Q. 1. What are the powers of the courts to issue commissions?

For what purposes a

commission can be issued by the court?
Answer – In India, the powers of the courts to issue commissions are primarily
governed by the Code of Civil Procedure, 1908 (CPC). The provisions related to the
issuance of commissions are specified in Order XXVI of the CPC.

Powers of Courts to Issue Commissions: Under Order XXVI of the CPC, the court has
the power to issue commissions. A commission is a formal written order authorizing a
person or a body of persons to investigate and report on a specific matter. The court
may issue a commission for various purposes to assist in the proceedings.

Purposes for Which a Commission Can Be Issued: The court can issue a commission
for the following purposes:
To Examine Witnesses: The court may appoint a commissioner to examine witnesses,
especially when they are unable to appear in court due to illness, age, or other valid
reasons.
To Make Local Investigations: The court may order a local investigation and appoint a
commissioner to inspect a specific place, property, or thing relevant to the case.
To Conduct Scientific Investigations: In cases involving scientific or technical issues,
the court may appoint an expert as a commissioner to conduct investigations and
submit a report.
To Partition Property: In suits for partition of property, the court may issue a
commission to a commissioner to make a partition of the property among the co-
owners.
To Ascertain Accounts: The court may appoint a commissioner to examine and report
on the accounts in cases where the determination of accounts is necessary.
To Sell Moveable Property: In certain circumstances, the court may issue a commission
for the sale of moveable property, and the commissioner will conduct the sale and
report back to the court.
To Execute Documents: The court may appoint a commissioner to execute a document
on behalf of a party who refuses to do so.
Q 3. Distinguish between the Legal and Equitable Set-off
Answer –
Set-off is a legal principle that allows a defendant to counterbalance a claim made
against them by asserting a claim of their own against the plaintiff.
There are two types of set-off: legal set-off and equitable set-off.

Legal Set-off:
Statutory Basis:
Legal set-off is provided for under Section 111 to Section 116 of the CPC.

Conditions:
For a legal set-off to be allowed, there must be a direct and ascertained debt owed by
the plaintiff to the defendant. The debt must be of the same nature, and it should be
legally recoverable.

Mutuality:
There must be mutual dealings between the parties, where both parties owe each other
debts arising out of the same transaction.

Jurisdiction:
Legal set-off is generally available in cases where the court has jurisdiction to entertain
the counterclaim.

Equitable Set-off:
No Statutory Basis:
Equitable set-off is not explicitly provided for in the CPC but is recognized by courts
based on equitable principles.

Conditions:
Equitable set-off may be allowed even when the strict conditions of legal set-off are not
met. It is based on the principles of fairness and justice.

Independent Claims:
Unlike legal set-off, equitable set-off may be allowed for claims that are not strictly of
the same nature or arising out of the same transaction.

Discretion of the Court:

The court has the discretion to allow or disallow an equitable set-off based on the facts
and circumstances of each case.
Q. 6. What are the Powers of a Court of revision? Explain.
Answer – The term "Court of revision" is generally associated with the powers
conferred upon the Sessions Court or the High Court to exercise revisional jurisdiction.
Revisional powers are outlined in Section 397 to Section 401 of the CPC.

The powers of a Court of revision are:

Review of Proceedings: The Court of revision has the authority to examine and
scrutinize the proceedings of subordinate courts to ensure that they are in accordance
with the law. This allows the higher court to identify errors or irregularities that may
have occurred during the trial.

Correction of Errors: If the Court of revision finds any error, illegality, or irregularity in
the proceedings of the subordinate court, it can make suitable orders to correct such
errors. This ensures that justice is administered in accordance with the law.

Enhancement of Sentence: The Court of revision has the power to enhance a sentence if
it deems the punishment imposed by the lower court to be inadequate. This is
particularly relevant in criminal cases where the court believes that a more severe
penalty is warranted.

Reduction of Sentence: Conversely, the Court of revision also has the authority to
reduce a sentence if it finds that the punishment imposed by the lower court is
excessive or not justified based on the circumstances of the case.

Setting Aside Illegal Orders: The Court of revision can set aside orders passed by
subordinate courts if they are found to be illegal, without jurisdiction, or in violation of
the principles of natural justice.

Ensuring Fair Trial: One of the key functions of the Court of revision is to ensure that
the accused receives a fair trial. This involves correcting any procedural irregularities
that may have occurred during the trial process.

