Code of Civil Procedure, 1908 Test 3 — Questions & Solutions
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Q1Jurisdiction, res judicata & res sub judice (S9–14, 21)
Regarding the relationship between res judicata under Section 11 of the CPC and the dismissal of a writ petition under Article 32 or 226, which proposition is correct as laid down by the Supreme Court?
aThe general principle of res judicata applies to writ petitions, so dismissal of a writ on merits bars a subsequent petition on the same matter
bRes judicata under Section 11 has no application whatsoever to writ proceedings under Articles 32 and 226
cA writ petition under Article 32 dismissed in limine without a speaking order always operates as res judicata
dOnly the technical provisions of Section 11 (and not its general principle) apply to writ petitions
Answer: A
In Daryao v. State of U.P., AIR 1961 SC 1457, the Supreme Court held the general principle of res judicata applies to writ petitions; a petition dismissed on merits by a High Court under Article 226 bars a fresh petition (including under Article 32) on the same matter, but a dismissal in limine without a speaking order does not.
Q2Jurisdiction, res judicata & res sub judice (S9–14, 21)
A worshipper sues to establish his right to a hereditary office of priest in a temple. The defendant argues the dispute turns purely on questions of religious rites and that no emoluments are attached to the office, so a civil court has no jurisdiction. Under Section 9 CPC, the suit is:
aNot maintainable, because adjudicating religious rites is barred
bMaintainable, as a suit of a civil nature, since the right to an office is in contest
cMaintainable only if fees are attached to the office
dMaintainable only before a religious tribunal, not a civil court
Answer: B
Explanation I to Section 9 makes a suit contesting a right to an office one of a civil nature even if it depends on religious rites, and Explanation II provides it is immaterial whether fees are attached to the office.
Q3Jurisdiction, res judicata & res sub judice (S9–14, 21)
Regarding the exclusion of civil court jurisdiction under Section 9 CPC, which statement is most accurate?
aJurisdiction can be excluded only by express statutory words, never by implication
bExclusion of jurisdiction is readily presumed and the burden lies on the party asserting jurisdiction
cExclusion of civil court jurisdiction is not to be readily inferred, and such exclusion must be either explicitly expressed or clearly implied
dA civil court can never examine whether a statutory tribunal acted within its powers once jurisdiction is ousted
Answer: C
Section 9 confers jurisdiction over all suits of a civil nature unless cognizance is expressly or impliedly barred; courts hold that ouster is never to be readily inferred and the burden lies on the party pleading the bar.
Q4Jurisdiction, res judicata & res sub judice (S9–14, 21)
Suit A is instituted in Delhi; later Suit B between the same parties, on the same matter directly and substantially in issue, is filed in Mumbai. The defendant in Suit B invokes Section 10 CPC. The correct effect of Section 10 is that the court in Suit B must:
aDismiss Suit B as barred
bStay the trial of Suit A (the earlier suit)
cConsolidate both suits compulsorily
dStay the trial of Suit B (the later suit), not Suit A
Answer: D
Section 10 bars the court from proceeding with the trial of the subsequently instituted suit where the matter is directly and substantially in issue in a previously instituted suit between the same parties; it stays trial, it does not dismiss.
Q5Jurisdiction, res judicata & res sub judice (S9–14, 21)
Which of the following is NOT an essential condition for the application of the bar under Section 10 CPC (res sub judice)?
aThe two suits seek identical reliefs in identical amounts
bThe matter in issue in both suits is directly and substantially the same
cBoth suits are between the same parties or those claiming under them litigating under the same title
dThe previously instituted suit is pending in a competent court
Answer: A
Section 10 requires the same matter directly and substantially in issue, same parties under the same title, and a pending prior suit in a competent court; identity of reliefs claimed is not a statutory condition.
Q6Jurisdiction, res judicata & res sub judice (S9–14, 21)
While the trial of a suit is stayed under Section 10 CPC, can the court pass interim orders such as an injunction or attachment before judgment in that stayed suit?
aNo, the stay operates as a total bar on every order in the suit
bYes, because Section 10 bars only the trial of the suit, not interim or interlocutory orders
cOnly with the written consent of both parties
dOnly the appellate court may grant interim relief in a stayed suit
Answer: B
Section 10 prohibits only proceeding with the 'trial' of the later suit; it does not prevent the court from passing interlocutory orders such as injunctions or attachment before judgment.
