Madhya Pradesh Judicial Service - Civil Judge Exam Solved Question

Papers of Civil Procedure code, 1908 From 2009-2019

Raj Kumar Tripathi

Civil Judge (Senior Division), Satna (M.P.)

Q. 1 What do you understand by “a suit of Civil Nature” ? When may exclusion

of Civil Court's jurisdiction be inferred ? Give two examples. [Asked in 2009]
Ans. Section 9 of the Cpc gives statutory recognition to the equitable principles "
Ubi jus ibi remedium and Equity shall not suffer without remedy". This is also
reflected in the use of expression " a suit of civil nature" which is distinguishable
from expression "Civil Suit" simpliciter with an avowed objective to confer upon the
civil court a widest possible subject matter jurisdiction. On such wider scope of the
civil court's jurisdiction, the Hon'ble Apex court has held in P.M.A Metropolitan v
M M Merthona AIR 1995 SC 2001 that the expansive nature of the Section 9 is
demonstrated by use of phraseology both positive and negative. The earlier part of the
section opens the door widely and latter part debars the entry to only those matters
which are expressly or impliedly barred. Similarly, the Explanation I & II appended
to the section 9 of the cpc further widens the scope of jurisdiction by stating that a
suit in which the right to property or religious office is involved it would be a suit of
civil nature irrespective of the fact that no fees are attached to such offices. Thus,
under section 9 of CPC the Civil Courts have inherent jurisdiction with respect to all
types of civil disputes, unless a part of that jurisdiction is carved out either expressly
or by necessary implication by any statutory provision and conferred on other
Tribunal or Authority etc.
As to exclusion of the jurisdiction of the civil court by
inference or impliedly, the golden principle is that it is not readily to be inferred
unless the party who alleges the ouster of the jurisdiction of the civil court clearly
establishes the same. The Hon'ble Supreme Court in the case of Dhulabhai v. State
of Madhya Prades A.I.R. 1969 S.C. 78 has illustrated following circumstances
when an ouster of the civil court's jurisdiction may be inferred-
(1) Where the statute gives a finality to the orders of the special
tribunals the Civil Courts' jurisdiction must be held to be excluded if
there is adequate remedy to do what the Civil Courts would normally do
in a suit. Such provision, however, does not exclude those cases where
the provisions of the particular Act have not been complied with or the
statutory tribunal has not acted in conformity with the fundamental
principles of judicial procedure.
 (2) Where a statute is a complete code and creates a special right or a
liability and provides for the determination of the such right or liability
and further lays down that all questions about the said right and liability
shall be determined by the tribunals so constituted.

Q.2 Distinguish between the following terms .[Asked in 2009]

(i) Decree and Order
Ans. Under section 2(2) and 2(14 ) of Cpc respectively both decree and order are an
adjudication of the court expressed formally. However, they differ on following
grounds:-
(A) A decree is the determination of all or any of the matter in controversy i. e.
regarding cause of action, matter in issue and relief. Whereas, the order is passed to
facilitate the court to finally determine such matter in controversy.
(B) A decree conclusively determines the rights of the parties and thereafter the court
becomes functus officio except in the case of preliminary decree. Whereas, in a single
suit the court may pass several orders.
(C) A decree is passed in the proceeding commenced by suit. Whereas, an order may
originate from the proceeding commenced by an application.
(D) A decree can be preliminary, final or partly preliminary and partly final. Whereas
an order can not be so.
(E) A decree passed by court of first instance is usually appealable, except when it is
specifically barred by law. Whereas, an order is appealable only when the statue
specifically makes so and in the remaining cases it is non-appealable in nature.

(ii) Res-subjudice and Constructive Res-Judicata

Ans. Sec 10 and section 11-Explanation IV of the Cpc respectively incorporate the
provision of the res- sub judice and Constructive res - judicata. Both of the aforesaid
principle aim to prevent the harassment of the parties, multiplicity of the proceeding
and to avoid the situation of contrary judgment but they differ as follow:-
(A) In case of Res-Subjudice, the matter in issue in both the suits must be
substantially the same. On the other hand, for constructive res - judicata it is
sufficient that the matter directly and substantially in issue in the subsequent suit was
so in the former suit constructively i. e. might and ought to have been made ground
of defence or attack.
( B) In case, of Res-Subjudice, it applies to only suit including appeal. In case of Res-
Judicata, it applies to suit and applications.
(C) Constructive Res-judicata prohibits the second trial of the previous suit, while
Res-subjudice prohibits parallel proceedings of the two suits.

(D) by virtue of the Res- subjudice the court is mandated to stay the trial. Whereas,
the principle of the constructive res-judicata requires the court to dismiss the suit
once it is proved.

(iii) Attachment and precept

Ans. Both the attachment and precept are the modalities of the execution of the
decree which court has to adopt depending upon the situation but they differ as
under:-
(A) The attachment is a mode of an execution of the decree as provided under section
51 of the Cpc. Whereas, a precept under Sec 46 Cpc is merely an interim attachment
and its operation is restricted to a period of two months only unless this period is
extended.
(B) An order of the attachment is passed by the concerned executing court with
respect to movable or immovable property situated within his own local jurisdiction.
Whereas, a precept is issued by an executing court with respect to the property
situated outside of his territorial jurisdiction. It is an order or direction to another
competent court to attach the property belonging to the judgment debtor.

