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Civil Procedure Code
Civil Procedure Code
Civil Procedure Code
ORDER 8 Rule 1 to 10
SETOFF
It is claim for debt against the plaintiff.
It is a cross action by the defendant against the plaintiff
Defendant should have a cause of action against the plaintiff
POINTS OF SETOFF
1. Suit must be for recovery of money the suit for recovery of any other property
shall not be liable for setoff
2. The sum of money must be ascertain
3. Amount must be legally recoverable by the defendant from the plaintiff
4. It arises out of the same transaction
5. A plea of setoff cannot be raised without filing a written statement
The time bar debt is not legally recoverable and therefore cannot be setoff
COUNTERCLAIM
POINTS
1. Counterclaim can be made in any suit
2. Amount need not be ascertain
3. It may not arise out of the same transaction
4. Amount must be legally recoverable at the time of counterclaim
5. Counterclaim cannot be filed by amending written statement
6. The Supreme Court has held that write to counterclaim is a statutory right
7. The counterclaim of defendant will be treated as a plaint and a plaintiff has a right
to file a written statement in answer of the counterclaim of the defendant
8. Even if the suit of the plaintiff is discontinued, dismiss, withdrawn the
counterclaim will be continued and decided on merits
Counterclaim may be defined as a claim independent and separable from the plaintiffs
plaint and which can be enforced by a cross action. Counterclaim is broader than setoff
It is the cause of action in the favour of the defendant against the plaintiff
What on the fixed date plaintiff does not appear and even defendant too effect??
Suit will be dismissed reason non appearance of party
Order 9
Setting aside
In this the new application has been formed
Is called as “CIVIL MISCELLANEOUS APPLICATION”
Case law
GS ramachandran v/s MM rajyadhaksha 1984 MHLJ 247
PLEADING
4. Partition
In case of partition the collector is appointed only for the govt purpose for the govt
benefit and for the the private basis collector is not
5. Cross Decree
If the same amount is given by both the parties then cancellation and satisfaction of
decree
6. Payment of Money
a. By depositing amount in court
8. Injunction
APPEAL
WHEN WE APPEAL
When there is question of law and
When there is question of law
Appeal order 41
Every decree pass by lower court can be challenged in appeal court unless until
Appeal can also for ex parte decree
In small cause court no appeal if amount not exceeding 10000Rs then it will not go in
appeal never (first was RS 3000 but now amended and now Rs 10000)
But in case of question law then the appeal is available
SPECIFIC APPEAL
First is appea is record in the court
But first in notice to the respondent as well as to the lower court even an appeal court
can send the notice to the lower court
Deciding appeal in 60 days from the date of filing of memorandum of appeal
Publication both appellate and respondent response to it
There must be reasonable doubt as to the question of law for the appeal
Even though the case is pending in lower court then high court can take of this matter
sue moto also for the question of law
If the judgment passed by lower court while appeal or reference made to high court still
the lower court passed the judgment then the judgment is valid but still not executed
Order 46 rule 1,2,3
Maintainability of Review
1. If there is no appeal lies then
2. If there is appeal lies but not preferred
3. Decision from reference from small cause court
4. Discovery of new evidence
5. An error appear in record
6. Or any other sufficient reason
1. High court itself can call for record (there is high court committee come to lower
court and see all the records of cases filed there in lower court it’s come in june
and july) even high court can sue moto take certain matters when the
subordinate court has exercise the jurisdiction not vested in it by law
2. other is that they failed to exercise there jurisdiction then the high court can take
the because the high court have jurisdiction over the state
3. When material is illegal or materiality is illegal or illegally exercise jurisdiction