Q7Jurisdiction, res judicata & res sub judice (S9–14, 21)
The essence of the 'directly and substantially in issue' requirement for res judicata under Section 11 CPC, as distinguished from a matter merely collaterally or incidentally in issue, is that:
aA matter collaterally or incidentally in issue can also found a plea of res judicata
bAny finding recorded in the prior judgment, however incidental, is binding
cOnly a matter directly and substantially in issue, heard and finally decided, operates as res judicata; collateral findings do not
dRes judicata applies only to matters that were never actually contested
Answer: C
Section 11 bars re-litigation only of a matter that was directly and substantially in issue and heard and finally decided in the former suit; matters merely collaterally or incidentally in issue do not attract the bar.
Q8Institution of suits, parties, frame of suit, pleadings (O1–O8)
A landlord whose property is occupied by a tenant seeks possession only against the tenant, while the question of title turns on a third person who claims ownership. Under which test is that third person a 'necessary party' whose non-joinder is fatal?
aIt is enough that the person has some interest, however remote, in the subject-matter
bAny person likely to be affected commercially by the outcome is necessary
cA person is necessary only if the plaintiff voluntarily chooses to implead him
dThe person must be one in whose absence no effective decree can be passed AND against whom a right to relief is claimed
Answer: D
The settled twin test (e.g., Kasturi v. Iyyamperumal) for a necessary party is that there must be a right to some relief against him in respect of the controversy, and the court cannot pass an effective decree in his absence.
Q9Institution of suits, parties, frame of suit, pleadings (O1–O8)
Numerous villagers having a common interest in a village tank wish to sue to protect it through a few representatives. Which requirement under Order 1 Rule 8 CPC is correctly stated?
aPermission or direction of the court is required, and notice of the suit must be given to all persons so interested
bAll interested persons must individually sign and verify the plaint
cNo notice to other interested persons is necessary as long as the representatives act in good faith
dA representative suit can be filed only where the interested persons exceed one hundred
Answer: A
Order 1 Rule 8 permits one or more persons with the same interest, with the court's permission or direction, to sue on behalf of all, and the court must give notice of the institution of the suit to all persons so interested.
Q10Institution of suits, parties, frame of suit, pleadings (O1–O8)
During the pendency of a suit the court finds that a person who ought to have been joined is not before it. Regarding the court's power to add parties under Order 1 Rule 10(2), which statement is correct?
aThe court can add parties only on a written application by the plaintiff and never on its own motion
bThe court may, at any stage and even of its own motion, strike out or add any party whose presence is necessary to effectually adjudicate the questions involved
cParties can be added only before the framing of issues and never thereafter
dThe court may add a defendant only with the consent of the existing defendants
Answer: B
Order 1 Rule 10(2) empowers the court, at any stage of the proceedings and either on application or suo motu, to strike out or add any party whose presence is necessary to enable it to effectually and completely adjudicate upon the questions involved.
Q11Institution of suits, parties, frame of suit, pleadings (O1–O8)
A plaintiff entitled to claim Rs. 1,20,000 deliberately sues only for Rs. 90,000 to bring the suit within a court's pecuniary jurisdiction, without reserving any right. Can he later sue for the balance Rs. 30,000 under Order 2 Rule 2 CPC?
aYes, because relinquishment to obtain jurisdiction always preserves the omitted portion
bYes, but only if the second court has higher pecuniary jurisdiction
cNo, having relinquished part of the claim arising from one cause of action he is barred from suing for the omitted portion
dNo, but he may recover the balance through execution of the first decree
Answer: C
Order 2 Rule 2(1)-(2) requires the whole claim from one cause of action to be included; a plaintiff who omits or relinquishes a portion of that claim shall not afterwards sue for the portion so relinquished.