Q. 3 What do you understand by settlement of disputes outside the Court ?

Explain those provisions of settlement of disputes outside the Court which are
not part of Section 89 of the Code of Civil Procedure 1908? [Asked in 2010]
Ans. The settlement of disputes outside the court can be effected through non-
adjudicatory process. Such alternative dispute resolution (ADR) method is cost-
effective, simpler and quicker in comparison to regular trial in the court. Moreover, it
yields a win-win result for both the parties. It is due to its numerous advantage, the
section 89 of the Cpc and Order 1 -rule 1A , B & C of the Cpc statutorily recognises
such ADR mechanism.
Section 89 of the Cpc provides for various modes of settlement of
the disputes outside the Court such as arbitration, Conciliation, Judicial Settlement,
Lok Adalat and Mediation. Most importantly, it needs to be highlighted that Section
89 of the cpc does not exhaustively cover all modes of the ADR mechanism.
Following modes of the ADR mechanism are not part of the Section 89 of the Cpc-
(i) Negotiation:- It is a non-binding procedure in which discussions between the
parties are initiated without the intervention of any third party with the object of
arriving at a negotiated settlement to the dispute. It is the most common method of
alternative dispute resolution. Most frequently, such negotiation process occurs in
business, non-profit organizations, government branches, legal proceedings, and in
personal matters such as marriage, divorce etc.
(ii) Other new form of ADR:- There are some new forms of ADR mechanism such as
Dispute Adjudication Board (DAB), Dispute Review Board (DRB), Early Neutral
Evaluation, mini-trial which could resolve the dispute in an effective and efficient
manner. In the USA, DAB and DRB are used in tunnel projects, railways, Highways,
building and process contracts etc. Likewise, Early neutral evaluation is a technique
used in American litigation to provide an early focus to complex commercial
litigation, and based on that focus, to provide a basis for sensible case management or
offer a resolution of the entire case, in the very early stages.

Q. 4 Write short notes on the following - [Asked in 2010]

(i) Legal representative :-
Ans. The expression legal representative under section 2 (11) of the Cpc has been
given a broader connotation than it is understood under the personal laws. It covers
following persons-
(a) A person who in law represents the estate of a deceased person.
(b) Any person who intermeddles with the estate of the deceased.
(c) In representative suit, the person on whom the estate devolves on the death of the
party so suing or sued.
From above, it emerges that legal representative need not be a legal heir. As far
as intermeddling with estate of the deceased is concerned it means that person has
some interest in the property of deceased though he may not be the person who
represent the estate of deceased such as in post-1956 era a women in possession of
the land with limited estate and also de facto gaurdian of the minor.
(ii) Rejection of plaint :-
Ans. Under order 7- rule 11 of Cpc expression " shall be rejected" casts a mandatory
obligation on the part of the court to reject the plaint either Suo Motu or upon an
application on six grounds mentioned in clause (a) to (f). It is relevant to mention that
for passing an order under aforesaid provision, it is only the averments of the plaint
and the plaint alone which is relevant and have to be considered. It may be passed
without hearing the party and even before the written statement is filed as held by
Hon'ble Apex Court in Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557.

Grounds of rejection :- They are as under-

(a) where it does not disclose a cause of action.
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the
Court to correct the valuation within a time to be fixed by the Court, fails to do so.
(c) where the relief claimed is properly valued, but the plaint is returned upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the Court, fails to do so.
(d) where the suit appears from the statement in the plaint to be barred by any law.
(e) where it is not filed in duplicate
(f) where the plaintiff fails to comply with the provisions of rule 9 of the cpc.

(iii) Powers of Court to issue commission:-

Ans. Under section 75 of the cpc read with Order XXVI of the cpc, the court is
empowered to constitute commission for various purposes including to examine
witnesses, for local investigations etc. As per order XXVI- rule 16 of Cpc, such
commissioners have following powers—
(a) To examine the parties themselves and any witness whom they or any of them
may produce, and any other person whom the Commissioner thinks proper to call
upon to give evidence in the matter referred to him.
(b) To call for and examine documents and other things relevant to the subject of
inquiry.
(c) At any reasonable time enter upon or into any land or building mentioned in the
order.

