Section 96: Appeal from original decree

Code of Civil Procedure Section 95. Compensation for obtaining arrest, attachment or injunction on insufficient ground.

PART VII

APPEALS

APPEALS FROM ORIGINAL DECREES

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 authorized 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.

¹[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ²[ten thousand rupees.]]

Note 1. Ins. by Act 104 of 1976, s. 33 (w.e.f. 1-2-1977).

2. Subs. by Act 46 of 1999, s. 9, for “three thousand rupees” (w.e.f. 1-7-2002).

Part in Red is original provisions from CPC reproduced here for reference.

Code of Civil Procedure Section 97. Appeal from final decree where no appeal from preliminary decree.

Simplified Explanation:

Section 96 provides for appeal, and the provision has been amended by 1999 Act that appeal would lie only, provided there is a dispute of more than of Rs.10,000/-.

In the First Appeal, it is permissible for the appellate court to re-examine and re-appreciate the evidence. The right to institute the suit is an inherent right, but the right of appeal is statutory.

It is evident that the First Appellate Court must decide the appeal giving adherence to the statutory provisions of Order XLI Rule 31 CPC.

Judgment:

In Delhi U.P. Madhya Pradesh Transport Co. V. New India Assurance Co., (2006) 9 SCC 213, the Apex Court held that regular first appeal should not be dismissed summarily without assigning proper reason.

More Reading:

Order XLI Rule 31. Contents, date and signature of judgment.

H. Siddiqui v. A. Ramalingam

B.V. Nagesh & Anr. v. H.V. Sreenivasa Murthy

Reference: http://www.nja.nic.in/16%20CPC.pdf

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Section 95: Compensation for obtaining arrest, attachment or injunction on insufficient grounds

Code of Civil Procedure Section 94. Supplemental proceedings.

95. Compensation for obtaining arrest, attachment or injunction on insufficient grounds.—(1) Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section,—

(a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or

(b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable grounds for instituting the same, the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount ¹[not exceeding fifty thousand rupees], as it deems a reasonable compensation to the defendant for the ²[expense or injury (including injury to reputation) caused to him]:

Provided that a Court shall not award, under this section, an amount exceeding the limits of its pecuniar jurisdiction.

(2) An order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or injunction.

Note: 1. Subs. by Act 46 of 1999, s. 8, for certain words (w.e.f. 1-7-2002).

2. Subs. by Act 104 of 1976, s. 32, for “expense or injury caused to him” (w.e.f. 1-7-2002).

Part in Red is original provisions from CPC reproduced here for reference. 

Code of Civil Procedure Section 96. Appeal from original decree.

Simplified Explanation:

Section 95- This provision has been amended for providing the maximum amount of compensation in case of malicious prosecution up to fifty thousand rupees for injury to the reputation to the defendant, but the Court does not have competence to award compensation beyond its pecuniary jurisdiction.

Prior to the amendment, compensation could be awarded up to a sum of one thousand rupees and the defendant was at liberty to file a separate Suit for damages. The purpose of this provision is to award compensation to the defendant for the expenses or injury caused to him as a result of the plaintiff obtaining an order of his (defendant’s) arrest or attachment or obtaining a temporary injunction against him on insufficient grounds. In certain circumstances, injury may include injury to reputation.

However, the remedy under this Section is very special and the compensation should be granted in exceptional circumstances where Court comes to the finding that the plaintiff had abused the process of the Court by malicious prosecution.

Reference: http://www.nja.nic.in/16%20CPC.pdf

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Section 94: Supplemental proceedings

Code of Civil Procedure Section 93. Exercise of powers of Advocate-General outside presidency-towns.

PART VI

SUPPLEMENTAL PROCEEDINGS

94. Supplemental proceedings.—In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed, —

(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;

(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;

(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;

(e) make such other interlocutory orders as may appear to the Court to be just and convenient.

Part in Red is original provisions from CPC reproduced here for reference.

Code of Civil Procedure Section 95. Compensation for obtaining arrest, attachment or injunction on insufficient ground.

Simplified Explanation:

Section 94 provides for supplemental proceedings. In order to prevent the ends of justice from being defeated the Court may issue a warrant of arrest against the defendant to bring him before the Court to show cause for giving security for his appearance or for failure thereof, to commit him to civil prison. It may also direct the defendant to furnish security and for failure thereof, to attach any of his properties, and also grant temporary injunction and in case of disobedience thereof, the person guilty can be sent to civil prison and his properties may be attached and sold. The Court has also been given a power to pass other interlocutory order as may appear to the Court to be just and convenient. Such a wide power has been given to the Court to prevent any person from defeating justice.

Generally, the Court should not pass any interim order in exercise of power under this Section unless there are compelling circumstances to do so, and while considering an application for such a relief, regard must be had to the nature of the controversy and the issues involved in the main matter. 

