Code of Civil Procedure, 1908 Test 4 — Questions & Solutions
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Q1Jurisdiction, res judicata & res sub judice (S9–14, 21)
In a suit on a mortgage, the defendant could have pleaded that the mortgage deed was a forgery but chose not to. After losing, he files a fresh suit raising forgery of the same deed. The most precise basis for barring the second plea is:
aExplanation IV to Section 11 — constructive res judicata
bSection 10 (res sub judice)
cSection 21 — objection to place of suing
dOrder II Rule 2 — splitting of claims
Answer: A
Explanation IV to Section 11 deems any matter which 'might and ought' to have been made a ground of attack or defence in the former suit to have been directly and substantially in issue, embodying constructive res judicata.
Q2Jurisdiction, res judicata & res sub judice (S9–14, 21)
A tenant's earlier suit was decided on the footing that certain premises fell within the Rent Act; in a later suit the question whether such premises are legally governed by the Act — a pure question of law going to the court's jurisdiction — arises again. Following Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy (1970), the earlier decision:
aOperates as res judicata and conclusively settles the legal question
bDoes not operate as res judicata, since a pure question of law touching jurisdiction is not barred by an erroneous earlier view
cOperates as res judicata only between those particular parties
dOperates as res judicata because all findings, legal or factual, are final
Answer: B
In Mathura Prasad v. Dossibai (AIR 1971 SC 2355) the Supreme Court held that an erroneous decision on a pure question of law, especially one relating to jurisdiction, does not operate as res judicata, since a rule of procedure cannot confer jurisdiction the court lacks.
Q3Jurisdiction, res judicata & res sub judice (S9–14, 21)
Explanation VIII to Section 11 CPC, inserted by the 1976 Amendment, clarifies that a decision operates as res judicata even where:
aThe parties in the two suits are wholly different
bThe former matter was only collaterally in issue
cThe former court was a court of limited jurisdiction not competent to try the subsequent suit, provided it was competent to decide that issue
dThe former suit was withdrawn without leave
Answer: C
Explanation VIII provides that an issue heard and finally decided by a court of limited jurisdiction competent to decide that issue operates as res judicata in a subsequent suit, even though that limited court was not competent to try the subsequent suit.
Q4Jurisdiction, res judicata & res sub judice (S9–14, 21)
A writ petition under Article 226 challenging an order is dismissed by the High Court on merits by a speaking order. The petitioner then files a petition under Article 32 of the Constitution on the same facts. Per Daryao v. State of U.P. (1961):
aRes judicata can never apply to constitutional writ petitions
bThe Article 32 petition is maintainable because Section 11 CPC applies only to suits
cRes judicata applies only if the earlier petition was dismissed in limine
dThe Article 32 petition is barred by res judicata, since the earlier dismissal was on merits by a speaking order
Answer: D
In Daryao v. State of U.P. (AIR 1961 SC 1457) the Supreme Court held that the general principle of res judicata applies to writ petitions; a prior Article 226 dismissal on merits by a speaking order bars a subsequent Article 32 petition on the same matter.
Q5Jurisdiction, res judicata & res sub judice (S9–14, 21)
A foreign court passed a money decree against an Indian defendant who was never served and never appeared, the decree being passed simply for default of appearance. In an Indian suit to enforce it, the most apt ground to deny conclusiveness under Section 13 CPC is that the judgment:
aWas not given on the merits of the case — clause (b)
bWas founded on an incorrect view of international law — clause (c)
cSustains a claim founded on a breach of an Indian law — clause (f)
dWas obtained by fraud — clause (e)
Answer: A
A decree passed merely by default of appearance, without adjudication on the truth of the claim, is not 'on the merits' and is therefore not conclusive under Section 13(b) CPC.
Q6Jurisdiction, res judicata & res sub judice (S9–14, 21)
Which of the following is NOT one of the six exceptions in Section 13 CPC that render a foreign judgment inconclusive?
aWhere it has not been pronounced by a court of competent jurisdiction
bWhere the defendant has not appealed the foreign judgment within the foreign limitation period
cWhere it has been obtained by fraud
dWhere the proceedings are opposed to natural justice
Answer: B
Section 13's six exceptions are want of competent jurisdiction, not on merits, incorrect view of international law/refusal to recognise Indian law, breach of natural justice, fraud, and a claim founded on breach of an Indian law; failure to appeal abroad is not among them.
