kathmandu secret

http://journey2light.wordpress.com/2014/01/04/kathmandus-secret-december-2013-part-1/

Kathmandu’s Secret – Part 1 – December 2013

POSTED ON JANUARY 4, 2014 BY JOURNEY2LIGHT

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Kathmandu’s Secret – Part 1 – December 2013

BABA GORAKHNATH & KATHMANDU VALLEY

Gorakhnath is unarguably the topmost among the clan of Nagas, Naths & Siddhas. I say is and not was, because people believe that this greatest among Siddhas still roams the holy spots on Earth in his invisible form.

Baba Gorakhnath, it is believed, had perfected the science of Alchemy – the ancient art of turning base metal into gold. He was one of the few Siddhas who could ingest the (poisonous) chemical mercury through one nasal tract & bring out an exact quantity of liquid gold through the other nasal tract.

The purification process that Gorakhnath often referred to, was internal cleansing of mind where: when you develop the art of converting your base thoughts into gold in the mental space – your physical body automatically follows suit by converting the base metals in your human body to the metal gold. When this happens, you develop the proverbial `Midas touch’- where whatever you touch converts to gold.

With Gorakhnath, this was `literally’ possible – his touch could turn base metal into gold. But with lesser mortals, it simply means that whatever you `touch’ on a symbolic plane (people, projects, jobs et al), it will turn to `gold’, as in it will succeed; come to fructification.

Baba Gorakhnath travelled far & wide. Travelling north towards Himalayas, he stopped by a huge lake in midst of mountains. Incidentally, it was also the resting spot for many travellers, monks & siddhas – but unfortunately it was devoid of any homing facilities in the harsh Himalayan weather. Gorakhnath then split a mountain to create a wide crack, which then allowed the large lake to drain across the mountains – creating a lush green valley. (In Tibetan mythology, this act is associated with Buddha Milrepa – a highly revered monk in Buddhist order).

In the centre of this valley, Gorakhnath erected a wooden Mandap (a large space created by roof & pillars). He called it Kastha-Mandap (kashtha-mandap). Kastha / kashtha = difficulty / difficulties in Sanskrit. Mandap = place of common gathering.

Seating himself in the midst of this Mandap, Baba Gorakhnath made a vow that whosoever shall walk into this Mandap & rest a while, his troubles (kastha / kashtha) would be left behind in the Mandap & he would walk away lighter.

In the midst of this Kastha-Mandap, is thin, long wooden pillar. It is said that if you join your spine to the pillar & take a 360 degree turn, your back / spine problems will be solved. This spot went on to become the meditation spot for Tibetan monks in centuries to come.

Gorakhnath’s Kasthamandap. Its translation in Tibetan language – Kathmandu. In the land of (ney = good) & (pal = people). Nepal.

• Kathmandu city reminds you of any small town north India.
• Language script is Devnagri & their dialect has many traces of Hindi.
• Kathmandu’s fascination with red brick buildings is evident from Tribhuvan airport itself. You feel you have stepped into IIM Ahmedabad.
• Kathmandu wears a highly neglected, disorganised look in many places, its highpoints being bad roads & chunks of hanging cable wires.
• Kathmandu’s city centre covers up with its share of malls & high street lifestyle shops. The city’s Durbar Square is the ancient heritage part of the city – the area with houses the ancient Kasthamandap & Kumari temple.
• Thamel area of Kathmandu is most lively with its Indian restaurants, pubs, small casinos & lanes of street shops. Tourist’s delight.
• Indian currency is accepted, but carrying 500 & 1000 rupee notes is a criminal offence and liable to imprisonment.
• Newa community of Nepal has a unique custom – their women are married thrice. At age 5 to the Bel Tree; on attaining puberty to the Sun God; and finally to a man of their choice as they grow older. That way, no Newa woman experiences widowhood.
• Mustang community of Nepal has another unique custom – if there are more than 2 sons in a family, then they do not bring home multiple brides. The wife of the eldest is the wife of all brothers. She spends one month with each brother & apparently there are no serious discords between brothers on this issue.
• The `Kumari’ custom is also unique to Nepal. Kumari is a living Goddess. She is chosen only from the Sakya clan, the birth clan of Gautama Buddha. A search is carried out for young girls in the age group of 5 years. She has to be blessed with 32 signs of physical perfection, in addition to having a good horoscope that matches with the horoscope of the King. Once a Kumari is selected, she is revered as Goddess Parvati and lives in royalty. Till she attains puberty. That is the catch. She is the queen of Nepal for about 6 years; then puberty brings her back to common life. An ex-Kumari cannot marry as no man will attempt to marry a girl who was once a Goddess. So in that sense she remain a Kumari (a virgin) all her life. Not by choice perhaps, but by sad default.
• An interesting point of mention is that Nepal’s original boundaries extended to include India’s Garhwal region, Darjeeling & Gorakhpur in UP. When British invaded India, they attempted to invade Nepal too, but the ferocious Gorkhas fended them off, and finally signed a peace treaty after signing off the aforementioned territories to India. Since then, these fiery Gorkhas have been an integral part of Indian Army, the most decorated & feared Gorkha Regiment.
• The Gorkha’s knife – the Khukri is a beautifully crafted knife. When in Kathmandu, don’t miss the Khukri shop to get an insight into how it is designed & crafted.
• Don’t also miss Kathmandu’s local liquor brews – their Khukri Spice Rum & their Ruslan Vodka.

NAGARKOT & BHAKTAPUR

Nagarkot is about an hour & half’s drive from Kathmandu. It is the nearest highest point from Kathmandu from where you can see the majestic snow capped Himalayas.