Judgment:

The Supreme Court in Rashtriya Ispat Nigam Ltd. V. Verma Transport Company, AIR 2006 SC 2800, placing reliance upon its earlier judgment in Vareed Jacob V. Sosamma Geevarghese, AIR 2004 SC 3992 explained the distinction between incidental and supplemental proceedings explaining that incidental proceedings are those which arise out of the main proceedings.

Reference: http://www.nja.nic.in/16%20CPC.pdf

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Exercise of powers of Advocate-General outside presidency-towns

 

Code of Civil Procedure Section

 

93. Exercise of powers of Advocate-General outside presidency-towns.— The powers conferred by sections 91 and 92 on the Advocate-General may, outside the presidency-towns, be, with the previous sanction of the State Government, exercised also by the Collector or by such officer as the State Government may appoint in this behalf.

 

Code of Civil Procedure Section

Section 92: Public charities

Code of Civil Procedure Section 91. Public nuisances and other wrongful acts affecting the public.

¹92. Public charities.—(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the ²[leave of the Court,] may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree :—

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

³[(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property];

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require.

(2) Save as provided by the Religious Endowments Act, 1863 (XX of 1863), ⁴[or by any corresponding law in force in ⁵[the territories which, immediately before the 1st November, 1956, were comprised in Part B States]], no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.

⁶[(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more of the following circumstances, namely :—

(a) where the original purposes of the trust, in whole or in part,—

(i) have been, as far as may be, fulfilled; or

(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or

(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or

(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or

(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or

(e) where the original purposes, in whole or in part, have, since they were laid down,—

(i) been adequately provided for by other means, or

(ii) ceased, as being useless or harmful to the community, or

(iii) ceased to be, in law, charitable, or

(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.]

Note:

1. Section 92 shall not apply to any religious trust in Bihar, see Bihar Act 1 of 1951.

2. Subs. by Act 104 of 1976, s. 31, for “consent in writing of the Advocate-General”, (w.e.f. 1-2-1977).

3. Ins. by Act 66 of 1956, s. 9.

4. Ins. by Act 2 of 1951, s. 13.

5. Subs. by the A.O. (No. 2), 1956, for “a Part B State”.

6. Ins. by Act 104 of 1976, s. 31 (w.e.f. 1-2-1977).

Part in Red is original provisions from CPC reproduced here for reference. 

Code of Civil Procedure Section 93. Exercise of powers of Advocate-General outside presidency-towns.

Simplified Explanation:

Section 92 deals with the suit relating to the management of trust and properties of trust. As the suit can be filed only with the leave of the Court, it is not permissible to entertain the application under Order VII Rule 11 at the subsequent stage. Such an application should be entertained prior to grant of the leave by the Court.

Section 92 CPC (suit relating to management of trust) r/w Section 12 of civil courts act. (Jurisdiction)

Insofar as the suits under Section 92 are concerned, the District Courts and Subordinate Courts will have concurrent jurisdiction without reference to any pecuniary limits. A suit under Section 92 of the Code, where the value of subject-matter does not exceed Rs. 1 lakh, cannot be filed in any Court as Section 92 confers jurisdiction only on District Court and Subordinate Courts.

Judgment:

In Sri Jeyarom Educational Trust & Ors. V. A.G. Syed Mohideen & Ors., (2010) 2 SCC 513 the Supreme Court held that "District courts will have concurrent jurisdiction to Courts on which jurisdiction have been conferred by the State by a notification under Section 92(1)".

See also:

Order VII Rule 11:  Rejection of plaint.

Reference: http://www.nja.nic.in/16%20CPC.pdf

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Section 91: Public nuisances and other wrongful acts affecting the public

Code of Civil Procedure Section 90. Power to state case for opinion of Court.

¹[PUBLIC NUISANCES AND OTHER WRONGFUL ACTS AFFECTING THE PUBLIC]

91. Public nuisances and other wrongful acts affecting the public.—²[(1) In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,—

(a) by the Advocate-General, or

(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.]

(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.

Note: 1. Subs. by Act 104 of 1976, s. 30, for the former headings (w.e.f. 1-2-1977).

2. Subs. by s. 30, ibid., for sub-section (1) (w.e.f. 1-2-1977).

Part in Red is original provisions from CPC reproduced here for reference.

Code of Civil Procedure Section 92. Public charities.

Simplified Explanation:

Section 91 deals with public nuisance and other wrongful acts affecting the public. It is corresponding to the provisions of Section 133 Cr.P.C. for removal of nuisance. But Section 91 deals with the public nuisance only, though Section 133 Cr. P.C. Covers public as well as the private nuisance. Plaintiff does not need to prove that he has suffered any injury.

Reference: http://www.nja.nic.in/16%20CPC.pdf

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Power to state case for opinion of Court

 

Code of Civil Procedure Section

 

SPECIAL CASE

90. Power to state case for opinion of Court.—Where any persons agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed.

 

Code of Civil Procedure Section