Q7Jurisdiction, res judicata & res sub judice (S9–14, 21)
Section 14 CPC provides that, on production of a certified copy of a foreign judgment, the court shall presume:
aThat the judgment is on the merits of the case
bThat the foreign court correctly applied Indian law
cThat the judgment was pronounced by a court of competent jurisdiction, unless the contrary appears on the record or is proved
dThat the judgment is conclusive and not open to any challenge
Answer: C
Section 14 raises a rebuttable presumption that a foreign judgment, on production of a certified copy, was pronounced by a court of competent jurisdiction unless the contrary appears on the record or is proved otherwise.
Q8Institution of suits, parties, frame of suit, pleadings (O1–O8)
A plaint, taken at face value, shows the suit to be clearly barred by the law of limitation. Under Order 7 Rule 11 CPC, the proper course is:
aTo frame an issue on limitation and decide it only after recording full evidence
bTo return the plaint to the plaintiff for presentation to another court
cTo dismiss the suit but only after the defendant files a written statement
dTo reject the plaint, since a plaint that appears from its own statements to be barred by any law is liable to rejection
Answer: D
Order 7 Rule 11(d) requires rejection of a plaint where the suit appears from the statement in the plaint to be barred by any law, which includes a clear bar of limitation apparent on the face of the plaint.
Q9Institution of suits, parties, frame of suit, pleadings (O1–O8)
While deciding an application under Order 7 Rule 11(a) CPC (no cause of action), what material may the court look at?
aOnly the averments in the plaint and the documents filed with it, not the defence
bThe plaint together with the written statement and the defendant's documents
cThe evidence led by both parties at the trial
dAny affidavit filed by the defendant disputing the plaintiff's case
Answer: A
For rejection under Order 7 Rule 11(a), the court must look only at the plaint and its accompanying documents; the defence pleas and the defendant's evidence are irrelevant at that threshold stage.
Q10Institution of suits, parties, frame of suit, pleadings (O1–O8)
Under Order 8 Rule 1 CPC, within what period must a defendant ordinarily file the written statement, and what is the outer limit the court may allow?
a15 days from service, extendable up to 60 days
b30 days from service, which the court may for recorded reasons extend, but not beyond 90 days from the date of service of summons
c30 days from the date of the plaint, with no power of extension
d60 days from service, extendable up to 120 days as of right
Answer: B
Order 8 Rule 1 requires the written statement within 30 days of service of summons; the court may for reasons recorded in writing extend the time, but not later than 90 days from the date of service of summons.
Q11Institution of suits, parties, frame of suit, pleadings (O1–O8)
In a money suit the defendant claims to set off against the plaintiff's demand an unliquidated amount of damages allegedly suffered in an unconnected transaction. Is this a valid legal set-off under Order 8 Rule 6 CPC?
aYes, any cross-claim for damages can be pleaded as a legal set-off
bYes, provided the damages arise after the suit is filed
cNo, legal set-off requires an ascertained sum of money legally recoverable, within the court's pecuniary jurisdiction
dNo, because set-off can never be claimed in a money suit
Answer: C
Order 8 Rule 6 permits legal set-off only of an ascertained sum of money legally recoverable by the defendant, not exceeding the court's pecuniary jurisdiction; an unliquidated damages claim does not qualify as legal set-off.
Q12Institution of suits, parties, frame of suit, pleadings (O1–O8)
Which statement correctly distinguishes a counter-claim under Order 8 Rule 6A CPC from a legal set-off under Order 8 Rule 6?
aA counter-claim must always be for an ascertained sum, whereas a set-off may be for unliquidated damages
bBoth must arise from the same transaction as the plaintiff's claim
cA counter-claim can only be raised in a suit for recovery of money, like set-off
dA counter-claim need not be confined to an ascertained sum and is treated as a cross-suit, while legal set-off must be of an ascertained sum
Answer: D
Under Order 8 Rule 6A a counter-claim may be in respect of any right or claim (whether or not an ascertained sum) and is treated as a cross-suit with a separate decree, whereas legal set-off under Rule 6 is confined to an ascertained sum of money.