Q12Institution of suits, parties, frame of suit, pleadings (O1–O8)
A plaintiff entitled to two distinct reliefs (a money decree and a declaration) arising from the same cause of action sues only for the money. Under Order 2 Rule 2(3) CPC, when may he later sue for the declaration?
aWhenever the limitation period for the second relief has not expired
bAutomatically, since omission of one of several reliefs is never barred
cOnly if the defendant consents to the second suit
dOnly if he had obtained the leave of the court in the first suit before omitting that relief
Answer: D
Order 2 Rule 2(3) bars a later suit for an omitted relief arising from the same cause of action unless the plaintiff obtained the leave of the court in the earlier suit; this is distinct from relinquishment of part of the claim under Rule 2(2).
Q13Institution of suits, parties, frame of suit, pleadings (O1–O8)
Which of the following is the most accurate statement of the fundamental rule of pleadings reflected in Order 6 Rule 2 CPC?
aEvery pleading shall contain a statement in concise form of the material facts, but not the evidence by which they are to be proved
bPleadings must set out the evidence by which the material facts are to be proved
cPleadings may contain points of law but must omit all facts
dA plaint need only state the relief; facts are introduced for the first time at trial
Answer: A
Order 6 Rule 2 requires every pleading to contain only a statement in a concise form of the material facts on which the party relies, and not the evidence by which they are to be proved (facta probanda, not facta probantia).
Q14Institution of suits, parties, frame of suit, pleadings (O1–O8)
After the trial has commenced, a party applies to amend its pleadings under Order 6 Rule 17 CPC (as amended in 2002). What is the correct legal position?
aNo amendment can be allowed once the suit is instituted
bNo application for amendment shall be allowed after trial has commenced unless the court concludes that, in spite of due diligence, the matter could not have been raised earlier
cThe amendment must be allowed as a matter of right at any stage
dAmendment after commencement of trial is permitted only with the opposite party's written consent
Answer: B
The proviso to Order 6 Rule 17 (inserted by Act 22 of 2002) bars amendment after commencement of trial unless the court is satisfied that the party, despite due diligence, could not have raised the matter before trial began.
Q15Institution of suits, parties, frame of suit, pleadings (O1–O8)
Where a party pleads fraud, misrepresentation, breach of trust, or undue influence, Order 6 Rule 4 CPC requires that:
aOnly a bare allegation of fraud is sufficient; particulars are matters of evidence
bSuch matters can be raised for the first time during cross-examination
cParticulars (with dates and items where necessary) of such matters must be stated in the pleading
dSuch allegations need not be pleaded if they are obvious from the documents
Answer: C
Order 6 Rule 4 mandates that in cases of misrepresentation, fraud, breach of trust, wilful default, or undue influence, particulars (with dates and items if necessary) must be stated in the pleading beyond a general allegation.
Which of the following is NOT a recognised mode of executing a decree under Section 51 of the CPC?
aBy delivery of any property specifically decreed
bBy attachment and sale or by sale without attachment of any property
cBy arrest and detention in prison of the judgment-debtor
dBy forfeiture of the judgment-debtor's right to vote in elections
Answer: D
Section 51 enumerates the modes of execution: delivery of property, attachment and sale, arrest and detention, appointing a receiver, or such other manner as the nature of relief requires; forfeiture of voting rights is not among them.
Before ordering arrest and detention of a judgment-debtor in execution of a money decree, the court must, by the proviso to Section 51, be satisfied of one of certain conditions. Which of the following is such a condition?
aThat the judgment-debtor, having the means to pay, has refused or neglected to pay the decretal amount
bThat the judgment-debtor is a habitual defaulter in other matters
cThat the decree-holder has no other property to attach
dThat the decretal amount exceeds two thousand rupees
Answer: A
The proviso to Section 51 bars arrest unless the court records reasons that, among other grounds, the judgment-debtor has had the means to pay since the date of the decree and has refused or neglected to pay.