Bhaktapur is an ancient heritage city. Spread over 5 square kms, be prepared to walk its length & breadth to enjoy its beautiful architecture, its old palaces and its temples – all dedicated to Shiva, Parvati & Bhairava.

Continued… Kathmandu

athmandu’s Secret – Part 2 – Lord Pashupatinath

PASHUPATINATH TEMPLE, KATHMANDU

• Pashupatinath is a UNESCO World Heritage Site. It looks, feels & is – really ancient. You feel for a moment that you have stepped back in time.
• It is spread over few square kilometers & houses many other temples along with its main deity Lord Pashupatinath.
  Lord Pashupatinath is housed in the centre, in a temple that boasts of extremely ancient architecture. Don’t miss the intricate detailing.
• It is bang on the banks of Bagmati river (which unfortunately is just a trickle owing to heavy pollution). You can look down from the corridors & catch a burning body or two, provided it belongs either to the Royal family or a family of high lineage. They are the only ones who have permission to cremate in the adjoining premises of Pashupati temple.
• Don’t miss doing a Circumbulation (Parikrama) of the 525 Lingams that have been installed in a Swastika maze. You have to walk through the created maze, passing all 525 Lingams, touching the main Lingam in the centre, and exiting again from a different end. It ensures good health, good life & longevity.
• Don’t miss grinding the huge Sandal (Chandan) stone & applying some paste to your forehead.
• Don’t miss churning the platform of burning fires (in small plates) with a sugarcane stick. It brings peace to your ancestors.
• Don’t miss the huge sitting Nandi Bull humbly facing his Master. It is majestic.
• Don’t miss sitting down for a few minutes in solitude & simply breathing in the vibrations.

PASHUPATINATH – AS `HIM-ANSHU’

Kathmandu is the land of Shiva. His name reverberates across the valley in the multitude of small temples that surround the valley. Barring Pashupatinath temple, most temples do no boast of any rituals – you can simply walk in, have a darshan, and touch the God.

In Shiva Purana, Shiva is referred to as Himanshu also, in the Purana’s description of this Himalayan valley (though there is no such reference to Kathmandu as a city per se). Him = snow capped mountain; Alay / Alaya = residence; Ansh / Anshu = a part. Shiva as Him-anshu is that form who has merged into the snow capped mountains, making it His residence, and has thus become a part of them. Lord Himanshu resides on the mysterious Mount Kailash peak in the majestic Himalayan mountain range.

PASHUPATINATH – THE ANIMAL GOD

Many long centuries back, a cowherd noticed a certain milky white cow straying from his herd every day. She would quietly return by evening, after emptying her udders of all milk. Puzzled by this occurrence, the cowherd once quietly followed the cow, only to see her dropping her milk over a stone, into a small earthly cavity. Curious, the cowherd went near to have to look as to what lay in that hole – and he discovered the Lingam of Lord Pashupatinath. This discovery later paved the way for the erection of this current temple of Pashupatinath in Kathmandu.

There is also a mention in the Shiva-Purana which says that when Shiva was craving solitude when the Pandavas of Mahabharata, were searching for Him to wash off their earthly sins; Shiva then took the form of a Bull & started running; the Bull was subsequently stopped by Bhima; Lord Shiva burrowed into Earth; but Bhima grabbed him by the tail, thus effectively stopping him. The hump of the Bull is worshipped as the holy Kedarnath Lingam, whereas the head of the Bull, that emerged at another end of the Himalayas, is worshipped as Lord Pashupatinath (pashu = animal; pati / nath = Lord).

PASHUPATINATH – GOD OF SMALL THINGS

In this form as Lord Pashupatinath, it is believed that Shiva radiates extreme compassion to beings of the lower order; creatures / life forms / people who cannot take care or fend for themselves. It is believed that He fends for them, takes care of them, and ensures full sustenance to them in their mortal life on earth; and when their end comes, He personally delivers them from the physical to the astral.

The only way to approach Lord Pashupatinath – as the God of Small Things – is in your most humble, helpless form. Shed your ego, your worldly possessions, your name & fame, your achievements & enter His temple with the mind of a newborn baby. Don’t be ashamed to show your lapses, needs & shortcomings, because that’s what He’s there for. And your sustenance & protection is assured in this life.

PASHUPATINATH – THE ALCHEMIST’S STONE

The fact that Baba Gorakhnath – the undisputed Master of Alchemy; the Valley where you leave all your troubles behind; and mystical Pashupatinath Lingam are all in the same radius of few kilometers – cannot be a coincidence. So what is the connection?

In the Shiva Purana, there is an extensive description of a certain Shiva-Lingam that is referred to, as the Parasmani –Lingam (pronounced paa-ras-mani).

Parasmani is a wishing-stone; a touchstone; the Alchemist’s stone. It is believed that finding such a touchstone has been the undying quest of Naths & Siddhas & Alchemists across centuries, across the world & across various civilizations. Having this stone grants a person the power of Alchemy – the power to convert base metal into gold.

Shiva Purana describes Lord Pashupatinath as the Parasmani Lingam. The wishing stone. The Touchstone. The Alchemist’s stone.

It could be perhaps the presence of this rare stone in this Himalayan valley that led Gorakhnath to the end of his search & he decided to reside here as his final earthly abode. What Baba Gorakhnath knew, we will never know because Naths & Siddhas are not famous for sharing secrets.