Q. 5 What do you understand by ‘necessary party’ and ‘proper party’. Whether

a suit shall be defeated by the reason of mis-joinder or non-joinder of parties ?
[Asked in 2011]
Ans. Necessary & Proper party:- A necessary party is a party whose presence for the
suit is absolutely essential and in whose absence an effective decree cannot be passed.
On the other hand, a proper party is one whose presence in the suit is not inevitable
but whose presence is required to enable the court to decide the suit comprehensively.
Under order 1 rule 10 (2) of the Cpc, an addition of the two types of
the person in the suit is contemplated. Firstly, on the ground ' who ought to have been
joined', that is necessary party. Secondly, whose presence enables the court to
effectively and completely adjudicate and settle all the question involved in the suit,
it corresponds to proper party.
Consequence of the Mis- joinder and Non- joinder of the parties:-
Order 9- rule 9 of the Cpc clearly states that a suit can not be defeated on the ground
of the mis- joinder and non- joinder of the parties. Such defect can be even waived
off, if an objection regarding that is not taken at the earliest stage by the opposite
party. In case a party takes such an objection then the remedy lies under order 1 rule
10 of the cpc. The Hon'ble Apex court has also held in Prem Lala Nahata &
Another vs. Chandi Prasad Sikaria AIR 2007 SC 1247 that mis- joinder or non-
joinder of the party cannot lead to the dismissal of the suit.
However, there is an exception to the
aforesaid principle with respect to non- joinder of the necessary party as stated in the
proviso to the order 9-rule 9 of the cpc . It has also been held by the Hon'ble Apex
court in Mumbai International Airport (P) Ltd. v. Regency Convention Centre &
Hotels (P) Ltd., (2010) 7 SCC 417 that a suit may be dismissed on the ground of the
non- joinder of the necessary party.
Q. 6 Who is an indigent person ? On what grounds an application for
permission to sue as an indigent person can be rejected ? [Asked in 2011]
Ans. Order 33-rule 1 Cpc along with its explanation declares the following persons as
an indigent:-
(A) If he is not possessed of sufficient means to enable to pay the fee prescribed by
law for the plaint in such suit. Thus, the benefit of order 33 Cpc is conferred on the
persons without possession of sufficient realisable property. The Hon'ble Apex court
held in Mathai M. Paikeday v C.K. Anthony (2011) 13 SCC 174 that expression
sufficient means contemplates the ability or capacity of a person in the ordinary
course to raise money by available lawful means to pay the court fees.
(B) Where no such fee is prescribed, if he is not entitled to property worth one
thousand rupees.

In examination of indigency of a person, the following factors are also to

be taken into account-
(i) Both the property exempted under section 60 of the Cpc and the subject matter of
the suit are not to be taken into account.
(ii) Property acquired during pendency of the application for permission to sue as an
indigent have to be considered.
(iii) When a suit is filed in the representative character, the question of indigency
shall be determined with reference to the means possessed by him in such capacity.

Rejection of application:- As per order 33 - rule 5 of the Cpc an application to sue as

an indigent may be rejected on the following grounds-
(a) Where it is not framed and presented in the manner prescribed by order 33 - rules
2 and 3 of the Cpc.
(b) where the applicant is not an indigent person.
(c) where he has, within two months next before the presentation of the application,
disposed of any property fraudulently or in order to be able to apply for permission to
use as an indigent person, if taking into account such property, the applicant would be
disentitled to sue as an indigent person.
(d) where his allegations do not show a cause of action.
(e) where he has entered into any agreement with reference to the subject-matter of
the proposed suit under which any other person has obtained an interest in such
subject-matter.
(f) where the allegations, made by the applicant in the application show that the suit
would be barred by any law for the time being in force.
(g) where any other person has entered into an agreement with him to finance the
litigation.

Q. 7 Enumerate the steps which a Civil Court may take by way of supplemental
proceedings, in order to prevent the ends of Justice from being defeated ?
[Asked in 2012]
Ans. Sec 94 of the Cpc provides for supplemental proceedings and is the source of
power of the court to grant interlocutory orders. Such supplemental proceedings are
a means to an end and not an end in themselves and it operates only in consonance
with the relevant rules as prescribed under the act and does not even derogate the
inherent power of the court under section 151 of Cpc as held in Manohar Lal
Chopra Vs Seth Hiralal 1962 AIR 527. The Hon'ble apex court has also held in
Vareed. [Link]. Sosamma Geevarghese AIR 2004 S.C. 3992 that a supplemental
proceeding is initiated with a view to prevent the ends of justice from being defeated.
The supplemental proceedings may not be taken recourse to as a routine matter but
only when an exigency arises thereof.
a court may take following steps by way of supplemental
proceedings:-
(a) To 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 then to commit him in the civil prison. This power has to
exercised in confirmity to provision of order 38-rule 1-4 of the Cpc.
(b) To 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. This power has to exercised in confirmity to provision of order 38-rule 5 &
6 of the Cpc.
(c) To grant a temporary injunction and in case of disobedience to commit the person
guilty thereof to the civil prison and order that his property be attached and sold. This
step has to be taken within the scope of Order 39 - rule 1 &2 and Order 39 - rule 2
A of the cpc.
(d) To appoint a receiver of any property and enforce the performance of his duties
by attaching and selling his property. This step has to be taken within the scope of
Order 40 of the Cpc.
(e) To make such other interlocutory orders as may appear to the Court to be just and
[Link] power has to exercised in confirmity to the provision of order 39-rule
6-12 of the Cpc.
Q. 8 Describe the exigencies, procedure and effect of a substituted service of
summons ? [Asked in 2012]
Ans. Order 5 of the Cpc provides for various modes of service of summon on the
respondent. In nutshell, as a general rule there has to be personal service of the
summon on the party. But, Order V-Rule 20(1) of the Code of Civil Procedure,
provides that if plaintiff satisfies to the court following ingredient then the court may
in its discretion order that a summon may be served on the party by affixing a copy of
such summons in some conspicuous place in the Court house and also in some
conspicuous place of the house, if any, in which the defendant is known to have last
resided, or carried on business, or personally worked for gain, or in such other
manner as the Court thinks fit-
(a) That the plaintiff has discovered the defendant's residence but defendant is
keeping out of the way for the purpose of avoiding service, or
(a) When the Court is satisfied that for any other sufficient reason the summons
cannot be served upon the defendant in the ordinary way.
The compliance of the aforesaid
conditions is mandatory. The Hon'ble Apex court has held in Yallawwa vs.
Shantavva, AIR 1997 SC 35 that the court cannot automatically grant the application
for substituted service without taking steps for service by ordinary procedure as laid
down u/o. 5, rules 9, 12, 15 & 17 of the CPC. Thus, the substituted service has to be
resorted as the last resort when the court is satisfied that the defendant is deliberately
avoiding the service and every effort to effect personal service has failed.