Interference in the Interest of Justice: The Court of revision can intervene in cases
where it believes that the interests of justice require its interference. This discretionary
power allows the higher court to prevent miscarriage of justice.
Q 7. What is the effect of acknowledgement of liability on the period of limitation?
Discuss.
Answer - The concept of acknowledgment is primarily governed by Section 18 of the
Limitation Act, 1963, which is a statute that sets the maximum time period within
which legal proceedings can be initiated for a particular cause of action.

The effect of acknowledgment of liability on the period of limitation:

Extension of Limitation Period: According to Section 18 of the Limitation Act, if a

person acknowledges in writing or signs a document that expressly admits the existing
liability or debt, the period of limitation for filing a suit is extended. The
acknowledgment must be made before the expiration of the prescribed limitation
period.

Renewal of Limitation: An acknowledgment is considered as a renewal of the

limitation period. It essentially resets the clock, and the plaintiff gets a fresh period from
the date of acknowledgment to file a suit.

Essential Elements of Acknowledgment: For the acknowledgment to be valid, it must

be in writing and signed by the person making it or by his authorized agent. The
acknowledgment should be unambiguous and relate to the specific debt, liability, or
right in question.

Effect on Subsequent Acknowledgments: Subsequent acknowledgments can also have

the effect of further extending the limitation period. Each acknowledgment is treated
independently, and the limitation period can be extended multiple times if there are
multiple acknowledgments within the prescribed time frame.

Partial Payments and Acknowledgment: In addition to a written acknowledgment, the

Limitation Act also considers part payments made by the debtor as an acknowledgment
of the debt. Part payments can also extend the limitation period, and they are treated as
an implied acknowledgment of liability.

Exceptions and Limitations: It's important to note that there are certain exceptions and
limitations to the rule of acknowledgment. For instance, an acknowledgment made after
the expiration of the limitation period may not be valid. Additionally,
acknowledgments that are conditional or ambiguous may not have the desired effect.
Q.9 Discuss the procedure for filling a suit against Government.
Answer – The process of filing a civil suit against the government is -

Permission to Sue: Before filing a suit against the government or a public officer, it is
generally required to obtain prior permission. This is mandated by Section 80 of the
CPC. The plaintiff must serve a notice to the government or public officer stating the
nature of the suit and the relief claimed. The government is given a two-month period
to respond, and if permission is denied or not granted within this period, the plaintiff
can proceed with the suit.

Drafting the Plaint: The plaint is the document that contains the essential facts and
grounds on which the plaintiff is basing the claim. It must be drafted carefully,
specifying the relief sought and the legal provisions under which the suit is filed.

Filing the Suit: The suit is filed in the appropriate court having jurisdiction over the
matter. The court must have the authority to hear cases against the government or
public officers.

Service of Notice: After filing the suit, the plaintiff needs to ensure that the notice
served under Section 80 of the CPC is properly delivered to the concerned government
department or public officer. This notice serves as a formal intimation to the
government regarding the legal proceedings.

Government's Response: The government or the public officer has the opportunity to
respond to the notice. If permission to sue is granted, the government may file a written
statement addressing the claims made in the plaint.

Pleading and Evidence: The parties involved will engage in pleading and presenting
evidence to support their respective cases. This includes the examination and cross-
examination of witnesses, submission of documents, and other relevant evidence.

Judgment: The court will examine the evidence and legal arguments presented and
deliver a judgment. The judgment may grant the relief sought, partially grant it, or
dismiss the suit.

Appeals: Either party has the right to appeal the judgment if they are dissatisfied with
the decision. The appellate process involves a higher court reviewing the lower court's
decision.
Q.11 What do you mean by Representative suit?
Answer -
A "Representative Suit" is generally referred to as a suit filed on behalf of or
for the benefit of numerous persons having the same interest. It is
commonly associated with the provisions of Order 1 Rule 8 of the Code of
Civil Procedure (CPC) in India.

Order 1 Rule 8 of the CPC allows for the filing of a representative suit
when numerous persons have the same interest in one suit. This provision
is designed to facilitate the adjudication of the rights of a large group of
persons who have a common interest in a matter, and it is intended to
avoid multiple separate lawsuits for the same cause of action.

In a representative suit, one or more persons can sue or be sued on behalf

of or for the benefit of all persons interested in the suit. The court may
make the representative party or parties the representatives of the whole
class, and the judgment or decree passed in the suit will be binding on all
persons whom the representative party represents.

