Civil Procedure Code - Notes Based on Previous Year Question Papers PDF

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Civil Procedure Code 1908 Notes Praveen Kumar The Code has been amended thrice in 1976, 2002. Structure of the C P C, 1908 Preamble 155 Sections 50 Orders and Rules Appendix (A to I) Contents UNIT 1 ........................................................................................................

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Civil Procedure Code 1908 Notes by Praveen Kumar

The Code has been amended thrice in 1976, 1999 & 2002.

# Structure of the C P C, 1908 •

Preamble

•

155 Sections

•

50 Orders and Rules

•

Appendix (A to I)

Contents UNIT 1 ..................................................................................................................................................... 4 1.

What is doctrine of resjudicata? When can this doctrine be applied? Elucidate ........................... 4

2.

State the provisions regarding transfer of cases. ........................................................................... 8

3.

Foreign judgment .......................................................................................................................... 10

4.

Pecuniary jurisdiction of courts. ................................................................................................... 12

5.

Briefly state the principles governing the place of suing. ............................................................. 13

6.

Procedural law and Substantive law ............................................................................................. 16

7. What is a suit of Civil Nature and State whether a suit regarding Right to Worship is a suit of Civil Nature? .......................................................................................................................................... 19 8.

State the conditions for applicability of doctrine of Sub Judice. .................................................. 22

9. What is meant by jurisdiction of the court? Explain the various kinds of jurisdiction with the help of decided cases............................................................................................................................ 24 UNIT 2 ................................................................................................................................................... 27 1.

What are the necessary elements of the plaint? When can it be rejected? Explain .................... 27

2.

Discuss the different modes of service of summons. ................................................................... 30

3.

Misjoinder of parties ..................................................................................................................... 34

4.

Counter claim ................................................................................................................................ 35

5. Explain with illustrations the circumstances under which leave to amend the pleadings shall be refused .................................................................................................................................................. 38 6.

Set off ............................................................................................................................................ 40

7.

Cause of action.............................................................................................................................. 43

8.

What is written statement? .......................................................................................................... 45

9.

Explain the essential ingredients of summons ............................................................................. 49

10.

Distinguish between misjoinder and non-joinder of parties .................................................... 50

11.

Write a note on “verification of pleadings”. ............................................................................. 53

12.

What are the rules regarding Institution of Suits? Explain. ...................................................... 54

13.

Explain the fundamental rules of pleadings. When the amendment of pleading is permissible? 57

14. Every Suit Shall include the whole claim in respect of the cause of action. Comment with illustration. ............................................................................................................................................ 59 UNIT 3 ................................................................................................................................................... 62 1.

What is an exparte decree? State the remedies available against it............................................ 62

2.

Explain the various modes of execution of decree. ...................................................................... 66

3.

Affidavit ......................................................................................................................................... 70

4.

Attachment ................................................................................................................................... 72

5.

Interrogatories .............................................................................................................................. 75

6.

Garnishee Order............................................................................................................................ 78

7.

State the rules relating to Arrest before judgement .................................................................... 80

8.

Explain attachment before judgement. ........................................................................................ 82

9. What are the issues in a suit? How are issues framed? What are the powers of the court to amend or strike out issues? .................................................................................................................. 85 10.

Admissions ................................................................................................................................ 87

11.

Explain the consequences of appearance and non-appearance of parties in suits.................. 90

12. Explain the properties which are not liable for attachment and sale in an execution of a decree 92 13.

State and distinguish between judgement and decree ............................................................ 96

14.

Write a note on ‘‘Proclamation of sale’’. ................................................................................ 102

15.

What are powers of executing court? Explain. ....................................................................... 103

16.

Arrest....................................................................................................................................... 105

17.

Adjournment ........................................................................................................................... 108

18. Who can apply for setting aside the sale in execution of a decree? When can sale be set aside? 110 UNIT 4 ................................................................................................................................................. 114 1. What are the pre-conditions to be followed in institution of suits by or against the Government? Explain.......................................................................................................................... 114 2.

Examine the circumstances for invocation of revisional jurisdiction of High Court. .................. 117

3.