Q. 9 Describe the provisions regarding settlement of disputes out side the Court
What procedure is to be followed by the Courts, explain with reference to any
one mode of alternative dispute resolution ? [Asked in 2013]
Ans. Provisions: Section 89 of the Cpc provides various modes of settlement of
disputes out side the court such as arbitration, conciliation, judicial settlement, Lok
adalat and mediation . The aforesaid provision under section 89 of the cpc is based on
129th Law commission report and malimath committee recommendation. Still
further, order X-rule 1 A, 1B and 1 C supplements Sec. 89 of the cpc with
specification of the stage at which ADR should be resorted. As per Order X- rule 1A
of the cpc, the court should explore the possibility of referring the matter to ADR
after pleadings are filed and process of seeking admission and denial as prescribed is
over. As held in judgment of Afcons Infrastructure and Ors. v. Cherian Verkay
Construction and Ors. 2010 (8) SCC 24, if court finds element of settlement then
reference to ADR process under section 89 of the cpc is mandatory regardless of the
opinion of the parties.

Procedure : Section 89 of Cpc casts two-fold duty on the court-

Firstly, In discretion to ascertain in every case whether there exist element of a
settlement which may be acceptable to the parties. So, court is vested with discretion
to test the suitability of the case for referring to ADR process.
Secondly, when the element of the settlement is found court shall formulate the term
of settlement and give the same to the parties for their observation and after receiving
the observation of the parties the court may reformulate the terms of a possible
settlement and refer the same for ADR process.
Apparently, section 89 of cpc assigns too much task to the court and
thereby runs counter the very objective to reduce the burden of the court. Hence, the
hon'ble apex court in Salem Advocate Bar Association vs Union Of India (2005) 6
SCC 344 held that 'term of settlement' is equivalent to a summary of dispute.
Resultantly, the court is only required to formulate a summary of dispute and not the
term of the settlement.

With specific reference to arbitration: As per section 8 of the Arbitration and

Conciliation Act,1996 when both the parties have filed their pleading, if court finds
that there exists an agreement between them to get the dispute resolved through
arbitration then it is mandatory for the court to refer the matter to that forum
.However, in absence of the requisite agreement between the parties, the court cannot
refer the matter to this mode of ADR . Since, arbitration is a adjudicatory process
and the award is binding on the parties and executable as a decree. So, when award is
out it becomes executable per se and without taking any recourse to order XXIII of
the cpc.

Q. 10 What are the circumstances in which a Court can order attachment before
judgment ? What procedure the Court has to follow in effecting attachment
before judgment ? What is the effect of attachment before judgment ? [Asked in
2013]
Ans. Ordinarily, the property is attached only in execution of decree but order 38-
rule 5 read with section 94 (b) of cpc lays down following grounds on which court
either after affording opportunity of hearing to the defendant or even ex-parte may
pass an order of attachment. The objective is to ensure that property remains available
to satisfy the decree and the plaintiff is not deprived of the fruits of victory.
Grounds :
(1) When defendant intents to obstruct or delay the execution of any decree, or
(2) When defendant with fraudulent intention does any of the following acts
(i) He is about to dispose of the whole or any part of his property
(ii) He is about to remove the whole or any part of his property from the local
limits of the jurisdiction of the court.
With respect to aforesaid circumstances, the hon'ble Calcutta High Court has also
held in Premraj Mundra vs Md. Maneck Gazi And Ors. AIR 1951 Cal 156 that it
has to be additionally shown that the defendant was transferring or removing his
property with specific intent. That is, with an intention to delay or defeat the
plaintiff's claim.
Procedure : Order 38 - rule 6,7 and 8 of the Cpc collectively states when upon
calling the defendant puts his appearance and explains or clears the doubts arising
against him to the court then the matter comes to an end. But if he fails to explain the
circumstances coming against him, then the court asks him to furnish the security
within prescribed time. In case he fails to comply with such direction then his whole
or a part of the property is attached in accordance to the procedure including
adjudication of claim as provided under order XXI of the Cpc.