It's important to note that legal provisions and interpretations may change
over time, so it's advisable to consult the latest legal resources or seek
advice from a legal professional for the most up-to-date and accurate
information.
Q.13 What are the essential conditions and objects of Res-judicata?
Answer -
The term Res Judicata means "a thing adjudicated" and refers to the principle that a
matter that has been adjudicated by a competent court and has attained finality cannot
be re-agitated between the same parties.
The essential conditions and objects of Res Judicata under the CPC are outlined in
Sections 11 and 47 of the Code.

Essential conditions are:

1. Same Parties: The parties involved in the subsequent suit must be the same as
those in the earlier suit. This includes both the plaintiff and the defendant.
2. Same Cause of Action: The matter in dispute in the subsequent suit must be the
same as in the earlier suit. The cause of action should be identical or substantially
the same.
3. Court Competency: The court that decided the earlier suit must be a court
competent to try the subsequent suit. If the court lacks jurisdiction in the earlier
suit, the principle of Res Judicata may not apply.
4. Final Judgment: The judgment or decree in the earlier suit must be final and
conclusive. A decision on merits, not being interlocutory, is necessary for the
application of Res Judicata.
5. Decision on Merits: The court in the earlier suit must have decided the matter
on merits. If the decision was based on procedural grounds or technicalities, Res
Judicata may not apply.

Objects of Res Judicata:

1. Prevention of Multiplicity of Proceedings: Res Judicata aims to prevent parties
from bringing the same cause of action before the court repeatedly. Once a
matter is conclusively decided, parties are generally barred from re-litigating the
same issues.
2. Finality and Certainty: The doctrine contributes to the finality and certainty of
legal proceedings. It ensures that once a matter has been adjudicated, the parties
can rely on the decision without fear of further litigation on the same grounds.
3. Judicial Economy: Res Judicata promotes judicial efficiency by discouraging
repetitive litigation. It saves judicial resources by avoiding the re-examination of
identical issues.
Q.16 What do you understand by inherent powers of civil court? Discuss.
Answer –
The inherent powers of civil courts are a set of discretionary powers vested in the courts
to ensure that justice is done, and the court proceedings are conducted in a fair and
equitable manner.

The inherent powers of civil courts are derived from the maxim "actus curiae neminem
gravabit," which means that an act of the court shall prejudice no one. These powers
enable the court to do justice in cases where the existing procedural laws are insufficient
or do not provide for a specific remedy. The courts can exercise these powers to meet
the ends of justice and prevent abuse of the legal process.

Some of the inherent powers of civil courts include:

1.Regulating the Procedure: The court has the power to regulate its own procedure to
ensure that justice is served. This includes the power to decide the admissibility of
evidence, grant adjournments, and control the conduct of the parties and their
representatives during the proceedings.

2.Granting Temporary Injunctions: The court can grant temporary injunctions or stay
orders to prevent irreparable harm or injustice until the final adjudication of the case.
This power is essential to safeguard the rights of the parties during the pendency of the
litigation.

3.Amendment of Pleadings: The court may allow the amendment of pleadings to

rectify errors or omissions in the documents submitted by the parties. This is done to
ensure that the real issues in dispute are properly presented before the court.

4.Review of Its Own Orders: The court can review and modify its own orders to correct
any errors or mistakes that may have occurred during the course of the proceedings.

5.Dispensing with Technical Formalities: The court can overlook technicalities or

procedural formalities that may hinder the administration of justice. This allows the
court to focus on the merits of the case rather than being bound by rigid procedural
rules.

The inherent powers of civil courts are wide-ranging, they should be exercised
judiciously and in exceptional circumstances. The courts must balance the need for
justice with the principles of fairness and procedural regularity. Additionally, these
powers are not a substitute for the substantive rights and remedies provided under the
law but serve as a supplement to ensure a just and equitable resolution of disputes.
Q 18. Who is an indigent person? Discuss the mode for the instruction of the suit as
an indigent person.
Answer - An indigent person refers to someone who is unable to afford the costs
associated with filing and conducting a lawsuit. In other words, an indigent person is
someone who is financially incapable of bearing the expenses related to legal
proceedings.

The CPC provides provisions for allowing indigent persons to file suits without paying
the usual court fees. This is done to ensure that access to justice is not restricted solely
based on financial constraints. The relevant provisions regarding the procedure for
instituting a suit as an indigent person can be found in Order 33 of the CPC.

According to Order 33 of the CPC the procedure for instituting a suit as an indigent
person:
Application for Permission to Sue as an Indigent Person: An indigent person needs to
file an application seeking permission to sue as an indigent person. This application is
made to the court where the suit is proposed to be filed.

