CIVIL PROCEDURE

Q 1. Write the consequences parties may face due to nonappearance in the court. Describe available remedy for them.
No
Ans (1) Order IX, rule 2 provides that where on the day fixed it is found that the summons has not been served upon
defendant in consequence of the failure of the plaintiff to pay the court fee or postal charges (if any) chargeable for such
service, the court may make an order that the suit be dismissed:

a. Provided that on such order shall be make although the summons has not been served upon the defendant, if on the
day fixed for him to appear and answer he attends in person or by agent when he is allowed to appear by agent.
b. If a suit is dismissed in such a case as stated in the problem, the remedy is proved by rule 4 of the same order which
provides that where a suit is dismissed under rule 2 or 3, the plaintiff may (subject the law of limitation) bring a fresh suit, or
he may apply for an order to set the dismissal aside and if he satisfied the court that there was sufficient cause for his not
paying the court fee and postal charges (if any) required within the time fixed before the issue of the summons or for his
nonappearance 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.
(2) Order IX, rule 3 contemplates dismissal of a suit under the circumstances stated in the problem. The remedy is the
same as stated in answer to part (1). The plaintiff may bring a fresh suit or he may apply for setting aside the dismissal on the
ground that there was sufficient cause for his nonappearance.
(3) Such a contingency is contemplated by Order IX rule 8 which provides that 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.
The remedy under such circumstances is provided by Order IX, rule 9 which states that where a suit is wholly or partly
dismissed in respect of the same cause of action. But he may apply for an order to set the dismissal aside and if he satisfied
the court that there was 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 the suit. No order shall be made under the rule unless
notice of the application has been served on the opposite party.
(4) Dismissal of a suit on the ground that the plaintiff failed to serve the defendant with a notice under Section 80, CPC
does not affect the right of a plaintiff to bring a fresh suit after serving the defendant with such notice provided that second
suit is brought within the period of limitation. The plaintiff may also appeal from this order if he considers that the
requirement of notice was substantially complied with or that the notice was waived.
(5) In this case the suit having been abated, no fresh suit lies. The plaintiff may apply under Order XXII, rule 9 suit
which provides that where a suit abates is dismissed under this order; no fresh suit shall be brought on the same cause of
action.
The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the
receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal and if it is proved
that he was prevented by any sufficient cause from continuing the suit, the court shall set aside the abatement or dismissal
upon such terms as to costs or other as it thinks fit.
The fresh suit will lie only if the same is brought within the period of limitation but the provisions of section 5 of
Limitation Act shall apply to and application under this rule.

Q 2. Write grounds to set a sale in execution of decree.

No
An The procedure for sale of property in execution of a decree is provided by Order XXI, rule 64 to 69 which provides
s that any court executing a decree may order that any property attached by it and liable to sale or such portion thereof, shall be
paid to the party entitled under the decree to receive the same.
Where any property is ordered to be sold by public auction in execution of a decree, the court shall cause a
proclamation of the intended sale to be made in the language of such court.
Such proclamation shall be drawn up after notice to the decree-holder and the judgment debtor and shall state the
time and place of sale and specify as fairly and accurately as possible:
(1) The property to be sold.
(2) The revenue assessed upon the estate or part of the estate where the property to be sold is an interest in an estate or
in part of an estate paying revenue to the Govt.
(3) Any encumbrance to which the property is liable
(4) The amount for the recovery of which the sale is ordered and
(5) Every other thing which the court considers material for a purchaser or knows in order to judge of the nature and
value of the property.
Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the
manner prescribed for signing and verification of pleading and containing so far as they are known to or can be ascertained
by the person making the verification the matters required to be specified in the proclamation.
For the purpose of ascertaining the matters to be specified in the proclamation, the court may summon any person
whom it thinks necessary to summon and may examine him in respect to any such or power relating thereto.
Every proclamation shall be made and published, as nearly as made be in the manner prescribed by rule 54 (2).
Where the court so directs such proclamation shall also be published in the official Gazette or in a local newspaper
or in both and the costs of such publication shall be deemed to be costs of the sale.
Where property is divided into lots for the purpose of sold separately, it shall not be necessary to make a separate
 proclamation for each lot unless proper notice of the sale cannot, in the opinion of the court, otherwise be given.
Save in the case of property of the kind described in the proviso to rule 43 movable property subject to speedy and
natural decay no sale hereunder shall, without the consent in writing of the judgment debtor, take place until after the
expiration of a at least thirty days in the case of immovable property and of at least fifteen days in the case of movable
property, calculated from the date on which the copy of the proclamation has been affixed on the court house of the judge
ordering the sale.
The court may in its discretion, adjourn any sale hereunder to a specified day and hour, and the officer conducting
any such sale may in his discretion adjourn the sale, recording his reasons for such adjournment.
Where a sale is adjourned under the rule state above for a longer period than seven days, a fresh proclamation shall
be made, unless the judgment debtor consents to waive it.
Every sale shall be stopped if before the lot is knocked down, the debt and costs (including the cost of the sale) are
tendered to the officer conducting the sale or proof is given to his satisfaction that the amount of such debt and costs has
been paid into the court which ordered the sale
Q 3. Elaborate necessary conditions for applicability of “rule of Order XVIII”.
No
An Rule 3 of Order XVIII. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause
s the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit for which time has
been allowed, the court may , notwithstanding such default, , proceed to decide the sit forthwith. The provisions of this rule
do not apply unless:-
(1) The hearing is adjourned on the application of a party to the suit, as distinguished from adjournment by the court of
its own motion.
(2) The hearing is adjourned on application of the party who subsequently makes the default.
(3) The adjournment is granted to enable the party to produce his evidence or to cause the attendance of his witness, or
to perform any other act necessary to the further progress of the suit and
(4) The party fails to perform any of the acts for which the adjournment was granted within the time allowed by the
court.
Q 4. Define pleadings with reference to term “Set Off” and under what circumstances “Set Off” can be pleaded.
No
An Pleadings are statement in writing of each party containing the contentions of such party and the details of his case.
s Order VI, rule 1 states that pleading shall mean plaint or written statement. A plaint is the statement of claim in
writing and filed by the plaintiff, in which he sets out his cause of action with all necessary particulars.
Written statement is the statement of defence in writing and filed by defendant in which he deals with every
material fact alleged by the plaintiff in the plaint and also states any new facts which may be in his favour, adding such legal
objections as he wishes to take to the claim.
The object of pleadings is to bring the parties to an issue and the purpose of the rules (relating to pleadings) was to
prevent the issue being enlarged which would prevent either party from knowing when the case came on for trial, what the
real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issue
and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the
hearing.
Every pleading shall contain and contain only, a statement in a concise form of the material facts on which the party
pleading relies for his claim or defence as the case may be but not the evidence by which they are to be proved and shall
when necessary, be divided into paragraphs, numbered consecutively. Dates, sum and numbers shall be expressed in figures.
Necessary requisites.
(1) State your whole case in your pleading, in other words set forth in your pleading all material facts on which you rely
for your claim or defence.
(2) State facts and not law. If any matter of law is set out in your opponent’s pleading, do not plead to it.
(3) State the material fact on which you rely, and not the evidence by which they are to be proved.
(4) State material facts only; omit immaterial and unnecessary facts. Do not anticipate your opponent’s pleading and
plead to any matter which is not alleged against you.
(5) State the facts of your case concisely, but with precision.
(6) It is not necessary to allege the performance of any condition precedent; an averment of performance is now implied
in every pleading.
(7) It is not necessary to set the whole or any part of document unless the precise words thereof necessary. It is
sufficient to state the effect of the document as briefly as possible.
(8) It is not necessary to allege any matter of fact which law presumes in your favour, or as to which the burden of
proof lies upon your opponent.