Effects: The attachment under order 38 of Cpc is has the same effect as made during
execution proceeding but as per rule 11 it does not affect the rights, existing prior to
the attachment, of persons not parties to the suit, nor bar any person holding a decree
against the defendant from applying for the sale of the property under attachment in
execution of such decree.

Q. 11 Whether a defendant can file counter claim against a co-defendant ? What

procedure should be adopted by the Court in case counter claim against a co-
defendant is filed ? [Asked in 2014]
Ans. The provision relating to filing of the counter claim is contained in Order VIII
-Rule 6A to 6G of the CPC. It shows that a counter claim can be filed regarding a
cause of action accruing to defendant against the plaintiff. In this entire scheme, no
provision is made for permitting a counter claim by a defendant against his co-
defendant. Hence, a defendant cannot file a counter claim against a co-defendant.
However, it is relevant to mention that the Hon'ble Supreme Court in
case of Rohit Singh and others versus State of Bihar, (2006) 12 SCC 734 has held
that a counter claim has necessarily to be directed against the plaintiff in the suit,
though incidentally or along with it may also claim the relief against the co-
defendant in the suit.
Accordingly, the defendant has no independent right to maintain counter-claim
against a co-defendant. Hence, if such counter claim is filed, then court may reject it
by following the principle of the rejection of the plaint.

Q.12 What is doctrine of “Res sub judice” as provided in Section 10 of Civil

Procedure Code ? When can this doctrine be applied. Elucidate? [Asked in 2014]
Ans. The object of section 10 of the Cpc is to prevent the courts of concurrent
jurisdiction from simultaneously trying two parallel suits. Such prohibition is
essential to prevent contradictory judgment, multiplicity of suit and harassment of
parties. The Hon'ble Apex court has held in Indian Bank V Maharashtra State Co-
operative Marketing Federation Ltd.(1998) 5 SCC 69 that under section 10 a suit
is only required to be stayed and not dismissed when following conditions are
satisfied
(1) There are two suits
(2) The matter in issue in both suits must be directly and substantially same: The
identity of the matter in issue has to be considered in the light of cause of action,
subject matter, relief etc. The hon'ble apex court has held in National Institute Of
Mental ... vs C. Parameshwara , AIR 2005 SC 242 that section 10 of cpc would
apply only if there is identity of the matter in issue in both the suit. The test is, if the
decision in a previously instituted suit would operate as a res-judicata in the
subsequent suit then the later one has to be stayed.
(3 ) Both suit must be between the same parties or their successors:
(4) Parties are litigating under the same title in both suits
(5) The court in which the previously instituted suit is pending must be a court of
jurisdiction competent to grant the relief claimed in the subsequent suit.
When the aforesaid condition are satisfied then as held in Manohar Lal Chopra Vs
Seth Hiralal 1962 AIR 527 then the provision of section 10 of the cpc becomes
mandatory and do not become inapplicable on a court holding that the previously
instituted suit is a vexatious or has been instituted in violation of the terms of the
contract.

Q. 13 Which properties are liable for attachment and sale in execution of a

decree and which properties cannot be attached in execution of a decree ?
[Asked in 2015]
Ans. Attachable and Saleable properties:- Section 60(1) of the cpc declares very
widely the scope of such properties. The intendment is to ensure the executability of
the decree. Under section 60(1) of the cpc, the enumerated properties may be put in
two parts-
1) Specified category:- Land, houses, buildings, goods, money, banknotes, cheques,
bills of exchange, Hun dies, promissory notes, Government securities, bond or
securities for money, Debts, and shares.
2) General Category:- All other saleable property whether movable or immovable
belonging to judgment debtor or over which he has a disposing power which he may
execute for his own benefit. Instances of the saleable interest in the property is the
equity right of redemption in mortgaged property, the Interest of partner in
partnership assets etc

Non-attachable properties:- A proviso appended to sec 60 (1) ranging from clauses

(a) to (q) (18 Items) and sec 61 of the act is the source of such restriction on the
attachability of the properties of the judgment debtor. The underlying rationale behind
such exclusion is principle of necessity, to ensure subsistence and to protect the
means of livelihood etc.

(i) The necessary wearing-apparel, cooking vessels, beds and bedding of the
judgment-debtor, his wife and children and also personal ornaments which has
religious value.

(ii) Tools of Artisans, Implements’ of husbandry , such cattle or seeds of agriculturist

as are necessary to earn his lively hood in the opinion of court, as well as such the
portion of agricultural produce as exempted from attachment u/s 61 of cpc.

(iii) Houses and other buildings belonging and in ocupation of an agriculturist,

labourer and domestic servant.

(iv) Account book of judgment debtor.

(v) A mere right to sue for damages because such right is not alienable. However, a
decree or award for granting damages can be attached as it is transferable.

(vi Right of personal service

(vii) Stipends, gratuities allowed to pensioners including political pension.

(viii) Wages of labourers and domestic servants are wholly exempted from
attachment.

(ix) Salary to the extent of first one thousand and also the 2/3rd of the remaining
amount is exempted with respect to decrees other than for maintenance. And in case
of decree for maintenance, its only 1/3rd of Salary which alone is exempted from
attachment.