Contents of the Application: The application should contain details about the nature of
the suit, the relief sought, the grounds for claiming indigency, and an estimate of the
value of the subject matter of the suit.

Examination of the Application: The court will examine the application and may, if
satisfied with the grounds presented, grant permission to the applicant to sue as an
indigent person.

Appointment of a Pleader: If the court grants permission, it may also appoint a pleader
(an advocate) for the indigent person to represent them in court.

Court Fees Waiver: The court, upon granting permission to sue as an indigent person,
may also waive or reduce the court fees that are usually required for filing a suit.

Representation by a Pleader: The appointed pleader will then represent the indigent
person throughout the legal proceedings.

The court will examine the application for indigency carefully, and if it is found to be
falsely made, the court may dismiss the suit. The objective of these provisions is to
ensure that those who are financially unable to afford the normal costs of litigation are
not denied access to the legal system.
Q 19. What is an Interpleader Suit? Explain the procedure for institution of an
Interpleader suit?
Answer - An interpleader suit is typically filed by a person or entity (known as the
stakeholder) who holds certain property or funds that are claimed by two or more
parties. The stakeholder files the interpleader suit to seek the court's assistance in
determining the rightful owner of the property or funds.

The procedure for the institution of an interpleader suit:

Identify Conflicting Claims: The stakeholder should have a genuine belief that there
are conflicting claims over the property or funds in their possession.

Filing of the Suit: The stakeholder files a plaint in the appropriate civil court, stating
the nature of the property or funds, the conflicting claims, and the stakeholder's neutral
position.

Notice to Claimants: The court issues notices to all the parties who claim an interest in
the property or funds, informing them about the interpleader suit.

Appearance of Claimants: The claimants appear before the court and file their written
statements, presenting their case and establishing their rights to the property or funds.

Examination of Witnesses: The court may examine witnesses presented by the parties
to ascertain the facts and determine the rightful owner.

Decision by the Court: Based on the evidence and arguments presented, the court
makes a decision regarding the ownership of the property or funds.

Distribution of Property/Funds: The court orders the distribution of the property or

funds to the rightful owner, and the stakeholder is discharged from any further liability.
Q 22. What is counter claim and set off?
Answer -

Counterclaim: A counterclaim is a claim made by the defendant in response to the

plaintiff's claim. It is a separate claim that the defendant believes they have against the
plaintiff and is filed as part of the same lawsuit.

The purpose of a counterclaim is to allow both parties to present their grievances and
claims in a single legal proceeding, thereby promoting efficiency and judicial economy.

A counterclaim can seek a different remedy than the plaintiff's claim, and it can be
based on the same set of facts or related facts.

Set-off: Set-off, on the other hand, is a legal right to deduct a debt owed to a party from
a claim that party has against the same debtor. It involves the adjustment of mutual
claims between the parties involved in the litigation.

Order VIII Rule 6 of CPC specifically deals with the right of set-off. It allows the
defendant to set-off or counter-claim any amount that is legally recoverable by the
defendant from the plaintiff, either as a debt or a demand arising out of the same
transaction.

The purpose of set-off is to avoid the multiplicity of legal proceedings and to promote
fairness by allowing parties to settle their mutual claims in one lawsuit.
Q 23. What do you understand by cause of action?
Answer –
A "cause of action" refers to the set of facts or circumstances that give rise to a legal
claim. It is the basis for filing a lawsuit or initiating legal proceedings. A cause of action
is essential for a plaintiff to seek a remedy in a court of law.

The CPC provides guidelines on how a cause of action should be presented in a legal
complaint.

It typically includes the following elements:

Factual Basis: The plaintiff must present a clear and concise statement of facts that form
the foundation of the legal claim. These facts should be capable of establishing a right in
favor of the plaintiff.

Legal Grounds: The legal grounds or justification for the claim should be stated. This
involves citing relevant laws, statutes, or legal principles that support the plaintiff's
right to relief.

Relief Sought: The plaintiff must specify the remedy or relief they are seeking from the
court. This could include damages, injunctions, specific performance, or other forms of
legal redress.

A cause of action may involve a series of events or a single event that gives rise to a
legal claim. The concept is crucial in litigation as it helps define the scope of the lawsuit
and allows the court to determine whether the plaintiff has a valid claim. A cause of
action is a fundamental aspect of legal proceedings and plays a key role in shaping the
course of a lawsuit and many other jurisdictions.
Q 26. Distinguish between the Legal and Equitable Set-off.
Answer –
Set-off is a legal principle that allows a defendant to counterbalance a claim made
against them by asserting a claim of their own against the plaintiff.
There are two types of set-off: legal set-off and equitable set-off.

