CONTENTS

· Introduction

xi

CHAPTER 1

DEFINITIONS

¨ Decree [Section 2(2)]

1

Q. What does the word 'Decree' mean?

1

· Essential Elements

2

Q. Explain the essential elements of decree with illustrations.

2

· When 'Decree' is said to be Nullity

5

· Decrees: Types of

5

(1) Preliminary Decree

5

Q. Explain the types of Decree. And what is 'preliminary decree'?

5

(2) Final Decree

6

Q. In what way a decree can be said to be final one?

6

· Distinction between 'Preliminary' and 'Final' Decree

7

(3) 'Partly Preliminary' and 'Partly Final' Decree

7

Q. How can you distinguish preliminary' and 'final' decree with the help of case law?

7

· Rejection of Plaint

7

· Appealable Orders

8

· Order of Dismissal for Default

8

¨ Judgment [Section 2(9)]

9

Q. What does the word 'Judgment' mean?

9

· Lakshmi Ram Bhuyan case

10

· Words "Judgment" and "Decree": Distinction

12

Q. Explain the major distinction between the words 'judgment' and 'decree'.

12

¨ judgment-Debtor [Section 2(10)]

12

Q. What does the expression 'Judgment-Debtor' mean?

12

¨ Foreign Judgment [Section 2(6)]

12

Q. What is the meaning of foreign judgment'? Can it be significant in a similar case in India? Explain with the help of relevant case laws.

12

¨ Foreign Judgment not by Competent Court

13

Q. When X sues Y in a foreign court and the suit is dismissed; will this decision shall operate as 'res judicata' on a fresh suit by X against Y in India on the same cause-of- action?

 13

· Bharat Nidhi Ltd. case

14

· Foreign Judgment not on merits

15

· Foreign Judgment against International and Indian Law

15

· Foreign Judgment obtained by Fraud

15

Q. Can a 'mistake of law' in a foreign judgment can be a ground to vacate a same suit in India?

15

· Foreign Judgment opposed to Natural Justice

16

· Foreign Judgment founded on breach of Indian Law

16

Q. What is the effect of a 'foreign judgment' when it is founded on breach of Indian law?

16

· Presumption as to Foreign Judgment

17

· Enforcement of Foreign Judgments

17

· When foreign judgment not conclusive

17

¨ Order [Section 2(14)]

17

Q. Explain briefly the word 'Order' in an adjudication of a court.

17

· 'Orders' which amount to a Decree

17

Q. When an 'Order' amounts to 'Decree?

17

· Orders which do not amount to a Decree

18

· Similarities between 'Order' and 'Decree'

18

Q. What are the similarities between words 'Order' and 'Decree'?

18

· Distinction between 'Order' and 'Decree'

18

Q. Explain the distinction between 'Order' and 'Decree'.

19

¨ Legal Representative [Section 2(11)]

19

Q. Whom you call a 'legal representative' under the provision of C.P.C., 1908?

20

· Decree against wrong Legal Representative

20

Q. When a true legal representative will be bound by a decree passed against the wrong legal representation? Explain.

20

· Banco National case

21

Q. What are the ratio laid down by the Supreme Court in Banco National case, MANU/SC/0149/1989 : AIR 1989 SC 1589?

21

· Mithailal Singh case

22

· Shahzadabi case

23

¨ Mesne Profits [Section 2(12)]

24

Q. What do you mean by expression 'mesne profits"? Explain the object behind awarding such profits with the help of case laws.

 24

· Object behind awarding such Profits

25

· Measure of Mesne Profits

25

Q. How mesne profit can be measured with the help of ratio laid down by the Supreme Court in Lucy Kochuvareed case, AIR 1979 SC 1214?

25

· Lucy Kochuvarred case

25

· Amina Beevi case

26

CHAPTER 2

INHERENT POWERS OF THE COURT

Q. What do you understand by inherent powers of court? Discuss scope and extent of inherent powers?

 27

· Enlargement of Time - Section 148

28

Q. What are the conditions to be followed by a court for the enlargement of time?

28

· Payment of Court-fees - Section 149

29

· Inherent Power under section 151 vis-a-vis Ends of Justice

29

· Section 152

30

· Section 153

31

· Section 153A

31

· Limitations of Inherent Powers

32

Q What is the limitation of inherent powers of the courts? Explain with the help of case laws.