Q13Institution of suits, parties, frame of suit, pleadings (O1–O8)
A material allegation in the plaint is neither specifically denied nor stated to be not admitted in the written statement, and the defendant does not deny it by necessary implication. Under Order 8 Rule 5 CPC, the effect is that:
aThe allegation shall be taken to be admitted, though the court may still require it to be proved otherwise than by such admission
bThe allegation is automatically struck off as it was not contested
cThe burden shifts wholly to the plaintiff to prove the allegation by independent evidence in every case
dThe plaint is liable to be rejected for want of a complete written statement
Answer: A
Order 8 Rule 5(1) provides that a fact not specifically denied or stated to be not admitted is taken to be admitted (doctrine of non-traversal), subject to the proviso allowing the court in its discretion to require such fact to be proved otherwise than by the admission.
Q14Institution of suits, parties, frame of suit, pleadings (O1–O8)
In a suit, the plaintiff joins two defendants and claims relief against them in the alternative, being doubtful as to which of them is liable on the same set of facts. Such joinder of defendants is:
aImpermissible, as relief must be claimed jointly and severally against all defendants
bPermissible under Order I Rule 3 read with Rule 7, allowing alternative claims where the plaintiff is in doubt as to who is liable
cPermissible only with the leave of the court obtained before institution
dA misjoinder of defendants rendering the plaint liable to be rejected
Answer: B
Order I Rule 3 permits joinder of defendants against whom a right to relief arises out of the same act or transaction with a common question; Order I Rule 7 expressly allows a plaintiff in doubt to join defendants and claim relief against them in the alternative.
Q15Institution of suits, parties, frame of suit, pleadings (O1–O8)
A suit is filed by some persons on behalf of numerous persons having the same interest in the subject-matter. Which is the correct legal position regarding such a representative suit under Order I Rule 8 CPC?
aIt can be instituted only with the prior written consent of every person represented
bOnly the State can institute such a suit
cThe court may permit it, and notice of the institution must be given to all persons interested at the plaintiff's expense, by public advertisement if the court so directs
dA decree in such a suit binds only the named plaintiffs and not the persons represented
Answer: C
Order I Rule 8 requires the court's permission (or direction) for a representative suit and mandates notice to all interested persons at the plaintiff's cost, by public advertisement where directed; the decree binds all persons so represented.
Under Order 21 Rule 89, who may apply to set aside a sale of immovable property in execution, and on what condition?
aOnly the auction-purchaser, on depositing the purchase price afresh
bOnly the decree-holder, on proving fraud in the sale
cAny member of the public, on showing the sale was at an undervalue
dAny person owning or holding an interest in the property, on depositing the decretal amount and five per cent of the purchase money for the purchaser
Answer: D
Order 21 Rule 89 allows a person owning the property or holding an interest in it to apply to set aside the sale upon depositing for the decree-holder the amount specified in the proclamation and, for the purchaser, five per cent of the purchase money.
Order 21 Rule 90 permits an application to set aside an execution sale of immovable property on the ground of:
aMaterial irregularity or fraud in publishing or conducting the sale, provided substantial injury is shown to have resulted
bAny irregularity, even if no substantial injury is shown
cInadequacy of price alone
dThe judgment-debtor's subsequent inability to vacate the property
Answer: A
Order 21 Rule 90 allows setting aside a sale for material irregularity or fraud in publishing or conducting it, but the applicant must prove that he sustained substantial injury by reason of such irregularity or fraud.
Section 47 of the CPC provides that questions arising between the parties to the suit (or their representatives) relating to the execution, discharge or satisfaction of the decree shall be determined by:
aA separate suit filed for that purpose
bThe court executing the decree, and not by a separate suit
cThe appellate court alone
dArbitration between the parties
Answer: B
Section 47(1) mandates that all questions relating to execution, discharge or satisfaction of a decree between the parties or their representatives be determined by the executing court, not by a separate suit.