(x) Pay and allowance of employees with respect to whom Army Act, Air force Act,
and the Indian navy discipline Act applies. etc.

Q.14 Define Injunction. Explain the grounds and principles for grant of
Temporary Injunction. [Asked in 2015]
Ans. Section 37 of the specific relief act states that temporary injunction is to
continue until a specified time or until the further order of the court and it may be
granted at any stage of a suit. It mandates either to do or to refrain from doing any
particular act with an aim to maintain status quo.
Grounds : order 39 - rule 1 and 2 read with secton 94(c) of the Cpc lays down
following grounds to which an applicant may prove either by affidavit or otherwise
to seek injunction-
(1) That any property in suit is in danger of being wasted, damaged or alienated by
any party to the suit or wrongfully sold in execution of decree.
(2) That defendant threatens or intends to remove or dispose of his property with a
view to defrauding his creditors or threatens to dispossess the plaintiff or otherwise
cause injury the plaintiffs in relation to property in dispute.
(3) That there is apprehension of breach of contract
It is equally relevant to state that the aforesaid grounds are not exhaustive to grant
interim injunction as held by hon'ble apex court in Judgment Manohar Lal Chopra
Vs Seth Hiralal 1962 AIR 527.

Principles:
Noticeably, an order under order 39 of Cpc is interim in nature and it is passed
without the adjudication of suit on merits. Hence, the court as a matter of safeguard
has evolved certain principle to guide the discretion. The Hon'ble apex court in a long
catena of judgment including in Dalpat Kumar v. Prahlad Singh AIR 1993 SC 276,
M/S Gujarat Pottling [Link]. & Ors vs The Coca Cola Co. & Ors : 1995 AIR
2372 and Colgate Palmolive (India) Ltd vs Hindustan Lever Ltd AIR 1999 SC
3105 has laid down following principles
(i) That the applicant has to show prima facie case. That is, there is a serious
question to be tried.
(ii) That there is real and present danger of irrepairable injury .That is, a species of
injury which is not amenable to adequate compensation because there exist no certain
pecuniary standard for measuring the damages.
(iii) Balance of convenience lies in favour of applicant. In substance, this involves
testing of inconvenience on the comparative scale. It is to seen whether comparative
mischief, hardship or inconvenience which is likely to be caused to the applicant by
refusing the injunction will be greater than that which is likely to be caused to the
opposite party by granting it.

Q.15 Explain the provisions about disposal of the suit at first hearing under
Order 15 of Civil Procedure Code, 1908.[Asked in 2016]
Ans. The stage of first hearing of suit begins after filling of written statement and till
framing of the issues. Order XV of the Cpc provides following circumstances in
which court may pronounce judgment at once i. e at the first hearing itself.
(1) Where the parties are not at issues on any question of law or fact.
(2) Where one of the several defendant is not at issue with plaintiff on any question of
law or fact. In such situation, the court may pronounce judgment for or against such
defendant only.
(3) Where after the issues have been framed, the court is satisfied that no further
argument or evidence is required than the parties can adduce at once and the same is
sufficient for decision in suit and also that no injustice will result from the proceeding
the suit forthwith. But, this option is subject to one condition that if summons has
been issued for the settlement of issues only, then the parties or their pleaders are
present and none of them object to do so.
(4) Where the summons has been issued for the final disposal of the suit and either
party fails without sufficient cause to produce the evidence on which he relies unless
court in discretion frames issue and adjourns the case for subsequent date.
Apart from the above situation, under order XII- rule 6 of
Cpc the court is empowered to pronounce judgment on admission of the party at any
stage. That of course also includes the first hearing of the suit.

Q. 16 What do you understand by “Set-off” ? What are the essentials of “Set-

off’ ? [Asked in 2016]
Ans. The doctrine of set-off may be defined as the extinction of debt of which two
persons are reciprocally debtors to one another by the credits of which they are
reciprocally creditors to one another. Order VIII-rule 6 of the Cpc embodies the
principle of legal set-off and in money suit it is a plea in defence to the defendant
who apparently acknowledges plaintiff's claim and in retaliation sets-up his own
money claim to diminish the plaintiff's claim either wholly or partly. Such
consolidation of cause of action obviates the necessity of filing a fresh suit by the
defendant .
Under order VIII-rule 6 of Cpc following essential has to be proved to raise
matter under set-off-
(1) The sum of money proposed to be set-off is ascertained sum of money. That is, it
is determinable and quantifiable amount.
(2) Such sum of money must be legally recoverable.
(3) Amount claimed as under set- off does not exceed the pecuniary jurisdiction of the
court.
(4) With respect to debt raised in set- off, the both parties must fill the same character
as they fill in the plaintiffs suit.
(5) A set - off may be raised either along with written statement or by virtue of
amendment in pleading or by way of subsequent pleading. But, it must be raised in
the suit at or before first hearing of the suit and not afterward unless permitted by the
court.
(6) Such sum claimed under set- off must be recoverable by defendant or by all
defendant if there is more than one defendant and also against plaintiff or all plaintiffs
if there is more than one plaintiff.

