Code of Civil Procedure, 1908 Test 1 — Questions & Solutions
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Q1Jurisdiction, res judicata & res sub judice (S9–14, 21)
A civil court's jurisdiction to try suits of a civil nature under Section 9 of the CPC is presumed to exist unless the suit is barred. Which of the following is the correct legal position regarding the exclusion of such jurisdiction?
aExclusion of jurisdiction is not to be readily inferred and the burden lies on the party asserting the exclusion
bJurisdiction can be excluded only by an express provision in a statute, never by necessary implication
cOnce a special tribunal is created for any subject, all suits relating to that subject are automatically barred
dA suit relating purely to religious rites unconnected with any property is always maintainable as a suit of a civil nature
Answer: A
Under Section 9, exclusion of civil court jurisdiction is not readily inferred (whether express or by necessary implication) and the burden lies on the party pleading exclusion; the explanation to S.9 bars suits over caste/religious questions not involving civil/property rights (Dhulabhai v. State of M.P., AIR 1969 SC 78).
Q2Jurisdiction, res judicata & res sub judice (S9–14, 21)
Section 10 of the CPC bars the trial of a subsequently instituted suit where the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. Which statement about the operation of Section 10 is correct?
aSection 10 bars the very institution of the second suit, not merely its trial
bSection 10 stays the trial of the subsequent suit, but the court may still pass interlocutory orders in it
cSection 10 applies even if the previous suit is pending in a foreign court not established by the Central Government
dA decree passed in contravention of Section 10 is a nullity and void
Answer: B
Section 10 stays only the 'trial' (not institution) of the later suit, and the court may still grant interlocutory relief; a decree passed despite S.10 is not a nullity since S.10 is a rule of procedure (Pukhraj D. Jain v. G. Gopalakrishna, (2004) 7 SCC 251).
Q3Jurisdiction, res judicata & res sub judice (S9–14, 21)
Which of the following conditions is NOT required for the doctrine of res sub judice under Section 10 of the CPC to apply?
aThe matter in issue in both suits must be directly and substantially the same
bBoth suits must be between the same parties or parties claiming under them
cThe relief claimed in both suits must be identical in monetary value
dThe previously instituted suit must be pending in a competent court
Answer: C
Section 10 requires identity of the matter directly and substantially in issue, same parties, same title, and a competent prior court; it does not require the monetary value of the relief to be identical.
Q4Jurisdiction, res judicata & res sub judice (S9–14, 21)
Section 11 of the CPC embodies the doctrine of res judicata. Under Explanation IV to Section 11, a matter that 'might and ought' to have been made a ground of defence or attack in the former suit shall be deemed to have been:
aExpressly waived by the party who failed to raise it
bCollaterally in issue and therefore outside the bar of res judicata
cAvailable to be raised afresh in any subsequent suit on the same cause of action
dA matter directly and substantially in issue in the former suit (constructive res judicata)
Answer: D
Explanation IV to Section 11 enacts constructive res judicata: any matter which might and ought to have been raised as a ground of attack or defence is deemed to have been directly and substantially in issue and is barred (State of U.P. v. Nawab Hussain, (1977) 2 SCC 806).
Q5Jurisdiction, res judicata & res sub judice (S9–14, 21)
For res judicata under Section 11 to bar a subsequent suit, the former suit must have been heard and finally decided by a court competent to try the subsequent suit. In which case did the Supreme Court hold that an erroneous decision on a question of law does NOT operate as res judicata where the issue is a pure question of law unrelated to facts already decided?
aMathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy
bDaryao v. State of U.P.
cSatyadhyan Ghosal v. Deorajin Debi
dSheodan Singh v. Daryao Kunwar
Answer: A
In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, (1970) 1 SCC 613, the Supreme Court held a pure question of law (e.g., jurisdiction or applicability of a statute) unrelated to the facts giving rise to the right is not barred by res judicata even if earlier decided.
