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NATIONAL LAW SCHOOL OF INDIA UNIVERSITY

BANGALORE
III YEAR VIII TRIMESTER END TERM EXAMINATION (JAN.} 2017
c.P.c. - u
Marks: 60
Time: 3 7z hours
Iwstnuc"rrors:
1. students are expected to rely on the question paper as it is and
respond to it. No clarifications can be sought.
2. Mobile phones are strictly prohibited inside the Examination
Hall. Anyone found in possession of a mobile phone will be
subject to disciplinary proceedings.
3. students are required to briefly state the facts of the case and
give reasons in support of their answers and mention the
provisions of law and case law wherever necessary.
4. cPC Bare Acts will be supplied by the Examination Department.
5. Answer all questions.

Question No. 1.
Write comprehensive note on each of the following:

1. Precept
2. Garnishee, his duties, and responsibiiities and liabilities
3. "Illegalib/' and "material irregularitS/,

14+4*4=12Marks)
Question No. 2
Can a review petition be preferred in each of the following situations?
Furnish reasons in support of your answer.
a) The trial court has dismissed the suit for pennanent injunction
construing ttre "saLe deed" as ,,agreement to sell,,.
b) The trial court has decreed the suit overlooking the bar of limitation.

t3+g=6Marks)
Question No. 3
A flles a suit against B for recovering a sum of Rs. 5 Lakhs on the basis of a
promissory note and gets B's house situated in Bangalore attached. before
judgment on 20.02.2016. Finally the suit was decreed in favour of A. A filed
an execution petition and requested for sale of house of B. The court ordered
sale of the properV and directed A and B to furnish verified statements and
A to pay sale fee on 25.06.2016. when the case was called. on 25.06.2016
neither tl:e decree holder nor the Judgment Debtor was present in the court.

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A's advocate was also absent. Sale fee had not been paid. Verif:.ed
statements were not filed. The court passed the following order:

"Decree Holder and his lawger are absent, Sale fee not paid and
oerified Stdtements nottiled. The petition ts dismissedfor default'
A, who had been hospitalized for a serious heart ailment, recovered from
illness 3 months later and frled another execution petition on 5.09.2016 and
sought for sale of the house of the judgment debtor and the court ordered
the same.

During tJlis period, B sold a\May the house to C and delivered possession to
him on L7.O7.2OL6. The house was sold by court in auction sale on
20.10.2016 and the decree holder with the permission of court purchased
the same. Later, the sale was confirmed in due course. A obtained sale
certificate and filed a petition for delivery of the house on 25. L2.2OL6. When
delivery warrant was taken to take delivery of the house, C who was in
occupation of the house obstructed and drove away the court official and the
Decree Holder without allowing them to take possession of the house. C has
approached you requesting you to advise him to prevent A from taking
possession of the house as he apprehends that A might return with police
help to take possession of the house. What is your advice to C a:rd what
course of action in the court you will take to assist C? Explain with reasons.
(5 Marks)

Question No. 4
A obtained an ex parte decree against B in the Court of Civil Judge (Jr. Dn.),
Mysore. B filed an application under Rule 13 of Order 9 CPC to set aside the
ex parte decree. The petition of B is allowed. A is aggrieved of that order.
What is the course of action A could take to challenge that order? Explain.
(3 Marks)

Question No. 5
a) The judgment Debtor's house and truck were attached by the Decree
Holder in the Course of Execution of a money decree. identify three
distinguishing features relating to publication of sa-Le proclamation
and conduct of sale of the said properties.

b) Later, sale was held and truck and the house are sold by the court.
The judgment debtor in the fact situation of Question No. 5(a) intends
to chalienge the sale of truck and house alleging fraud, collusion and
material irregularities in the sale process resulting financial loss to
him. What course of action he should take? Exolain with reasons.

{3+3=6Marks)

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Question No. 6
A, B, C and D have obtained money decrees against Z on tine fi]e of City Civil
Judge Bangalore for amounts specified below:

A's decree for Rs. 2 lakhs


B's Decree for Rs. 2 lakhs
C's Decree for Rs. 4 lakhs
D's Decree for Rs. 6 lakhs
These Decrees have not been satisfied.

The State of Karnataka has obtained a decree against Z for Rs. 5 Lakhs. A
has filed an execution petition and has got the only immovabl e property of Z
attached and sold to recover his decree amount. The property is sotd by the
court on 06.03.2016 for Rs. I5,o2,25o/- and Rs. B's execution petition is
filed on 05.02.2016, c's execution petition filed on 15.03.2016 and D,s
execution petition filed on 10.11.2015 are pending at various stages before
the same court. Karnataka State's execution petition filed on OS.fi.ZOtS ls
also pending. Decree of Union of India for Rs. 5 lakhs and Execution petition
is filed on 06.02.2OL6 is pending before the court. Decree hold.ers B and C
have filed application seeking distribution of assets of the Judgment Debtor
Z. How the court will have to distribute the sale proceeds amongst the
decree holders? Explain the Law relating to above situation and d.ecide.

(5 Marks)

Question No. 7
Explain the procedure to prefer an appeal to Supreme Court highlighting the
conditions to be satisfied including the procedure to obtain the certificate of
fitness from High Court.