In Jolly George Varghese v. Bank of Cochin (1980), the Supreme Court held with respect to arrest and detention of a judgment-debtor for non-payment of a money decree that:
aImprisonment for a contractual debt is wholly unconstitutional in all circumstances
bMere inability to pay, without any element of bad faith or dishonest refusal, cannot justify detention in civil prison
cA judgment-debtor can be detained automatically once the decree remains unsatisfied for thirty days
dThe maximum period of detention for any money decree is six months
Answer: B
In Jolly George Varghese, the Court, reading Section 51 with Article 11 of the ICCPR, held that detention requires proof of dishonest or contumacious refusal to pay despite means; mere inability to pay does not warrant civil imprisonment.
Under Section 60 of the CPC, which of the following is liable to attachment and sale in execution of a decree?
aStipends and gratuities allowed to pensioners of the Government
bThe wages of a labourer or domestic servant
cMoney or other property belonging to the judgment-debtor over which he has a disposing power
dHouses and other buildings belonging to and occupied by an agriculturist
Answer: C
Section 60(1) makes attachable all property over which the judgment-debtor has a disposing power for his own benefit; the items in (a), (c) and (d) are expressly exempted under the proviso to Section 60(1).
An application for execution of a decree (other than one for a mandatory injunction) is governed for limitation by the Limitation Act, 1963. What is the period and the point from which it runs for execution?
aThree years from the date of the decree only
bSix years from the date of the original decree only
cOne year from the date of the decree
dTwelve years from the date the decree becomes enforceable
Answer: D
Under Article 136 of the Limitation Act, 1963, the period for execution of a decree (other than a mandatory injunction) is twelve years from when the decree becomes enforceable.
Order 21 Rule 2 deals with payment or adjustment of a decree out of court. What is the consequence if such a payment or adjustment is not certified or recorded?
aSuch payment or adjustment shall not be recognised by any court executing the decree
bThe court shall presume the decree fully satisfied
cThe decree-holder is liable to be prosecuted for fraud
dThe judgment-debtor may file a separate suit to enforce the adjustment
Answer: A
Order 21 Rule 2(3) provides that a payment or adjustment which has not been certified or recorded as required shall not be recognised by any court executing the decree.
Order 21 Rule 22 requires that notice be issued to the judgment-debtor before execution proceeds in certain situations. Notice is mandatory where execution is sought:
aImmediately, in every application for execution regardless of time
bWhere the application is made more than two years after the date of the decree, or against the legal representative of a deceased party
cOnly where the decree is for a sum exceeding ten thousand rupees
dOnly where arrest of the judgment-debtor is sought
Answer: B
Order 21 Rule 22(1) requires the executing court to issue a show-cause notice where execution is applied for more than two years after the decree, or against the legal representative of a deceased judgment-debtor (and certain assignees).
Order 21 Rule 58 governs adjudication of claims to, or objections against, attachment of property. After the 1976 amendment, what is the effect of an order made on such a claim or objection?
aIt is open to challenge only by a separate suit, and no appeal lies
bIt is merely an interlocutory direction with no finality
cIt shall have the same force as a decree and is appealable; no separate suit lies to set it aside
dIt can be challenged only in revision before the High Court
Answer: C
Post-1976, Order 21 Rule 58(4) provides that an order adjudicating a claim/objection has the force of a decree and bars a separate suit; such order is treated as appealable, ending the earlier 'file a suit' regime.
In Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, the Supreme Court laid down an important principle concerning a decree passed by a court lacking pecuniary jurisdiction, challenged in appeal. Which principle was affirmed?
aAn objection as to pecuniary or territorial jurisdiction can be raised at any stage even without prejudice
bA consent decree is always void if the court lacked territorial jurisdiction
cA second appeal lies on a pure question of fact regarding valuation
dA decree passed without inherent jurisdiction is a nullity and its invalidity can be set up even in collateral proceedings
Answer: D
In Kiran Singh v. Chaman Paswan the Supreme Court held that a decree passed by a court without inherent jurisdiction is a nullity that can be challenged at any stage including in collateral proceedings, while objections as to pecuniary/territorial jurisdiction (Section 21) require proof of prejudice and failure of justice.