Q6Jurisdiction, res judicata & res sub judice (S9–14, 21)
Explanation VI to Section 11 of the CPC deals with res judicata in representative suits. It provides that where persons litigate bona fide in respect of a public right or private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of Section 11, be deemed to:
aBe necessary parties whose absence renders the decree a nullity
bClaim under the persons so litigating
cHave waived their right to file a fresh suit unless they obtained leave of court
dBe bound only if they had actual notice of the earlier litigation
Answer: B
Explanation VI to Section 11 deems all persons interested in a public/common right to claim under those litigating bona fide on their behalf, thereby binding them by the decree in such a representative suit.
Q7Jurisdiction, res judicata & res sub judice (S9–14, 21)
A files a suit against B which is dismissed in default for non-appearance under Order IX. A then files a fresh suit on the same cause of action. Which is the correct position?
aThe fresh suit is barred by res judicata under Section 11 as the earlier suit was 'finally decided'
bThe fresh suit is barred by Section 10 as res sub judice
cThe fresh suit is not barred by res judicata but may be barred by Order IX Rule 9
dThe fresh suit is maintainable without any bar whatsoever
Answer: C
A dismissal in default is not a decision 'heard and finally decided' on merits, so Section 11 res judicata does not apply; instead Order IX Rule 9 bars a fresh suit on the same cause of action after such dismissal.
Q8Institution of suits, parties, frame of suit, pleadings (O1–O8)
Two or more persons may be joined as plaintiffs in one suit under Order I Rule 1 CPC where the right to relief alleged to exist in them arises out of the same act or transaction and a common question of law or fact would arise. Which additional condition does Rule 1 require for such joinder?
aThat all plaintiffs reside within the local limits of the same court
bThat the defendant consents in writing to the joinder
cThat the claims of all plaintiffs are for liquidated money amounts
dThat if separate suits were brought, a common question of law or fact would arise
Answer: D
Order I Rule 1 permits joinder of plaintiffs where the right to relief arises out of the same act/transaction AND, if separate suits were brought, any common question of law or fact would arise. Both limbs must be satisfied.
Q9Institution of suits, parties, frame of suit, pleadings (O1–O8)
Under Order I Rule 9 CPC, what is the effect of misjoinder or non-joinder of parties on a suit?
aNo suit shall be defeated by reason of misjoinder or non-joinder of parties, except in the case of non-joinder of a necessary party
bThe suit is liable to be dismissed in all cases of misjoinder or non-joinder
cThe suit must be stayed until the proper parties are added by the court
dThe suit can proceed only after payment of additional court fee for the omitted party
Answer: A
Order I Rule 9 provides that no suit shall be defeated by misjoinder or non-joinder of parties; however, its proviso (added in 1976) carves out non-joinder of a necessary party, which can be fatal to the suit.
Q10Institution of suits, parties, frame of suit, pleadings (O1–O8)
In a representative suit under Order I Rule 8 CPC (numerous persons having the same interest), which of the following is a correct statement of the procedure?
aThe court's leave is not required; any one of the numerous persons may sue without notice to others
bNotice of the institution of the suit must be given to all persons so interested, at the plaintiff's expense, by personal service or public advertisement as the court directs
cA decree in a representative suit binds only the named plaintiffs, not the persons represented
dThe persons represented have no right to apply to the court to be made parties
Answer: B
Order I Rule 8 requires the court's permission and that notice of the suit be given to all interested persons (at plaintiff's cost) by personal service or public advertisement as the court directs; a person represented may apply to be made a party under Rule 8(3).
Q11Institution of suits, parties, frame of suit, pleadings (O1–O8)
A landlord sues to evict a tenant. The tenant claims he is only a sub-tenant of X, the real tenant, who is not impleaded. X is a person in whose absence no effective decree can be passed. In CPC terminology, X is best described as a:
aProper party whose absence is immaterial
bPro forma defendant
cNecessary party
dThird party under Order VIII-A
Answer: C
A necessary party is one in whose absence no effective decree can be passed and against whom relief is sought; non-joinder of a necessary party can be fatal under the proviso to Order I Rule 9. (Kasturi v. Iyyamperumal, (2005) 6 SCC 733, on the necessary/proper party test.)