(5 Marks)

Question No. 8
B borrowed a sum of Rs. 5 Lakhs from A on 10.03.2oro agreeing to repay
the sarne together with interest at Io% per annum and executed a
promissory note in Bangalore in favour of A. B paid Rs. 5oo to A on
16.01.2012 and made an endorsement to that effect on the pronote, signed.
and pleaded for one year time to pay t]:e balance. Again when A demanded
for payment, B informed him that he had applied to the State Bank of India
for loan of Rs. 10 Lakhs for developing his small scale steel furniture
manufacturing unit and to discharge A'loan and that he would d.ischarge
the loan after obtaining the loan from the Bank. A confidentially enquired
with the bank and learnt that B had applied for the loan on 27.r2.2or3
stating that the loan was required to develop his industrial unit as also to
discharge the loan due to A. Hence he agreed to wait. B obtained. the loan

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l

from the Bank and invested the entire amount in his business but did not
pay to A. A finally issued a notice to B demanding payment and on B's
faiiure to reply to the notice and to pay tJ:e amount approached his lawyer
on 26.L2.2OI6 to file the suit. His lawyer told him that the Civil Courts had
been closed for vacation from 25.L2.2O16 tili 10.01.2077 and that he could
file the suit on the Court re-opening after vacation on 11.01.2017 and filed
the suit on that day, mentioning the facts stated above.
B has filed the written statement after service of summons contending that
the suit is barred bv limitation. Decide
(5 Marks)

Question No. 9
S obtained a money decree against T for Rs. 22,500/- on 25.02.2004 but
before filing execution petition to recover the decree amount, died on
20.03.2004 leaving his two sons A, aged 9 years and B aged 6 years as his
heirs. A became 18 years old on 2O.O3.2OI3 and B completed 18 years on
04.05.2016. The Civil Courts had been closed for summer vacation from
18.04.2016 till 26.05.2016. A and B, as legal representatives of their father
S, filed the execution petition on the re-opening day of courts after vacation
on 27.O5.2OL6. T, on receiving the notice, has filed objections contesting
that the execution petition is barred by limitation. Decide

(4 Marks)

Question No. 10
a) What do you mean by remand of the suit or proceeding?
b) Which authority has the power to remand and in what
circumstances?
c) When a suit is remanded under Order XLI Rule 23A of the CPC, what
is the remedy available to tl.e aggrieved party to challenge the remand
order?

{3+3+3 = 9 Marksl

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NATIONAL LAW SCHOOL OF INDIA UNIVERSITY
BENGALURU

III YEAR Vrrr TRTMESTER ENp-TERM EXAM L2Np FEB.I 2016


c.P.c. - n
Marks: 6O
Time: 3 % hours
IrstnucrrorYs:
7. Students are expeded to rely on tlv questlon paper as lt ls and
respond to lt. No clartflcatlons can be sought.
2. ELectronlc gadge6 are strlctlg prohlblted lnslde the Examlnatlon Ho,lL
Anyone found tutnng tlrc samc tn hts / her possesslon ln the Exam
Hall uill be subJected to dtsctpltnary proceedlngs.
3. Students are nequlred, to state brtef facts- of the cq"se and. to glue
recsons ln support of thelr ansurerst qnd, m.entlon the proulslons and
ca:se lc;ut ulvrerrer necessary.
4. Bare Acts urlll be proutded bg the Exqmlnatlon fupantncnt

Question No. 1:
P, a passenger while travelling by a Tourist Service bus having sustained
multiple fractures of ribs, hip bone and head injuries due to rash and
negligent driving of the bus resulting in the bus meeting with an accident,
filed a suit against the driver and owner of the bus and insurance company
in the court of Civil Judge (Sr. Dn.) Mysore, claiming compensation of Rs. 10
Lakhs. The driver and the owner of the bus, Defendants 1 and 2 respectively
filed a written statement contesting the suit, stating that they were not liable
for the claim of the plaintiff as the accident was not due to rash or negligent
driving of the driver. The 3'd Defendant, the Insurance Company contested
the suit pleading that the "Insurance Policy'' relating to the bus had expired
a week earlier to the date of accident and therefore it was not liable to pay
the suit claim. The court after hearing all the parties decreed the Suit on
merits for Rs. 10 Lakhs against all the three defendants.

The driver and the owner of the bus defendants 1 and 2 preferred an appeal
before the District Court, Mysore District challenging the Judgment and
decree of the trial court impleading "P", the Plaintiff only as respondent. The
3.d defendant, the Insurance Company, however, later preferred a "review'
petition before the trial court itself.

Discuss and explain as to the maintainability of the review petition.


(5 Marks)
Question No. 2
A has been executing a decree for recovering a sum of Rs. 5,00,000/- from B
in the City Civil Judge's Court, Bangalore City. A got a debt of Rs. 2 Lakhs
due by C to B attached during the course of execution proceeding by getting
the necessary prohibitory notice through court served on him. Later, in due
course, at the instance of A, the Executing Court served another notice on C
(the debtor of B) directing him to deposit the said sum of Rs. 2 Lakhs into
the executing court for payment to A, the decree holder towards part
satisfaction of the decree. C did not respond to the court's direction. The
Executing court at the instance of A, ordered execution of that order against
C to recover the said sum of Rs. 2 Lakhs for payment to the decree Holder.
C has requested you to challenge the order of the court directing to execute
the order against him. What is the course of action you should take?
Explain. (3 marksf

Question No. 3
Explain with reasons whether appeal in each of the following situations is
maintainable?
a. An appeal against an order allowing the review petition.
b. Appeal against an order remanding the suit to the trial court with a
direction to frame a particular issue, record evidence on it allowing the
parties to adduce evidence, give a finding on that issue and return
papers back to the appellate court to enable it to hear and decide the
appeal.

c. Appeal against the trial court making reference to the High Court
seeking its opinion in the matter of interpretation of a provision in the
Contract Act involved in the suit.