The part should not plead conclusions of law. But foreign law and certain customs and usages are not judicially
taken notice of by Courts and they must be pleaded as facts.
Legal pleas such as estoppel, limitation and res judicata may be pleaded.
In cases whether the party pleading relies on any misrepresentation, fraud, breach of trust, willful default r under
influence, particulars shall be stated in the plaint.
Set – Off. According to its original and strict sense set-off is plea in defence pure and simple, which by adjustment would
wipe off or reduce the plaintiff’s claim. In its enlarged sense, and that is of statutory creations as in this rule, it is a defence
and a counter-claim combined, defence to the extent of the plaintiff’s claim and a claim by the defendant in the suit itself for
the balance.
When in a suit for the recovery of money the defendant claims to set-off against the plaintiff’s demand any
 ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction
of the court and both parties fill the same character as they fill in the plaintiff’s suit, the defendant may at the first hearing of
the suit, but not afterwards unless permitted by the court, present a written statement containing the particulars of the debt
sought to be set-off.
Illustration.
(a) A bequeaths Rs. 2,000.00 to B and appoints C his executor and residuary legatee. B dies and D takes out
administration to B’s effects. C pays Rs. 1,000.00 as surety for D; then D sues C for the legacy. C cannot set-off the debt of
Rs. 1,000.00 against the legacy, for neither C nor D fills the same character with respect to legacy as they fill with respect to
the payment of Rs. 1,000.00.
(b) A dies intestate and in debt to B. C takes out administration to A’s effects and B buys part of the effects from C. in a
suit for the purchase-money by C against B, the latter cannot set-off the debt against the price, for C fills two different
character one as the vendor to B, in which he sues B and the other as representative to A.
(c) A sues B on a bill of exchange for Rs. 500.00. B holding a judgment against A for Rs. 1,000.00. The two claims
being both definite pecuniary demands may be set-off.
Necessary requisites.
(1) The suit must be one for the recovery of money,
(2) It must be and ascertained sum of money,
(3) Such sum must be legally recoverable,
(4) It must be recoverable by the defendant or by all defendants if more than one.
(5) It must be recoverable by the defendant from the plaintiff or all the plaintiffs if more than one. Thus where the
defendant is sued by the agent he cannot set-off what is due to him from the principal as the principal is not the plaintiff,
(6) It must not exceed the pecuniary limits of the jurisdiction of the court in which the suit is brought and
(7) Both parties must fill in the defendant’s claim to set-off the same character as they fill in the plaintiff’s suit.
Equitable Set-Off. Although under Order VIII, rule 6 the claim for set-off must be an ascertained sum of money there are
cases in which the defendant may be allowed a set-off even in respect of an unascertained sum in the nature of cross-
demands arising out of the same transaction or if they are so connected in their nature and circumstances that they can be
looked upon as one transaction. Such a claim is called an equitable set set-off as distinguished from a legal set-off which is
allowed only in respect of an ascertained sum. Therefore, if the defendant’s claim is to set-off an unascertained sum, but has
arisen from them same transaction as the plaintiff’s claim, he will be arisen from them same transaction as the plaintiff’s
claim, he will be permitted to do so, not under the provisions of the present rule which is limited to legal set-off but in the
exercise of a general right of the defendant to plead a set-off whether legal or equitable. Although under the code there is not
specific provision for an equitable set-off, Order XX rule 19(3) does recognize such a right. A sues B to recover Rs. 6,000.00
due under a contract. B admits A’s claim, but claims to set-off several sums of money alleged to be damages sustained by
him by reason of A’s breach of some of the terms of same contract. B is entitled to claim the set-off for the claim arises out
of the same transaction.
Q 5. What are the grounds for rejection of Plaint and differentiate between rejection of Plaint and return of Plaint?
No
An Rejection of plaint.
s (a) Where it does not disclose cause of action.
(b) Where the relief claimed is undervalued.
(c) Where the relief claimed is properly valued, but the plaint is written 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 courts, fails to do
so.
(d) Where the suit appears from the statement in the plaint to be barred by any law.
Effect of rejection. This effect of such rejection is that it does not of its own force preclude the plaintiff from presenting a
fresh plaint in respect of the same cause of action. The plaintiff may bring a suit in the case of dismissal of a suit the plaintiff
is barred by the principle of res judicata from bringing a fresh suit in respect of the cause of action but in the case of rejection
of a plaint the plaintiff is not so precluded.
Return of plaint. Order VII, rule 10 deals with return of a plaint. The plaint is returned if it is not presented to be proper.
Court or in other words when it presented to a court which has no jurisdiction to entertain it. When the plaint so returned is
presented to the proper court, the time spent in the wrong court is excluded for the purpose of limitation.
Rejection of plaint.A plaint is rejected on the grounds mentioned in Order VII, rule ii, i.e., where it does not disclose a cause
of action or where proper court fee is not paid, or the plaint is written of insufficiently stamped paper or where it is barred by
the law of limitation.
The effect of rejection of a plaint that it does not preclude the plaintiff from bringing in a fresh suit.
An order returning the plaint to be presented to the proper court is appealable.
Appeal. An order rejecting a plaint is a decree and thus appealable as such.
Q 6. Define Mis-Joinder and Non-Joinder of Parties with reference to proper party and necessary party?
No
An Mis-Joinder Party. If persons who are necessary to be joined together as plaintiffs or as defendants have not been so added,
s the result is a misjoinder of the parties. The objection to such misjoinder should be taken at the earliest opportunity; if not, it
will be deemed to have been waived. (Order I, rule 13). When such objection is taken and the court finds that it is well
founded, the court should not dismiss the suit, but the plaint may be amended by striking out the names of such persons as
have been improperly joined as plaintiffs or defendants and the suit then may be proceeded with. This is to say, an objection
to the misjoinder of parties is not fatal to the suit. In other words, no suit shall be defeated by reason of the misjoinder of
parties and where there is a misjoinder of parties the name of the plaintiff or defendant who has been improperly joined may
 be struck out and the case may be proceeding with.
Non-joinder of Parties. Persons who are necessary parties to a suit should all be joined as parties, or otherwise it is a case of
non-joinder of parties. Thus, if a promissory note is given jointly in favor of A, B and C, all the three must join together in
one suit against the promisor. Similarly in a suit for partition of joint family property, all the members of the joint family
should be joined as parties to the suit. On the same principle all the members of a partnership are necessary parties to a suit
for partnership accounts. If any of the persons interested refuses to join as a plaintiff, he should be joined as defendant, for no
person can be added as a plaintiff without his consent. When a person who is a necessary party to a suit not been joined as a
party, an application to the court must be made for permission to amend the plaint. The court as a rule permits such
amendments, if the application is made within the period of limitation on the 1 st January 2016, A sues B in December 2018
for partnership accounts but omits to join C as a defendant. B contends that C is a necessary party to the suit and that the suit
cannot be proceeded with in his absence. Thereupon A applies on the 1 st January 2016 for leave to add C as a party. The
application must be refused, because on the date of the application the remedy against C has been barred by limitation, and
the could have been added as a party at any time before the expiry of 3 years after the dissolution and since the suit cannot be
proceeded without the presence of C, the who suit must be dismissed. The above example shows how risky it is to omit to
join as parties to a sit persons who are necessary parties to it.
As regards non-joinder of parties, a distinction has been drawn between the non-joinder of a person who ought to
have been joined as a party and the non-joinder of a person whose joinder is only a matter of convenience or expediency.
Where it is necessary for parties to be joined as plaintiffs or defendants, a non-joinder may seriously affect the case as shown
on the illustration given about. Where the non-joinder of a person is only a matter of convenience or expediency, under
Order I, rule 10(2), the court has power to add any person as a party to a suit:
(1) Where he ought to have been joined as plaintiff or defendant and is not so joined or
(2) When, without his presence, the questions in the suit cannot be completely decided. The court has jurisdiction toadd
a party only in these two cases and in no other case.