Legal Set-off:
Statutory Basis:
Legal set-off is provided for under Section 111 to Section 116 of the CPC.

Conditions:
For a legal set-off to be allowed, there must be a direct and ascertained debt owed by
the plaintiff to the defendant. The debt must be of the same nature, and it should be
legally recoverable.

Mutuality:
There must be mutual dealings between the parties, where both parties owe each other
debts arising out of the same transaction.

Jurisdiction:
Legal set-off is generally available in cases where the court has jurisdiction to entertain
the counterclaim.

Equitable Set-off:
No Statutory Basis:
Equitable set-off is not explicitly provided for in the CPC but is recognized by courts
based on equitable principles.

Conditions:
Equitable set-off may be allowed even when the strict conditions of legal set-off are not
met. It is based on the principles of fairness and justice.

Independent Claims:
Unlike legal set-off, equitable set-off may be allowed for claims that are not strictly of
the same nature or arising out of the same transaction.

Discretion of the Court:

The court has the discretion to allow or disallow an equitable set-off based on the facts
and circumstances of each case.
Q. 27. What is plaint? What are the necessary particulars to be given in a plaint? On
what grounds a plaint can be rejected?
Answer- A "plaint" refers to a formal written statement of a plaintiff's claim that is
submitted to a court. It is the document that initiates a civil lawsuit. The plaint sets out
the details of the plaintiff's case and the relief sought from the court.

The necessary particulars to be given in a plaint, as per Order VI of the CPC, include:
1. The name of the court where the suit is filed.
2. The name, description, and place of residence of the plaintiff.
3. The name, description, and place of residence of the defendant.
4. The facts constituting the cause of action and when it arose.
5. The facts showing that the court has jurisdiction.
6. The relief claimed by the plaintiff.

A plaint can be rejected on various grounds, as specified in Order VII, Rule 11 of the
CPC. Some common grounds for rejection include:

Want of jurisdiction: If the court does not have the jurisdiction to entertain the suit, the
plaint may be rejected.

Non-compliance with procedural requirements: If the plaint does not comply with the
procedural requirements specified in the CPC, such as not containing necessary
particulars, it may be rejected.

Insufficiency of stamp duty: If the required stamp duty is not paid on the plaint, it may
be rejected.

Bar to the suit: If the suit is barred by any law or if it is not maintainable for any reason,
the court may reject the plaint.

Defect of parties: If there is a defect of parties, i.e., if a necessary party is not included
in the suit, the court may reject the plaint.

Lack of cause of action: If the facts stated in the plaint do not constitute a cause of
action, the plaint may be rejected.
Q. 29. What are the essential conditions and objects of Res-judicata?
Answer:
The term Res Judicata means "a thing adjudicated" and refers to the principle that a
matter that has been adjudicated by a competent court and has attained finality cannot
be re-agitated between the same parties.

The essential conditions and objects of Res Judicata under the CPC are outlined in
Sections 11 and 47 of the Code.
Essential conditions are:
1. Same Parties: The parties involved in the subsequent suit must be the same as
those in the earlier suit. This includes both the plaintiff and the defendant.
2. Same Cause of Action: The matter in dispute in the subsequent suit must be the
same as in the earlier suit. The cause of action should be identical or substantially the
same.
3. Court Competency: The court that decided the earlier suit must be a court
competent to try the subsequent suit. If the court lacks jurisdiction in the earlier suit, the
principle of Res Judicata may not apply.
4. Final Judgment: The judgment or decree in the earlier suit must be final and
conclusive. A decision on merits, not being interlocutory, is necessary for the
application of Res Judicata.
5. Decision on Merits: The court in the earlier suit must have decided the matter on
merits. If the decision was based on procedural grounds or technicalities, Res Judicata
may not apply.

Objects of Res Judicata:

1. Prevention of Multiplicity of Proceedings: Res Judicata aims to prevent parties
from bringing the same cause of action before the court repeatedly. Once a matter is
conclusively decided, parties are generally barred from re-litigating the same issues.
2. Finality and Certainty: The doctrine contributes to the finality and certainty of
legal proceedings. It ensures that once a matter has been adjudicated, the parties can
rely on the decision without fear of further litigation on the same grounds.
3. Judicial Economy: Res Judicata promotes judicial efficiency by discouraging
repetitive litigation. It saves judicial resources by avoiding the re-examination of
identical issues.
Q.32. Explain the principles of constructive Res-judicata.
Answer -
Res judicata is a legal doctrine that prevents the same parties from re-litigating the same
issue that has already been finally decided by a competent court.