Q12Institution of suits, parties, frame of suit, pleadings (O1–O8)
Under Order II Rule 2 CPC, a plaintiff who omits to sue for a portion of his claim arising from the same cause of action:
aMay later sue for the omitted portion as of right without any leave
bMay sue for the omitted portion only within three years of the first decree
cMust seek the appellate court's permission before filing a fresh suit
dShall not afterwards sue for the portion so omitted or relinquished
Answer: D
Order II Rule 2(2) bars a subsequent suit for any portion of the claim omitted or relinquished from the same cause of action; under Rule 2(3) a fresh suit for an omitted relief is barred unless the court's leave was obtained.
Q13Institution of suits, parties, frame of suit, pleadings (O1–O8)
Order II Rule 1 CPC embodies which fundamental principle concerning the frame of a suit?
aEvery suit shall be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them
bEvery distinct cause of action must be tried in a separate suit
cA suit may be framed only for liquidated claims and not for declaratory relief
dThe plaintiff must split his cause of action to keep the suit within pecuniary limits
Answer: A
Order II Rule 1 requires that every suit be framed so as to afford ground for final decision on the subjects in dispute and to prevent further litigation concerning them — the rule against splitting and the policy of avoiding multiplicity.
Q14Institution of suits, parties, frame of suit, pleadings (O1–O8)
Under Order I Rule 10(2) CPC, the court may, at any stage of the proceedings, order the addition of a party. Which person's name may the court order to be added as a defendant?
aOnly a person whom the plaintiff agrees to add
bAny person whose presence is necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit
cOnly a person against whom the plaintiff has expressly claimed relief
dAny person who offers to pay the costs of the suit
Answer: B
Order I Rule 10(2) empowers the court suo motu or on application to add any party whose presence is necessary to enable it to effectually and completely adjudicate upon all questions involved in the suit.
Q15Institution of suits, parties, frame of suit, pleadings (O1–O8)
Order VI Rule 2 CPC lays down the foundational rule of pleadings. Which statement correctly reflects it?
aPleadings must state the material facts and also the evidence by which those facts are to be proved
bPleadings must set out the propositions of law relied upon but need not state facts
cPleadings shall contain a statement in concise form of the material facts on which the party relies, but not the evidence by which they are to be proved
dPleadings may contain argumentative matter so long as it is relevant
Answer: C
Order VI Rule 2 requires pleadings to state material facts in concise form, but not the evidence (facta probanda, not facta probantia) by which those facts are to be proved.
In execution proceedings, the judgment-debtor contends that the decree sought to be executed is a nullity because the court that passed it lacked inherent jurisdiction over the subject-matter. Which of the following best states the law on whether the executing court can entertain this objection?
aThe executing court can never go behind the decree, so the objection must be rejected outright
bThe objection can only be raised by way of a separate suit, not in execution
cThe objection is maintainable only if the judgment-debtor first obtains leave of the appellate court
dThe executing court can entertain it, because a decree passed by a court wholly lacking inherent jurisdiction is a nullity and its validity can be challenged under Section 47
Answer: D
While an executing court ordinarily cannot go behind the decree, a decree passed by a court inherently lacking jurisdiction is a nullity and its validity can be set up under Section 47 CPC (Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, (1970) 1 SCC 670).
A money decree is for Rs. 4,500. The decree-holder applies for arrest and detention of the judgment-debtor. Assuming detention is otherwise warranted, what is the maximum period for which the judgment-debtor may be detained in civil prison under Section 58 CPC?
aSix weeks
bThree months
cDetention is wholly barred for this amount
dOne month
Answer: A
Under Section 58(1)(b) CPC, where the decree is for payment of a sum exceeding Rs. 2,000 but not exceeding Rs. 5,000, the maximum detention is six weeks; three months applies only where the sum exceeds Rs. 5,000.