Section 60(1), proviso, exempts certain articles of a judgment-debtor from attachment. Which of the following is among the protected items?
aA motor car used by the judgment-debtor for personal travel
bShares held by the judgment-debtor in a public company
cTools of artisans and, where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seed-grain as may be necessary to enable him to earn his livelihood
dA fixed deposit in the judgment-debtor's name
Answer: C
The proviso to Section 60(1) exempts tools of artisans and, for an agriculturist, implements of husbandry plus cattle and seed-grain necessary to earn a livelihood, so these cannot be attached.
Section 73 of the CPC deals with rateable distribution of assets. A pre-condition for a decree-holder to share in such distribution is that the applications must be by:
aHolders of decrees for any kind of relief against any judgment-debtor, filed at any time before realisation
bAny creditor of the judgment-debtor whether holding a decree or not
cOnly secured creditors holding charges over the attached property
dHolders of money decrees against the same judgment-debtor, who have applied for execution before the receipt of the assets and whose decrees remain unsatisfied
Answer: D
Section 73(1) provides for rateable distribution among holders of money decrees against the same judgment-debtor who, before the assets are received by the court, have applied for execution and whose decrees are unsatisfied.
In an execution sale of immovable property, when does the sale become absolute under Order 21?
aOn confirmation of the sale by the court under Order 21 Rule 92, after no application to set aside succeeds, whereupon title is deemed to vest from the date the sale became absolute
bOn the fall of the hammer, with title vesting immediately
cOnly upon registration of the sale certificate, with no relation back
dOn the expiry of twelve years from the decree
Answer: A
Under Order 21 Rule 92, where no application under Rules 89, 90 or 91 is made (or is disallowed), the court confirms the sale and it becomes absolute; by Section 65 the purchaser's title is deemed to vest from the time the sale became absolute.
A money decree for Rs. 5 lakh is passed against X. The decree-holder applies for execution by arrest and detention of X in civil prison. Which of the following, by itself, would justify the executing court in ordering detention under the proviso to Section 51 CPC?
aX has been unable to pay merely because he lost his job and has no means
bX had, since the date of the decree, the means to pay a substantial part of the decree but neglected to pay
cX has filed an appeal which is pending before the appellate court
dX is a senior citizen above sixty years of age
Answer: B
Under the proviso to Section 51 CPC, detention in civil prison for a money decree requires, inter alia, that the judgment-debtor has or had since the date of the decree the means to pay and refused or neglected to pay; mere inability without means is not enough (Jolly George Verghese v. Bank of Cochin).
In execution proceedings, the judgment-debtor raises a plea that the decree sought to be executed was passed by a court that had no jurisdiction over the subject matter of the suit. Which is correct?
aThe executing court must execute the decree as it stands and cannot examine the plea
bThe plea can be entertained only by the appellate court, never by the executing court
cThe executing court can treat the decree as a nullity and refuse to execute it, as want of inherent jurisdiction goes to the root of the matter
dThe plea is barred because objections to jurisdiction can only be raised before the decree is passed
Answer: C
A decree passed by a court lacking inherent jurisdiction over the subject matter is a nullity and can be challenged in execution under Section 47 CPC; such a defect cannot be waived (Kiran Singh v. Chaman Paswan; Topandas principle on jurisdiction).
In a suit for recovery of money where the subject-matter of the original suit is Rs. 20,000, the first appellate court decides against a party. The party wishes to file a second appeal to the High Court. What does Section 102 CPC provide?
aA second appeal lies but only on a substantial question of law
bA second appeal lies as a matter of right since the value exceeds Rs. 10,000
cA second appeal lies only with the certificate of the High Court
dNo second appeal shall lie because the subject-matter is for recovery of money not exceeding Rs. 25,000
Answer: D
Section 102 bars a second appeal from any decree where the subject-matter of the original suit is for recovery of money not exceeding Rs. 25,000; the Rs. 20,000 claim therefore admits no second appeal.