Mis-joinder or non-joinder on the ground of non-joinder or misjoinder of parties shall be taken at the earliest
possible opportunity and in all cases where issues are settled at or before such settlement, unless the ground of objection has
subsequently arisen and any objection not so taken shall be deemed to have been waited. (Order I, rule 13). For example
where an objection to non-joinder of parties is not taken in the court of first instance, it will be disallowed in appeal.
Proper Party and Necessary Party.
Order I, rule 10(2), CPC, two classes of parties, namely, necessary parties and proper parties can be joined. The former
consists of person who ought to have been joined as parties and the latter persons without whose presence of the questions in
the suit cannot be completely and effectually adjudicated upon. If a person does not fall in the either of these two classes, that
is to say, he is neither a necessary nor a proper party, then the court has no jurisdiction to add him as a party under this sub
rule. This is why the court is called upon not drag any parties in the array of the suit to suffer the rigorous of a trial
unnecessarily. It must be further pointed out that the questions of adding of parties under this rule is generally not one of
initial jurisdiction of the court, but of judicial discretion which has to be exercised in view of facts and circumstances of a
particular case. No party can be allowed to argue that as the court has a wide discretion in the matter of the joinder of parties,
any person who is neither a necessary nor proper may be joined at the convenience of the applicant. In exercise their power
under this rule. Courts ought to see that do not load the record with parties wholly shown to have no interest in the suit and
that the trial of the suit neither is nor embarrassed by the simultaneous investigation of totally unconnected controversies.
(1985 SCMR 714)
Q 7. Explain “Interpleader Suit” and under what circumstances it can be initiated.
No
An Interpleader Suit. By an interpleader suit is meant a suit in which the real dispute is between the defendants only and the
s plaintiff is not interested in the subject matter of suit. The plaintiff brings a suit in which he states that he has certain property
which is claimed by the defendants adversely to each other. The plaintiff in a sense, seeks the direction of the court as to
whom out of the defendants he should deliver the property.
The interpleader suit is explained by section 88, CPC which states that where two or more persons claim adversely
to one another, the same debt; sum of money or other adversely to one another the same debt, sum of money or other
property movable or immovable from another person who claims, no interest therein other that for charges or costs and who
is ready to pay or deliver it to the rightful claimant such other person may institute a sit of interpleader against all the
claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of
obtaining indemnity for himself.
Provided that where any suit is pending in which the rights of all parties can properly be decided, no such suit of
interpleader shall be instituted.
Order XXXV provides that in every suit of interpleader the plaint shall, in addition to other statements necessary for
plaints, state:-
(a) That the plaintiff claims no interest in the subject matter in dispute other than the charges or costs;
(b) That the claims have been made by the defendants severally and
(c) That there is no collusion between the plaintiff and any of the defendants.
Where the thing claimed is capable of being paid into court or placed in the custody of the court, the plaintiff may
be required to do so pay or place it before he can be entitled to any order in the suit.
Where any of the defendants in an interpleader suit is actually suing the plaintiff in respect of the subject matter of
such suit, the court in which the suit against the plaintiff is pending shall on being informed by the court in which the
interpleader suit has been instituted, stay the proceedings as against him; and his costs in the suit so stated may be provided
for in such suit but if and in so far as they are not provided for in that suit they may be added to his costs incurred in the
interpleader suit.
 At the first hearing of the court may:-
(a) Declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed, award him
his costs and dismiss him from the suit,
(b) If it thinks that justice or convenience so required retain all parties until the final disposal of the suit.
Where the court finds that the admission of the parties of other evidence enables it to do so, it may adjudicate till to
the thing claimed.
Where the admissions of the parties do not enable the court so to adjudicate it may direct:-
(a) That an issue or issues between the parties be framed and tried and
(b) That any claimant be made a plaintiff in lieu of or in addition to the original plaintiff and shall proceed to try the
suit the suit in the ordinary manner.
Nothing in this order shall be deemed to enable agents to sue their principles, or tenants to sue their landlords for the
purpose of compelling them to interplead with any persons other than persons making claim through such principals or
landlords.
Illustration.
(a) A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully obtained from him by A
and claims them from B. B cannot institute and interpleader suit against A and C.
(b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making the jewels as security
for a debt due from himself to C. A afterwards alleges that C’s debt is satisfied, and alleges the contrary. Both claim the
jewels from B. B may institute and interpleader suit against A and C.
Q 8. Define Revisional Jurisdiction of the Court and differentiate between “Revision” and “Appeal”?
No
An Revisional Power. Section 115, CPCdeals with revisional powers of High Court as follows:
s (1) The High Court may call for the record of any case which has been decided by any court subordinate to such High
Court in which no appeal lies thereto and if such subordinate court appears:
a. To have exercised a jurisdiction not vested in it by law or
b. To have failed to exercise a jurisdiction so vested or
c. To have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such
order in the case as it thinks fit.
Provided that, where a person makes an application under this sub-section he shall in support of such application,
furnish copies of the pleadings, documents and order of the subordinate court and the High Court shall, except for reasons to
be recorded dispose of such application without calling for the record of the subordinate court.
Provided further that such application shall be made within ninety days of the decision of the subordinate court
which shall provide a copy of such decision within three days thereof and the High Court shall dispose of such application
within six months.
(2) The District Court may exercise the powers conferred on the High Court by sub section (1) in respect of any case
decided by a court subordinate to such District Court in which no appeal lies and the amount or value of the subject matter
whereof does not exceed the limits of the appellate jurisdiction of the District Court.
(3) If any application under sub section (1) in respect of a case within the competence of the District Court has been
made either to the High Court or the District Court; no further such application shall be made to either of them.
(4) No proceedings in revision shall be entertained by the High Court against an order made under sub section (2) by
the District Court.
The provision of section 115 of the code is in two parts. The first part lays down the conditions under which the
revisional court may interfere and the second part specifies the types of orders that are susceptible to revision. Accordingly
the revisional court can interfere in revision only if he following conditions are fulfilled:
(i) Where a case has been decided;
(ii) The decision has been given by a court which is subordinate to the High Court and
(iii) No appeal lies to the High Court from such a decision.

Where the conditions mentioned above are fulfilled the High Court may interfere if the subordinate court has:
(i) Exercised a jurisdiction not vested in it or
(ii) Failed to exercise jurisdiction vest in it or
(iii) Acted in exercise of its jurisdiction illegally or with material irregularity (1996 MLD 338).
The section empowers the High Court to satisfy itself upon following matters:
(i) That the order of the subordinate court is within its jurisdiction;
(ii) That the case is one in which the court ought to exercise jurisdiction.
Different between “Revision” and “Appeal”.
(1) An appeal lies to a superior court, which may to necessarily be a High Court, but an application for revision lie only
to the High Court.
(2) An appeal lies only from appealable orders and decrees, but an application for revision can be made only when the
relief by way of appeal to the High Court is not available.
(3) A right of appeal is substantive right given by statute. There is no right or revision. It is only privilege. A party may
move the High Court to invoke its revisional jurisdiction or the High Court may of its own motion exercised revisional
jurisdiction but the power is discretionary.
(4) An appeal abates if the legal representatives of a deceased party or not brought on the record within the time
allowed by law. A revision does not abate in case of not bought on the record. The High Court has a right to bring the proper
parties before the Court any time.
 (5) The grounds of appeal and revision are different. An application in revision can lie only on the ground of
jurisdiction is not a court of appeal on a question of law or fact. In an appeal the court has the power to decide both questions
of fact and law.