A money decree is for a total amount of Rs. 1,800. The decree-holder seeks the arrest and detention of the judgment-debtor in civil prison. The correct legal position is that:
aDetention can be ordered for up to six weeks
bNo order for detention in civil prison can be made where the total decretal amount does not exceed Rs. 2,000
cDetention can be ordered for up to three months
dDetention can be ordered only with the judgment-debtor's consent
Answer: B
The proviso to Section 58(1) CPC bars any order of detention in civil prison in execution of a money decree where the total amount of the decree does not exceed Rs. 2,000.
Immovable property is sold in execution of a decree. A person claiming an interest in the property wishes to have the sale set aside under Order 21 Rule 89 CPC by depositing money. Apart from the amount payable to the decree-holder, what additional sum must be deposited for payment to the auction-purchaser?
aA sum equal to 25 per cent of the purchase-money
bA sum equal to 10 per cent of the purchase-money
cA sum equal to 5 per cent of the purchase-money
dA sum equal to the entire purchase-money
Answer: C
Under Order 21 Rule 89(1)(a) CPC, the applicant must deposit, for payment to the purchaser, a sum equal to 5 per cent of the purchase-money, in addition to the amount specified in the proclamation for payment to the decree-holder.
An application to set aside an execution sale of immovable property on the ground of material irregularity or fraud in publishing or conducting the sale is governed by which provision, and on which essential additional ground must it succeed?
aOrder 21 Rule 89; mere deposit of the decretal amount suffices
bOrder 21 Rule 91; the purchaser proves the judgment-debtor had no saleable interest
cOrder 21 Rule 92; the court confirms the sale automatically
dOrder 21 Rule 90; the applicant must show material irregularity or fraud AND that he sustained substantial injury by reason thereof
Answer: D
Order 21 Rule 90 CPC allows a sale to be set aside for material irregularity or fraud in publishing or conducting it, but the sale shall not be set aside unless the applicant proves he has sustained substantial injury by reason of such irregularity or fraud.
After a property has been attached in execution of a decree, the judgment-debtor privately sells it to a third party. As regards claims enforceable under the attachment, the effect of this private transfer under Section 64 CPC is that:
aThe transfer is void as against all claims enforceable under the attachment
bThe transfer is perfectly valid and binds the attaching creditor
cThe transfer is voidable only at the option of the transferee
dThe transfer is valid but the attaching creditor gets a charge over the sale proceeds
Answer: A
Under Section 64(1) CPC, a private transfer of property after attachment is void as against all claims enforceable under the attachment; however, the sub-section (2) saving protects transfers made under a contract entered into and registered before the attachment.
The wages of a labourer and the salary of a government servant are both sought to be attached in execution of an ordinary money decree (not a maintenance decree). Which statement correctly reflects Section 60 CPC?
aBoth are fully attachable like any other movable property
bThe labourer's wages are wholly exempt, while salary is exempt to the extent of the first one thousand rupees and two-thirds of the remainder
cThe labourer's wages are exempt only to one-half, while salary is wholly exempt
dBoth are wholly exempt from attachment in all cases
Answer: B
Under the proviso to Section 60(1) CPC, wages of labourers and domestic servants are wholly exempt, while salary is exempt to the extent of the first Rs. 1,000 and two-thirds of the remainder (in execution of a decree other than one for maintenance).
An agreement in which a judgment-debtor, for valuable consideration, agrees in advance to waive the benefit of the exemptions from attachment available under Section 60 CPC is:
aValid and binding, as the protection is a personal right that may be waived
bValid only if reduced to a registered instrument
cVoid
dValid only with the prior permission of the executing court
Answer: C
The proviso to Section 60(1) CPC expressly declares that an agreement to waive the benefit of any exemption under the section shall be void.
A defendant against whom an ex parte decree has been passed is contemplating his remedies. Which of the following statements regarding his right to appeal is correct under the CPC, 1908?
aNo appeal lies against an ex parte decree; the only remedy is an application to set it aside under Order IX Rule 13
bAn ex parte decree can only be challenged by way of revision under Section 115
cAn appeal lies only after the application to set aside the ex parte decree is dismissed
dAn appeal lies from an ex parte decree under Section 96(2), in addition to the remedy of applying to set it aside
Answer: D
Section 96(2) expressly provides that an appeal may lie from an original decree passed ex parte; this remedy is concurrent with the right to apply for setting aside under Order IX Rule 13.