Which of the following orders is appealable under Section 104 CPC?
aAn order under Section 35A imposing compensatory costs for false or vexatious claims
bAn order rejecting an application for review
cAn order returning a plaint to be presented to the proper court
dAn order admitting additional evidence in appeal
Answer: A
Section 104(1) lists, among appealable orders, an order under Section 35A (compensatory costs for false/vexatious claims); the listed orders, save as otherwise expressly provided, are the only orders from which an appeal lies under that section.
An interlocutory order was passed during the suit from which no separate appeal lay and against which no appeal was preferred. When the final decree is appealed, can the correctness of that interlocutory order be challenged?
aNo, because any order not separately appealed becomes final and immune from challenge
bYes, under Section 105(1) the error in such an order may be set forth as a ground of objection in the memorandum of appeal from the decree
cYes, but only by way of a fresh revision under Section 115
dNo, unless the appellate court itself grants special leave to reopen the order
Answer: B
Section 105(1) allows any error, defect or irregularity in an order affecting the decision of the case to be set forth as a ground of objection in the appeal from the decree, even where no appeal lay against that order itself.
An appealable order of remand is passed but the aggrieved party does not appeal against it. Later he attempts to dispute the correctness of that remand order. What does Section 105(2) provide?
aHe may dispute it at any later stage as the remand order merges in the final decree
bHe may dispute it only by way of revision to the High Court
cHe is precluded thereafter from disputing the correctness of the remand order
dHe may dispute it only if the remand caused him prejudice
Answer: C
Section 105(2) provides that where a party does not appeal from an order of remand from which an appeal lies, he is thereafter precluded from disputing its correctness.
Under Section 114 CPC, an application for review of a judgment may be made by a person aggrieved in which of the following situations?
aOnly where an appeal is allowed and an appeal has in fact been preferred
bOnly where the decree has been confirmed by the highest appellate court
cOnly against orders, never against decrees or judgments
dBy a decree or order from which an appeal is allowed but no appeal has been preferred, or from which no appeal is allowed, or by a decision on a reference from a Court of Small Causes
Answer: D
Section 114 permits a review where (a) an appeal is allowed but none has been preferred, (b) no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes.
A subordinate court has decided a case in which no appeal lies. The High Court finds the subordinate court committed a grave error of law in appreciating evidence, but acted entirely within its jurisdiction. Can the High Court interfere under Section 115 CPC?
aNo, Section 115 is confined to jurisdictional errors—exercising jurisdiction not vested, failing to exercise jurisdiction so vested, or acting illegally/with material irregularity in exercise of jurisdiction
bYes, any error of law by the subordinate court attracts revisional jurisdiction
cYes, because all questions of law are revisable under Section 115
dNo, because Section 115 only applies where an appeal also lies
Answer: A
Section 115 confines revisional jurisdiction to the three jurisdictional grounds in clauses (a)–(c); a mere error of fact or law within jurisdiction does not attract revision, which is not an appeal on merits.
Regarding interlocutory orders and the revisional power of the High Court under Section 115 CPC (as amended), which of the following is correct?
aThe High Court may vary or reverse any interlocutory order if satisfied it is erroneous
bThe High Court shall not vary or reverse any order made in the course of a suit except where the order, if made in favour of the applicant, would have finally disposed of the suit or proceeding
cInterlocutory orders are wholly outside the scope of Section 115
dThe High Court may revise an interlocutory order only after the suit is finally decided
Answer: B
The proviso to Section 115(1) bars the High Court from varying or reversing any order made in the course of a suit except where the order, if made in favour of the party applying, would have finally disposed of the suit or other proceeding.
A defendant against whom an ex parte decree is passed simultaneously files (i) a first appeal under Section 96 and (ii) an application under Order IX Rule 13. The first appeal is dismissed on merits. As per Bhanu Kumar Jain v. Archana Kumar (2005), what is the effect on the Order IX Rule 13 application?
aIt remains fully maintainable as the two remedies are independent
bIt must be decided first; the appeal abates until then
cIt becomes non-maintainable because the ex parte decree merges with the appellate order
dIt can only be dismissed if the appeal was dismissed on limitation
Answer: C
In Bhanu Kumar Jain v. Archana Kumar (2005), the Supreme Court held that once the first appeal is dismissed (otherwise than on withdrawal), the ex parte decree merges into the appellate decree, rendering the Order IX Rule 13 application non-maintainable.