Q 9. (a) Give detail where plaintiff is precluded from instituting a further suit.
No (b) Under what circumstances court can issue commission?
An Where plaintiff is precluded from instituting a further suit. Section 12 of CPC states:
s (1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he
shall not be entitled to institute a suit in respect of such case of action in any court to which this code applies.
(2) Where a person challenges the validity of a judgment, decree r order on the plea of fraud, misrepresentation of want
of jurisdiction, he shall seek his remedy by making an application to the court which passed the final judgment, decree or
order and not by a separate.
Circumstances court can issue commission. Section 75 of CPC deals with power of court to issue commission. It provides
that subject to such conditions and limitations as may be prescribed, court may issue a commission:-
(a) To examine any person
(b) To make local investigation
(c) To examine or adjust accounts or
(d) To make a partition.
Section 76 provides that commission for the examination of the person any be issued to any court (not being a High
Court) situate in a province other that the province in which the court of issue is situate and having jurisdiction in the place in
which the person to be examined resides.
Every court receiving a commission for the examination of an person shall examine him or cause him to be
examined pursuant thereto and the commission, when it has been duly executed, shall be returned, together with the evidence
taken under it to the court from which it was issued, unless the order for issuing the commission has otherwise directed, in
which case the commission shall be returned in terms of such order.
Commission to examine witness: The cases in which a court has power to issue commission are found in Order XXVI, rule
1 which provides that any court may in any suit issue a commission for the examination on interrogatories or otherwise of
any person resident within the local limits of its jurisdiction who is exempted under this code from attending the court or
who is from sickness of infirmity unable to attend it.
The following are the classes of persons for whose examination commission may be issued:-
(1) Any court may in any suit issue commission for the examination of :
a. Any person resident beyond the local limits of its jurisdiction;
b. Any person who is about to leave such limits before the date on which he is required to be examined in court and;
c. Any person in the service of the Govt who cannot, in the opinion of the court, attend without detriment of the public
services
(2) Such commission may be issued to any court, not being a High Court, within the local limits of whose jurisdiction
such person resides, or to any pleader or other person whom the court issuing the commission may appoint.
(3) The court on issuing any commission under this rule shall direct whether the commission shall be returned to itself
or to any subordinate court.
Commission to examine accounts. In any suit in which an examination or adjustment of accounts is necessary, the court
may issue a commission to such person as it thinks fit directing him to make such examination or adjustment.
The court shall furnish the commissioner with such part of the proceedings and such instructions as appear
necessary and instructions shall distinctly specify whether the commissioner is merely to transmit the proceedings which he
may hold on the inquiry or also to report his own opinion on the point referred for his examination.
The proceedings and report (if any) of the commissioner shall be evidence in the suit, but where the court has
reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit.
Commission to make partitions. Where a preliminary decree for partition has been passed, the court may, in any case not
provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to
the rights as declared in such decree:-
(1) The commissioner shall, after such inquiry as may be necessary divide the property into as many shares as may be
directed by the order under which the commission was issued and shall allot such shares to the parties and may, if authorized
thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.
(2) The commissioners shall then prepare and sign a report or the commissioners (where the commission was issued to
more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and
distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to
commission and transmitted to the court and the court after hearing any objections which the parties may make to the report
or reports, shall confirm, and vary of set aside the same.
(3) Where the court confirms or varies the report or reports, it shall pass a decree in accordance with the same as shall
pass a decree in accordance with the same as confirmed or varied; but where the court sets aside the report or reports it shall
either issue a new commission or make such other order as it shall think fit.

Q 10. How the summons of the court are to be duly served upon the defendant. What are the consequences of non-
No appearance of defendant?
An Service. A summon is a document issued from the office of a court, calling upon the person to whom it is directed to attend
s before a judge or officer of the court on the day mentioned therein.
Modes of Service. The different modes of service f summons are as follows:
(1) Personal service: This is also called direct service. So far as practicable service should be made on the defendant in
 person. Service is made by delivering a copy of the summons to the person concerned or to his agent and by obtaining his
signature on the other copy.
(2) Service by affixing copy of the summons on defendant’s house without an order of the court.In the second
case, service is effected without an order of the court by affixing copy of summons on the outer door or some other
conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain,
and it is for the court to declare after examination of the serving officer that the summons has been duly served.
(3) Substituted service.Where court is satisfied that the defendant is avoiding service or that or any reason summon
cannot be served upon him in the ordinary way, the court shall order service of summons by affixing a copy thereof in some
conspicuous place in the court house and also on some conspicuous part of the house gain, or in such other manner as the
court thinks fit. Service may be ordered by publication in a local newspaper.
(4) Service by post. In particular cases the court may direct service by post.
Consequences of non-appearance of defendant. Order IX, rule 6(1) of the code only applies to first hearing of the suit and
is not applicable to subsequent hearings. Now the first hearing is either for the settlement of issue or final hearing. If it is for
the settlement of issues, then the court cannot pass an ex parte decree on that date because of the proviso to Order XV, Rule
3 (1) of the code on the other hand, if it is for the final hearing, and ex parte decree can be passed and if it is passed then
Order IX rule 13 of the code comes into play. It is the duty of the court to determine at the time of issuing the summons
whether it shall be for the settlement of issued only or for the final disposal of the suit and the summons shall contain a
direction accordingly. In the former case court is to record the statement of fact that the proceedings are ex parte against the
absentee defendants and the case to be adjourned. Passing of decree is not a matter of course. Plaintiff even in the absence of
defendant has to prove his case. It is necessary for the court to apply judicial mind to mature of assertion made. Rule 6(10(a)
does not provide any arbitrary authority or blatant discretion to award decree by closed eyes. The court after proceeding ex
parte should record evidence. If documents or record to justifiably establish a prima facie of impeachable character, suit may
be decreed. Words “the court may proceed ex parte and pass decree without recording evidence in discretion and means may
and not shall discretion to be exercised judicially. Expression does not mean that the question was left to the discretion of the
court, nor does it mean that it is incumbent upon court to decree a suit without recording evidence. Such decree, however,
would not follow as matter of clause. Court would look for same material tobase its judgment on court cannot proceedex
parte against defendant on the day for which he not duly served to appear personally or through counsel. Court on leave on
two early dates and suit adjourned for proper orders on crucial date, such date is not date of hearing and ex parte orders /
proceedings on such date is unwarranted and illegal. Where court has once directed issuance of notice of appearance on
party, court has no jurisdiction to proceed ex parte. Ex parte decree cannot be passed under Order XVII rule 2 of the code,
where counsel if the respondent is present. Where after the summons the opposite party has appeared and filled written
statement and thereafter issues have been settled it is obligatory on the court to have decided the case on merit. The
expression duly served employed in this provision bears significance to denote that if the defendant was properly informed of
the action against him and yet he knowingly did not participate in the proceedings, it will be approved against him that he
does not want to contest the claim of the plaintiff and so ex parte decree is warranted in view of his conduct. Court would be
competent to pass decree without recording evidence but exercise of such power would be competent to pass decree without
recording evidence but exercise of such power would not absolute court from responsibility of being satisfied about propriety
and genuineness of claim.
Ex parte judgment and decree passed without examining evidence and without giving any finding on issue framed,
is in defence of provision of Rule 4 of Order XX. When plaintiff has closed evidence and partial evidence of defendants is
also on record. Trial court is to give findings on issues in the light of evidence on record. Longstanding entries in the revenue
record attaching presumption of correctness are not justified to be set aside ex parte. Court is under obligation to carefully
apply its judicial mind and demand some proof of truth of assertions set for the in plaint.