In a suit, the defendant admits the entire claim and a decree is passed on his consent. He later wishes to appeal. What is the position under Section 96(3) of the CPC?
aNo appeal lies from a decree passed by the court with the consent of parties
bHe may appeal as of right since every decree is appealable
cHe may appeal only with the leave of the appellate court
dHe may appeal only on a question of law
Answer: A
Section 96(3) bars an appeal from a decree passed by the court with the consent of parties, as a consent decree binds the parties by estoppel.
Section 96(4) of the CPC (as amended in 1976) bars a first appeal in certain small-value suits. In which category of suits is the first appeal so restricted (except on a question of law)?
aSuits of the nature cognizable by Courts of Small Causes where the value does not exceed three thousand rupees
bSuits of the nature cognizable by Courts of Small Causes where the value does not exceed ten thousand rupees
cAll money suits not exceeding five thousand rupees
dAll suits triable by a Court of Small Causes irrespective of value
Answer: B
Section 96(4) provides that no appeal (except on a question of law) lies from a decree in any suit of the nature cognizable by Courts of Small Causes when the amount or value of the subject-matter does not exceed ten thousand rupees.
Which of the following best states the scope of a second appeal to the High Court under Section 100 of the CPC after the 1976 amendment?
aA second appeal lies on any error of fact or law apparent on the record
bA second appeal lies on a mere question of law, whether substantial or not
cA second appeal lies only if the case involves a substantial question of law
dA second appeal lies on questions of fact where the lower courts have differed
Answer: C
Section 100(1), as substituted in 1976, allows a second appeal to the High Court only where it is satisfied that the case involves a substantial question of law, which must be precisely formulated under Section 100(4).
In a second appeal, the High Court frames a substantial question of law at the time of admission. At the hearing the High Court finds that another substantial question of law arises. What is the legal position?
aThe High Court cannot consider any question not framed at admission under any circumstances
bThe High Court may decide the appeal on any question of law it considers fit without recording reasons
cOnly the Supreme Court can permit a fresh substantial question of law to be raised
dThe High Court may hear the appeal on any other substantial question of law not formulated, for reasons to be recorded, if it is satisfied such a question is involved
Answer: D
The proviso to Section 100(5) empowers the High Court to hear the appeal on a substantial question of law not formulated at admission, for reasons to be recorded, if satisfied that the case involves such a question.
Where a single judge of a High Court decides a second appeal, can a further appeal (Letters Patent / intra-court appeal) lie from that decision under the CPC?
aNo, Section 100A bars any further appeal from a decision of a single judge in a second appeal
bYes, a further appeal lies as of right to a Division Bench in every case
cA further appeal lies only with a certificate from the single judge
dA further appeal lies only to the Supreme Court directly
Answer: A
Section 100A (as substituted in 2002) provides that notwithstanding any Letters Patent, no further appeal shall lie from the judgment of a single judge of a High Court deciding an appeal.
Under Section 102 of the CPC, no second appeal lies in certain suits. Which suits are covered by this bar?
aSuits where the subject-matter does not exceed twenty-five thousand rupees
bSuits where the subject-matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees
cSuits of a small-cause nature where the value does not exceed three thousand rupees
dSuits cognizable by a Court of Small Causes regardless of value
Answer: B
Section 102, as substituted by the 2002 amendment, bars a second appeal in any suit where the subject-matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees.
In a suit, on the date fixed for hearing only the plaintiff appears and the summons has been duly served on the defendant, but the defendant does not appear. What course is the court empowered to adopt?
aIt must dismiss the suit for default
bIt must adjourn the suit and issue fresh summons
cIt may proceed to hear the suit ex parte
dIt must pass a decree in the plaintiff's favour without any evidence
Answer: C
Under Order 9 Rule 6(1)(a) CPC, where the plaintiff appears and the defendant does not, and the summons was duly served, the court may proceed ex parte; it does not automatically decree the suit, as the plaintiff must still prove the claim.