d. Appeal on a question of fact against a decree in a money suit of the


value of Rs. 10,000/-.
(3 x 4 = t2 Marksf
Question No. 4
In an execution petition filed by A against B to recover the decree amount of
Rs. 50,0OOl- B has produced a receipt allegedly issued to him by A, stating
that the entire decree amount of Rs. 50,000/- relating to that decree is
satisfied having received that amount from the Judgement debtor
immediately on service of show cause notice of the court on the judgment
debtor on 26.L2.2OI5 in the execution proceedings. He has also contended
that the decree holder assured him that he would report it to the court and
get the full satisfaction entered. He also contended that he was told by a
relative who had gone to the court the very day that he paid the amount to
the decree holder, that the decree holder has not reported to the court to
enter full satisfaction of the decree, but had sought for attachment of
judgment debtor's house and the .court has ordered attachment. The very
subsequent day the judgment debtor has filed application and has produced
the receipt before the court requesting to enter full satisfaction of the decree.
The decree holder states before the court that no amount is paid outside the
court as contended by the judgment debtor and that the said receipt is a
forged document and he has not issued it. The court adjudicated upon it on
merits and passed an order accepting the receipt as genuine and directing
entering full satisfaction of the decree. What is the course of action available
to the decree holder to challenge that order? Explain with reasons and the
law applicable.
(5 Marks!
Question No. 5
X filed a suit against Y on the basis of promissory note and obtained a
decree for Rs.2 Lakhs in the City Civil Court, Bangalore on 5.12.2OOO. On
IO.|2.2OO0, X died leaving his wife "W" aged 40 years and son "2", aged3
years as his legal representatives. On 1 .L2.2OLS Z became 18 years old and
attained majority. On 15.12.2OI5, W and Z fiIed execution petition against Y
to execute the decree. Y has filed objections contending that the execution
petition is barred by limitation and is not maintainable. Decide. (4 Marks|
Question No. 6
Decree for reliefs of declaration of his title to a site, mandatory injunction
and possession is obtained by A against B on 5.12.2012. A who was
suffering from serious heart ailment went to U.S.A for treatment and stayed
with his doctor son for about four years and returned to India on
10.01.2016. On 12.01.2016, A filed execution petition to execute the
aforesaid decree. The Judgement debtor has filed an objection stating that
execution petition is barred by limitation and hence cannot be executed.

The decree for mandatory injunction and possession against the judgement
debtor is to remove an unauthorised construction, a thatched shed put up
by the judgment debtor in the site belonging to the decree holder of which
the judgement debtor has been in wrongful possession and deliver vacant
possession of the site.

Also explain as to what are the mandatory conditions that the court should
comply with before ordering execution of the decree in this case.
(4 Marksf
Question No. 7
Explain the procedure to prefer appeal to Supreme Court highlighting the
conditions to be satisfied. Also explain the procedure to obtain the certificate
of the High Court to prefer an appeal to the Supreme Court.
(5 Marksf
Question No. 8
What are the limitations, if any, of execution of a 'money decree'against the
legal representatives of judgment debtor? Explain.
(3 Marksf
Question No. 9
A intends to file a suit against B for declaration of his title to the suit
schedule 2 acres of agricultural land out of survey number 2 measuring 4
acres at Bommasandra village of Nelamangala Taluk of Bangalore Rural
District and for permanent injunction to restrain B from disturbing A's
possession of the land and to prevent him from dispossessing A from the
land on the ground that B was attempting to dispossess A from the land and
to usurp possession, falsely claiming that he is the owner and is in
possession of it.

The annual land revenue payable for the entire 4 acres of land of that survey
number by A is Rs. 50/- and is permanently settled. The disputed 2 acres of
land is not separately assessed to annual land revenue. The suit should be
filed in the court of Civil Judge (Jr. Dn.) at Nelamangala. What is the court
fee payable on the plaint by A? Explain and calculate the same as per rules.
(4 Marks)
Question No. 1O
Write a comprehensive note on each of the following:
(5+5+5 = 15 Marksf
a) Precept
b) Interpleader Suit
c) Explain the difference between "Illegalit5/ and'Material Irregularit5/ -
furnishing at least one example of each of them with facts of an
illustration.
I
NATIONAL LAW SCHOOL OF INDIA LTNIVERSITY
BENGALURU

III YEAR END TERM EXAMINATION (JAN.) 2016


ANSWER KEY. C.P.C. - il

Note: The students should brieJly state the facts of the case in the question. They should
then mention the provkions of law applicable to the case. The meaning of the
provisions of law should be explained They should then apply the provisions of law
to thefacts of the case and arrive at conclusions

Answer No. 1
The facts of the question are that P, a passenger travelling in a tourist service bus who
sustained multiple fractures of ribs, hip bone and head injuries during an accident of the
vehicle claiming damages of Rs. l0 Lakhs alleging that due to the negligent driving of the
vehicle, it met with an accident. The Defendant No. 1 the owner and Defendant No. 2 the
driver claimed that they were not responsible and are not liable to pay the suit amount as the
accident is not due to negligent driving of the driver. The third defendant Insurance Company
claimed that the insurance cover was not subsisting on the date of accident and that they were
not liable to pay the suit claim. The trial court however decreed the suit on merits of the case
against all the defendants. Defendants I and 2 have filed an appeal against the decree
impleading the plaintiff only as respondent. Defendant No. 3 Insurance Company has
subsequently filed a review petition. The student is asked to discuss the above said facts and
the law applicable and answer as to maintainability of the review petition.