A civil court passes a decree strictly in terms of a compromise lawfully arrived at between the parties. One party, later regretting the bargain, wishes to challenge the decree. Which of the following correctly states the position under the CPC?
aNo appeal lies from the consent decree under Section 96(3); the proper remedy is to question the compromise before the same court
bAn appeal lies as a matter of right under Section 96(1), the compromise notwithstanding
cAn appeal lies only with the leave of the appellate court under Section 96(2)
dNo appeal lies, and even the trial court cannot examine the validity of the compromise
Answer: A
Section 96(3) CPC bars any appeal from a decree passed with the consent of parties; the validity of the compromise itself is to be raised before the court that recorded it (Order 23 Rule 3 proviso), not by way of appeal.
In a suit of a nature cognisable by a Court of Small Causes where the value of the subject-matter of the original suit is Rs. 8,000, an aggrieved party seeks to appeal the decree purely on a finding of fact. What is the correct position under Section 96(4)?
aAn appeal lies on both questions of fact and law since every decree is appealable
bNo appeal lies except on a question of law
cNo appeal lies at all from such a decree
dAn appeal lies only with the leave of the High Court
Answer: B
Section 96(4) bars appeals, except on a question of law, from a decree in any suit of small-cause nature where the value of the original suit does not exceed Rs. 10,000; a pure factual challenge is therefore not maintainable.
A defendant against whom an ex parte decree has been passed wishes to challenge it. Which statement best reflects the remedies available under the CPC?
aHe may only apply under Order 9 Rule 13 to set aside the decree; no appeal lies
bHe may only file an appeal under Section 96(2); the Order 9 Rule 13 remedy is barred
cHe may file an appeal under Section 96(2), and/or apply under Order 9 Rule 13 to set the decree aside
dHe has no remedy because an ex parte decree is final and conclusive
Answer: C
Section 96(2) expressly permits an appeal from an original decree passed ex parte; this remedy is concurrent with (not exclusive of) the application to set aside the decree under Order 9 Rule 13.
A party aggrieved by a preliminary decree does not appeal against it. Subsequently, a final decree is drawn up and the party files an appeal from the final decree, seeking to dispute the correctness of the preliminary decree. What is the consequence under Section 97?
aHe may freely challenge the preliminary decree in the appeal from the final decree
bHe may challenge the preliminary decree only with leave of the appellate court
cThe appeal from the final decree is not maintainable at all
dHe is precluded from disputing the correctness of the preliminary decree in the appeal from the final decree
Answer: D
Section 97 provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal preferred from the final decree.
Which of the following is the indispensable jurisdictional precondition for the hearing of a second appeal by a High Court under Section 100 CPC, as affirmed in Santosh Hazari v. Purushottam Tiwari (2001)?
aThe High Court must be satisfied that the case involves, and must formulate, a substantial question of law
bThe decree appealed must exceed a pecuniary value of Rs. 1,00,000
cThe lower appellate court must have certified the case as fit for second appeal
dThe appeal must involve a question of fact of general public importance
Answer: A
Under amended Section 100, a second appeal lies only if the case involves a substantial question of law which the High Court must formulate; in Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 the Supreme Court held this is the sine qua non, and hearing without formulating it is illegal.
An appeal from an original decree is heard and decided by a single Judge of a High Court. A party seeks to file a Letters Patent Appeal to a Division Bench of the same High Court. What is the position under Section 100A CPC?
aA Letters Patent Appeal lies as of right to the Division Bench
bNo further appeal lies from the judgment and decree of the single Judge, notwithstanding any Letters Patent
cA Letters Patent Appeal lies only if the single Judge grants a certificate of fitness
dA further appeal lies directly to the Supreme Court without leave
Answer: B
Section 100A (as substituted by the 2002 amendment) bars any further (Letters Patent) appeal where an appeal from an original or appellate decree/order has been heard and decided by a single Judge of a High Court, notwithstanding anything in any Letters Patent.