On the day fixed for the hearing of a suit, neither the plaintiff nor the defendant appears when the suit is called on. What is the consequence under the Code?
aThe suit is decreed ex parte for the plaintiff
bThe court adjourns the suit to the next date
cThe defendant's defence is struck off
dThe court shall make an order that the suit be dismissed
Answer: D
Order 9 Rule 3 CPC provides that where neither party appears when the suit is called on for hearing, the court shall make an order that the suit be dismissed.
A defendant against whom an ex parte decree has been passed applies under Order 9 Rule 13 CPC to set it aside, contending only that there was an irregularity in the service of summons. The court, however, is satisfied that the defendant in fact had notice of the date of hearing and sufficient time to appear. The court should:
aRefuse to set aside the decree merely on the ground of such irregularity
bSet aside the decree because any irregularity in service is fatal
cSet aside the decree only against the applicant and not other defendants in every case
dDirect a retrial without deciding the application
Answer: A
The second proviso to Order 9 Rule 13 CPC bars setting aside an ex parte decree merely on the ground of irregularity in service of summons where the court is satisfied the defendant had notice of the date of hearing and sufficient time to appear and answer.
Where a suit is wholly or partly dismissed under Order 9 Rule 8 CPC because the plaintiff did not appear, the correct remedy of the plaintiff in respect of the dismissed portion is to:
aFile a fresh suit on the same cause of action
bApply under Order 9 Rule 9 to set aside the dismissal showing sufficient cause for non-appearance
cPrefer a first appeal against the dismissal
dFile a review petition before the same court
Answer: B
Order 9 Rule 9 CPC bars a fresh suit on the same cause of action and instead allows the plaintiff to apply for an order to set aside the dismissal by showing sufficient cause for non-appearance.
A defendant who had not appeared earlier applies, before the suit is finally disposed of, to be heard in answer to the suit. Order 9 Rule 7 CPC permits the court to allow him to be heard 'as if he had appeared on the day fixed' only if he shows:
aThat the summons was never served on him
bThat he has a strong defence on merits
cGood cause for his previous non-appearance
dThat no ex parte order has yet been recorded
Answer: C
Order 9 Rule 7 CPC allows a non-appearing defendant to be heard, on terms, only if he assigns good cause for his previous non-appearance; note the standard is 'good cause' (Rule 7) as distinct from 'sufficient cause' under Rule 13.
Under Order 5 Rule 9 CPC (as amended in 2002), where the defendant resides within the jurisdiction of the court in which the suit is instituted, service of summons may also be effected by which of the following modes, in addition to delivery by the court?
aOnly by an officer of the court personally
bOnly by affixation on the court notice board
cOnly through the police of the local area
dBy speed post or approved courier, fax or electronic mail service, among others
Answer: D
Order 5 Rule 9 CPC, after the 2002 amendment, permits service through approved courier, registered/speed post, fax or electronic mail service, in addition to delivery by a court officer.
Under Order XXXVIII Rule 1 CPC, the court may issue a warrant to arrest the defendant before judgment and require security only where, in addition to a prima facie case, the court is satisfied that the defendant, with intent to delay or obstruct the plaintiff's execution, is about to do which of the following?
aLeave the local limits of the court's jurisdiction or abscond/leave India
bSell his immovable property situated within the jurisdiction
cMortgage the suit property to a bona fide purchaser
dTransfer the suit business to a relative
Answer: A
Order XXXVIII Rule 1(b) permits arrest before judgment where the defendant, with intent to obstruct/delay execution, has left or is about to leave the local limits of jurisdiction, or has absconded/left/is about to leave India. Dealing with property falls under attachment (Rule 5), not arrest.