The provision of law applicable to the case on hand is O47 R.1 (2).It reads thus; a party who
is not appealing from a decree or order may apply for review ofjudgement notwithstanding
the pendency ofthe appeal by some other parly except where the ground of such appeal is
common to the applicant and the appellant or who being respondent he can present to
appellate court the case on which he applies for the review. Out of the defendants I to 3 the
owner and driver together have prefened appeal against the plaintiff. They have not
impleaded Insurance Company as a respondent in their appeal. The appeal as such is
maintainable by defendants 1 and 2 as they are aggrieved of the decree. The rule says that
review can be filed only if there is no appeal available or that the appeal is available but not
preferred by a party to the suit as stated under S. I 14 and O47Rl.

The condition that the court has committed an error apparent on the face of the record has
been satisfied in this case to file the review petition by the Insurance Company as its
contention clearly stated in written statement that the insurance policy was not subsisting on
the date of the accident has been overlooked by the court and a decree has been passed
against it also. Having satisfied that condition and that the company has not prefened an
appeal though available has chosen to prefer a review petition. Though the review petition is
prefened subsequent to the appeal by Defendants No. I and 2, the same is maintainable as
stated clearly in Cl. 2 of O47 Rl. The conditions mentioned there are satisfied by the
insurance company. The rule says that when one of the defendants has prefened an appeal
and if another defendant subsequently prefers a review petition and to maintain the same the
condition is that appeal grounds must be different from the grounds of review petition. The
Insurance Company is not made a party to the appeal and therefore it has no chance to state in
the appeal, its objection stated in the review petition. The ground of appeal is that the driver
has not driven the vehicle negligently and the accident cannot be attributed to his driving. The
ground is different from the insurance companyos ground in the review petition. The
insurance company's ground for review is that insurance cover was not subsisting on the date
of accident and the court has committed a glaring error on the face of the record in not
considering it. Therefore all the conditions stated in the rules are satisfied and therefore the
review petition preferred by the insurance company even after filing of appeal by Defendants
No. I and 2 is maintainable.

Answer No. 2
The Executing Court is executing the money decree for Rs. 5, 00,000/- at the instance of A
against B in the City Civil Judge's Court Bangalore city. The court has served a prohibitory
notice on C, a debtor ofjudgement debtor B prohibiting him from paying Rs. 2,00,000/- due
by him to judgment debtor B and thereby attached the debt of C owed to B. This order is
under O2l R46C has become a garnishee on the attachment of his debt. The executing court
has subsequently served another notice to garnishee C directing him to deposit the sum of Rs.
2, 00,000/- in to the executing court for payment to the decree holder. This order is deemed to
have been passed under Rule 464.. The gamishee C did not respond to the court's direction.
Then the executing court at the instance of decree holder A has ordered execution of that
order against C the garnishee to recover the said sum of Rs. 2, 00,000/- from him for payment
to the decree holder. This order is under Rule 468. C the garnishee wants to challenge this
order. R. 46-H reads that the orders passed under O 21, R. 468, 46C, or 46E shall be
appealable as decree which means that the order passed under R. 46B is appealable as decree
and therefore it is to be considered as deemed decree and appealable under Section 96 of
CPC. The garnishee C should be considered to prefer an appeal against the aforesaid order
which is a deemed decree and appeal is under Section 96 CPC.

Answer No. 3
a) An appeal against order allowing review petition - Order XLVI Rule 7(l) of CPC is
applicable along with Order XLIII, Rule 1(w) of CPC. Appeal is a statutory right and
not inherent right, further this is an order under Order XLVII Rule 4 an order allowing
the review petition. Under Order XLIII Rule l(w) it is appealable and a miscellaneous
appeal is permitted.

b) Appeal against an order remanding the suit to the trial court with a direction to frame
a particular issue, record evidence on it allowing the parties to adduce evidence, give
a finding on that issue and return the papers back to the appellate court to enable it to
hear and decide the appeal: Whether this order is appealable or not is the question.
This is an order passed under Order XLI Rule 25 CPC, it is not a decree. This order
does not find a place either under Section 104 of CPC or Order XLIII Rule I of CPC
which deal with appeal against order. There is no other provision which allows appeal
against such order. Hence, appeal is not maintainable.
I -
c) Appeal against trial court making reference to the High Court seeking its opinion in
the matter of interpretation of provision in the Contract Act involved in the suit. - The
reference is made under Section 113 of CPC, it is neither decree nor an order, and it is
only correspondence between trial court and the High Court. There is no provision
under which an appeal can be preferred against such reference to the High Court;
hence no appeal can be filed against this reference.

d) Appeal on a question of fact against a decree in a money suit of the value Rs. 10,000/-
. Section 96 (4) CPC is applicable. It says that there is no appeal against decree in a
money suit where the value does not exceed Rs. 10,000/- unless a point of law is
involved, which can be taken as a ground in appeal. In this caseo it is stated that it is
merely on the question of fact and no law is involved in it, therefore appeal against
the decree is not maintainable.

Answer No. 4
In an execution petition filed by A against B to recover the decree amount of Rs. 50,000/- B
has produced a receipt allegedly issued to him by A, stating that the entire decree amount of
Rs. 50,000/- relating to that decree is satisfied having received that amount from the
Judgement debtor immediately on service of show cause notice of the court on the judgment
debtor on 26.12.2015 in the execution proceedings. He has also contended that the decree
holder assured him that he would report it to the court and get the full satisfaction entered. He
also contended that he was told by a relative who had gone to the court the very day that he
paid the amount to the decree holder, that the decree holder has not reported to the court to
enter full satisfaction of the decree, but had sought for attachment ofjudgment debtor's house
and the court has ordered attachment. The very subsequent day the judgment debtor has filed
application and has produced the receipt before the court requesting to enter full satisfaction
of the decree. The decree holder states before the court that no amount is paid outside the
court as contended by the judgment debtor and that the said receipt is a forged a document
and he has not issued it. The court adjudicated upon it on merits and passed an order
accepting the receipt as genuine and directing entering full satisfaction of the decree. That
means the court has certified the satisfaction of the decree. The decree holder who is
questioning that the receipt is a forged document wants to challenge the order. What is the
course of action for him is the question.