32

· Ram Chand Sugar Mill case

33

· Mental Health case

34

CHAPTER 3

JURISDICTION OF CIVIL COURTS

· Meaning

35

Q. What is the meaning of the word 'jurisdiction'?

35

· Section 9 of the Code of Civil Procedure, 1908 and meaning of Suits of Civil Nature

36

· Suits of Civil Nature - Illustrations

37

· Not of Civil Nature

37

¨ Kinds of Jurisdiction

37

Q. Explain the kinds of jurisdiction of a court.

38

Q. Whether the following suits are cognizable by civil court?

40

(a) Suit for exclusion of member from caste.

40

(b) Suit to set aside the election of directors.

40

(c) Suit relating to caste property.

40

(d) Proceeding for dissolution of Muslim Marriage.

40

CHAPTER 4

RES SUBJUDICE AND RES JUDICATA

¨ Res Subjudice: Stay of Suit

45

Q. What to you mean by the expression 'res subjudice??

45

Q. What are the objects behind the provision of 'res subjudice'?

46

Q. Explain the essential conditions to be satisfied for the applicability of section 10, C.P.C.

46

¨ Doctrine of Res Judicata: Section 11

49

Q. Explain the doctrine of 'res judicata' with the help of case laws.

49

Q. Discuss the scope and amplitude of section 11, CPC.

50

· Nabin Majhi case

51

· Constructive Res Judicata

53

Q. What do you mean by term 'constructive res judicata??

53

CHAPTERS 5

AMENDMENT OF PLEADINGS, ETC.

Q. Whether a party to the suit can alter or amend his pleadings? Till what stage a court can allow such amendments?

55

¨ Leave to Amend.--When could/may be granted

56

¨ Leave to Amend when to be Refused

57

Q. When a court may refuse leave to amend the pleadings?

57

¨ Meaning of term "at any stage"

58

Q. Explain the meaning and extent of expression 'at any stage' provided under Order VI, rule 17, CPC.

58

¨ Revision

58

¨ Suit by Indigent Persons, or Suit in forma pauperis (Order XXXIII)

62

Q. Can an indigent person be allowed to file a suit where he has no money to pay for the requisite court-fee? Explain.

62

¨ Appearance and Non-appearance of Parties (Order IX, rules 1 to 3)

65

Q. Discuss the effects and consequences of appearance and non-appearance of parties in a suit

65

Q. What do you mean by ex parte decree? Does the law provide for its remedy?

66

Q. Whether respondent at the stage of appeal can be allowed to amend his pleadings necessitated by subsequent events as per Order VI, rule 17, CPC?

68

CHAPTER 6

JOINDER OF PARTIES, ETC.

¨ Institution of Suit: Order IV

71

¨ Parties to the Suit - Order I

71

¨ Joinder of Defendants - Order I, rule 3

72

Q. Differentiate between necessary and proper parties. Discuss effect of non-joinder of necessary party or proper party.

72

¨ Mis-joinder or non-joinder of parties (Order I, rule 9)

72

¨ Striking Out, Adding or Substituting Parties - Rule 10

73

¨ 'Necessary party' and 'Proper party': Distinction

75

¨ Representative Suit (Order I, rule 8)

75

Q. What do you mean by 'representative suit'?

76

CHAPTER 7

SPECIAL SUITS

¨ Suits by or against minors, lunatic, public officers, etc.