The word “may” here imports discretion and means may, not shall, therefore when a court strikes off the defence of
a defendant, it has further to decide in the exercise of its discretion whether it should decree the claim against the defendant
after recording evidence or without recording evidence, and like all discretions vested in the courts, his discretion must be
exercised judicially. Even when proceeding ex parte, that its decision is in accordance with the facts which should be
ascertained with as much care as possible even in the absence of any contesting party. Order IX, rule 6 and Order XVII, rule
2 being the only provision authorizing ex parte proceedings against a defendant, it is clear that ex parte proceedings can be
ordered only in respect of absence on the day fixed in the summon or on the day to which the hearing of the case has been
adjourned. It is the duty of the court to consider interest of absent defendant and must at least hold that the case has been
prima facie proved by evidence. Court cannot refuse to decide case ex parte where the plaintiff has proved his case by
producing un-rebutted ex parte proof. Ex parte decree passed without recording evidence and without applying judicial mind
is liable to be set aside. Judgment passed without examining evidence on record is not sustainable. Affidavit supported by
documentary evidence may afford conclusive proof if un-rebutted. Hotly contested suit should not be decreed ex parte
without establishing the case on evidence. But where summons proved to be duly served on absentee defendant, ex parte
proceeding is in accordance without Order IX rule 6(i) (a) of the code.
Limitation Act remains unaffected under this rule. Ex parte decree against minors is not warranted as he not
considered being a party to suit unless properly represented through qualified guardian such a decree is without jurisdiction
and void.
If the date of hearing of a case falls on a holiday, the parties have no legal obligation to appear on the next working
day and it is both their right as well as the duty of the court to issue them a fresh notice for the next date of hearing. Day
fixed for hearing, subsequently declared court holiday, ex parte proceedings under this rule is not warranted.
Q 11. What is legal disability for the purpose of limitation and how the limitation is to be calculated in such cases?
No
An Legal disability. Disability is want of legal qualification to act while inability is want of physical power to act. Thus legal
s disability is what of legal qualifications to sue owing to minority, lunacy and idiocy. Law recognizes no other ground except
the above three, viz, minority, lunacy or idiocy. The effect of legal disability is that it extends the period of limitation but it
does not prevent the period from running.
Successive Disability. By successive disability is meant a disability which is followed by another disability without leaving
any gap. The period of limitation begins to run when such successive disability ceases but in no case the period of limitation
will be extended for more than three years.
Essentials of legal disability.
(i) Disability must be continuous. If a person entitled to sue is minor and becomes insane before he attains majority,
time would be extended. In other words, the disability must overlap each other.
(ii) The disability must be of a person entitled to sue or apply for execution. In other words this privilege is extended
only to the plaintiffs and not to the defendants.
(iii) The person must already be under a disability when the right to sue accrues, or at the time from which the period of
limitation is to be reckoned. If the disability supervenes subsequently, when the time has already begun to run against him,
then the benefit of the sections cannot be taken.
Illustration. A right to sue accrues to Z during his minority. After the accrual but while Z is still minor, he becomes insane.
Time runs against Z from the date when his insanity and minority cease.
Conclusion. It is to be noticed that the above sections apply to suits and applications of execution of decree but not to
appeals, etc. moreover these provisions apply to plaintiffs and not to defendants.
Q 12. How the period of limitation is to be calculated in case of fraud?
No
An Effect of Fraud.Where a person having a right to institute a suit or make an application has by means of fraud, been kept
s away from the knowledge:
(i) Of such right, or
(ii) Of the title on which the right is bounded, limitation shall be computed from the time when the fraud become
known to the person defrauded.
Thus, if any person by the exercise of fraud has kept away any other person from the knowledge that he has a right
to file a suit, then limitation will be computed from the time when fraud became known to the person so defrauded (S. 18 of
Limitation Act).
Under the same section where any document necessary to establish such right has been fraudulently concealed from
him, limitation shall be computed from the time when he first has the means of producing the document or compelling its
production (and not from the date of the discovery of the document).
Principle. “The principle is that the right of a party defrauded cannot be affected by lapse of time or by anything else done or
omitted to be done by him, so long as he remains without any fault of his own, ignorance of the fraud which has been
committed”. (Darby and Bais Anquet).
Essential Conditions.
(a) That his cause of action has been concealed from him by fraud;
(b) That the fraud is of the defendant or of a person through whom he claims;
(c) That the plaintiff is in time since the discovery of the fraud.
Illustration. A decree holder fraudulently sells property not belonging to the judgment debtor and realizes rent from the
auction purchase for some year. The auction purchaser files a suit for possession against the judgment debtor which is
dismissed. Then he brings a suit against the decree holder for refund of purchase money after the period of limitation. He is
entitled to get benefit of this section because the acts on the part of the decree holder amount to fraud keeping the auction
purchaser out of his right institute the suit within time.
Q 13. What is the effect of substituting or adding a new plaintiff or defendant?
No
An Effect of substitution or adding new plaintiff or defendant. Where after the institution of a sit a new plaintiff or defendant
s is added or substituted, the suit shall, as regards him be deemed to have been instituted when he was so made a party. (S.
22(1).
Sub section (2) gives certain exceptions to sub-section (1). The sub section (1) does not apply to the following
cases:
(i) Where a party is added or substituted owing to:-
a. An assignment or
b. Devolution of an interest during the pendency of suit or
(ii) Where a plaintiff is made a defendant or
(iii) Where a defendant is made a plaintiff.
Note. Thus we see that, except in cases give under sub section (2) the effect of adding a new party during the pendency or a
suit and after the period of limitation for the suit has already expired, will be that limitation will reckoned, as regards the
added party, with reference to the point of time when he is added, i.e., when the amendment is applied for.
Illustration. A lends money to B and C 1 st March, 1977. A files a suit against B for the sum on 1 st March 1980. On 15th
March, 1980 (i.e., when the period has expired), A adds C as a co-defendant in the suit. The suit against B is in time but as
against C, the suit is time barred.
Effects of substitution or addition of parties on the suit as a whole. It has been above that the limitation will be reckoned
as against the new party from the date when he is added. We have now to see the effect of such additions on the suits as the
whole. Does the addition of a new party, after the period of limitation, affect the whole suitor only to the extent the new party
is concerned. This depends upon the question whether the joinder was necessary to enable the court to award such relief as
may be given in a suit framed. Such a joinder of parties is necessary if the cause of action is joint.
 Thus all plaintiffs who have a joint cause of action must be impleaded before the expiry of the period of limitation.
If some of them institute a suit within time and the other plaintiffs are added after the period of limitation, the claim of the
original plaintiffs also, who had a joint cause of action with the added plaintiffs, would be barred as the claim could not be
enforced without the additional plaintiffs.
Illustration. B and C, who were partners lent money to A on pronote on the 1 st February 1986. On 1st February 1986 B alone
filed a suit against A. A alleged in his written statement that C was a necessary party to suit and that B alone was not entitled
to sue on 10th March 1989(i.e., after the period of limitation); C applied to be added as party plaintiff. In such a case the suit
will be time – barred and dismissed against B and C both. If several persons have a joint right of action, all must join in
suing. If any of them is impleaded after limitation the whole suit must fail.
Q 14. In which court suits for “Recovery of Immovable Property are to the instituted and what is position where
No immovable property is situated within the jurisdiction of different courts?
An Section 16, CPC lays down that subject tothe pecuniary or other limitations prescribed by any law suits:-
s (a) For the recovery of immovable property with or without rent of profits,
(b) For the partition of immovable property.
(c) For foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
(d) For determination of any other right to or interest in immovable property,
(e) For compensation for wrong to immovable property,
(f) For the recovery of movable property actually under distrait or attachment, shall be instituted in the court within the
local limits of whose jurisdiction the property is situate.