But what Gorakhnath did share for the common man about Alchemy was:

• The human body comprises of traces of metals & minerals.
• The key lies in mind-control.
• Every time we control a base-thought (an animal instinct) & successfully overcome it, we convert a small fraction of the base-metals in our human body to gold.
• The more we keep up this mind control, the more gold we will have in our body.
• The chemical name of gold is Aurum. The light which radiates from our body is called Aura. The more Aurum we have in our body, the stronger & more golden will our Aura be.
• At some stage in our combined mental penance & physical restraint – there will come a point where a significant amount of base-metals in our body has been converted to gold.
• This is the stage when we are blessed with a Healing-touch. Whatever we touch, gets purified.
• If we persist this over one lifetime & several subsequent lifetimes, we can all reach the level of Baba Gorakhnath – where with a single touch, we can actually / literally – convert base-metal into gold.
• When we reach that stage, further secrets of Alchemy will be revealed to us. Till then, start with a simple mastery over hunger, thirst, sex & wicked thoughts.
• Don’t search for a Master, the Master will find you. When the student is ready, the Master will appear. That is the catch-line of Naths & Siddhas.

So – from what we do know from the correlation of vedic texts & documented facts is that Pashupatinath is undisputedly a Parasmani Lingam. Here, Parasmani does not refer to the chemical composition of the stone, but to its magical properties that make it an Alchemist’s Stone. Lord Pashupatinath is a 4 faced stone Lingam. Legends say that the real Parasmani is hidden beneath the Pashupatinath Lingam, and it radiates its aura & power from there, allowing whosoever who touches the Pashupatinath Lingam – to gather its mystical vibrations.

BUT – the catch is – no one is allowed to touch the Pashupatinath Lingam except the Royal family of Nepal. Earlier it wasn’t so. Touch-darshan was open to one & all. But many decades back, a devout of Indian origin, wanting to test the power of this Parasmani Lingam, surreptitiously tried to scratch a steel spoon on the Lingam’s surface, hoping to convert it into gold. He was caught, as were several others who had gotten into the habit of scratching the Lord’s Lingam with coins, in the hope of conversion to gold. The price of that greed is the price we are all paying today by banning our entry into the sanctum-sanctorum.

What most people do not understand is that – even with the Alchemist’s Stone in the palm of our hand – it will be of no use to us – if we have not attained the SIDDHI to use it. That is the penance that has taken lifetimes for religious practitioners like Baba Gorakhnath – and it is not a science that is going to be gifted to a commoner on a platter. It is a mastery that has to be earned.

But that notwithstanding – when you are in the temple campus of Pashupatinath – don’t forget to wish & keep wishing. He knows what wishes to ignore; what can be given & what must be given. You will not come back empty-handed.

BUT – there is another catch here. You will have to collect your granted wishes from a different place – from the sanctum sanctorum of the temple of His Hidden Consort. Most are not even aware of this. Most return back after the darshan of Pashupatinath. But some, a chosen few, make it to Her altar. There – they receive from Her what He has granted to us.

Continued… Kathmandu’s Secret – Part 3 – His Hidden Consort

Kathmandu’s Secret – Part 3 – Guhyeshwari Devi

POSTED ON JANUARY 11, 2014 BY JOURNEY2LIGHT

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Kathmandu’s Secret – Part 3 – Guhyeshwari Devi

SHIVA & SATI

This is the story of Shiva & Sati. Shiva is insulted by Sati’s father Daksh. Sati takes the insult personally. She throws herself into the holy ritual fire. Shiva is informed. He reaches Daksh’s palace. Picks up Sati’s dead burning body in his arms. In uncontrolled anger, He starts the Pralay-Tandav – the dance of destruction. Vishnu steps in. He feels Shiva can only be calmed if He is separated from the dead burning body. He unleases His Sudarshan-Chakra (Disc) with instructions to chop the body to pieces. The body is slashed in 108 pieces, each piece falling at a different spot in accordance with Shiva’s wild dance.108 `seats’ of `power’. 108 Shakti-Peeths. Power points on Earth for protection & salvation of mortals.

KAMAKHYA & GUHYESHWARI

Of primary importance amongst the 108 seats of power, are 51 seats which lay claim to the Goddess’s most important body parts. The lower private organs of Sati, got thrown into 2 different places. Amongst the primary 51 seats, her private parts – the ovaries & uterus fell at Kamakhya Devi in Gauhati, Assam, India – and the vagina & cervix fell some distance away at Guhyeshwari Devi in Kathmandu, Nepal.

Kamakhya Devi in Assam is also referred to as the `bleeding-goddess’. In correlation to the body part of Sati that fell here, Kamakhya has her periods in the Hindu month of Ashad for 3 days; it is believed that this blood flows into the Brahmaputra, and the river takes on a pinkish hue (which from a practical standpoint is also attributed to the immense vermillion that flows into the river on those 3 days).

SECRETS OF GUHYESHWARI

Coming back to Guhyeshwari in Kathmandu:

Guhya = hidden / secret / undiscovered / unknown / incognito.

Eshwari = the consort of Eshwara / Shiva.

In the Devi Tantra it is detailed that, that is exactly how she wishes to remain – as the hidden / unknown / undiscovered / secret consort of Pashupatinath.

Taking a walk from Vaishali Hotel into Thamel’s famous shopping lanes, I chanced into a bookstore one evening. A voluminous book titled – Tantric Wisdom Goddesses penned by a foreign author (whose name I cannot now remember) caught my attention.

Being a hefty-priced thick book, I had no intention of buying it; but I didn’t think it ethical to take notes either. But I did browse through the pages trying to remember as much of the interesting information, I could.