There are two main principles of res judicata: claim preclusion and issue preclusion.

Claim Preclusion (Section 11 of CPC):

Claim preclusion, also known as 'bar by former suit,' is the broader aspect of res
judicata. It prevents a party from bringing a subsequent suit on the same cause of action
that was the subject matter of a prior suit between the same parties. The underlying
idea is that once a matter is adjudicated by a competent court, the parties should not be
allowed to re-litigate the same dispute.

The essential elements of claim preclusion under Section 11 of the CPC are:
The previous suit must have been decided by a competent court.
The matter in the subsequent suit must be directly and substantially the same as that in
the previous suit.
The parties in the subsequent suit must be the same as or should have been represented
in the previous suit.
The court that decided the previous suit must have had the authority to pass the
judgment.

Issue Preclusion (Section 11 Explanation IV of CPC):

Issue preclusion, also known as 'estoppel by judgment,' prevents parties from re-
litigating specific issues that have already been conclusively decided in a prior suit.
Even if the subsequent suit involves a different cause of action, the parties are bound by
the findings of the court on the specific issues that were actually decided.

The essential elements of issue preclusion under Section 11 Explanation IV of the

CPC are:
The issue in the subsequent suit must be the same as the one in the previous suit.
The issue must have been directly and substantially in question in the previous suit.
The issue must have been finally decided by a competent court in the previous suit.
Q.31. What is stay of suit? Give difference between Res-judicata and Res-Sub-
judice?
Answer -
A "stay of suit" refers to a legal order issued by a court to temporarily suspend
proceedings or halt further progress in a particular case. This may happen for various
reasons, such as the pendency of another related matter, the need for further
examination of a specific issue, or to maintain the status quo until a certain condition is
met. The court has the authority to grant a stay of suit to ensure fair and just
proceedings.

The differences between "res judicata" and "res sub judice":

Res Judicata:
Meaning: "Res judicata" is a Latin term that means "a thing adjudicated" or "a matter
already judged." It refers to a legal principle that prohibits the same matter from being
relitigated between the same parties after a final judgment has been reached.

Application: Once a matter has been conclusively decided by a competent court, it

cannot be reopened or litigated again. This principle aims to promote the finality of
legal decisions and prevent the continuous litigation of the same dispute.

Res Sub Judice:

Meaning: "Res sub judice" is also a Latin term that means "a matter under judgment" or
"a matter pending before a court." It refers to a situation where a particular matter is
already under consideration by one court, and another court is being asked to
adjudicate on the same or substantially the same issues.

Application: If a matter is sub judice, it means that it is currently before a court, and
another court should refrain from entertaining a similar case involving the same parties
and issues until the ongoing proceedings are concluded. This principle aims to avoid
conflicting judgments and interference with the proceedings of another court.

In summary, while "res judicata" deals with the finality of judgments and prevents the
relitigation of the same matter, "res sub judice" focuses on the prohibition of
simultaneous proceedings on the same or substantially the same issues before different
courts to avoid conflicting decisions.
Q 33. What are the principles and provisions of C.P.C. for determing the jurisdiction
of suits relating to immovable property? Discuss.
Answer -
The Code of Civil Procedure, 1908 (CPC) contains provisions for determining the
jurisdiction of courts in suits related to immovable property. The relevant sections for
this purpose are primarily Section 16, Section 17, and Section 20.

Section 16 - Suits to be instituted where the subject matter is situated:

According to Section 16 of the CPC, a suit concerning immovable property must be
instituted in the court within whose local jurisdiction the property is situated.
This principle is based on the idea that the court that has territorial jurisdiction over the
property in question is best suited to adjudicate matters related to that property.

Section 17 - Suits for immovable property situate within jurisdiction of different

courts:
Section 17 allows a plaintiff to institute a suit in a court within the local limits of whose
jurisdiction any portion of the property is situated.
If the immovable property is situated within the jurisdiction of different courts, the
plaintiff can choose to file the suit in any of those courts.

Section 20 - Other suits to be instituted where defendants reside or cause of action

arises:
Section 20 provides an alternative forum for filing suits. In cases where the immovable
property is not the primary consideration, the plaintiff can file the suit in the court
where the defendant resides or where the cause of action arises.
This is particularly relevant when the dispute involves personal actions rather than
specific disputes over the immovable property.