When can a court appoint receiver? Explain the powers and duties of the receivers ............... 121

4.

When a commissioner can be appointed? What are his powers? ............................................. 124

5.

Temporary injunction ................................................................................................................. 127

6.

State the procedure of instituting a suit by an indigent person ................................................. 131

7.

Under what circumstances a reference be made to a High Court?............................................ 134

8.

Caveat ......................................................................................................................................... 137

9.

Briefly Explain the Inherent Powers of Courts ............................................................................ 140

10.

What are appeals? State the classes of appeal provided under C.P.C. .................................. 143

11.

What is revision? How does it differ from an appeal?............................................................ 148

UNIT 5 ................................................................................................................................................. 152 1.

State the essentials of valid acknowledgement.......................................................................... 152

2.

Explain legal disability under Limitation Act ............................................................................... 154

3.

‘‘Limitation extinguishes remedy but not right" Explain ............................................................ 156

4.

Explain the circumstances in which delay will be condoned under the limitation act ............... 158

5. Explain the salient features of limitation act ................................................................................. 161 6.

Discuss the effect of Fraud or Mistake on the Limitation period. .............................................. 164

7.

State the general rules for calculation of period of limitation for filing suits............................. 167

UNIT 1 Jan 2012

1. What is doctrine of resjudicata? When can this doctrine be applied? Elucidate Res-Judicata - (A case or suit already decided) - (The rule of Conclusiveness of judgment) Reference: The Code of Civil Procedure, 1908 Part I-Suits in General Sections: 9 - 35 Section 11. Res judicata: If a matter in an issue or a matter which is directly and substantially similar to the same issue has already been decided by a competent court in a former suit and the suit was between the same parties or had the same title under which one of the parties is involved, no court shall proceed with the same. Meaning: "Res-judicata consists of two Latin Words, 'Res' means a thing or a matter or a question and 'Judicata' means adjudicated, adjudged or decided. Therefore, the expression ’Res-judicata" means "a thing or matter already adjudged or adjudicated or decided". Principle: The principle of res judicata is convinced in the larger public interest, which requires that all litigation must, sooner than later, come to an end. The principle of Res judicata is based on the need of giving finality to judicial decisions. When a matter whether on a question of fact or a question of Law-has been decided between two parties in a suit and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed or no appeal lies, neither party will be allowed in a future suit between the same parties to canvass the matter again.” Basis: The doctrine of Res Judicata is based upon the following four maximsa. Nemo debet lis vexari pro una et eadem causa: no man should be vexed twice over for the same cause. b. Interest republicae ut sit finis litium: it is in the interest of the State that there should be an end to a litigation. c. Res judicata pro veritate occipitur: A judicial decision must be accepted as correct. d. Res judicata pro veritate habetur: An adjudicated matter shall be deemed correct Conditions to apply S. 11: To constitute a matter as Res judicata U/s 11, the following conditions must be satisfied – a. Matter in Issue:

The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit. b. Same Parties: The former suit must have been a suit between the same parties or between parties under whom they or any of them claim. c. Same Title: Such parties must have been litigating under the same title in the former suit. d. Competent Court: The court which decides of the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequent raised. e. Final decision of former suit: The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit. Matters in Issue: The expression 'matter in issue' means the right litigated between the parties.

Matters Directly and Subsequently in Issue In order that a matter decided in a former suit may operate as res judicata in a subsequent suit, it must have been directly and subsequently in issue in the former suit. Illustration: A sues B for rent due. The defence of B is that no rent is due. Here the claim to rent is the matter in respect of which the relief is claimed. The claim of the rent is, therefore a matter, directly and substantially in issue. Actually, in issue: Expl. Ill A matter is actually in issue when it is alleged by one party and denied or admitted by the other. Constructively in issue - (Prayer for the same relief in the subsequent suit): Expl. IV A matter is constructively in issue when it might and ought to have been made a ground of defence or attack in the former suit. The object of Expl. IV is to compel the plaintiff or the defendant to take all the grounds of attack or defence which were open to him. Illustrations:

1. A files a suit against B for declaration that he is entitled to certain lands as heir of C. The suit is dismissed. The subsequent suit, claiming the same property on the ground of adverse possession, is barred by constructive res judicata. 2. A files a suit against B to recover money on a pro-note. B contends that the promissory note was obtained from him by undue influence. The objection is overruled and suit is decreed. B cannot challenge the promissory note on the ground of coercion or fraud on subsequent suit, in as much as he ought to have taken that defence in the former suit. 3. As a mortgagor A sues B for redemption of certain property alleging that he has mortgaged it with possession to B. The mortgage is not proved and the suit is dismissed. A files another suit against B for possession of the same property claiming to be the owner thereof. The suit is not barred. 4. A sues B for a declaration that he is entitled to certain property as an heir of X. The suit is dismissed. A files another suit for injunctions on the ground that he had become an owner of the property by adverse possession. This ground was available to him even at the time of previous suit but was not taken at that time. The subsequent suit is barred. Collaterally or incidentally in issue: A collateral or incidental issue means an issue which is ancillary to the direct and substantive issue. It refers to a matter in respect of which no relief is claimed and yet it is put in issue to enable the Court to adjudicate upon the matter which is directly and substantially in issue. Decisions on the matters collateral and incidental to the main issues in the case will not operate as res-judicata. Illustration: A sues B for the rent due: B pleads abatement of the rent on the ground that the actual area of the land is less than that mentioned in the lease deed. The Court, however, finds the area greater than that shown in the lease deed. The finding as to the excess area, being ancillary to the direct and substantial issue, is not res judicata. Res-judicata between co-defendants: A matter may operate as res-judicata between co- defendants and co- plaintiffs. Illustration: A sues B, C and D and in order to decide the claim of A, the Court has to interpret a will. The decision regarding the construction of the will on rival claims of the defendants will operate as resjudicata in any subsequent suit by any of the defendants against the rest. Res-judicata between different stages of the same proceedings: The principle of res-judicata applies in between two stages in the same litigation. It is well settled that principle of res-judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding.

Criminal Proceedings: The doctrine of res-judicata is of universal application, which applies even to criminal proceedings. Once a person is acquitted or convicted by a competent criminal court, he cannot once again, be tried for the same offence.

Writ Petitions: The General principle of res-judicata applies even to Writ petition filed under Article 32 of the Constitution. Res-judicate and Estoppel: Res-judicata is really estoppel by verdict or estoppel by judgment (record). The rule of constructive res-judicate is nothing else but a rule of estoppel. Even then, the doctrine of res-judicata differs in essentials particulars from the doctrine of estoppel. Distinction Between Res-judicata & Estoppel 1. Origin: It results from a decision of the Court. Estoppel flows from the act of parties. 2. Basis: The rule is based upon public policy, viz that there should be an end to litigation. It bars multiplicity of suits. It proceeds upon the doctrine of equity; that he who by his conduct, has induced another to alter his position to his disadvantage cannot turn round and take advantage of such alteration of the other's position.

3. Affects the jurisdiction: It ousts the jurisdiction of a court to try a case. Estoppel prevents multiplicity of representations. 4. Stop the Party: It prohibits a man averring the same thing twice in successive litigations. It is only a rule of evidence and shuts the mouth of a party. 5. Binding effect on party/parties: This rule presumes conclusively the truth of the decision in the former suit. It binds both the parties to a litigation. Estoppel prevents him from saying one thing at one time and the opposite at another. The rule of estoppel prevents a party from denying what he has once called the truth, i.e. estoppel binds only that party who made the previous statement or showed the previous conduct.

2. State the provisions regarding transfer of cases. Reference: The Code of Civil Procedure, 1908 Part I-Suits in General Sections: 9 – 35 Sections 22 – 25 Section 22. Power to transfer suits which may be instituted in more than one Court Where a suit may be instituted in two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may, before a settlement, apply to have the suit transferred to another Court, and the Court, after considering the objections of the other parties if any, shall determine in which of the several Courts having jurisdiction the suit shall proceed. Section 23. To what Court application lies. Appellate Courts: (1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application shall be made to the Appellate Court. High Courts: Single High Court: (2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made...