In keeping with this Deity’s wishes, I would not like to comment too much in depth; but I would like to share a recap from the book & from my travels:-

1. If you have faintly read somewhere that she appears among the primary 51/108 Shakti Peeths, then you will at least ask for her & try to include her temple into your itinerary, even if her significance is not clear to you.
2. But otherwise, Guhyeshwari is easy to miss. She appears nowhere on the local tourist guide’s agenda. So if you haven’t priorly read or heard about her, then chances are that you will miss paying a visit to her temple.
3. When in Kathmandu, insist that your local guide takes you there, because he / she will most likely tell you that her abode has no significance & a visit is not essential.
4. Guhyeswari is a mere 10 minutes drive from Pashupatinath, yet you will find her courtyard almost empty.
5. Guhyeshwari temple is on an elevation from the road; large old temple; ancient architecture.
6. In the midst of the temple compound which houses several other small, micro temples – is her sanctum-sanctorum. You have to descend to enter it. It’s as if she’s hiding in a small cave.
7. Initially you may mistake her for a shiva-lingam – it looks just like one & you may keep looking around for a temple that’s more symbolic of a Goddess.
8. But there she is – in `pind’ form / a large hump of a stone. That’s Guhyeshwari Devi.
9. She has made a choice to remain secret & undiscovered like the symbolic private part, from which her energies arose.
10. Here, in Kathmandu, she chooses to remain in shadow & solitude, so that her better-half, Lord Pashupatinath can fulfill his worldly responsibilities without her distraction.
11. For those who have figured out her secret & seek her out … :-
12. She is the goddess of soul-mate connections. In `Tantric Wisdom Goddesses’, it is said, that those who make a visit here are not too far from their soul-mate connections. A fleeting encounter in this life & a more fulfilling encounter in the next – is assured for all who make it to her altar.
13. She is the goddess of marriage. A visit to her temple proves highly beneficial to those seeking / searching for a marriage partner.
14. She is the goddess of marital fidelity. A visit to her temple assures ensures fidelity & commitment in marital ties.
15. She is the goddess of marital longevity. A visit to her temple ensures a long & fruitful marriage partnership.
16. And the most important perhaps – It is said you have to collect from Guhyeswari’s altar, the wishes which have been granted to you by Pashupatinath. She is the medium. He passes on the granted wishes to her – and she in turn – passes them onto you when you reach her altar.
17. So in a way – though it’s easy to miss her – you can’t afford to miss her – else you risk leaving your bag of granted wishes back in Kathmandu itself.
18. Her real secret lies in teaching you to look for – the unseen; the hidden; the subtle; the invisible.
19. Her real secret lies in teaching you to look beyond the obvious that meets your eye & ear.
20. Her real secret lies in searching for the soul hidden deep within imperfect bodies.
21. Her real secret lies in connecting you to your own soul.

If Lord Pashupatinath is the God of imperfect life-forms & small, helpless beings – then Guhyeswari Devi is the perfect soul that is hidden deep within all of them & every one of us. The key is to find her to find yourself.

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Q. Explain Decree, Order, and Judgment and distinguish between them.  What are the essential elements of a decree? What are the kinds of decree? What are the consequences of non appearance of parties? What is an ex parte decree? Discuss the remedies available to a defendant against whom an ex parte decree has been passed. All questions regarding execution of a decree shall be determined by the court executing the decree and not by

http://hanumant.com/CPC-Decree.html a separate suit. Explain.  
Decree
In a civil suit several facts might be alleged and the court may be required to rule on several claims. In simple terms, a decree is the ruling of the court regarding the claims of the parties of the suit. For example, in a suit between A and B, A may claim that a particular property P belongs A. After hearing all the arguments, the court will rule in the favor of either A or B. The final decision of the court regarding this claim i.e. whether the property belongs to A or B, is a decree. 

As per Section 2(2),  a decree is the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It can be final or preliminary.

From the above definition we can see the following essential elements of a decree - 

1. There must be an adjudication - Adjudication means Judicial Determination of the matter in dispute. In other words, the court must have applied its mind on the facts of the case to resolve the matter in dispute. For example, dismissing a suite because of default in appearance of the plaintiff is not a decree. But dismissing a suite on merits of the case would be a decree.

2. There must be a suit -  Decree can only be given in relation to a suit. Although CPC does not define what suit means, in Hansraj vs Dehradun Mussoorie Tramways Co. Ltd. AIR 1933, the Privy Council defined the term suit as "a civil proceeding instituted by the presentation of a plaint".

3. Rights of the parties - The adjudication must be about any or all of the matters in controversy in the suit. The word right means substantive rights and not merely procedural rights. For example, an order refusing leave to sue in forma pauperis (i.e. an order rejecting the application of a poor plaintiff to waive court costs) is not a decree because it does not determine the right of the party in regards to the matters alleged in the suit.

4. Conclusive Determination - The determination of the right must be conclusive. This means that the court will not entertain any argument to change the decision. I.e. as far as the court is concerned, the matter in issue stands resolved. For example, an order striking out defence of a tenant under a relevant Rent Act, or an order refusing an adjournment is not a decree as they do not determine the right of a party conclusively. On the other hand, out of several properties in issue in a suit, the court may make a conclusive determination about the ownership of a particular property. Such a conclusive determination would be a decree even though it does not dispose off the suit completely.

5. Formal expression - To be a decree, the court must formally express its decision in the manner provided by law. A mere comment of the judge cannot be a decree. 

