Q. What is a decree?
Ans. Sec 2(2) of CPC defines the word ‘Decree’: It means the form expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Sec. 144, but shall not include-
(a)Any adjudication from which an appeal lies as an appeal from an order, or
(b)Any order of dismissal for default.
Explanation to Sec. 2(2) explains what is a preliminary decree and final decree. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.
Q. What do you mean by preliminary decree and final decree?
Ans. Preliminary Decree – A decree is preliminary when the adjudication, though it conclusively determines the rights of the parties with regard to some of the matters in controversy in the suit, does not completely dispose of the suit and further proceedings have to be taken before the suit can be completely disposed of.
Final Decree- A Final Decree is one which completely disposes ofthe suit, i.e. when nothing further remains to be decided.
Q. What do you understand by partly preliminary and partly final decree?
Ans. It can be understood by an example in a suit for possession of immovable property with mesne profits, where the Court-
(a)passes a decree for possession of the property; and
(b)directs an inquiry into the mesne profits.
The former part of the decree is final, while the latter part is only preliminary because the final decree for mesne profits can be drawn only after inquiry and the amount due is ascertained. In such a case, even though the decree is only one, it is partly preliminary and partly final. (Hasim Abbas Sayyad vs Usman Abbass Sayyad, Air 2007SC1077)
Read more:- Constitution Law Part 2
Q. What do you understand by ‘suit of civil nature’?
Ans. A suit is of civil nature if the principal question in the suit relates to the determination of a civil right. It is not the status of the parties to the suit but the subject matter of it which determines whether the suit is of a civil nature or not.
The expression suit of a Civil Nature will cover the private rights and obligations of a citizen. Political, social, and religious questions are not covered by that expression. A suit in which the principal question relates to caste or religion is not a suit of a civil nature. But if the principal question in the suit is of a civil nature (the right to property or to an office) and the adjudication incidentally involves the determination relating to a caste question or to religious rights and ceremonies, it does not cease to be a suit of civil nature. (Section 9)
Q. What is section 10 C.P.C.?
Ans.Section 10 deals with a stay of civil suits.It is also called Res Sub Judice. It provides that, “No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim to litigate under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.”
Explanation—The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.
The object of Sec.10 is to prevent Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, the same subject matter, and the same relief. The policy of the law is to obviate the possibility of two contradictory verdicts by one and the same court in respect of the same relief.
Q. What is Res-Judicata?
Ans. Sec. 11 of the CPC embodies the doctrine of “Res Judicata” which is based on the rule of conclusiveness or finality of judgments. In “Res Judicata”, Res means “subject matter” and “judicata” means “bar”, therefore, the meaning is a bar to the subject matter.
Section 11 says, “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Q. What is Constructive Res-Judicata?
Ans. The rule of res judicata is not limited to matters actually alleged by one party and either denied or admitted, expressly or impliedly by the other. It goes further and bars the trial of a subsequent suit on the ground that the matters directly and substantially in issue therein might and ought to have been made a ground of attack or defence in a former suit that has been decided between the same parties. This is what is meant by constructive res judicata (Explanation IV to Sec. 11).
Q. What is the difference between Res-Judicata and Constructive Res-Judicata?
Ans. 1. Rule of Constructive Res Judicata emerges from the rule of Res Judicata. When a matter is actually in issue, then it is Res Judicata while when it is constructively in issue then it is Constructive Res Judicata.
2. When a matter in issue ought to have been made a ground of attack or defence in the former suit but has not been raised, a subsequent suit filed with respect to the matter not raised in the former suit will be barred by Constructive Res Judicata. Explanation IV to Section 11 is a deeming provision that lays down the rule of Constructive Res Judicata.
Q. What is the difference between Res- Judicata and Res-Sub Judice?
Ans. Res judicata
- A suit that is finally decided by a competent Court. No further suit can lie between the same parties on the same matter and issues.
- A case is heard and decided finally.
- The subsequent suit is completely prohibited in res-judicata.
- Litigation discouraged.
If a suit is already pending in a competent court, then no further suit lies between the same parties on the same subject matter and issues.
The case is pending in court,
The subsequent suit is suspended i.e., stayed
prohibited concurrent justice.