The court adjourns the hearing of a suit and proceeds ex parte against an absent defendant. Before the adjourned date, the defendant appears and assigns good cause for his earlier non-appearance. Under Order IX Rule 7, what relief is available to him?
aThe earlier ex parte proceedings are automatically set aside and the suit starts afresh
bHe can only apply under Order IX Rule 13 after the decree is passed
cHe has no remedy until a final ex parte decree is passed
dHe may be heard in answer to the suit as if he had appeared on the day fixed, on such terms as to costs as the court directs
Answer: D
Order IX Rule 7 allows a defendant who appears at or before the adjourned hearing and shows good cause for previous non-appearance to be heard in answer to the suit as if he had appeared on the day fixed, upon terms as to costs the court directs (the earlier evidence is not effaced).
Where the court is satisfied 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 the ordinary way, which mode of service may the court order?
aSubstituted service by affixing a copy at the court-house and the defendant's last known residence, or as the court thinks fit
bService only through registered post acknowledgement due
cDispensing with summons altogether and proceeding ex parte at once
dService only through a court-appointed commissioner
Answer: A
Order V Rule 20 provides for substituted service: when the defendant avoids service or summons cannot be served ordinarily, the court orders affixation at a conspicuous place in the court-house and on the defendant's last known residence/business, or in such other manner (including newspaper advertisement) as it thinks fit.
Under Order XI Rule 1 (in an ordinary, non-commercial suit), a party who wishes to deliver interrogatories in writing for the examination of the opposite party must:
aSimply serve them on the opposite party without court involvement
bObtain the leave of the court before delivering them
cFile them along with the plaint or written statement as of right
dObtain the consent of the opposite party
Answer: B
Order XI Rule 1 permits the plaintiff or defendant, by leave of the court, to deliver interrogatories in writing for the examination of the opposite parties; interrogatories not relating to matters in question are deemed irrelevant.
A plaintiff fails to comply with the court's order to answer interrogatories or for discovery of documents. Under Order XI Rule 21, what is the consequence, and what follows from a dismissal under that rule?
aOnly a fine may be imposed; the suit continues
bHis suit is stayed until compliance, with no bar on a future suit
cHis suit may be dismissed for want of prosecution, and he is precluded from bringing a fresh suit on the same cause of action
dHis plaint is merely returned for amendment
Answer: C
Under Order XI Rule 21, a defaulting plaintiff is liable to have his suit dismissed for want of prosecution; where the suit is so dismissed, Rule 21(2) precludes him from bringing a fresh suit on the same cause of action.
Under Order XIV Rule 1, when does an 'issue' arise in a suit?
aWhenever the plaintiff files a replication to the written statement
bOnly when both parties agree in writing to the question to be tried
cWhen the court records the admissions of the parties under Order X
dWhen a material proposition of fact or law is affirmed by one party and denied by the other
Answer: D
Order XIV Rule 1(1) provides that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other; Rule 1(2) defines material propositions as those a plaintiff must allege to show a right to sue or a defendant to constitute a defence.
On the consequences of disobedience of a temporary injunction under Order 39 Rule 2A CPC, which statement is correct?
aThe court may attach the property and may also order detention in civil prison for a term not exceeding three months
bThe court may only attach the property of the guilty person and has no power to order detention
cDetention in civil prison may extend to six months but no property can be attached
dThe matter must be referred to the High Court to be dealt with as criminal contempt
Answer: A
Order 39 Rule 2A empowers the court to order attachment of the property of the person guilty of disobedience and also to order detention in civil prison for a term not exceeding three months.
Under Order 39 Rule 2A CPC, for how long may an attachment of property made for disobedience of an injunction remain in force, and what happens if the breach continues?
aNot more than six months, after which the property is automatically released
bNot more than one year, after which if the breach continues the property may be sold and compensation awarded to the injured party
cIndefinitely, until the disobedient party purges the contempt
dNot more than three months, co-terminus with the maximum period of detention
Answer: B
Order 39 Rule 2A(2) provides that no attachment shall remain in force for more than one year; if the breach continues, the attached property may be sold and the court may award compensation to the injured party out of the proceeds.