Examples of decisions which are Decrees -  Dismissal of appeal as time barred,  Dismissal or a suit or appeal for want of evidence or proof, Order holding appeal to be not maintainable.

Examples of decisions which are not Decrees -  Dismissal of appeal for default, order of remand, order granting interim relief.

Order
As per Section 2 (14), The formal expression of any decision of a civil court which is not a Decree is Order.  In a suit, a court may take certain decisions on objective considerations and those decisions must contain a discussion of the matters at issue in the suit and the reasons which led the court to pass the order. However, if those decisions fall short of a decree, they are orders.

Thus, there are several common elements between an order and a decree -  both related to matter in controversy, both are decisions given by the court, both are adjudications, both are formal expressions. However, there are substantial differences between them - 

Decree - S. 2(2)	Order S. 2(14)
Can only be passed in a suit originated by the presentation of a plaint.	Can be passed in a suit originated by the presentation of a plaint, application, or petition.
Contains Conclusive Determination of a right	May or may not finally determine a right.
May be final, preliminary, or partly preliminary - partly final.	Cannot be a preliminary order.
In general, there can only be one decree or at the most one preliminary and one final decree in a suit.	There can be any number of orders in a suit.
Every decree is appealable unless an appeal is expressly barred.	Only those orders which are specified as appealable in the code are appealable.
A second appeal may lie against a decree to a High Court on certain grounds.	There is no second appeal for orders.

JudgementAs per Section 2 (9), "judgment" means the statement given by the judge of the grounds of a decree or order. Every judgment should contain -  a concise statement of the case, the points for determination, the decision thereon, the reasons for the decision. In the case of Balraj Taneja vs Sunil Madan, AIR 1999, SC held that a Judge cannot merely say "Suit decreed" or "Suit dismissed". The whole process of reasoning has to be set out for deciding the case one way or the other.

As per Rule 6 A of Order 20 the last part of the judgment should precisely state tge relief granted. Thus, a judgment is a state prior to the passing of a decree or an order. After pronouncement of a judgment, a decree shall follow.


Kinds of Decree

Preliminary -  Where an adjudication decides the rights of the parties with regard to all or any of the matters in controversy in the suit but does not completely dispose of the suit, it is a preliminary decree. It is passed when the court needs to adjudicate upon some matters before proceeding to adjudicate upon the rest. 
In Shankar vs Chandrakant SCC 1995, SC stated that a preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings.
CPC provides for passing a preliminary decrees in several suits such as - suit for possession and mesne profits, administration suit, suits for pre-emption, dissolution of partnership, suits relating to mortgage. In Narayanan vs Laxmi Narayan AIR 1953, it was held that the list given in CPC is not exhaustive and a court may pass a preliminary decree in cases not expressly provided for in the code.

Final -  When the decree disposes of the suit completely, so far as the court passing it is concerned, it is a final decree. A final decree settles all the issues and controversies in the suit.

Party preliminary and partly final - When a decree resolves some issues but leaves the rest open for further decision, such a decree is partly final and party preliminary. For example, in a suit for possession of immovable property with mesne profits, where the court decrees possession of the property and directs an enquiry into the mesne profits, the former part of the decree is final but the latter part is preliminary.

Deemed Decree -  The word "deemed" usually implies a fiction whereby a thing is assumed to be something that it is ordinarily not. In this case, an adjudication that does not fulfill the requisites of S. 2 (2) cannot be said to be a decree. However, certain orders and determinations are deemed to be decrees under the code. For example, rejection of a plaint and the determination of questions under S. 144 (Restitution) are deemed decrees.


Consequences of Non appearance of parties (Order 9)
The general provisions of CPC are based on the principle that both the parties must be given an opportunity to be heard. The proceedings must not be held to the disadvantage of one party. Order 9 lays down rules regarding the appearance and the consequences of non appearance of a party in the hearing.

Rule 1 - Parties to appear on day fixed in summons for defendant to appear and answer— On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.

Dismissal of Suit
Rule 2 - Dismissal of suit where summons not served in consequence of plaintiffs failure to pay cost— Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service, or to present copies of the plaint or concise statements, as required by rule 9 of order VII,  the Court may make an order that the suit be dismissed :
Provided that no such order shall be made, if, notwithstanding such failure the defendant attends in person (or by agent when he is allowed to appear by agent) on the day fixed for him to appear and answer.

Rule 3 -  Where neither party appears, suit to be dismissed— Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

Rule 4 -  Plaintiff may bring fresh suit or Court may restore suit to file— Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure as is referred to in rule 2, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.

Rule 5 -  Dismissal of suit where plaintiff after summons returned unserved, fails for one month to apply for fresh summons— 
    (1) Where after a summons has been issued to the defendant, or to one of several defendants, and returned unserved the plaintiff fails, for a periods of one month from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that—
        (a) he has failed after using his best endeavours to discover the residence of the defendant, who has not been served, or
        (b) such defendant is avoiding service of process, or
        (c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.
    (2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

Ex parte Proceedings

Rule 6 -  Procedure when only plaintiff appears— 
    (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then—
        (a) When summons duly served—if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex parte.
        (b) When summons not duly served—if it is not proved that the summons was duly serve, the Court shall direct a second summons to be issued and served on the defendant;
        (c) When summons served but not in due time—if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant.
    (2) Where it is owing to the plaintiffs' default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.

Rule 7 - Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance— Where the Court has adjourned the hearing of the suit ex-parte and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day, fixed for his appearance.