The payment made by the Judgment Debtor out of court is in accordance with the law as per
Order 2l Rule | &2. As per O XK R l(l) (b) all money payable under a decree shall be paid
out ofthe court to the decree holder by postal money order o through a bank, or by any other
mode wherein payment is evidenced in writing. Upon the payment it is the duty of Decree
holder under O XXI Rule 2 to apply court to court within 30 days for certification of payment
out of court and recording the same accordingly. In the case on hand the decree holder has
provided a receipt to Judgment debtor acknowledging the receipt thereof. Further, decree
holder assured to go to court the very next day to get payment certified. However, instead of
certi$ing the payment decree holder proceeded with execution of decree.

This question relates to the powers of executing court uls. 47. Sec. 47 reads that all questions
arising between the parties to the suit in which the decree was passed, or their representatives,
and relating to the executiono discharge or satisfaction of the decree, shall be determined by
the court executing the decree and not by a separate suit. The Order passed by the court
certiffing that the decree is fully satisfied is u/s. 47 CPC. The above proceedings conducted
the report are all in accordance with law and procedure as stated above. An order passed by
the court under S.47 was a deemed decree earlier to 1976 as the same had been included in
the definition of decree u/s.2 (2) CPC. In 1976 amendment of CPC, this Order under S. 47
is deleted from the definition of decree and therefore since then, it is not a deemed decree and
therefore no appeal under S. 96 is available to the aggrieved party. It is only an Order and
not a deemed decree. When we examine u/s. 104 and O. 43, R. l, this Order does not find a
place as an appealable Order. Therefore, this is not an appealable order. Hence
miscellaneous appeal is also not available. If you consider review against that Order the
conditions u/s. 114 and O.47 cannot be satisfied and therefore no review is possible.
Revision u/s I l5 is also not possible as there is no jurisdictional enor or illegality or material
inegularity in the Order. Therefore, there is no remedy under the law to the decree holder
against the Order u/s. 47 passed by the court in this case and he cannot challenge it.

Answer No. 5
A filed a suit against Y on the basis of promissory note and obtained a decree for Rs. 2 Lakhs
in the City Civil Court, Bangalore on5.12.2000. On 10.12.2000, X died leaving his wife "w"
aged 40 years and son"Z", aged 3 years as his legal representatives. On 1.12.2015 Zbecame
l8 years old and attained majority. On 15.12.2015, W and Z filed execution petition against
Y to execute the decree. Y has filed objections contending that the execution petition is
barred by limitation and is not maintainable.

The provisions of the law applicable are Article 136 of the Limitation Act and Section 7 & 9
of the said Act. In addition to this order XXI, Rule 15(l) CPC is also applicable.

Article 136 states that period for filing an execution petition to execute a decree for money or
any other decree except a decree for mandatory injunction is 12 years from the date of
enforceability of the decree. The decree has been passed on 5.12.2000 and became
enforceable from that date itself. X has not filed execution petition and died subsequently
leaving his wife "W" aged about 40 Years and Son "2", aged 3 Years as his legal
representatives. The time has begun to run from 5.12.2000 and ended on 5.12.2012, as per
Section 9 of the Limitation Act, which states that once the limitation period commences to
run, subsequent disability or inability will not stop the running of the time. Though his wife
and son have come into picture after his death, W his wife who was not suffering from any
legal disability could have filed an execution petition to execute the decree on behalf of her
and the minor son as stated in Section 7 of the Limitation Act as also Order XXI Rule l5(l)
of CPC. Section 6 of the Limitation Act, is not applicable in this case. They ought not to have
waited till the Z attains majority. Therefore the execution petition filed on 15.01.2015 is
certainly baned by the limitation and is not maintainable as contended by judgment debtor Y.

Answer No. 6
Decree for reliefs of declaration of his title to a site, mandatory injunction and possession is
obtained by A against B on 5.12.2012. A who was suffering from serious heart ailment went
to U.S.A for treatment and stayed with his doctor son for about four years and returned to
India on 10.01.2016. On 12.01.2016, A filed execution petition to execute the aforesaid
decree. The Judgement debtor has filed an objection stating that execution petition is barred
A.-
by limitation and hence cannot be executed. The decree for mandatory injunction and
possession against the judgement debtor is to remove an unauthorised construction. a
thatched shed put up by the judgment debtor in the site belonging to the decree holder of
which the judgement debtor has been in wrongful possession and deliver vacant possession of
the site.

Provisions of law applicable here are Article 135 and 136 of the Limitation Act. Article 135
provides that period of limitation for the enforcement of decree granting mandatory
injunction is three years and the said period is to be reckoned from the date ofthe decree or
where a date is fixed for such performance, such date. Similarly Article 136 provides for
period of limitation for the execution of any decree (other than a decree granting mandatory
injunction) or an order of any civil court as 12 Years. The said period of 12 years is to be
reckoned from date where the decree or order becomes enforceable or where the decree or
any subsequent order directs any payment of money or the delivery of any property to be
made at a certain date or at recurring period, when default in making the payment or delivery
in respect of which execution is sought, takes place.