Doctrine of Forum conveniens:

While not explicitly stated in the CPC, the doctrine of forum conveniens may also be
considered. It refers to the most convenient or appropriate forum for the resolution of a
dispute. In some cases, even if the property is situated within the jurisdiction of a
particular court, the parties may agree or the court may determine that another forum is
more convenient for the administration of justice.
Q 36. Elucidate upon menses profit and deemed decree.
Answer - A "mesne profits" refer to profits or gains derived from property while a legal
action (typically a suit for possession or recovery of property) is pending. The term is
primarily associated with the law of property and is relevant when a person wrongfully
occupies someone else's property, and the rightful owner seeks possession through a
legal proceeding.
The concept of mesne profits is dealt with in the Civil Procedure Code (CPC) in India.
Specifically, Section 2(12) of the CPC defines "mesne profits" as those profits which the
person in wrongful possession of the property actually received or might have received,
had he not been wrongfully deprived of the property.
In practical terms, when a person brings a lawsuit seeking possession of property, the
court may also order the payment of mesne profits for the duration during which the
wrongful possessor occupied the property. This is meant to compensate the rightful
owner for the loss of use and enjoyment of the property during the period of wrongful
possession.

The relevant sections in the CPC that address mesne profits include:
Section 2(12A): Power to Order Interest - This section gives the court the power to
order interest on mesne profits from the date of the suit till the date of the decree.
Order XX Rule 12: Decree for Possession and Mesne Profits - This rule deals with the
contents of the decree when possession of immovable property is involved. The court
may include directions for the payment of mesne profits in the decree.
Order XX Rule 18: Enforcement of Decree for Possession and Mesne Profits - This
rule deals with the manner in which a decree for possession and mesne profits is to be
enforced.

Deemed Decree - The term "deemed decree" is not explicitly defined under the Code of
Civil Procedure. However, the concept of deemed decree is closely related to certain
situations where the court treats a particular order or judgment as if it were a decree for
the purpose of execution or further legal proceedings.

One such situation is covered under Order 20, Rule 6 of the CPC, which deals with the
passing of a decree in a suit for possession and mesne profits. According to Order 20,
Rule 6, if the court passes a decree for the delivery of possession of immovable property
or for the recovery of mesne profits, the decree shall state the amount of mesne profits
awarded and also declare the amount due up to the date of the decree.
A "deemed decree" can refer to a situation where a court, for certain purposes, treats a
particular order or judgment as if it were a decree even if it doesn't strictly meet the
definition of a decree.
Q 38. Exception to the rule that when once judgment has been pronounced and
signed by the court, the court can not alter it.
Answer-
The general rule is that once a judgment has been pronounced and signed by the court,
the court cannot alter it.
However, there are certain exceptions to this rule.
One such exception is provided under Order 47, Rule 1 of the CPC.

Order 47, Rule 1 of the CPC allows a court to review and amend its judgment or order
on the following grounds:

Clerical or arithmetical mistakes: If there is any clerical or arithmetical mistake in the

judgment or order, the court has the power to correct it.

Errors apparent on the face of the record: The court can review its judgment if there is
an error that is apparent on the face of the record. This refers to mistakes that can be
easily identified by looking at the judgment itself without the need for a detailed
examination of evidence or legal arguments.

It's important to note that the power to review a judgment under Order 47, Rule 1 is
limited to specific grounds, and the court cannot re-examine the entire case on merits.
Additionally, the application for review must be filed within a reasonable time.

Apart from Order 47, Rule 1, there may be other provisions or exceptional
circumstances recognized by the courts that allow for the alteration or modification of a
judgment after it has been pronounced and signed. These exceptions are generally
meant to rectify genuine errors and ensure that the administration of justice is fair and
accurate.
Q 46. What do you understand by restitution under section 144?
Answer –
Section 144 of the Code of Civil Procedure, 1908, empowers a civil court to make orders
for restitution. Restitution refers to the restoration of something to its rightful owner or
the compensation for loss or damage. In the context of Section 144, it typically relates to
the restoration of property or rights to a party that has been adversely affected by an
order of the court.

Key points regarding restitution under Section 144:

Scope of Section 144: Section 144 deals with the power of the court to issue orders for
restitution in cases where there has been an order that has caused an unjust loss or
injury to a party.

Restitution of Property or Rights: The court, under Section 144, has the authority to
make orders for the restitution of property or rights. This may include returning
possession of land or property, reversing a transaction, or any other appropriate
remedy.

Conditions for Restitution: Restitution is typically ordered when there has been an
error in the court's decision, and it resulted in an unjust enrichment of one party at the
expense of another. The court considers the equities of the case and strives to restore the
parties to the position they were in before the erroneous order.