A suit to obtain relief respecting or compensation for wrong to immovable property held by or on behalf of the
defendant may where the relief sought can be entirely obtained through his personal obedience, be instituted either in the
court within the local limits of whose jurisdiction the property is situate, or in the court within the local limits of whose
jurisdiction the defendant carries on business or personally work for gain.
Section 18 provides that where it is alleged to be uncertain within the local limits of the jurisdiction of which of two
or more courts any immovable property is situate, any one of those courts may, if satisfied that there is ground for the alleged
uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that
property and its decree in the suit shall have the same effect as if the property were situate within the local limits of its
jurisdiction.
Provided that the suit is one with respect to which the court is competent as regards the nature and value of the suit
to exercise jurisdiction.
Where a statement has been recorded and an objection is taken before appellate or revisional court that a decree or
order in a suit relating to such property is situate, the appellate or revisional court shall not allow the objection unless in its
opinion there was at the time of the institution of the suit, no reasonable ground for uncertainty as to the court having
jurisdiction with respect thereto and there has been a consequent failure of justice.
Section 19 provides that where a suit is for compensation for wrong done to the person or to movable property, if
the wrong was done within the local limits of the jurisdiction of one court and the defendant resides or carried on business or
personally work for gain within the local limits of the jurisdiction of another court, the suit may be instituted at the option of
the plaintiff in either or the said courts.
Illustration.
(a) A, residing in Karachi, beats B in Quetta. B may sue A either Karachi or Quetta.
(b) A, residing in Karachi, publishes in Quetta statements defamation of B. B, may sue A either in Quetta or in Karachi.
While the implicit rule for institution of suits for wrongs done to person or to movable property should be to
institute such suits in the court where the cause of action, wholly or in part, arises such suits may also, at the option of the
plaintiff, be instituted in a court within the local limits of whose jurisdiction the defendant resides or carries on business or
personally works for gain on the basis of section 19, In spite of the fact that cause of action has arisen at a different place, a
suit can be instituted where defendant resides or carries on business or works for gains. Suit relating to claim of
compensation in respect of wrong done to person or to movable property can be filed within local limits of jurisdiction of
court in which wrong is done or the court within limits of which defendant is residing or carrying business, or is personally
working for gain.
Under section 20 of the code a suit is to be instituted in a court within the local limits of whose jurisdiction:
(a) The defendant or each of the defendant actually and voluntarily resides or carries on business or personally works
for gain or
(b) Any of the defendants actually and voluntarily resides or carries on business or personally works for gain,
(c) Where cause of action wholly or in part arises.
Q 15. Under what circumstances a decree may be transferred to another court for execution?
No
An Section 39, CPCprovides that the court which passed a decree may, on the application of the decree holder, send it
s for execution to another court:-
(1) If the person against whom the decree is passed actually and voluntarily resides or carries on business or personally
works for gain, within the local limits of the jurisdiction of such other court or
(2) If such person has not property within the local limits of the jurisdiction of the court which passed the decree
sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other court or
(3) If the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of
the court which passed it or
(4) If the court which passed the decree considers for any other reason, which it shall record in writing, that the decree
should be executed by such other court.
 The court which passed a decree may, of its own motion, send it for execution to any subordinate court of
competent jurisdiction.
Thus a decree may be transferred for execution either on the application of the party or by the court on its own
motion. The court executing the decree send to have the same powers in executing it as if it were a decree passed by itself. If
the decree holder satisfied the court that the judgment debtor resends in the jurisdiction of another court, he may ask for
transfer without assigning any more reasons. If the judgment debtor’s property is situated outside the jurisdiction of the court
which passed the decree. It cannot be attached by that court and therefore the decree must be transferred to the court in
whose jurisdiction the property is situated.
The mode of transfer of decrees to another court for execution and the procedure to be followed is contained in
Order XXI, rules 5 to 9 shall provide that where the court to which a decree is to be sent for execution is situated within the
same district as the court which passed such decree, such court shall send the same directly to the former court. But, where
the court to which the decree is to be sent for execution is situated in a different district, the court which passed it shall send
it to the district court of the district in which the decree is to be executed.
The court sending a decree for execution shall send:-
(1) A copy of the decree,
(2) A certificate setting for the that satisfaction of the decree has not been obtained by execution within the jurisdiction
of the court by which it was passed or where the decree has been executed in part, the extent to which satisfaction has been
obtained and what part of the decree remains unsatisfied and
(3) A copy of any order for the execution of the decree, or if no such order has been made, a certificate to that effect.
The court to which a decree is so sent shall cause such copies and certificates to be filed, without any further proof
of the decree or order for execution, or of the copies thereof, unless the court for any special reasons to be recorded under the
hand of the Judge, requires such proof.
Where such copies are so filed, the decree or order may, if the court to which it is sent, is the District court, be
executed by such court or be transferred for execution to any subordinate court of competent jurisdiction.
Where the court to which the decree is sent for execution is a High Court, the decree shall be executed by such
Court in the same manner as if it had been passed by such court in the exercise of its ordinary original civil jurisdiction.
Q 16. In which cases a “Preliminary Decree” is to the passed and whether a Preliminary decree can disputed in the appeal
No filed.
An Preliminary Decree. A decree is preliminary when further proceedings have still to be taken to decide the case finally and
s completely, or it can be issued at any stage of the proceedings. Object of this decree is to declare the rights and obligations of
parties leaving further matters to be determined by subsequent proceedings.
Explanation. Interlocutory order which do not declare the rights or obligations of parties cannot amend to preliminary
decrees.
Decision on preliminary issue: A decision on preliminary issue is not a preliminary decree. Therefore, a decision on a
preliminary issue merely enabling the plaintiff to go on with the suit or an order on a preliminary issue the court fee paid is
sufficient or a finding by the first court on the issue as of the plaintiff when there is another issue to be decided does not
amount to a decree.
Cases in which preliminary decree may be passed.
1. Suits for possession
2. Suits for rent
3. Suit for mense profits
4. Suits for dissolution of partnership
5. Suits for partition
6. Suits for separate possession
7. Administration suits
8. Suits for pre-emption
9. Suits for sale of mortgaged property
10. Suits for foreclosure of a mortgage.
Appeal from original decree (Section 95).
(1) Save where otherwise expressly provided in the body of this code or by any other law for time being in force, an
appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals
from the decision of such court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the court with the consent of parties.
Section 97. Where any party aggrieved by a preliminary decree passed after the commencement of this code does not appeal
from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final
decree.

Q 17. What do you understand by “Exclusion of time in legal proceedings” explain in detail.
No
An The principle of section 14 is that if an so long as a person has been bonafide, and which due diligence seeking the
s relief that he was entitled to be in a court which he believed to be a court competent to grant him that relief, he ought not to
be penalized for having instituted that action in a wrong court.
This section provides for the exclusion of time during which the plaintiff has been prosecuting another civil
proceeding in computing the period of limitation prescribed for any suit. According to the said section three essential
requisites are:
 (i) Same cause of action,
(ii) Defect of jurisdiction and
(iii) Good faith—diligence
Same Cause of action. It is not necessary that the second suit should be a literal copy of the first. But there must be
substantial identity of the causes for action in both suits. The person claiming the benefit of this section must be claiming in
both suits in the same title. If plaintiff sues under one title in wrong court and then under another title in the proper court, the
period occupied by the previous proceeding will not be excluded as two causes of action are not identical. Identity of causes
for action is essential, e.g., A sued for redemption and in that suit he claimed to deduct a certain sum of money which he
alleged B, the mortgagee, had orally agreed to be due to him on an account stated. The suit was dismissed. A then sued B for
the amount alleged to be due on an account stated. As the first suit was on the mortgage and the second suit was on the
alleged account state. A was not allowed to deduct the time spent in prosecuting the redemption suit. So also where a person
wrongly sues his tenant in ejectment and loses the suit, he cannot be allowed to deduct time taking up in this suit when he
afterwards sues for rent which accrued due while the first suit was in progress, because the cause of due while the first suit
was in progress, because the cause of action in the two suits is not the same. Nor can time be allowed where the plaintiff sues
for possession as owner, and having lost that suit, sues again claiming under a lease.