Where a court grants an ex parte temporary injunction without notice to the opposite party, the proviso to Order 39 Rule 3 CPC imposes which mandatory obligation on the court?
aTo dispose of the suit itself within thirty days
bTo direct the plaintiff to furnish security equal to the suit valuation
cTo record reasons for its opinion that the object of granting the injunction would be defeated by delay
dTo obtain the prior sanction of the District Judge
Answer: C
The proviso to Order 39 Rule 3 requires the court, where it proposes to grant an injunction without notice, to record reasons for its opinion that delay would defeat the object of the injunction, and to require the applicant to serve copies of the application and documents on the opposite party.
Order 39 Rule 3A CPC, inserted to curb prolonged ex parte injunctions, directs that where an injunction is granted without giving notice to the opposite party, the court shall make an endeavour to finally dispose of the application:
aWithin ninety days from the institution of the suit
bAt the first hearing after filing of the written statement
cWithin fourteen days, failing which the injunction stands automatically vacated
dWithin thirty days from the date of grant of the ex parte injunction, recording reasons if it cannot do so
Answer: D
Order 39 Rule 3A requires the court to make an endeavour to finally dispose of the application within thirty days from the date of the ex parte injunction, and to record reasons if it is unable to do so.
In Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117, the Supreme Court laid down guidelines for the grant of an interlocutory mandatory injunction. Which of the following correctly states one of those guidelines?
aThe applicant must establish a case of a higher standard than the prima facie case normally required for a prohibitory injunction
bA mere prima facie case identical to that for a prohibitory injunction suffices
cBalance of convenience is irrelevant once a prima facie case is shown
dMandatory injunctions can never be granted at the interlocutory stage
Answer: A
In Dorab Cawasji Warden the Court held that an interlocutory mandatory injunction requires a higher standard than the prima facie case needed for a prohibitory injunction, that it is necessary to prevent irreparable injury, and that the balance of convenience favours the applicant.
In Wander Ltd. v. Antox India (P) Ltd., 1990 Supp SCC 727, the Supreme Court explained the scope of appellate interference with a trial court's discretionary order on an interlocutory injunction. The appellate court should NOT interfere merely because:
aThe trial court ignored settled principles of law regulating grant of injunctions
bIt would have taken a different view, where the trial court's discretion was exercised reasonably and judicially
cThe discretion was exercised arbitrarily or perversely
dThe trial court acted capriciously in granting the relief
Answer: B
Wander Ltd. v. Antox held that an appellate court will not substitute its own discretion merely because it would have reached a different conclusion, provided the trial court exercised its discretion reasonably and judicially; interference is warranted only where discretion was exercised arbitrarily, perversely or ignoring settled principles.
Where a contract between the parties stipulates a rate of interest, how does Section 34 CPC treat interest for the period prior to the institution of the suit?
aSection 34 itself governs and caps pre-suit interest at six per cent per annum
bPre-suit interest is wholly prohibited unless the suit is a commercial one
cSection 34 does not govern pre-suit interest, which is determined by the contract or the substantive law (such as the Interest Act)
dPre-suit interest is left to the discretion of the executing court
Answer: C
Section 34 deals with pendente lite and post-decree interest; interest for the period before the suit is a matter of substantive law (the contract, usage, or the Interest Act), which the Court adjudges and on which Section 34 interest may then be added.
Which of the following best describes the relationship between a 'judgment' and a 'decree' as reflected in Section 33 CPC?
aA judgment and a decree are interchangeable terms describing the same document
bA decree may be passed without any judgment in suits decided ex parte
cA judgment can be appealed but a decree, being merely ministerial, cannot
dA decree is the formal expression of the adjudication, which follows from the reasons stated in the judgment
Answer: D
Under Section 33 (read with Section 2(2) and 2(9)), the judgment is the statement of the grounds of the decision, and the decree is the formal expression of the adjudication which 'shall follow' the judgment.