Q. What is Foreign Judgment and when it is binding?
Ans. Section 2(6) of CPC says that:
‘Foreign Judgment’ means a judgment of a foreign Court. In other words, a foreign judgment means an adjudication by a foreign court upon a matter before it. Sec. 13 and Sec. 14 of CPC enact a rule of res judicata in case of foreign judgments.
These provisions embody the principle of private international law that a judgment delivered by a foreign court of competent jurisdiction can be enforced by an Indian Court and will operate as res judicata between the parties thereto except in the cases mentioned in Sec. 13.
According to Sec. 13 of the CPC, a foreign judgment is conclusive except when it is-
(a) not by a competent court.
(b) not on merits.
(c) against International or Indian law.
(d) opposed to natural justice.
(e) obtained by fraud.
(f) founded on a breach of Indian law.
Q. What do you mean by principal place of business and sub-ordinate place of business?
Ans. Explanation of Section 20 – A corporation shall be deemed to carry on business at its sole or principal office in (India) or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.
On this point, Supreme Court has said that explanation to Section 20 has to be read subject to the principle laid down in Sec. 20 itself i.e., the explanation cannot be interpreted beyond the meaning of the main section. This explanation has to be divided into 3 parts:
- In the case of a corporation that has its sole office and no subordinate office, in that case, place of business will be deemed to be where the sole office is located.
2. In the case of a corporation having its principal office as well as subordinate office. Then in such a case, if the cause of action does not arise at any subordinate office, then the place of business will be deemed to be a principal office.
3. If the cause of action arises at any subordinate office, then that subordinate office will be deemed to be a place of business and not the principal office or any other subordinate office.
4. Use of the word “or” plays a disjunctive role and therefore, the word “such” at the end of the explanation refers only to the subordinate office and not to the principal office.
Q. When Temporary Injunction may be granted?
Ans. Temporary injunctions(Order 39)
Cases in which temporary injunction may be granted— Where in any suit it is proved by affidavit or otherwise—
(a)that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b)that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,
(c)that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,
The Court may by order grant a temporary injunction to restrain such action or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders.
Q. What do you understand by substituted service?
Ans. Order 5, Rule-20 deals with it. Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason the summons cannot be served in an ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Courthouse, and also upon some
conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
Q. What is a letter of request?
Ans. It is a letter issued by the Court to examine a witness residing out of India. In lieu of issuing a commission, the Court may issue a letter of request to examine a witness residing at any place not within India.
Q. What do you mean by pleading?
Ans. The term ‘pleading’ means a plaint or written statement. Order VI deals with pleadings in general. Rule 1 states, Pleading shall mean plaint or written statement. A plaintiff’s pleading is his plaint, a statement of claim in which the plaintiff sets out his cause of action with all necessary particulars and a defendant’s pleading is his written statement, in which the defendant deals with every material fact alleged by the plaintiff in the plaint and also states any new facts which are in his favor adding such legal objections as he wishes to take to the claim. The object and purpose of pleading are to enable the opposite party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that the other party may not be taken by surprise.
Q. When set off and counterclaim be claimed?
Ans. As per Order VIII Rule 6(1), where in a suit for the recovery of money by the plaintiff, the defendant finds that he also has a claim of some amount against the plaintiff, he can claim set-off in respect of the said amount.
Set-off is the reciprocal acquittal of debts. In an action to recover money, set-off is a cross-claim for money by the defendant, for which he might maintain an action against the plaintiff, and which has the effect of extinguishing the plaintiff’s claim pro tanto.
Counter Claim- Under Order VIII, Rule 6-
A defendant in a suit may set up by way of counter-claim, any right or claim against the claim of the plaintiff which arises before or after the institution of the suit, but before the defendant has delivered his defence or before the time limited for delivering his defence has expired. This counter-claim may be a claim in the nature of damages also. It is independent of the claim of the plaintiff, whether it is in the nature of a claim for damages or not.
Q. What is the difference between set off and counterclaim?
Ans. A set-off is a defence seeking absolvement from payment of the claim; a counter-claim is a separate and independent action for recovery from the other party and need not be limited to a monetary claim only.
There is no requirement that the counter-claim must be of the same nature as the claim of the plaintiff or that it must be arising out of the same transaction. The counterclaim is not subjected to the same restriction as a set-off under O. VIII, R.6
The set-off is a shield, not a sword. However, the counter-claim is a shield and a sword.