Defect of jurisdiction. The court in which the previous proceeding was prosecuted must have been unable to entertain it by
reason of “defect” of jurisdiction or other cause of a like nature. Explanation III expressly provides that misjoinder of parties
or causes of action shall be considered to be a cause of like nature with deft of jurisdiction. Misjoinder would include non-
joinder, where a previous proceeding has been dismissed on the ground that the plaintiff or applicant had misconceived his
remedy, the plaintiff or applicant cannot take advantage of the section, because the failure of his suit or application cannot be
attributed to anything connected with the jurisdiction of the court and the same holds good where the plaintiff is litigating
against a wrong party. The words “other causes of a like nature” with defect of jurisdiction mean something incidental to the
court itself, and not connected with the default, negligence or lacks of the plaintiff. And, therefore, where previous suit was
dismissed on the meritsor on the ground of limitation of res-judicata or because the plaint did not disclose a cause of action,
or was badly framed in such cases time cannot be excluded.
Good faith – Diligence. The previous proceeding must have been prosecuted in good faith and with due diligence. it does
not matter that the proceeding was instituted in the wrong court through ignorance, or mistake of law or ill advice of pleader
so long as it was instituted in good faith and with due diligence.
Q 18. What mandatory steps are required to be taken for execution of Decree through sale of immovable property? On
No what grounds sale can be set aside?
An Sale in execution of a decree. The procedure for sale of property in execution of a decree is provided by Order XXI, rule 64
s to 69 which provides that:
Any court executing a decree may order that any property attached by it and liable to sale, or such portion thereof,
shall be paid to the party entitled under the decree to receive the same.
The execution court is not bound to value property and order for sale of only such portion of the attached property
as may be sufficient to satisfy the decree. In suitable cases it is of course permissible to order the sale of a portion of the
attached property. However, it is a well-established rule of law that the option in such a case is with the decree-holder who
may ask for the sale of entire property. Party obtaining judgment has priority over those merely commending obligation
(PLD 1980 Kar. 450.
Where any property is order to be sold by public auction in execution of a decree, the court shall cause a
proclamation of the intended sale to be made in the language of such court.
Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the
time and place of sale and specify as fairly and accurately as possible:-
(1) The property to be sold,
(2) The revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or
in party of an estate paying revenue to the Govt.
(3) Any encumbrance to which the property is liable,
(4) The amount for the recovery of which the sale is ordered and
(5) Every other thing which the court considers material for a purchaser or knows in order to judge of the nature and
value of the property.
Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the
manner prescribed for signing and verification of pleading and containing so far as they are known to or can be ascertained
by the person making the verification, the matters required to be specified in the proclamation.
For the purpose of ascertaining the matters to be specified in the proclamation, the court may summons any person
whom it thinks necessary to summons and may examine him in respect to any such matters and require him to produce any
document in his possession or power relating thereto.
Every proclamation shall be made and published, as nearly as may be, in the manner prescribed by rule 54(2).
Where the court so directs, such proclamation, shall also be published in the official Gazette or in a local
newspaper, or in both, and the costs of such publication shall be deemed to be costs of the sale.
Where property is divided into lots for purpose of sold separately, it shall not be necessary to make a separate
proclamation for each lot unless proper notice of the sale cannot, in the opinion of the court, otherwise be given.
Save in the case of property of the kind described in the proviso to rule 43 movable property subject to speedy and
natural decay no sale hereunder shall, without the consent in writing of the judgment-debtor, take place until after the
expiration of at least thirty days in the case of immovable property and of at least fifteen days in the case or movable
property, calculated from the date on which the copy of the proclamation has been affixed on the court house of the judge
ordering the sale.
 The court may, in its discretion, adjourn any sale thereunder to a specified day and hour,, and the officer conducting
any such sale may in his direction adjourn the sale, recording his reasons for such adjournment.
Where a sale is adjourned under the rule stated above for a longer period then seven days, a fresh proclamation shall
be made, unless the judgment debtor consents to waive off.
Every sale shall be stopped if, before the lot is knocked down, the debt and costs (including the cost of the sale) are
tendered to the officer conducting the sale or proof is given to his satisfaction that the amount of such debt and costs has
been paid into the court which ordered the sale.
Q 19. What is acknowledgment of liability in meriting and how does it affect the limitation period.
No
An The effect of a valid acknowledgment is to give the plaintiff or applicant a new period or limitation according to the
s nature of the original liability as it existed at the date of the acknowledgement:-
(i) The time that had run up to the date of acknowledgment is not enlarged, it terminates and that period is cancelled
out and a fresh period runs from the time of the acknowledgment.
(ii) The acknowledgment does not extinguish the original cause of action nor creates a new one. The acknowledgment
merely confirms the liability; it does not supersede the old one or give rise to a new one.
(iii) If a person admits a right, it is necessary implication that he also admits the legal consequences of that right.
Therefore, where a person admits that the land of which he is in possession belongs to another, he admits that his liable to
restore the land to that person.
Q 20. On what grounds amendments can be sought in pleadings.
No
An Amendment of Pleadings: The provisions regarding amendment of pleadings are found in Order VI, rules 16 and 17, CPC,
s which provide that the court may at any stage of the proceedings order to be struck out or amended any matter in any
pleading which may be unnecessary or scandalous, or which may tend to prejudice, embarrass or delay the fair trial of the
suit.
The court may at any stage of the proceeding allow either party to alter or amend his pleadings in such manner and
on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the
real question in controversy between the parties.
From the above it is clear that rule 16 deals with amendments which a party desires to be made in his opponent’s
pleadings while rule 17 deals with amendments which a party desires to make in his own pleadings.
Under rule 16 the court is empowered to order that the pleadings which are unnecessary or delay the fair trial be
struck off or amended. This may be done at any stage of a suit.
Under rule 17 the court may allow any party to amend his pleadings. As a general rule, leave to amend will be
granted so as to enable the real question in issue between the parties to be raised on the pleadings, where the amendment will
occasion no injury to the opposite party, except such as can be sufficiently compensated for by costs or other terms to be
imposed by the order. It does not matter that the original omission arose from negligence or carelessness. However, negligent
or careless may have been the first omission and however late the proposed amendment, the amendment should be allowed if
it can made without injustice to the other side. There is no injustice if the other side can be compensated by costs.
The leave to amend pleadings will be refused on the following grounds:-
(1) Where the amendment is not necessary for the purpose of determining the real questions in controversy between the
parties as where it is merely technical or useless and of no substance.
(2) Where the plaintiff’s suit would be wholly displaced by the proposed amendment.
(3) Where the defect of the amendment would be to take away from the defendant a legal right which has accrued to
him by lapse of time.
(4) Where the amendment would introduce a totally different new and inconsistent case and the application is made at a
late stage of the proceedings.
(5) Where the application for amendment is not made in good faith.
Leave to amend may be granted at any stage of the proceedings. It may be granted on appeal. Mere delay is not a ground for
refusing an amendment. As a general rule, however, late the amendment is south to be made, it should be allowed except in
the five cases mentioned above. In order to avoid multiplicity of proceedings, the tendency is to allow amendment at any
stage, if it can be done without injustice to the other side.