In the case on hand, A obtained decree for mandatory injunction and delivery of vacant
possession 5.12.2000. This decree has two parts, wherein the former i.e. the mandatory
injunction will be covered under Article 135 of the Limitation Act and hence the period of
limitation for the enforcement of said decree will be 3 years. The latter part of decree i.e.
delivery of vacant possession will fall under Article 136 of the Limitation Act and hence the
period of limitation for the execution will 12 years from the afore mentioned date. A filed an
execution petition on 12.01.2016 which is beyond three years with within 12 years. Further,
there is no exemption or extension of period available under any of the provisions of
Limitation Act which can benefit A. In these circumstances part of the decree relating is
Mandatory Injunction which is beyond the period of limitation and hence not enforceable as
barred by Section 3 of Limitation Act. However, A can still enforce the decree for the
delivery of vacant possession as that falls within the period of limitation. A has to demolish
the temporary shed in the site at his own expenses.

Further, the application for execution is made almost after 4 years of passing of decree as pre-
condition as laid down in the 021 R22 which states that where an application for execution is
made more than two years after the date of decree the court executing decree shall issue a
notice to the person whom execution is applied for requiring him to show cause, on the date
to be fixed, why the decree should not be executed against him. This is a mandatory condition
to be followed by court in this instance.

Answer No. 7
The provisions of law applicable to case in hand are Section 109 CPC and Article 134-,{ of
the Constitution of India. An appeal before the Supreme Court can be preferred under Section
109 of the CPC from any judgment, decree or final order in a civil proceeding of a High
-
Court, if it certifies that
(i) case involves substantial question of law of general importance; and
(ii) in the opinion of the High Court the said question needs to be decided by the
supreme court.

"Substantial question of law of general importance" means a point of law which is substantial
in nature and is not only binding on the parties to the dispute but also all the public in India
,7V
and also all the courts, and which act as precedent in the future litigation. For instance: If two
High Courts of different states have interpreted either an article of Constitution of India or
any provision of any enactment in two different ways, those decisions are binding only on the
people and courts in the concerned state. The people in the other states and courts are not
bound to accept the decision of a High Court of another state. It cannot be cited as a
precedent in other states. In such case, the High Court which has passed a final order in civil
matter, against which an appeal is contemplated to be prefened in Supreme Court, can issue a
certificate to the extent that case involves a 'substantial question of law of general
importance' and that High Court wants a Supreme Court decision on this issue, so that it will
be binding on all people and courts in India and can be cited as precedent also. In this sense,
it differs from 'substantial question of law' stated under Section 100 CPC, wherein the
decision of the High Court in the second appeal will be binding only between the parties to
the suit, not the general public and it can't be cited as precedent in other state also.

The Certificate may be obtained from the High Court to prefer an appeal to the Supreme
Court as stated in Article 134-A of the Constitution of India. This provision is included by an
amendment to the Constitution of India in 1978. Earlier to 1978 the provisions stated in Order
XLV of the CPC were applicable to obtain the certificate from the High Court. Upon
insertion of Article 134-A in Constitution in 1978, it is only what is stated in this article, will
be applicable to obtain the certificate and not provision stated under Order XLV. Though
those rules are not amended and find place in CPC even now, they are not applicable to
obtain the certificate, as they are in conflict with Article 134-A and in such cases provision of
the Constitution of India overrides the provision of other enactments. Article 134-,{ states
that immediately after the pronouncement of the final decision in a civil proceeding the High
Court itself / suo moto may announce that they are issuing a certificate to the party who
intends to prefer appeal to Supreme Court. It also states, that if the High Court does not
announce on its own, the party who intends to prefer appeal to Supreme Court should make
an oral application immediately after the High Court pronounces the final order, requesting
the issue of certificate. The High Court may issue the certificate later or may not issue, but
the procedure as stated in Order XLV are not to be resorted to.

Answer No. B
Section 50 of CPC enables a decree Holder to execute his decree against the legal
representative of the deceased judgment debtor. The property that can be attached is (i) the
property of the judgment debtor in the hands of the legal representative; and (ii) property of
the representative, to the extent it represents that which he has inherited out of the assets to
come to his hands without satisfying the debts of the deceased. The important requirement is
that contain in sub-section (2) wherein the liability of the legal representative is only to an
extent of property which has come to his hands and has not duly disposed of, Legal
Representative of Judgment debtor will be liable for the debts of predecessor to the extent of
the estate acquired by the legal representative from their predecessor.

Section 50 provides for the situation where a decree is passed against the Party and the party
dies before the decree is fully satisfied, and the decree is sought to be executed against the
legal representative. For the cases where the decree is passed against the legal representative
itself Section 52 of CPC will be applicable. This section also provides similar limitation,
which is the decree for payment of money can be executed only to an extent of property of
/-
the deceased in the hands of legal representative. The LR's are not personally liable and their
self-acquired properties are not liable to be attached or sold.

Answer No. 9
A intends to file a suit B for declaration of his title to the suit schedule 2 acres of
against
agricultural land situated at out of survey number 2 measuring 4 acres at Bommasandra
village of Nelamangala Taluk of Bangalore Rural District and for permanent injunction to
restrain B from disturbing A's possession of the land and to prevent him from dispossessing
A from the land on the ground that B was attempting to dispossess A from the land and to
usurp possession, falsely claiming that he is the owner and is in possession of it. The annual
land revenue payable for the entire 4 acres of land of that survey number by A is Rs. 50/- and
is permanently settled. The disputed 2 acres of land is not separately assessed to annual land
revenue. The suit should be filed in the court of Civil Judge (Jr. Dn.) at Nelamangala.

