning and the attendance of witnesses.
- The summons to the witness is given by the court to present and produce the evidence (1).
- The scale of expenses is calculated and the expenses of the witness shall be paid in the court while applying for summons (2).
- The amount paid in the court is tendered and personally served (3).
- In case of paying the insufficient sum, the expense shall detain more than a day (4).
- In summon served the details regarding the time place and the need for presence shall be mentioned clearly (5).
- In case of any document is to be produced to the court it can also be summoned (6).
- If anyone presented in the court in their possession is required to produce any documents shall produce with power vested (7).
- The person shall deliver summon as given in Order V of the code (8).
- Summon can be served before the attendance date mentioned (9).
- In case the failure to obey summon, the court may issue a warrant with or without bail (10).
- In case of attachment of property, if the witness fails to compile the rules the court may in order to release the attachment (11).
- If the witness failed to appear in the said date the court may impose fine not more than 500 rupees (12).
- The attachment to property is done and endorsed (13).
- The court may on its own, can summon anyone who is not related to the suit if necessary (14).
- It is necessary for the witness summoned to produce the evidence or document required for the suit (15).
- The witness summoned shall attend every hearing of the case until disposal of the suit until the court say so (16).
- If the person is arrested under various circumstances but summoned for producing evidence, if court may think fits shall give bail (18).
- If the person is off the limits of jurisdiction of the court, he cannot be compelled to attend in person (19).
- If the evidence is not produced by the person, then the court may pass the judgement against that person (20).
- In the suit if any party have to produce evidence, the provisions shall be applied (21).
ORDER XXIII – WITHDRAWAL AND ADJUSTMENT OF SUITS.
Rule 1 to 4
The withdrawal of suit or abandon of part of claim can be done by the plaintiff during the process of the suit. In case of the minor suit cannot be abandon without the permission of the court. If the court find a reason for the abandon of suit and sufficient grounds for the institution of the fresh suit the withdrawal is done and new suit is instituted. The cost for the institution of the new suit is liable to the person instituting the suit. In case of several plaintiffs the consent of others is required for the withdrawal.
When any fresh suit is instituted, as per the regulation of the previous rule, the law of limitation is to be followed as the first suit has not been filed.
The suit if mutually compromised and dealt with agreement in writing then the withdrawal of suit is done. The decree or order cannot be executed under these rules.
ORDER X OF CPC – EXAMINATION OF PARTIES BY THE COURT
Rule 1 to 4
When the suit is filed, the examination of suits is done by the court. In the first hearing the facts are made in the plaint and the written statement shall so be presented by the defendants in case any allegations are made, all the responses are recorded by the court. After the recording made regarding the facts and accusations, the Court shall direct the parties to choose the mode of settling the disputes.
The court in the first hearing can orally examine the parties both sides regarding the subject of the suit and judge may write the entire instance which forms as the record in the case.
In certain case when the pleader is unable to answer the questions in the session, then the court may postpone the date of hearings.
ORDER XXXIX OF CPC – TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS
Rule 1 to 10
If the property of the plaintiff is in likely to be in danger such as being wasted or spoiled, or threatened by defendant of being disposed or alienated, the court may issue the temporary injunction.
The injunction is given to the defendant in case any breach relating to the contracts is found be noted before or after the judgement.
In case of breaching the injunction the person has to face the consequence of serving in civil prison not more than 3 months.
In case of the injunction is ought to be in the defeat by delay then the court shall direct a notice to the opposite party with the copy of the affidavit, plaint and the documents relating to the suit. The court has the time of 30 days for rejecting the application of the injunction.
If the injunction filed found to be misleading and false they can vacate the application or set aside. The order cannot be discharge or set aside if the party is given a chance and heard by the court.
In case of corporation, the court shall direct the order of the injunction to the officer of the corporation.
In case of the movable property or easy decay things, the court if think fit can order the interim order to the sale.
If land is the subject matter of the suit, which the revenue is paid to the government and the other party claims interest in the land with the payment of the revenue and rent with payment due, they will be put in the immediate possession in the property.
When money is the subject matter of the suit and that the due was accepted by the party then it shall be deposited in the court and delivered to the concerned party.
ORDER XXXVIII OF CPC – ARREST AND ATTACHMENT BEFORE JUDGEMENT
Rule 1 to 13
Arrest before judgement
The defendant with the intention of avoiding the court if delay the process of the suit, left the local limits of the jurisdiction, and in case leaving out of the country with affordable reason, then he shall not be arrested if the sum paid with the execution warrant to the officer.
The surety for the appearance of the defendant in the court becomes the surety for his disappearance too. On the presence of defendant and in his voluntary surrender, the surety shall be disposed by the Court. In case of defendant’s failure to comply with rules, he shall be detained in the prison not exceeding 6 months.
Attachment before judgement
The defendant is called for the ensuring security in property to be produced, the details of estimated value of the property. If the security and the attachment are not clearly shown then the court may order for withdrawal.
The adjudication of claims in the property attachment in decree execution for payment of sum of money, when the security is given or the suit is dismissed, the attachment is removed. The production of agriculture cannot be attached and the immovable property cannot be attached in the small clause court.
EXECUTION OF THE DECREE – ORDER XXI
When the judgement is passed by the court the decree is executed. The decree holder is one in which the judgement is passed in favour. He is also called as judgement creditor.
B has to pay Rs 1000 to A, the judgement is passed in favour of A. still B person didn’t pay the amount which is due, in this case the A can execute a decree, he is a decree holder in which the judgement debtor is B.
Section – 47 of the code explains execution, satisfaction and discharge of the decree.
Modes of execution of decree
The modes of execution of decree includes the delivery of the property, arrest and detention, appointment of receiver, partition, cross decrees and cross claims, payment of money, injunction, restitution of conjugal rights, execution of a document, endorsement of a negotiable instrument, attachment of mesne profits, attachment of debt or share and liability for surety.