Order XXXVIII Rule 5 CPC empowers a court to direct attachment before judgment where the defendant, to obstruct or delay execution of any decree that may be passed, is about to dispose of or remove his property. What is the essential precondition for granting such attachment before judgment?
aThe plaintiff must deposit security equal to the value of the property
bThe court must require the defendant to furnish security or show cause why he should not, and may direct conditional attachment
cThe defendant must already have been declared a judgment-debtor
dThe suit must be one for recovery of immovable property only
Answer: B
Under Order XXXVIII Rule 5, the court may direct the defendant to furnish security to produce the property or show cause why he should not, and may direct conditional attachment; mere existence of a debt or fear of an empty decree is insufficient (Raman Tech v. Solanki Traders, (2008) 2 SCC 302).
Where property is attached before judgment under Order XXXVIII and the suit is subsequently dismissed, what is the effect on the attachment under the CPC?
aThe attachment continues until a fresh suit is filed
bThe attachment is automatically converted into attachment in execution
cThe attachment ceases / is withdrawn
dThe attachment continues for one year from the date of dismissal
Answer: C
Under Order XXXVIII Rule 9, attachment before judgment is withdrawn when the defendant furnishes the required security with costs, or when the suit is dismissed. Dismissal of the suit brings the attachment to an end.
Order XXXVIII Rule 11 CPC clarifies the position when property already attached before judgment is later sought to be attached again in execution of the decree in the same suit. What does it provide?
aA fresh attachment in execution is mandatory and the earlier attachment lapses
bThe decree-holder must apply afresh and pay process fee for re-attachment
cThe property must be released and re-attached within thirty days
dIt shall not be necessary to re-attach the property in execution of the decree
Answer: D
Order XXXVIII Rule 11 provides that where property is under attachment before judgment and a decree is subsequently passed in favour of the plaintiff, it is not necessary to re-attach the property in execution of that decree.
Order XXXIX Rule 1 CPC permits a temporary injunction to be granted in several specified situations. Which of the following is NOT a ground expressly enumerated in Rule 1 for granting a temporary injunction?
aThe defendant is about to leave the local limits of the court's jurisdiction to delay execution
bProperty in dispute is in danger of being wasted, damaged or alienated by a party
cThe defendant threatens to dispossess the plaintiff or otherwise cause injury in relation to the disputed property
dThe defendant threatens to remove or dispose of his property with a view to defrauding his creditors
Answer: A
Order XXXIX Rule 1 lists three grounds (clauses a, b, c) — property in danger of waste/alienation, dispossession/injury, and removal of property to defraud creditors. A defendant about to leave jurisdiction to delay execution is a ground for arrest/attachment before judgment under Order XXXVIII, not for a temporary injunction.
When a court grants an ex parte temporary injunction under the proviso to Order XXXIX Rule 3 CPC without notice to the opposite party, what does the law mandate the court to do?
aConfirm the injunction within seven days without any further hearing
bRecord reasons for its opinion that the object of granting it would be defeated by delay and require the applicant to serve documents on the opposite party
cObtain prior sanction of the District Judge before passing the order
dDirect the applicant to furnish a bank guarantee for the suit value
Answer: B
The proviso to Order XXXIX Rule 3 requires the court, when granting an ex parte injunction, to record reasons for its opinion that the object would be defeated by delay, and to direct the applicant to deliver a copy of the application, affidavit and plaint to the opposite party (Shiv Kumar Chadha v. MCD, (1993) 3 SCC 161).
Under Section 33 of the Code of Civil Procedure, 1908, what is the correct sequence after a suit has been heard?
aA decree is drawn up first, and the judgment is pronounced thereafter to give reasons for the decree
bThe Court simultaneously pronounces the judgment and the decree as a single composite order
cThe Court pronounces judgment, and on such judgment a decree shall follow
dThe Court passes a decree, and a judgment is optional where the suit is decided on admission
Answer: C
Section 33 provides that the Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow — the judgment precedes and is the foundation of the decree.
Under Section 34 CPC, the ceiling of 'six per cent per annum' on the rate of interest that the Court may award applies to which period?
aInterest for the period prior to the institution of the suit
bPendente lite interest, i.e., from the date of the suit to the date of the decree
cAll three periods uniformly — pre-suit, pendente lite and post-decree
dFurther interest from the date of the decree to the date of payment
Answer: D
The 6% per annum ceiling in Section 34(1) governs only the 'further interest' on the principal sum adjudged from the date of the decree to the date of payment; pendente lite interest is left to such rate as the Court deems reasonable.
