Procedural law can never be complete and exhaustive because substantive laws keep changing with the need of the time. Therefore, certain miscellaneous provisions are required to allow the code to be conformed to in every situation. This article shall analyze the application for miscellaneous proceedings under Section 141 of the Code of Civil Procedure, 1908.
Part XI of the CPC contains twenty-eight provisions which are miscellaneous in nature and are exercised by the civil courts day in and day out to enable a smooth continuum of the proceedings before the court. The most used provision is Section 151 of the Code which deals with inherent powers of the civil courts. Besides this section, the most significant provision in Part XI is Section 141 which provides the universal application of the Code in all civil proceedings before any court exercising civil jurisdiction.
Section 141 has been a part of the CPC for almost a hundred years. The provision has been subjected to several interpretations by the judiciary and produced conflicting judicial opinions. The provision has also undergone several modifications with the passage of time.
Historical Background of the Provision
The Code of Civil Procedure has been enacted five times in the Indian legislative history. In 1859, 1861, 1877, 1882 and 1908. The present law of civil procedure is governed by the Code of 1908 which repealed all previously existing civil procedures. The provisions contained in Section 141 did not find its place in 1859 CPC but was enacted for the first time in Section 38 of the 1861 CPC. The provision empowered the courts of civil jurisdiction to apply all the provisions of the code to any matter which is miscellaneous in nature.
The provision remained in the Code till 1882 but it started to raise conflict between several High Courts. The High Courts differed in their opinion with respect to whether the provision applies to the application filed for execution of a decree or not. The turmoil was resolved by adding an explanation to the Section by an amendment in 1892. The explanation made it categorical that the provision shall not apply to applications for execution of a court decree but only to miscellaneous applications related to certain suits.
For instance, A sued B for recovery of an amount of INR 5,00,000/- lent by A to B as a friendly loan for a period of one year without interest. After one year, B refused to return the amount and has been absconding from the court to avoid the payment. The court ordered to seize B’s luxury car and notify B of the same and if the debt is not repaid within a specific period, the money can be realized through the vehicle.
Hearing this, B pays the pending amount and the suit is dismissed as disposed of. Now, to recover his car, B has to file a miscellaneous application before the same court where the trial was conducted. According to Section 141 (Section 38 of the 1861 CPC), the court should apply the provisions of CPC in such cases as well.
When the provision was enacted as Section 141 in the 1908 CPC, it applied to all applications, suits and appeals of civil nature. However, in 1976, the CPC was amended and the explanation to the provision was added. According to the explanation, the provision applies to suits and proceedings under Order IX, i.e. appearance and non-appearance of parties and it does not apply to writ jurisdiction of the High Courts under Article 226.
Meaning of “Proceedings” under Section 141
Section 141 asserts that the procedure prescribed under the CPC for the institution of suits shall also be applicable to other “proceedings” of civil nature. Now, the word “proceedings” has been explained several different manners by different courts because the provision has failed to explain what proceedings is being referred to in the provision.
The first attempt to define the expression was made by the privy council in Thakur Prasad v. Fakirullah in 1894. Their Lordships observed that “proceedings” under Section 647 (now, Section 141) refer to proceedings in “original matters” or suits of civil jurisdiction and any application for execution is not included in it. The decision in Thakur Prasad led to a huge controversy among the High Courts of different states. The issues raised after this judgment are:
- What is the meaning of “original matters” as used by the Privy Council in Thakur Prasad.
- Whether proceedings under Order XXI Rules 89, 90 and 91 amount to original matters.
- Whether proceedings under Order IX amount to original matters.
The term “proceedings” was again subjected to interpretation after six decades in Ebrahim Aboo Baker v. Tek Chand Dolwani. The question before the apex court was whether a proceeding conducted before the custodian general under the Evacuee Property Act, 1950 would be considered proceedings under Section 141 of CPC. The court held that since the custodian general is not a court, a proceeding before a quasi-judicial body would not be proceedings for the purpose of Section 141.
In Hemant Devi v. Midnapur Zaminadari Company, the matter had gone for arbitration and after the arbitration was concluded, the parties decided to settle the matter outside the court and moved the civil court for a compromise decree. The question before the privy council was whether the civil court was empowered to pronounce such a decree under the CPC. The court observed that the power can be derived from Section 141 of the CPC which allows the application of CPC procedure in miscellaneous applications like one in this case.
In 1962, the Supreme Court reiterated the ratio in Thakur Prasad and once again made it the precedent. In Dokku Bushayya v. Ramkrishnayya, an application was filed in an execution case to nullify a sale agreement and set aside the sale of an immovable property which was later withdrawn because the suit was compromised between the parties. This case was undertaken by a guardian of the appellant above who was a minor then.
After the minor attained the age of majority, he wanted to set aside the sale that his guardian had executed for him on a compromise and he argued that the order of the court allowing the guardian to withdraw the application was null and void because leave of the court required under Order XXXII Rule 7 was not taken. The question was whether the leave which is required for original matters needed to be taken in an execution case as well where an application under Section 141 was filed.
The court reiterated the findings in Thakur Prasad and held that execution matters do not fall under “proceedings” mentioned in Section 141 that includes only original matters such as petitions for probate, guardianship, etc.
The most recent case where the issue involved interpretation of “proceedings” under Section 141 is Union of India v. M/s Jain & Associates, the apex court decided that provisions and procedure of CPC shall be applicable to arbitration proceeding as well if an application is filed under Section 141. The court made it crystal clear that the word “proceeding” under Section 141 includes arbitration proceedings as well.
The findings of the apex court in this plethora of cases can be summarized as follows:
- The proceedings should be original, viz. the trial before the court must be on the basis of an institution of a suit or a petition.
- Proceedings rising because of the dismissal of suit or determination of a suit are included in the meaning of proceedings.
- CPC is a law that is a part procedural law and part substantive law. With respect to Section 141, only the procedural part of CPC shall be applicable to all proceedings.
Unless the legislature breaks this sequence and the multitude of interpretation of this provision, there will not be any relief. The judicial determination as of now has been set to the questions decided and unless a new issue arises before the court, these shall act as precedents.
- M. Deka, Director, NEJOTI (Judicial Academy of Assam), The Nature And Trial Of Miscellaneous Proceedings.
- Dinshaw F. Mulla, the Key to Indian Practice: A Summary of the Code of Civil Procedure, 1908, (11th 2015).
 Thakur Prasad v. Fakirullah, 17 ALL 106 PC.
 Ebrahim Aboo Baker v. Tek Chand Dolwani, AIR 1953 SC 298.
 Hemant Devi v. Midnapur Zamindari Company, AIR 1919 PC 79.
 Dokku Bushayya v. Ramkrishnayya, AIR 1962 SC 1886.
 Union of India v. M/s Jain & Associates, AIR 2001 SC 809.