Application for Restitution: A party seeking restitution under Section 144 needs to file
an application before the same court that passed the order. The application should
explain the grounds on which restitution is sought and provide evidence supporting the
claim.
Q 47. Explain the circumstances when there can be arrest and attachment before
judgment.
Answer - The provisions related to arrest and attachment before judgment are outlined
in Order 38 of the Code of Civil Procedure, 1908.
The circumstances under which arrest and attachment before judgment can be
ordered:
Applicant's Prima Facie Case: The applicant (plaintiff) must satisfy the court that they
have a prima facie case, meaning that they have a reasonable chance of success in their
claim.

Likelihood of Defendant's Assets Being Disposed: The court may order arrest and
attachment before judgment if it believes that the defendant is likely to dispose of, or
fraudulently remove, their property with the intention of obstructing the execution of
any decree that may be passed against them.

Defendant is About to Leave Jurisdiction: If the court is satisfied that the defendant is
about to leave the jurisdiction of the court with the intent to defeat the execution of any
decree, it may order arrest and attachment before judgment.

Debt is Certain and Quantifiable: The debt or demand that forms the subject matter of
the lawsuit should be a sum certain and quantifiable. It should not be a matter of
dispute.

Notice to Defendant: Generally, before ordering arrest and attachment, the court may
give notice to the defendant and provide them with an opportunity to show cause as to
why such an order should not be passed.

Security for Release: In case of arrest before judgment, the court may order the release
of the person upon the furnishing of security by the defendant.

Affidavit Supporting Application: The applicant usually needs to support the

application for arrest and attachment with an affidavit stating the grounds on which
such orders are sought.
Q 50. What is the effect of Non-appearance of Parties ?
Answer - The effect of non-appearance of parties are outlined in the CPC as follows -

Section 30 - Consequence of non-appearance of plaintiff: If the plaintiff fails to appear

on the day fixed for the hearing of the suit, the court may dismiss the suit. However, the
court may restore the suit if the plaintiff shows sufficient cause for the non-appearance.

Section 32 - Consequence of non-appearance of defendant: If the defendant fails to

appear on the day fixed for the hearing of the suit, the court may proceed with the case
ex parte. This means that the court may continue with the proceedings in the absence of
the defendant. However, the court may set aside the ex parte decree upon sufficient
cause being shown by the defendant.

Order IX - Rule 7 - Procedure where defendant appears on day fixed in summons for
defendant to appear and plaintiff does not appear: If, on the day fixed for the hearing
of the suit, the defendant appears and the plaintiff does not appear, the court may
dismiss the suit. The plaintiff can apply for the restoration of the suit within thirty days,
and the court may set aside the dismissal if sufficient cause is shown.

Order IX - Rule 13 - Setting aside decree ex parte against defendant: If a decree is

passed against the defendant in his absence (ex parte), the defendant can apply to the
court to set aside the decree. The court may set aside the decree if the defendant satisfies
the court that the summons was not duly served, or that he was prevented by any
sufficient cause from appearing when the suit was called for hearing.

The non-appearance of parties, whether it be the plaintiff or the defendant, may lead to
dismissal of the suit or the passing of an ex parte decree.
However, the CPC also provides mechanisms for parties to seek relief and set aside
such dismissals or decrees if they can show sufficient cause for their non-appearance. It
is essential for parties to be aware of these provisions and take timely and appropriate
legal steps in case of non-appearance.
Q 51. Can sale of immoveable property in the execution of a decree be set aside? If so,
at whose instance ?
Answer -
The sale of immovable property in the execution of a decree can be set aside under
certain circumstances. The Civil Procedure Code (CPC) provides for the mechanism to
set aside such sales.

According to Order XXI, Rule 89 of the CPC, a sale of immovable property can be set
aside at the instance of the judgment debtor or any person whose interests are affected
by the sale.
Rule 89 outlines the procedure for setting aside a sale on the grounds of irregularity or
fraud in connection with the sale.

The grounds on which a sale can be set aside include:

Material irregularity or fraud in the conduct of the sale.

The applicant was prevented by some sufficient cause from applying to set aside the
sale.
The application to set aside the sale needs to be filed within 30 days from the date of the
sale. Additionally, the applicant is required to deposit the amount specified in the sale
proclamation, along with the costs of the application.

The provision for setting aside a sale is a protective measure to ensure that the sale is
conducted fairly and in accordance with the law. If irregularities or fraud are
established, the court may set aside the sale to protect the interests of the parties
involved.