77

· Suits by or Against Minors and Lunatics: Order XXXII

77

Q. Write short note on 'suit by or against minors or persons of unsound mind'.

77

· Filing or Defending of Suit on Minor's Behalf (Order XXXII, Rules 1-14)

77

· Qualifications as to be a Guardian or Next Friend

78

· Power and Duties of a Guardian/Next Friend (Rules 5-7)

78

· Retirement, Removal or Death of such Guardian/Next Friend (Rules 8-11)

78

· Minor Attaining Majority (Rules 12-14)

79

¨ Suits by or against Government or Public Officers: Sections 79-82: Order XXVII

80

Q. Write short note on 'notice under section 80, CPC'

81

¨ Interpleader suit (Section 88 and Order XXXV)

83

Q. What do you mean by 'interpleader suit'?

83

· Conditions to Institute Interpleader Suit

84

· Procedure

84

· Who cannot File Interpleader Suit (Order XXXV, rule 5)

85

CHAPTER 8

APPOINTMENT OF RECEIVERS (ORDER XL)

Q. Write short note on 'receiver'.

86

· Appointment of Commissions (Sections 75-78, Order XXVI)

89

Q. Write short note on 'Appointment of Commissions'.

89

· Appointment of Commissioner under Inherent Powers

91

CHAPTER 9

SUMMARY PROCEDURE (ORDER XXXVII)

· Applicability

92

Q. What do you mean by 'summary suit'?

92

· Difference between Summary Suit and Ordinary Suit

92

· Procedure

93

Q. Whether leave to defend can be claimed as a matter of right under Order XXXVII, CPC? Discuss with the help of decided cases.

93

· Test(s) for Granting Leave to Defend

94

Q. State the procedure for institution of suits, appearance of defendant and filing of leave to defend under Order XXXVII of CPC.

94

CHAPTER 10

TEMPORARY INJUNCTION (ORDER XXXIX)

Q. What are the principles to be followed for grant of interim injunction?

100

· Where Temporary Injunction is Granted

101

· Conditions for grant of Temporary injunctions

101

· Principles Governing Temporary Injunction

102

· Non-compliance or Breach of Injunction

102

Q. What are consequences of disobedience or breach of injunction?

102

· Ex parte Ad Interim Injunction (rule 3 of Order XXXIX)

104

Q. What are the principles for grant of 'ex parte ad-interim injunction' under CPC?

105

¨ Case Laws

106

¨ Appeals

111

Q. Discuss the purpose of 'appeal'. What are the essential ingredients of an appeal?

111

· Essential Ingredients of an Appeal

111

· Nature of Right of Appeal

112

Q. Discuss the nature of right of appeal.

112

· Who may File an Appeal?

113

· Maintainability of Appeal

113

¨ Second Appeals

114

Q. When a second appeal' is maintainable before the High Court?

114

· When Second Appeal does not Lie?

116

· No Interference with Finding of Facts

116

Q. Whether High Court can interfere with the findings of facts in a second appeal?

116

· Substantial Question of Law

117

Q. What do you mean by expression 'substantial question of law'?

117

Q. Discuss the conditions when second appeal does not lie?

117

· Power of High Court to Determine Issues of Fact

119

· Order from which Appeal Lies

119

· Kondiba Dagadu Kandam case

119

· Powers of Appellate Court

121

Q. Discuss the powers of an Appellate Court.

121

· When Appeal Lies to the Supreme Court

121

¨ Revision

123

Q. What do you mean by word 'Revision'?

123

· Essential Requirements for 'Revision'

124

Q. Discuss the essential ingredients of 'revision'.

124

· Exercise of Revisional Jurisdiction is Discretionary

125

· 'Case' and 'Suit': Distinction

125

Q. Differentiate the words 'case' and 'suit'?

125

· Jurisdictional Error

125

¨ Review (Section 114 and Order XLVII)

128

Q. What does the word 'Review' mean?

128

· Conditions Precedent to Allow Review Application

129

Q. What are the essential conditions to allow review application?

129

· Surinder Singh case

130

· 'Appeal' and 'Revision': Distinction

131

Q. Differentiate between 'appeal' and 'revision'.

131

· 'Revision' and 'Review': Distinction

131

Q. Point out the difference between 'Revision' and 'Review'.

132

· Table of Cases

133

· Section Index

141

·Order, Rule Index

142