Absence of Plaintiff 

Rule 8 -  Procedure where defendant only appears— Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

Rule 9 -  Decree against plaintiff by default bars fresh suit— 
    (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. and shall appoint a day for proceeding with suit.
    (2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

Multiple plaintiffs and/or Defendants

Rule 10 -  Procedure in case of non-attendance of one or more of several plaintiffs— Where there are more plaintiffs than one, and one or more of them appear, and the others do not appear, the Court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if all the plaintiffs had appeared, or make such order as it thinks fit.

Rule 11 -  Procedure in case of non-attendance of one or more of several defendants— Where there are more defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear.

General Consequence of Non appearance
Rule 12 - Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person— Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively who do no appear.

This means either the suit will be dismissed or will be continued ex parte.

Ex parte Decree (Order 9)
As per Rule 6, if the defendant fails to appear before the court in spite of a proper service of the summons, the court may proceed ex-parte and may pass a decree in favor of the plaintiff. This is called an ex-parte decree. In the case of Hochest Company vs V S Chemical Company, SC explained that an ex parte decree is such decree in which defendant did not appear before court and the case is heard in the absence of the defendant from the very beginning.

Remedies available to the defendant against an ex parte decree

1. Application to set aside the ex parte decree -  As per Order 9, Rule 13, a defendant may apply before the court that passed the decree to set it aside.  If he satisfies the court that the summons was not duly served or he was prevented by any other sufficent cause from attending the hearding, the court shall make an order setting aside the decree.  For example, bona fide mistake as to the date or hearing, late arrival of train, etc. are sufficient causes for absence of the defendant. Such an application for setting aside may be made within 30 days from the date of decree as per Section 123 of Limitation Act. 

Setting aside decrees ex parte

Rule 13 -  Setting aside decree BIex parte against defendant— In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim

Explanation.—Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.

Rule 14 -  No decree to be set aside without notice to opposite party— No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party.

The court may impose conditions as it may deem fit on the defendant for setting asided the decree. It may ask the defendant to pay costs.

When an ex parte decree is set aside, the court should proceed to decide the suit as it stood before the decree. The trial should commence de novo and the evidence that had been recorded in the ex parte proceeding should not be taken into account.

This remedy is specifically meant for an ex parte decree.

2. Prefer an appeal against the decree under Section 96(2).

3. Apply for review under Order 47 Rule 1.

4. File a suit on the ground of fraud.

All the above remedies are concurrent and can be pursued concurrently.

Execution of a Decree

As per Section 38, a decree may be executed either by the court which passed it or the court to which it is sent for execution. While executing a decree, several questions and objections may arise as to the manner of execution. It would be impractical to institute new suits to resolves such matters. Thus, Section 47 lays down the general principal that any questions that arise in relation to the execution of the decree should be resolved in execution proceeding itself and not by a separate suit. Section 47 says thus - 

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.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
Explanation I.For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II. (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.

The objective of this section is to provide cheap and fast remedy for the resolution of any questions arising at the time of execution. Institution of new suits would only increase the number of suits and would also be a burden on the parties.

The scope of this section is very wide. It confers exclusive jurisdiction to the court executing the decree in all the matters regarding the execution. It does not matter whether the matter has arisen before or after the execution of the decree. Thus, this section should be construed liberally.


Conditions - 
1. The question must be one arising between the parties or their representatives to the suit in which the decree is passed.
2. The question must relate to the execution, discharge, or satisfaction of the decree. 

As held in the case of Arokiaswamy vs Margaret AIR 1982, both the conditions must be satisfied cumulatively.

What is meant by execution, discharge and satisfaction of a decree - 
 This expression has not been defined in the code. However, the following questions are held to be relating to the execution, discharge and satisfaction of the decree  - 
 whether a decree is executable, whether a property is liable to be solde in execution of a decree, whether the decree is fully satisfied, whether the execution of the decree was postponed.

The following questions have been held as not related - whether the decree is fraudulent or collusive, whether the decree has become inexecutable because of a compromise between the parties, a question about the territorial or pecuniary jurisdiction of the court passing the decree. 

Appeal and Revision
Earlier, determination made under Section 47 was deemed to be a decree under Section 2(2). However, after the amendment in 1976, this is not so. Any determination made under an application under Section 47 is not considered a decree and is therefore not appealable under Section 96 or Section 100. Since it is no more a decree, a revision application under Section 115 is therefore maintainable provided the conditions stipulated in Section 115 are satisfied.

Debt Recovery /Money Suit procedure in India

Home/Debt Recovery /Money Suit procedure in India.

For companies, partnership firm, proprietor ship firm and traders etc.. can file a suit for recovery their unpaid bills/ Business due amount or payment where:-

There are any written contract/agreement between the parties.

Then they can file a summary suit under order XXXVII Civil Procedure Code. In this suit debtors have very limited scope to avoid to pay the debts to the parties, as there are very few chances to delay the proceeding. Every case has to special character and its depends upon the matter to matter.

If any party has filed a suit under this order and rule, then after putting the appearance before the Court within ten days and after service of summon for judgments, defendant can seek leave to defend for contesting the matter and its depends upon the court that leave may be grant or not.

For filing of debt recovery suit U/o XXXII Civil Procedure Code are based upon this guide line define in this section/under order as under.

INSTITUTION OF SUMMARY SUITS:

- A suit, to which this order applies, may if the plaintiff desires to proceed hereunder, be instituted by presenting a plaint which shall contain-

a specific averment to the effect that the suit is filed under this order:

that no relief, which does not fall with in the ambit of this rule, has been claimed in the plaint: and the following inscription, immediately below the number of the suit in the title of the suit namely-“(U/o XXXVII of the code of Civil procedure , 1908)

SUMMARY PROCEDURE.