The provisions of Karnataka Court Fees and Suit Valuation Act applicable are S. 24(b\ and
S.7. The suit for declaration of title and permanent injunction falls under Section 24(b). The
notional market value of the suit will have to be calculated under Section 7 for the purposes
of court fee. The basis if the annual land revenue payable for the disputed land. The disputed
land is 2 acres of agricultural land out of the survey number 2 measuring 4 Acres and is not
separately assessed to land revenue. In such cases the land revenue assessed for the entire
Survey No. should be taken into consideration, even for part of the land in that survey no.
which is disputed. The annual land revenue for the entire survey No. is Rs. 50/- and it is
permanently settled. Therefore, the Market value for the purpose of payment of court fee
shall be calculated under Section 7(2) (a) which states that it is 25 times the revenue so
payable (i.e. it works out 50 X25 - 1250A) / Under Section 24(b), half of the market value is
the value of the suit for the payment of court fee. Then in this case Yz of Rs. 1250 will be Rs.
625/-. But the rule under Section 24(b) says that market value would be Rs. 1000/- of Y, of
the market Value whichever is higher. Hence in this case Rs. 1000/- is the market value for
calculation of court fee. Under Schedule l, Art I of the Court Fees Act, 2%% of Rs. 1000/-
is payable as court fees on the plaint is Rs. 25.

Answer No. 10
Write a comprehensive note on each of the following:

a) Precept:
5.46 deals with Precept. (The student should explain all that is stated in 5.46 and
discuss the same as follows.) Precept is an order or request or command passed and
issued by the executing court which has passed the decree to the court which is
competent to execute such decree, directing the said court to attach property
/properties belonging to the judgment debtor which is situated within its jurisdiction.
This arises generally when the decree holder seeks an order from the court which has
passed the decree to enable him to proceed against the judgment debtor's property to
recover the decree amount and that property is not within the jurisdiction of the court
which has passed the decree but is situated within the tenitorial jurisdiction of another
court. The decree holder should apply for transfer ofthe decree to the other court for
execution. In such cases where the decree holder is apprehending that the judgment
debtor is attempting to sell away or dispose of his property and therefore the decree

a( '^
holder to prevent such disposal of the property by the judgment debtor before the
decree is transferred to the other court, attachment of the property immediately is
required. The transfer of decree proceedings from the court which has passed the
decree to the court which has jurisdiction to execute it against the property of the
judgment debtor and unless the transfer of the decree proceedings are received by the
transferee court, execution proceedings cannot be initiated therein by the decree
holder and in the mean while the judgment debtor may dispose of the property. In
such circumstances the decree holder may seek the attachment of judgment debtor's
property immediately before the proceedings to transfer the decree are completed.
This facilitates the decree holder to get the judgment debtor's property attached
immediately before the transfer of decree proceedings are completed and it will help
him to prevent the judgment debtor from disposing off his properfy. The attachment
of the judgment debtor's property by the transferee court will be in force for 2 months
from the date of attachment. The decree holder in the meanwhile should get the
transfer of decree proceedings papers are received by the transferee court and file
execution petition seeking sale of attached propeffy before the expiry of aforesaid 2
months. Otherwise the decree holder will have to apply to the court which has passed
the decree to extend the period to any further period before the expiry of 2 months
and the said court may do it, so that the attachment made will not get itself vacated.
By this method the decree holder can proceed against the judgment debtor's property
to recover his decree amount. It is in the above circumstances only precept needs to be
obtained.

b) Interpleader Suit:
The provisions of law applicable to this question is S.88 and O35.To interplead means
to litigate with each other to settle a point conceming a third party.A interpleader suit
is a suit in which the real dispute is not between the plaintiff and defendants but
between defendants who interplead against each other unlike in an ordinary suit.In the
regular suits between plaintiff and defendant the dispute is between them in relation to
any property or a sum of money due from one to the other. In an interpleader suit the
plaintiff is not really interested in the subject matter of the suit .S.88 of CPC enacts
that two or more persons claiming adversely to one another the same debt, sum of
money or other property, movable or immovable, from a person who does not claim
any interest therein except the charges and costs incurred by him and is ready to pay
or deliver the same to the rightful claimant and for that purpose he may approach the
court so that the court may enquire into and decide as to which of the defendant or
defendants are entitled to the said property and on getting to know as to who is
entitled to it ,the plaintiff requests the court to deliver that property to that person or
persons among the defendants subject to the payment of the costs of the suit and
charges if any to the plaintiff by whomsoever the court may direct.

The plaintiff generally should file a suit against the defendants who claim the
property which had been entrusted to him by some person who is no more at present
when the defendants claim individually adversely to each other. The plaintiffhas got a
duty in such cases to ascertain after veri$ing whether any other suit or proceeding
conceming the said property is already filed by somebody in a court and that it is
pending. He should make sure that if such proceeding is not pending before any court
he should make a statement to that effect in the plaint when he files the interpleader
suit. If any proceeding is already pending the interpleader suit will b"yn-
"ot
maintainable he will have to contest that proceeding if he is also a pafr, otherwise
should get himself impleaded in that proceeding. In such cases he will be able to state
all that in such suit or proceeding itself and may get relief which he wanted in the
interpleader suit. He must also make a statement in the plaint that he is not colluding
with any defendants in the case. Before an interpleader suit can be instituted the
following conditions are to be satisfied.
l. There must be some debt,sum of money or other property movable or immovable
in dispute.
2. Two or more persons must be claiming it adversely to one another.
3. The person from whom such debt, money or property is claimed must not be
claiming interest therein other than the charges and costs and he must be ready
and willing to pay or deliver it to the rightful claimant.
4. There must be no suit pending wherein the right of rival claimants can be properly
adjudicated.
The plaintiff in such cases should be ready to deposit the amount or property to the
custody of the court. In such cases court may declare that plaintiff is discharged from
all liability and award him costs and dismiss him from the suit. On the basis of
evidence available, the court may adjudicate the tile to the property claimed adversely
by the defendants. And finally the court may deliver that property to any defendant or
defendants as it decides that he or thev are entitled.