A money decree arising out of a commercial transaction is passed. Regarding post-decree 'further interest' under the proviso to Section 34(1) CPC, which statement is correct?
aThe Court may award further interest exceeding six per cent per annum, but it shall not exceed the contractual rate of interest
bThe further interest can never exceed six per cent per annum even for commercial transactions
cThe Court must award the contractual rate without any discretion to reduce it
dThe proviso bars any post-decree interest in commercial transactions
Answer: A
The proviso to Section 34(1) permits post-decree further interest to exceed 6% p.a. where the liability arises out of a commercial transaction, but the rate shall not exceed the contractual rate (or, absent a contract rate, the nationalised bank lending rate).
A money decree is silent as to interest from the date of the decree to the date of payment. What is the consequence under Section 34(2) CPC?
aThe decree-holder may file a separate suit to recover post-decree interest
bWhere the decree is silent as to such further interest, the Court shall be deemed to have refused such interest, and no separate suit lies therefor
cPost-decree interest at 6% is automatically read into the decree by operation of law
dThe executing court must add post-decree interest at the pendente lite rate
Answer: B
Section 34(2) provides that where a decree is silent with respect to the payment of further (post-decree) interest, the Court shall be deemed to have refused such interest, barring a separate suit on that ground.
Q47Suits in special cases & summary suits (O1 R8, interpleader, O37)
In a representative suit under Order 1 Rule 8 CPC, before a person sues or defends on behalf of others having the same interest, what is the mandatory procedural requirement?
aObtain written consent of every person represented
bDeposit security for costs of all represented persons
cGive notice of the institution of the suit to all persons interested, at the plaintiff's expense, by personal service or public advertisement as the court directs
dImplead at least one representative from each interested family
Answer: C
Order 1 Rule 8(2) requires the court, at the plaintiff's expense, to give notice of the institution of the suit to all persons so interested, either by personal service or, where that is not reasonably practicable, by public advertisement. Consent of all is not required; permission of the court suffices.
Q48Suits in special cases & summary suits (O1 R8, interpleader, O37)
A person on whose behalf a representative suit under Order 1 Rule 8 is instituted wishes to participate. What is the correct position?
aHe cannot take part in any manner once a representative is appointed
bHe must file a separate suit and seek consolidation
cHe can only file an objection but cannot become a party
dHe may apply to the court to be made a party to the suit
Answer: D
Order 1 Rule 8(3) expressly provides that any person on whose behalf, or for whose benefit, a suit is instituted or defended under sub-rule (1) may apply to the court to be made a party to such suit.
Q49Suits in special cases & summary suits (O1 R8, interpleader, O37)
In a suit instituted under Order 1 Rule 8 CPC, the plaintiff wishes to abandon part of the claim or compromise the suit. What does the Code require?
aNo such abandonment or compromise shall be allowed without notice being given to the persons so interested in the manner the court directs
bNo notice is needed since the representative has full authority
cThe suit cannot be compromised at all
dOnly the leave of the appellate court is required
Answer: A
Order 1 Rule 8(4) provides that no part of the claim in such a suit shall be abandoned under Rule 1, and no such suit shall be withdrawn under Rule 3 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded, unless notice has been given to the persons interested.
Q50Suits in special cases & summary suits (O1 R8, interpleader, O37)
Which of the following is the essential condition for invoking Order 1 Rule 8 CPC for a representative suit?
aThe numerous persons must have separate and conflicting interests
bThe numerous persons must have the same interest in one suit
cAll persons must reside in the same district
dThere must be at least one hundred interested persons
Answer: B
Order 1 Rule 8(1) permits one or more persons to sue or defend on behalf of all where numerous persons have 'the same interest' in one suit. Sameness of interest, not number alone, is the touchstone (commonality of interest in the relief claimed).
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