Q. 17 Discuss the laws relating to arrest and detention of judgment debtor in

civil prison in execution proceeding.[Asked in 2017]
Ans. Ordinarily, a person is arrested only in during execution proceeding of decree
but order 38-rule 1 To 4 of Cpc read with section 94(a) provides for arrest before
judgment under special circumstances to ensure executability of decree
Order 38-rule 1 of Cpc provides following grounds on
which defendant may be called upon vide warrant of arrest to show cause why he
should not furnish security for his appearance
(1) That defendant intends to delay the plaintiff or to avoid any
process of the court or to obstruct or delay the execution of any
decree.
(2) And with aforesaid fraudulent intention does any of following acts
(i) He has absconded or left the local limits of the
jurisdiction of the court, or
(ii) He is about to abscond or leave the local limits
of the jurisdiction of the court
(iii) He has disposed of or removed his property
or any part thereof from the local limits of the
jurisdiction of the court.
(iv) That defendant is about to leave India
(3) And at the same time, defendant has failed to make payment of
such sum of money as specified in warrant to officer entrusted
with the execution.

Procedure when defendant is brought before the court:- As per order 38-rule 2 of the
Cpc, the court may proceed as under
Firstly, Defendant is given opportunity to show cause against alleged acts. If he
explains away or clears doubt of court then matter comes to an end.
Secondly, In case defendant fails to do so, then court orders him to take following
action-
(i) To deposit money or other property sufficient to answer the claim of the
plaintiff, or
 (ii) To furnish security for his appearance during the suit and in case of withdrawal
of existing security to furnish a fresh security.
Consequence of breach of order to deposit money or furnish security:- As per oder
38 -rule 4 of Cpc if defendant fails to observe such order then he may be committed
into civil prision. But the tenure in civil prison cannot extend beyond six week when
amount or value of the subject matter of the suit does not exceed fifty rupees and in
all other case a period more than six months.
Exception:
(i) Suit of the nature referred in section 16 (a) To 16 (d) of Cpc.
(ii) When defendant is a public officer in term of section 81 of Cpc.

Q. 18 State the essentials of a plaint and under what circumstances the plaint
can be rejected by the Court?.[Asked in 2017]
[Link] of the plaint:
Order IV- rule 1 (2) of Cpc mandates that every plaint must comply with the
necessary rules contained in Orders VI and VII of the act. In this context, it needs to
be mentioned that Order VII-rule 1 of cpc specifically enumerates following
particulars which a plaint must contain.
(a) the name of the Court in which the suit is brought.
(b) the name, description and place of residence of the plaintiff.
(c) the name, description and place of residence of the defendant.
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a
statement to that effect.
(e) the facts constituting the cause of action and when it arose.
(f) the facts showing that the Court has jurisdiction.
(g) the relief which the plaintiff claims.
(h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the
amount so allowed, or relinquished.
(i) a statement of the value of the subject-matter of the suit for the purposes of
jurisdiction and of court-fees.

When plaint may be rejected:-

Under order 7-rule 11 of Cpc expression " shall be rejected" casts mandatory
obligation on the court to reject the plaint either Suo Motu or upon application on six
grounds mentioned in clause (a) to (f). It is relevant to mention that for an order under
aforesaid provision, it is only the averment of the plaint and the plaint alone which
have to be considered. It may be without hearing the party and even before the
written statement is filed as held by Apex Court in Saleem Bhai v. State of
Maharashtra, (2003) 1 SCC 557.
Rejection of plaint:- A plaint may be rejected on following grounds-
(a) where it does not disclose a cause of action.
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the
Court to correct the valuation within a time to be fixed by the Court, fails to do s.
(c) where the relief claimed is properly valued, but the plaint is returned upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the Court, fails to do so.
(d) where the suit appears from the statement in the plaint to be barred by any law.
(e) where it is not filed in duplicate.
(f) where the plaintiff fails to comply with the provisions of rule 9 of the cpc.
Q. 19 Define Legal representative. [Asked in 2018]
Ans. The expression legal representative under section 2(11) of the Cpc has been
given broader connotation than it is understood under personal law. It covers as
understand-
(a) A person who in law represents the estate of a deceased person.
(b) Any person who intermeddles with the estate of the deceased.
(c) In representative suit, the person on whom the estate devolves on the death of the
party so suing or sued.
From above, it emerges that legal representative need not be a legal heir. As far
as intermeddling with the estate of deceased is concerned it means that person has
some interest in the property of deceased though he may not be the person who
represent the estate of deceased such as in post-1956 period women in possession of
the land with limited estate and de facto gaurdian of minor.

Q. 20 Define Mesne profits. [Asked in 2018]

Ans. When a person is deprived of his right to possess his property. He is not only
entitled to restoration of possession of his property but also damages of wrongful
possession from that person. Under section 2 (12) of Cpc mesne profit of the property
means those profits which the person in wrongful possession of such property
actually received or might with ordinary diligence have received thereon. In other
words the gist of mesne profit is compensation to the real owner from the person who
was in unauthorised possession. Section 2(12) of Cpc expressly provides that mesne
profit includes interest on such profit but does not include those profit which was
made due to improvement by the person in wrongful possession.