Order 18 Rule 4(1) CPC, as substituted by the CPC (Amendment) Act, 2002 and upheld in Salem Advocate Bar Association v. Union of India, provides that in every case the examination-in-chief of a witness shall be:
aRecorded orally by the presiding judge
bDispensed with where pleadings are verified
cOn affidavit, with copies supplied to the opposite party
dTaken only after cross-examination is concluded
Answer: C
Order 18 Rule 4(1) CPC requires that the examination-in-chief of a witness be on affidavit with copies supplied to the opposite party; this amendment was upheld in Salem Advocate Bar Association v. Union of India (2005) 6 SCC 344.
Under Order 18 Rule 2 CPC, in a suit where issues have been framed, which party has the right to begin at the hearing?
aAlways the defendant
bWhichever party the court chooses by lot
cThe plaintiff in every case without exception
dThe party on whom the burden of proof of the first issue lies, but the plaintiff has the right to begin unless the defendant admits the facts alleged and contends he is not liable in law
Answer: D
Order 18 Rule 1 CPC gives the plaintiff the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that on those facts the plaintiff is not entitled to relief, in which case the defendant begins; the right to begin follows the burden of proof.
During the trial, where any question put to a witness is objected to and the court allows the question to be put, Order 18 Rule 4 read with Rule 11 CPC requires the court to:
aTake down the question, the answer, the objection and the name of the person objecting
bStop the examination of that witness immediately
cRefer the objection to the High Court before proceeding
dDisregard the answer entirely
Answer: A
Order 18 Rule 11 CPC provides that where a question put to a witness is objected to and the court allows it, the court shall take down the question, the answer, the objection and the name of the person objecting.
On the date fixed for hearing, only the plaintiff appears and the defendant is absent. The court finds that the summons was duly served on the defendant. Under Order IX, what may the court do?
aDismiss the suit for default of the defendant
bMake an order that the suit be heard ex parte
cAdjourn the suit and issue fresh summons at the plaintiff's cost
dPass a decree on admission against the plaintiff
Answer: B
Under Order IX Rule 6(1)(a), where the defendant does not appear though the summons was duly served, the court may order that the suit be heard ex parte.
A suit is dismissed under Order IX Rule 8 because the plaintiff did not appear when the suit was called for hearing while the defendant appeared and did not admit the claim. What is the consequence regarding a fresh suit?
aThe plaintiff may bring a fresh suit on the same cause of action freely
bThe dismissal operates as res judicata and bars even an application to restore
cThe plaintiff is precluded from bringing a fresh suit on the same cause of action, but may apply to set aside the dismissal
dA fresh suit is barred only if the defendant consents to the dismissal
Answer: C
Order IX Rule 9(1) bars a fresh suit on the same cause of action after dismissal under Rule 8, but allows the plaintiff to apply for an order to set aside the dismissal on showing sufficient cause for non-appearance.
An ex parte decree is passed against the defendant. He applies under Order IX Rule 13 to set it aside. On which of the following grounds must the court set aside the decree?
aOnly that the defendant has a strong case on merits
bThat the plaintiff obtained the decree by fraud, and on no other ground
cThat the decree was passed without framing issues
dThat the summons was not duly served, OR that he was prevented by sufficient cause from appearing
Answer: D
Order IX Rule 13 empowers the court to set aside an ex parte decree where the defendant satisfies it 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.
In Raman Tech. & Process Engg. Co. v. Solanki Traders, (2008) 2 SCC 302, the Supreme Court characterised the power of attachment before judgment under Order XXXVIII Rule 5 CPC as:
aA drastic and extraordinary power, not to be exercised mechanically or merely because the defendant may be unable to pay
bA routine interim measure to be granted whenever a money suit is filed
cAvailable only against companies and not individuals
dExercisable only after the plaintiff obtains a money decree
Answer: A
In Raman Tech v. Solanki Traders, (2008) 2 SCC 302, the Court held that attachment before judgment under Order XXXVIII Rule 5 is a drastic and extraordinary power requiring strict proof of the defendant's intent to defeat the decree; it is not to be granted mechanically or merely on apprehension of an empty decree.