Under Section 35(1) CPC, in addition to deciding by whom and to what extent costs are payable, the Court is empowered to determine:
aOut of what property such costs are to be paid
bThe personal liability of the advocate appearing in the suit
cWhether the suit was barred by limitation
dThe rate of pendente lite interest on the decretal amount
Answer: A
Section 35(1) gives the Court full power to determine by whom or out of what property and to what extent such costs are to be paid — expressly extending to the property out of which costs may be satisfied.
In a money decree, the trial court awarded the principal sum but the decree was wholly silent on the grant of interest for the period from the date of the decree to the date of payment. The decree-holder later filed a separate suit claiming such future interest. Which of the following is correct under Section 34 CPC?
aThe decree-holder may recover future interest in the separate suit because the original court never expressly refused it
bWhere the decree is silent as to further (post-decree) interest, the court is deemed to have refused such interest, and no separate suit lies to recover it
cFuture interest at 6% per annum runs automatically even if the decree is silent, irrespective of any refusal
dThe decree-holder must seek review, and only if review is dismissed can a fresh suit be filed
Answer: B
Under sub-section (2) of Section 34 CPC, where the decree is silent with respect to payment of further (post-decree) interest, the court shall be deemed to have refused such interest, and a separate suit therefor does not lie.
Q47Suits in special cases & summary suits (O1 R8, interpleader, O37)
Under Order 37 Rule 3(6), where leave to defend is granted, the court may impose terms. Under Order 37 Rule 4, a decree passed in a summary suit may be set aside:
aOnly by way of regular appeal and never by the trial court
bOnly if the plaintiff consents in writing
cBy the court, under special circumstances, which may set aside the decree and, if necessary, stay or set aside execution, and may give leave to appear and to defend the suit
dAutomatically upon deposit of the decretal amount
Answer: C
Order 37 Rule 4 empowers the court, under special circumstances, to set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit.
Q48Suits in special cases & summary suits (O1 R8, interpleader, O37)
In a summary suit under Order 37, if the defendant enters appearance but the plaintiff does not apply for a summons for judgment, what is the consequence regarding leave to defend?
aThe defendant must still apply for leave to defend within ten days of entering appearance
bThe plaintiff is deemed to have abandoned the suit
cThe court must dismiss the suit for non-prosecution immediately
dThe defendant is automatically entitled to defend without applying for leave, as the suit proceeds as an ordinary suit
Answer: D
The defendant's obligation to seek leave to defend arises only on service of the summons for judgment (Order 37 Rule 3). If the plaintiff does not take out a summons for judgment, the special bar does not operate; the question of leave to defend is triggered by the summons for judgment, not by mere appearance.
Q49Suits in special cases & summary suits (O1 R8, interpleader, O37)
Which of the following correctly states the effect of Order 37 Rule 2 where a defendant in a summary suit fails to enter an appearance within the prescribed time?
aThe allegations in the plaint are deemed to be admitted and the plaintiff becomes entitled to a decree for the sum claimed, with interest and costs
bThe court must hold a full trial regardless
cThe plaintiff must prove his claim by oral evidence before any decree
dThe suit is converted into an ordinary suit
Answer: A
Under Order 37 Rule 2(3), if the defendant does not enter an appearance, the allegations in the plaint are deemed admitted and the plaintiff is entitled to a decree for any sum not exceeding the sum mentioned in the summons, together with interest and costs.
Q50Suits in special cases & summary suits (O1 R8, interpleader, O37)
In a representative suit instituted under Order 1 Rule 8 CPC by a few persons on behalf of numerous persons having the same interest, which of the following statements is INCORRECT?
aThe court must, at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, by personal service or public advertisement
bIt is necessary that all the persons represented share not merely the same interest but also the very same cause of action
cThe decree passed in such a suit binds all persons on whose behalf the suit was instituted, even though they were not eo nomine parties
dA person on whose behalf the suit is instituted may apply to the court to be made a party to the suit
Answer: B
The Explanation to Order 1 Rule 8 (inserted by the 1976 Amendment) expressly provides that, to have the 'same interest', it is NOT necessary that the persons have the same cause of action; thus (c) is the incorrect statement. Notice at plaintiff's expense (R8(2)), the binding effect of the decree (R8(6)), and the right of a represented person to be added as a party (R8(3)) are all correctly stated.
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