Q. What is an Equitable set-off?
Ans. Equitable Set-off
The provisions of Rule 6 given above are for Legal Set off. However, these provisions are not exhaustive. This means that a set-off is still possible in certain situations even when some of the conditions are not satisfied. For example, in a transaction whereby goods are exchanged for services as well as payment, the defendant may be allowed to claim a set-off for an uncertain amount for damaged goods. In a suit by a washerman for his wages, the defendant’s employer should be able to set off the price of the clothes lost by the plaintiff. In such a case, driving the plaintiff to file another suit would be unfair. A set off in such situations is called an Equitable Set off. For example, where A sues B to recover 50,000/- under a contract, B can claim set off towards damages sustained by him due to the breach of the same contract by A. However, there is still one condition that must be satisfied for equitable set-off – the set-off claim must originate from the same transaction.
Q. What is the effect of the non-appearance of parties?
Ans. Order 9 deals with the appearance and non-appearance of the parties. On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court. Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for [such failure as is referred to in rule 2], or for his non-appearance, 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.
Q. What is Order 12, Rule 6 C.P.C.?
Ans. It deals with Judgment on admissions. It says that (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn upon in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.]
Q. What is Order 9 Rule 13 C.P.C.?
Ans. It deals with Setting aside an ex-parte decree against the defendant. It says in any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he 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 on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
Q. What is the appeal?
Ans. The term ‘Appeal’ has not been defined in the code. But it can be defined as “the removal of a cause from an inferior to a superior court for the purpose of testing the soundness of the decision of the inferior court. Further, To seek the remedy or relief provided by law in a superior court against the decision of an inferior court, can be said as an Appeal. It is thus a remedy provided by law for getting the decree of the lower court nullified, and is, in fact, a complaint made to the Higher Court that the decree of the lower court is unsound and wrong”. An appeal has 3 basic elements:
(1) A decision.
(2) A person aggrieved.
(3) A reviewing body ready and willing to entertain an appeal.
Q. Can an appeal be filed against the ex-parte decree?
Ans. Yes. Section 96 deals with it.It says (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions 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 the parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Cause, when the amount or value of the subject matter of the original suit does not exceed three thousand rupees.
Q. Can you file an appeal against the preliminary decree if the final decree is passed?
Ans. It has been dealt with in section 97. Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such order, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.
Q. What are the different grounds of Reference?
Ans. Section 113 deals with it. It says that subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit: Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court.
Q. When Revision lies?
Ans. Section 115 deals with it. It says that the High Court may call for the record of a case which has been decided by any Court subordinate to such High Court and 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 the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where—
(a)the order, if it had been made in favor of the party applying for revision, would have finally disposed of the suit or other proceedings, or
(b)the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
Q. What is Section 46 CPC?
Ans. It deals with Precepts. (1) Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept. (2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree: Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment, the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.
Q. What is Order 32A, Rule 3 C.P.C.?
Ans. It states that (1) In every suit or proceeding to which this Order applies, an endeavor shall be made by the Court in the first instance, where it is possible to do so consistently with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject-matter of the suit. (2) If, in any such suit or proceeding, at any stage, it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to affect such a settlement. (3) The power conferred by sub-rule (2) shall be in addition to, and not in derogation of, any other power of the Court to adjourn the proceedings.
Q.Who is an indigent person?
Ans. Indigent person (Order 33) A person is an ‘indigent person’ –
(i)If he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject of the suit) to enable him to pay the fee prescribed by law for the plaint in the suit proposed to be instituted by him; or
(ii)Where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject matter of the suit.
For determining whether a person is an indigent one or not, any property which is acquired by him after the presentation of his application to sue as an indigent person, and before the decision on the application, shall be taken into account.
The benefit of Order XXXIII is conferred on persons without ‘sufficient means’ and not without any means at all. Pauperism is not a pre-requisite for the leave to sue in forma pauperis. What is contemplated is not the possession of the property but sufficient means.
Q. Under which provision of CPC an indigent person can file an appeal?
Ans. Order 44 C.P.C. deals with it.
Q. What is an interpleader suit?
Ans. Section 88 C.P.C. deals with it. Where two or more persons claim 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 than for charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit 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.