Order XXXIX Rule 4 CPC deals with the discharge, variation or setting aside of a temporary injunction. Where an order for injunction was obtained by the applicant by knowingly making a false or misleading statement in relation to a material particular and the injunction was granted without notice, what does the rule provide?
aThe court must merely warn the applicant and continue the injunction
bThe court shall vacate the injunction unless, for reasons to be recorded, it considers it not necessary to do so in the interests of justice
cThe injunction can only be modified, never vacated, until final disposal
dThe matter must be referred to the High Court for vacation of the injunction
Answer: B
The proviso to Order XXXIX Rule 4 provides that where an ex parte injunction was obtained by the applicant through a knowingly false or misleading statement on a material particular, the court shall vacate the injunction unless, for reasons to be recorded, it considers it not necessary so to do in the interests of justice.
Order XXXVIII Rule 8 CPC provides for adjudication of claims to property attached before judgment by a person other than the defendant. How are such claims and objections to be determined?
aBy a separate suit which the claimant must file within thirty days
bOnly after the main suit is finally decided on merits
cIn the manner provided for the adjudication of claims to property attached in execution of a decree for money
dBy referring the claimant to the criminal court having jurisdiction
Answer: C
Order XXXVIII Rule 8 provides that where a claim is preferred to property attached before judgment, such claim shall be adjudicated upon in the manner provided for the adjudication of claims to property attached in execution of a decree for the payment of money.
Under Order 38 Rule 5 CPC, a court may direct a defendant to furnish security for attachment before judgment only where it is satisfied that the defendant is about to dispose of or remove his property. What additional ingredient must the plaintiff establish for such an order to be valid?
aThat the defendant has already been served with summons in the suit
bThat the plaintiff has deposited an amount equal to the claim as security
cThat the defendant resides outside the local limits of the court's jurisdiction
dThat the disposal or removal is being done with intent to obstruct or delay the execution of any decree that may be passed
Answer: D
Order 38 Rule 5 requires not merely disposal/removal of property but that it be done with intent to obstruct or delay execution of a decree; mere transfer is insufficient (Raman Tech & Process Engg. Co. v. Solanki Traders, (2008) 2 SCC 302).
X obtains an attachment before judgment of Y's property under Order 38 and subsequently obtains a decree against Y. When X applies for execution, what is the position regarding the attached property?
aIt is not necessary to apply for re-attachment of the property in execution of the decree
bThe attachment lapses automatically and the property must be re-attached in execution
cX must apply afresh for attachment within thirty days of the decree
dThe attachment converts into a charge requiring a separate suit to enforce
Answer: A
Order 38 Rule 11 provides that where property is under attachment before judgment and a decree is passed in favour of the plaintiff, it is not necessary to apply for re-attachment in execution of that decree.
Order 39 Rule 1 CPC sets out the grounds for granting a temporary injunction. Which of the following is NOT one of the grounds enumerated in Rule 1?
aProperty in dispute is in danger of being wasted, damaged or alienated by a party, or wrongfully sold in execution of a decree
bThe defendant has filed a written statement raising a counter-claim exceeding the plaintiff's claim
cThe defendant threatens to dispossess the plaintiff or otherwise cause injury in relation to property in dispute
dThe defendant threatens to remove or dispose of his property with a view to defrauding his creditors
Answer: B
Order 39 Rule 1 lists three grounds—property in danger of waste/alienation/wrongful sale, fraudulent disposal to defraud creditors, and threatened dispossession/injury. The filing of a counter-claim is not a ground for temporary injunction.
Under Section 35(2) CPC, the general rule is that 'costs follow the event'. What must the Court do if it directs that costs shall not follow the event?
aObtain the prior sanction of the High Court
bRefer the question of costs to a taxation officer
cRecord its reasons in writing
dAwait an application from the successful party
Answer: C
Section 35(2) provides that costs shall follow the event, and where the Court directs that any costs shall not follow the event, it shall state its reasons in writing.
In Balraj Taneja v. Sunil Madan (1999), the Supreme Court held that even when a defendant fails to file a written statement, the judgment passed must:
aBe a mere one-line order decreeing the suit, since the facts are deemed admitted
bBe deferred until the defendant is given a fresh opportunity to file the written statement
cBe confined only to the relief of costs and not the substantive claim
dBe a reasoned judgment conforming to Section 2(9) read with Order 20 Rule 4(2) CPC, containing points for determination, the decision and reasons
Answer: D
In Balraj Taneja v. Sunil Madan, the Supreme Court held that a judgment even under Order 8 Rule 10 must satisfy Section 2(9) and Order 20 Rule 4(2) — stating the points for determination, the decision and the reasons — and cannot be a mechanical, unreasoned decree.