COURT AND CLASSES OF SIUTS TO WHICH THE ORDER IS TO APPLY-

1. This order shall apply to the following courts, namely

(a) High courts, city civil Courts and courts of small cause.

(b) other courts: provided that in respect of the court s referred to in clause (b), the high Court may, by notification in the official gazette, restrict the operation of this order only to such categories suits as it deems proper, and may also, from time to time, as the circumstances, of the case may require, by subsequent notification on the official gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this order as it deems proper.

2. Subject to the provisions of Sub Rules (1), the order applies to the following classes of suits namely-

(a) suits upon will 0f exchange, Hundies and promissory notes:

(b)suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising-

(i) on a written contract, or

(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of the debt other then a penalty: or

(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.

If written Contract or Agreement is not there then a simple civil recovery suit will be file on the basis of facts and circumstances of the case.

Jurisdiction to File a suit in Delhi

In Delhi ,India at persent party can file a suit for the recovery upto 3 lakh before the Civil Judge and above 3 lakhs, then party may file before Addl.civil Judge but bellow Rs. 20 Lakhs.

if amount exceeding Rs.20 lakhs the party may file their suit in Delhi High Court.

Court Fees : for the recovery of amount,party must pay the court fees as per the Indian Court Fees Act bt and Money Suit.

indian failed legal system

IssuesEdit

This section requires expansion. (June 2012)

According to the World Bank, "although India's courts are notoriously inefficient, they at least comprise a functioning independent judiciary"^[8] A functioning judiciary is the guarantor of fairness and a powerful weapon against corruption. But people's experiences in fall far short of this ideal. Corruption in the judiciary goes beyond the bribing of judges. Court personnel are paid off to slow down or speed up a trial, or to make a complaint go away. Judges are also subject to pressure from above, with legislators or the executive using their power to influence the judiciary, starting with skewed appointment processes."Judges appointing judges has become a total failure and it is become like a club membership",opines former judge of the Madras High Court Justice Chandru.^[9]

Citizens are often unaware of their rights, or resigned, after so many negative experiences, to their fate before a corrupt court. 

Court efficiency is also crucial, as a serious backlog of cases creates opportunities for demanding unscheduled payments to fast-track a case.^[10]

Judicial backlogEdit

Indian courts have large backlogs. For instance, the Delhi High Court has a backlog of 466 years according to its chief justizce.^[11] This is despite the average processing time of 4 minutes and 55 seconds in the court.^[11] InUttam Nakate case, it took two decades to solve a simple employment dispute. However it need to be mentioned that the concept of backlogs doesn't describe the actual reason for so many cases lying in the courts. Rather the term "backlog" has been misused and the term "pendency" is the right word for describing the large number of cases pending in the courts today. As could be understood, the largest number of cases that are actually pending in the Indian Courts are that of minor Motor Vehicle Cases, petty crimes such as stealing, abusing, insult, slap, etc. It is an established fact which the Govt. of India accepts that there is 40% shortage of judicial staff. Opposition and ruling party's corrupt politicians profit from the delays in the system.
On 12 January 2012, a Supreme Court bench said that people's faith in judiciary was decreasing at an alarming rate, posing a grave threat to constitutional and democratic governance of the country. It acknowledged some of the serious problems such as –

1. Large number of vacancies in trial courts,
2. Unwillingness of lawyers to become judges,
3. Failure of the apex judiciary in filling vacant HC judges posts.

It wanted to seek answers from the government on amicus curiae's suggestion that access to justice must be made a constitutional right and consequently the executive must provide necessary infrastructure for ensuring every citizen enjoyed this right. It also wanted the Government of India to detail the work being done by the National Mission for Justice Delivery and Legal Reforms.^[12][13][14]
In October 2012 the BBC reported on the case of Mohammed Idrees, a Pakistani who was held under Indian police control for approximately 13 years for overstaying his 15-day visa by 2–3 days after seeing his ill parents in 1999. Much of the 13 years was spent in prison waiting for a hearing, and more time was spent homeless or living with generous families. Both states denied him citizenship, leaving him stateless. The BBC linked these problems to the political atmosphere caused by the Kashmir conflict. There were many similar cases where espionage had been charged against non-spies for trivial crimes like overstaying visas or minor tresspass, and hundreds of ordinary citizens held in prison by both India and Pakistan. The Indian People's Union for Civil Liberties decried his mistreatment. The Indian Human Rights Law Network told the BBC that the cause was "officials in the home department", including the slow court system, and called the case a "miscarriage of justice, a shocking case".^[15]

Judicial corruptionEdit

Corruption is rampant in India's courts. According to Transparency International, judicial corruption in India is attributable to factors such as "delays in the disposal of cases, shortage of judges and complex procedures, all of which are exacerbated by a preponderance of new laws".^[16] Most disturbing is the fact that corruption has reached the highest judicial forum i.e. Supreme Court of India. Some notable cases include:

1. In December 2009, noted social activist, campaigner for judicial accountability and a Supreme Court lawyer Prashant Bhushan in response to the notice of contempt issued by the Supreme Court (for his interview to a news magazine in which he had said, "out of the last 16 to 17 Chief Justices, half have been corrupt"), filed an affidavit standing by his earlier comments saying: "It is My Honest And Bonafide Perception".^[17] Later in September 2010, he submitted a supplementary affidavit in which he submitted evidence to back his allegations.^[18] In November 2010, former Law Minister, Shanti Bhushan echoed Prashant Bhushan's claim saying: "It is my firm belief that there is a lot of corruption in judiciary. I am saying the same thing which Prashant Bhushan had said. The question of apology does not arise. I will rather prefer to go to jail. The judiciary cannot be cleansed unless the matter is brought into the public domain".^[19]
2. In June 2011, a very widely respected former Chief Justice of India J. S. Verma echoed these views saying that "certain individuals with doubtful integrity were elevated within the higher judiciary" He cited the case of Justice M. M. Punchhi, whose impeachment had been sought by the campaign for judicial accountability. Justice Verma said he was willing to permit the allegations to be probed but the political executive refused to allow this. Justice Verma further explained, "Because the allegations, if proved, were serious and therefore they required to be investigated, so that one could know whether they were true or not." He acknowledged that Justice Punchhi was later elevated to CJI despite facing "serious allegations". Justice Verma also talked about another former CJI K G Balakrishnan's continuance as National Human Rights Commissionchairman. Justice Verma said, "He should have demitted long back and if he doesn't do it voluntarily, the government should persuade him to do that, otherwise, proceed to do whatever can be done to see that he demits office."^[20]
3. In November 2011, a former Supreme Court Justice Ruma Pal slammed the higher judiciary for what she called the seven sins. She listed the sins as:
   1. Turning a blind eye to the injudicious conduct of a colleague
   2. Hypocrisy – the complete distortion of the norm of judicial independence
   3. Secrecy – the fact that no aspect of judicial conduct including the appointment of judges to the High and Supreme Court is transparent
   4. Plagiarism and prolixity – meaning that very often SC judges lift whole passages from earlier decisions by their predecessors and do not acknowledge this – and use long-winded, verbose language
   5. Self Arrogance – wherein the higher judiciary has claimed crass superiority and independence to mask their own indiscipline and transgression of norms and procedures
   6. Professional arrogance – whereby judges do not do their homework and arrive at decisions of grave importance ignoring precedent or judicial principle
   7. Nepotism – wherein favors are sought and dispensed by some judges for gratification of varying manner.^[21]
4. In 2011, Soumitra Sen, former judge at the Kolkata High Court became the first judge in the India to be impeached by the Rajya Sabha for misappropriation of funds.^[22]

ReformEdit

This section requires expansion. (June 2012)

E-Courts Mission Mode ProjectEdit

The E-courts project was established in the year 2005.^[23] According to the project, all the courts including taluk courts will get computerised. As per the project in 2008, all the District courts were initialised under the project. In 2010, all the District court were computerised. The entry of back log case has started. The IT department had one system officer and two system assistants in each court. They initiated the services in the Supreme Court in June 2011. The case lists and the judgements of most district courts are available in http://lobis.nic.in. in http://judis.nic.in is used to connect all High Courts and Supreme Court judgements and cause list. These websites are updated daily by a technical team. Now the establishment work is going on taluk courts.
The project also includes producing witnesses through video conferencing. Filing cases, proceedings, and all other details will be in computers. Each district court contains 1 system officer and 2 system assistants. This technical manpower is involved in training the staff, updating web sites.^{[citation needed]}
Establishment of e-courts in India is in infancy stage.^[24] Till the month of August 2014 we are still waiting for the establishment of first e-court of India.^[25]

Judicial Service CentreEdit

This is a part of e-court project. The judicial service centres are available in all court campus. The Public as well as the advocates can walk in directly and ask for the case status, stage and next hearing dates. This service is provided for free.^{[citation needed]}

HistoryEdit

Jury trialEdit

The first jury trial decided by an English jury in India happened in Madras (today Chennai) in 1665, for which Ascentia Dawes (probably a British woman) was charged by a grand jury with the murder of her slave girl, and a petty jury, with six Englishmen and six Portuguese, found her not guilty.^[6] With the development of the East India Company empire in India, the jury system was implemented inside a dual system of courts: In Presidency Towns (Calcutta, Madras, Bombay), there were Crown Courts and in criminal cases juries had to judge British and European people (as a privilege) and in some cases Indian people; and in the territories outside the Presidency Towns (called "moffussil"), there were Company Courts (composed with Company officials) without jury to judge most of the cases implying indigenous people.^[6]
After the Crown Government of India (Raj) adopted the Indian Penal Code (1860) and the Indian Code of Criminal Procedure (1861, amended in 1872, 1882, 1898), the criminal jury was obligatory only in the High Courts of the Presidency Towns; elsewhere, it was optional and rarely used.^[6] According sections 274 and 275 of the Code of Criminal Procedure, the jury was composed from 3 (for smaller offences judged in session courts) to 9 (for severe offences judges in High Courts) men; and when the accused were European or American, at least half of the jurors had to be European or American men.^[6]
The jury found no place in the 1950 Indian Constitution, and it was ignored in many Indian states.^[6] The Law Commission recommended its abolition in 1958 in its 14th Report.^[6] Jury trials were abolished in India by a very discrete process during the 1960s, finishing with the 1973 Code of Criminal Procedure, which is still in force today.^[6]
It has been argued that the 8:1 acquittal of Kawas Nanavati in K. M. Nanavati vs. State of Maharashtra, which was overturned by higher courts on the grounds that the jury was misled by the presiding judge and were susceptible to media and public influence, was the reason. A study by Elisabeth Kolsky argues that many "perverse verdicts" were delivered by white juries in trial of "European British subjects" charged with murder, assault, confinement of Indians.^[6]