Q. 21 Define Decree. [Asked in 2018]

Ans. Under section 2 (2) of Cpc a decree means the formal expression of an
adjudication which conclusively determines the rights of the parties with regard to all
or any of the matters in controversy in the suit and may be either preliminary or final
Section 2 (2) of Cpc also covers rejection of a plaint and the determination of any
question within under section 144 within the fold of decree by deeming provision but
expressly excludes any adjudication from which an appeal lies as an appeal from an
order and any order of dismissal for default from the expression of decree.
Q. 22 Define Order. [Asked in 2018]
Ans. Under section 2 (14) of Cpc an order is residuarily defined as a formal
expression of any decision of a Civil Court which is not a decree. Thus, all such
formal expression of the civil court which does not fall within the scope of the decree
as defined under section 2(2) of the cpc is called an order.

Q. 23 Whether any change in the interpretation of relevant provision of law

permits the parties to re- agitate matters which have been finally decided by a
Court of competent jurisdiction? [Asked in 2018]
Ans. As per order XX-rule 3 of Cpc, once the judgment is signed and pronounced by
the court it becomes functus officio but Sec. 114 read with order 47 of the cpc carves
out an exception and provides a right of review to the aggrieved person on specified
grounds. But, the Explanation appended to the order 47-rule 1 of the Cpc specifically
bars the review of any judgment on the ground that superior court has reversed or
modified the interpretation of the relevant law which was the basis of such judgment.
Thus, the change in the interpretation of the relevant provision of law does not
furnish any ground to re-agitate the matter before the court.

Q. 24 When an order for injunction may be discharged, varied or set aside ?

What are the consequences of disobedience or breach of injunction ? [Asked in
2019]
Ans. The order 39-rule 4 of the cpc clearly provides the circumstances when an order
of interim injunction may be discharged, varied or set aside on the application of the
aggrieved party. Those circumstances are as follow-
(i) If it is shown that a party had acquired an ex-parte temporary injuction by making
false or misleading statement with respect to the material particulars before the court.
On proof of this, the temporary injunction is liable to be vacated unless the court for
reasons to be recorded refrains from doing the same in the interest of justice.
(ii) When bi-parte injunction order was passed then it has to be shown that discharge,
variation or setting aside is necessitated by a change in circumstances or when court
itself considers that such order has caused undue hardship to the applicant.

Disobedience or breach of injuction:- Section 94(c) of the cpc provides following

consequences of the breach of injunction-
(i) Attachment of the property of contemnor.
(ii) Detention in civil prision.
Order 39-rule 2 A of the cpc also reiterates the aforesaid consequences and still
further provides following elaboration and limitation to it.
(i) The maximum period for which the attachment of the property may continue is
one year. At the expiry of one year, the property may be sold and out of such sell
consideration the court may award such compensation to the injured party as it deems
fit and the balance if any is to be paid to the party entitled thereto. However, there is
one very important restriction on the option to sale the property. That is, the sale of
the property of the contemnor can be ordered only if the disobedience or breach is
continuing. Thus, if after the attachment of property, the guilty person complies with
the order of temporary injunction then the attached property cannot be sold.
(ii) The period of detention in no event could exceed three months.

The Hon'ble Apex court has also held in Samee Khan vs Bindu Khan
AIR 1998 SC 2765 that the court may resort the aforesaid available options either
simultaneously or one after other keeping in mind that the attachment of the property
is means to compell the contemnor to obey the order whereas the putting a party in
civil prison is a mode of punishment for his guilty act.

Q. 25 Explain the meaning, nature, scope and modes of setting up counter claim.
Who may file counter claim and upto which stage a counter claim may be set
up ? Discuss the effect of counterclaim.
Ans. The concept of counter claim as provided under order 8-rule 6 A of the Cpc is a
purely statutory remedy of modern origin. It is available to the defendant in addition
to the remedy of set-off. Unlike set-off, it is not confined to money suit. Still further,
the relief under counter-claim need not to be of the same nature as contained in the
original suit or even analogous thereto. Order 8-rule 6 A of the cpc itself further
widens the scope with clarification that cunter-claim may be in the nature of damages
or otherwise.

Modes: Counter claim may be filed along with written statement or by way of
amendment in the pleading or by way of subsequent pleading.

Stage: A counter-claim is filed by the defendant against the plaintiff. It can be

presented along with written statement or even after filling of the written statement.
The time-limit under order 8-rule 6 A of the act is fixed in reference to the origin of
the cause of the action. Very recently, the hon'ble apex court has also held in Ashok
kumar Kalra v Surendra Agnihotri (2020) 2 SCC 394 that counter-claim is
permissible even if written statement has been filed on the record but once issues are
framed in the case then counterclaim cannot be entertained.

Effect: The effect of the counter- claim is to that of cross-suit. As per the order 8-
rule 6 D of the cpc , the courter claim has its own existence and so much independent
from the original suit that even if such original suit is rejected, dismissed etc the
counter claim may be continued. To the extent of counter-claim, the defendant
becomes plaintiff and plaintiff becomes a defendant.