Explanation II to Section 34 CPC clarifies the meaning of 'commercial transaction'. A transaction is a 'commercial transaction' under this Explanation if it is connected with:
aThe industry, trade or business of the party incurring the liability
bAny transaction in which a nationalised bank is a party, irrespective of purpose
cOnly import or export transactions in foreign currency
dAny transaction in which the amount in dispute exceeds rupees one lakh
Answer: A
Explanation II to Section 34 defines a 'commercial transaction' as one connected with the industry, trade or business of the party incurring the liability — this characterisation triggers the proviso permitting post-decree interest above 6%.
The post-decree 'further interest' under Section 34(1) CPC runs from the date of the decree:
aUp to a maximum of three years only, after which it ceases by law
bUp to the date of payment, or to such earlier date as the Court thinks fit
cOnly until the decree is put into execution
dUp to the date of payment, with no power in the Court to fix an earlier terminal date
Answer: B
Section 34(1) provides that further interest runs on the principal sum adjudged from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit, giving the Court discretion over the terminal date.
Q47Suits in special cases & summary suits (O1 R8, interpleader, O37)
Order 37 (summary procedure) CPC, in its present form, applies to suits upon which of the following classes of claims?
aSuits for specific performance and injunction
bSuits for partition and accounts
cSuits upon bills of exchange, hundis and promissory notes, and suits to recover a debt or liquidated demand in money arising on a written contract, enactment, or guarantee
dSuits for recovery of unliquidated damages in tort
Answer: C
Order 37 Rule 1(2) applies summary procedure to suits upon bills of exchange, hundis and promissory notes, and to suits in which the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant arising on a written contract, on an enactment (where the sum is fixed or a debt other than a penalty), or on a guarantee in respect of such debt or liquidated demand.
Q48Suits in special cases & summary suits (O1 R8, interpleader, O37)
In a summary suit under Order 37, within what period must the defendant enter an appearance after service of the summons?
aThirty days from service of summons
bSixty days from service of summons
cWithin seven days of the summons for judgment
dTen days from service of the summons of the suit (i.e., the summons of institution)
Answer: D
Under Order 37 Rule 2(3), the defendant must, within ten days from service of the summons of the suit, enter an appearance; in default, the allegations in the plaint are deemed admitted and the plaintiff is entitled to a decree.
Q49Suits in special cases & summary suits (O1 R8, interpleader, O37)
In a summary suit, after the defendant enters appearance, within what time must the plaintiff serve a summons for judgment, and within what time must the defendant apply for leave to defend?
aPlaintiff serves summons for judgment after appearance; the defendant must apply for leave to defend within ten days of service of such summons for judgment
bThe defendant must apply for leave to defend within thirty days of appearance
cThe defendant must apply for leave to defend within ten days of entering appearance
dThe defendant has no fixed period and may apply any time before decree
Answer: A
Under Order 37 Rule 3(5), the defendant may, within ten days from service of the summons for judgment, apply for leave to defend, supported by affidavit disclosing facts deemed sufficient to entitle him to defend.
Q50Suits in special cases & summary suits (O1 R8, interpleader, O37)
The principles governing the grant of leave to defend in summary suits were authoritatively restated by the Supreme Court in which case?
aSalem Advocate Bar Association v. Union of India
bIDBI Trusteeship Services Ltd. v. Hubtown Ltd. (2017)
cBooz Allen & Hamilton v. SBI Home Finance
dT. Arivandandam v. T.V. Satyapal
Answer: B
In IDBI Trusteeship Services Ltd. v. Hubtown Ltd., (2017) 1 SCC 568, the Supreme Court reformulated the principles from Mechelec Engineers regarding when unconditional leave, conditional leave, or refusal of leave to defend is appropriate under Order 37.
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