Q 21. Explain following:
No (a) Res-judicata
(b) Receiver
(c) Suit by pauper
(d) Foreign courts
(e) Mesne profits
(f) Pecuniary jurisdiction
(g) Legal representative
(h) Interest
(i) Injunction
An Res-judicata.Res judicata means, where there is a judgment inter parties it will present a fresh suit between regard the same
s parties. This definition of res judicata as is propounded under section 11 of CPC envisages that the law court is barred from
tying any suit or issued in which the matter directly and substantially has been decided in a formerly suit between the same
parties, litigated under the same claim or title in a court competent to try subsequently suit wherein the same issue has been
raised. The doctrines of res-judicata is based be one fairly tried and public law. Whereby justice demands that every cause
should be once fairly tried and public tranquility demands that having been tried once all litigation about that cause should be
concluded forever between those parties. The terms Res-judicata signifies that the matter in dispute has been considered and
finally settled and that the adjudication has a conclusive effect upon the rights determined.
The following are the essential requirements to constitute res-judicata:-
(1) 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.
(2) The former suit must have been a suit between the same parties or between parties under whom they or any of them
claim.
(3) The parties as aforesaid must have litigated under the same title in the former suit.
(4) The court which decided the former suit must have been a court competentto try the subsequent suit in which such
issue is subsequently raised.
(5) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the
court in the first suit.
Receiver. Receiver is an “an impartial person appointed by the court to collect and receive, the rents and profit of subject
matter of the suit during pendency of the suit, which it does not seem reasonable to the court that either party should collect
or receive the same.
Suit by pauper.A person is a pauper when he is not possessed of sufficient means to enable him to pay the fee prescribed by
law or the plaint in such suit, or where no such fee is prescribed, when is not entitled to property worth one hundred rupees
other when his necessary wearing apparel and the subject-matter of the suit.
A suit by such person is called a suit in forma pauperis. Such a suit can be filed only with the permission of the
court. The procedure to be adopted in such cases is contained in Order XXXIII which provides that every application for
permission to sue as a pauper shall contain the particulars required in regard to plaints in suits. A schedule of any movable or
immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto, and it shall be
signed and verified in the manner prescribed for the signing and verification of pleadings.
Order XXXIII has been enacted to serve a treble purpose.
(i) To protect the bona fide claims of a pauper.
(ii) To safeguard the interests of revenue and
(iii) To protect the defendant’s right not to be harassed.
The application shall be presented to the court by applicant in person, unless he is exempted from appearing in
court, in which case the application and who may be examined on the same manner as the party represented by him might
have been examined had such party attended in person.
Where the application is in proper form and duly presented, the court may, if it thinks fit, examine the applicant or
his agent when the applicant is allowed to appear by agent, regarding the merits of the claim and the property of the
applicant.
The court shall reject an application for permission to sue as a pauper:-
(a) Where it is not framed and presented in the manner prescribed by rules,
(b) Where the applicant is not a pauper or
(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 the permission to sue as a pauper or
(d) Where his allegations do not show a cause of action or
(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.
Where the court sees no reason to reject the application on any of the grounds stated above it shall be given to the
opposite party and the days’ clear notice shall be given to the opposite party and the Govt pleader for receiving such
evidence as the applicant may adduce in proof of his pauperism and for hearing any evidence which may be adduced in
disproof thereof.
On the day so fixed or as soon thereafter as may be convenient the court shall examine the witness (if any) produced
by either party and may examine the applicant or his agent, and shall make a memorandum of the substance of their
evidence.
The court shall also hear any argument which the parties may desire to offer on the question whether , on the fact of
the application and of the evidence (if any) taken by the court as herein provided, the applicant is or is not subject at any of
the prohibitions specified above.
The court shall then either allow or refuse to allow the applicant to sue a pauper.
Where the application is granted, if shall be numbered and registered and shall be deemed the plaint in the suit, and
the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be
liable to pay and court fee (other than fee payable for service of process) in respect of any petition, appointment of a pleader
or other proceeding connected with suit.
The provisions regarding dispaupering a plaintiff are contained in Order XXXIII, rule 9 which provide that the court
may on the application of the defendant or of theGovt pleader of which seven days clear notice in writing has been given to
the plaintiff order the plaintiff to be dispaupered:-
(a) If he is guilty of vexatious or improper conduct in the course of the suit,
(b) If it appears that his means are such that he ought not to continue to sue as a pauper or
(c) If he has entered into any agreement with reference to the subject matter of the suit under which any other person
has obtained an interest in such subject matter.

Foreign courts. The term foreign court is defined in section 2 (5) CPC. A foreign court means a court situate outside
Pakistan and not established or continued by the authority of the Federal Govt.
 Foreign court would constitute if:
(i) It is not constituted within Pakistan but beyond its limits,
(ii) It should have no authority in Pakistan, and
(iii) It is not established or continued by the act of Federal Govt of Pakistan.
Mesne profits. It means those profits which the person in wrongful possession of such property actually received or might,
with ordinary diligence, have received therefrom, together with interest on such profits, but shall not include profits due to
improvements made by the person in wrongful possession. (Section 2 (12) CPC).
Pecuniary jurisdiction.There are civil courts of different grades having jurisdiction to try suits of different value. A Small
Causes Court has jurisdiction to try suits, the value of the subject matter of which does not exceed rupees one thousand. A
judge in the Small Causes Court Karachi cannot try a suit the value of the subject matter of which exceeds rupees two
thousand. There is not limit over the jurisdiction of District Judge or the Civil Judge and they can try suits of any value.
(Sections 15 to 25, CPC).
Legal representative. It means a person who in law represents the estate of a deceased person and includes any person who
intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on
whom the estate devolves on the death of the party so suing or being sued.
Interest.
(1) Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate
as the court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree in
addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest
at such rate as the court deems reasonable on the aggregate sum so adjudged, from the date of the decree to the date of
payment or to such earlier date as the court thinks fit.
(2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid
from the date of the decree to the date of payment or other earlier date, the court shall be seemed to have refused such
interest and a separate suit therefor shall not lie.
Injunction.
Injunctions are court-ordered legal tools used to stop an act or behavior, or they can be used to direct a person to
take a particular action. One of the most common injunctions is used in domestic violence situations, also referred to as a
restraining order. There are actually three main types of injunctions that can be used in many different legal situations,
including domestic violence.
Preliminary Injunctions
The least-used type of injunction is a preliminary injunction. These types of injunctions are typically used in
lawsuits or trials where the final verdict is not determined, but a party in the lawsuit is required to act or not act until the
verdict is reached. These injunctions are a precautionary measure, not used when imminent harm is involved, such as
domestic violence cases.
Temporary Injunctions
By far the most common type of injunction, the temporary restraining order is used in many different situations,
including domestic violence. Temporary injunctions are most commonly used to put an immediate stop to an action to
prevent further harm or damage. In domestic violence cases in Florida, this is referred to as a Petition for Injunction Against
Domestic Violence. It is a civil hearing and if a temporary injunction is entered by the courts, it can prohibit the defendant
from having contact with the plaintiff and may result in the defendant losing their right to possess firearms or see their
children.
Temporary injunctions or restraining orders usually only last for a set period of time. This can be 10 days, 6 months,
or for whatever scope the court deems necessary.
Permanent Injunctions
The most severe type of injunction is a permanent injunction. These usually only are pursued after a preliminary or
temporary injunction was put in place during a trial, hearing, or lawsuit. If a person is found guilty of a crime, such as
domestic violence, battery or other assault, a permanent injunction for little or no contact could be issued to protect the
victim.
An injunction can be pursued by anyone, whether or not there is evidence of a crime. In some cases, an injunction
can be damaging to your permanent record, even if it was only temporary. In Petitions for Injunctions Against Domestic
Violence in Florida, these injunctions are public record and cannot be expunged. If an injunction is entered, you may be
required to relinquish any firearms and the injunction will show up on most background checks, even after they are expired.