An agent cannot sue his principal or a tenant his landlord for the purpose of
compelling them to interplead with persons other than persons claiming through such
principals or landlords in an interpleader suit. The reason for this rule is that
ordinarily an agent cannot dispute the title of his principal .likewise a tenant cannot
dispute the title of his landlord during the subsistence of the tenancy.

c) Explain the difference between "Illegality" and "Material Irregularity":


'Illegality' and 'material illegality' are the words or phrases used in Section I l5 CPC
to prefer revision to the High Court. Material inegularity is also stated in Order XXI
Rule 90 CPC under which an application to set aside a sale on the ground of
inegularity or fraud. Therefore, we consider illegality and material inegularity in
general to explain meaning of them.

'Illegality' is one where the court passes an order in contravention to the law.
'Material inegularity' occurs when the court passes an order in violation of a
procedure laid down in the law to arrive at that order. For instance, in a case where
the plaintiff files a suit against the defendant on the basis of a promissory note in
order to recover money due to him after the limitation period is over and applies for
the condonation of delay under Section 5 of Limitation Act, in filing the suit. Let us
take it that the court passes an order condoning the delay under Section 5 of the
Limitation Act, and accepting the suit and registering it to proceed with the same.
This is a case of illegality. While passing the order on IA and condoning the delay, as
Section 5 is not Applicable to the original suits. It is only applicable to appeals and
applications, except applications arising under Order XXI CPC.

Another example could be as follows, if the sale of immovable property is held


through court, the purchaser has to pay 25Yo of the sale price immediately and obtain
a receipt from the sale officer and he could pay the balance of 75Yo of the sale price
a
a
by depositing the same into court before the expiry of l5th day from the date of sale,
as stated under Order )C(I, Rule 84 CPC. If he does not deposit 75Yo of the sale price
within 15 days in court the sale has to be set aside. But, if the purchaser in a particular
case applies to the court for extending the time to deposit 75o/o of the sale price by 7-
l0 days after the 15 days limitation stated in the rule and the court passes an order
agreeing with the purchaser and extends the time by 10 days and the purchaser the
deposit the sale amount into court within the extended period of l0 days. The next
stage in the sale is to confirm the sale, if nobody has filed a petition under Order XXI,
Rule 89 or 90 CPC to set aside the sale, within a period of 60 days from the date of
sale and the court confirms the sale. Firstly, in this case the court has not given any
authority in any rule under CPC or anywhere else to extend the time limit after 15
days period expires, therefore the order of the court extending the time period is
illegal and contrary to rules. Secondly, confirming the sale is also a material
inegularity. This is a case of illegality the court has committee in passing the order
without having any authority and jurisdiction.

'Material Inegularity' occurs where, the court having jurisdiction to pass and order
and passes an order or decree without following the procedure laid down to arrive at
the order or decree. In a case the court has to hear both the parties on an application
and pass an order in accordance with rules and procedure, but the court without
hearing parties passes and order on the application, in such cases court has got
jurisdiction to pass an order but has not followed a procedure prescribed by law and
therefore that order suffer from material irregularity. Likewise, in a promissory note
case, if the defendant has admitted that he has executed a promissory note but has not
received the consideration for the promissory note and therefore is not liable to pay
the amount. In such cases if the court after taking evidence holds that the plaintiffhas
not proved that the consideration for the pro-note is paid to the defendant and on that
basis the court dismissed the suit. In this example also, the court has got the
jurisdiction to pass the decree or dismiss the suit, but it has violated the procedure in
placing the burden of proof, on the question of consideration. The presumption in
Section 1 18 of Negotiable Instruments Act is that if the defendants either admits the
execution of negotiable instrument or that it is proved that it is executed by him, is
deemed to have received the consideration for the pro-note and has executed the
promissory note which is a negotiable instrument. In such cases when a dispute arises,
the court has to place the burden on the defendant to prove that he has not received
the consideration for pro-note when he has admitted the execution of it. In violation of
that rule, placing the burden on the plaintiff and holding that he has not proved
passing of consideration and on that basis dismissing the suit, suffer from material
inegularity as he has not followed the procedure laid down by law in arriving at the
decision. Though he has got the jurisdiction to pass a decree or dismiss the suit.

--------xxx-------- /
A,etyyLa'-l/lfl t)

e,*,>e [< cJ,t_r-,w


a-
NATIONAL LAW SCHOOL OF INDTA UNIVERSITY
BENGALURU

III YEAR VIII TRIMESTER REPEAT EXAMINATION (24TH MARCHI 2016


c.P.c. - u
Marks: 60
Time: 3 % hours
Instnucnors:
7. Satdents are expected to relg on tlrc questlon pqper os lt ls and.
respond to lt. No clartflcatlons co;n be sought.
2. Electronlc ga.dgets are strtctlg prohlblted lnslde the Exa;mlnatlon HalL
Angone found, havlng the same tn hts / her possession ln the Exam
Ha,ll uillbe subjected to disclpllnary proceedings.
3. Students are requlred, to stqte brtef facts of the ccuse and, to gltre
recsorur ln support of thclr ansure"s and. mr.ntlon the proulslons and
case Lau; uthcrerEr necessary.
4. Bare Acts tolll be provlded bu the Examlnatlon fupantment

Question No. 1
A filed a suit against B for recovering a sum of Rs. 30,000/- on the basis of
a promissory note. B contested the suit contending in the written statement
that the pronote was not supported by consideration and that the suit was
barred by limitation. The trial court in the course of Judgment on merits of
the case gave a finding holding that the promissory note was supported by
consideration. The court, however answered the question of limitation
against the plaintiff holding that the suit was barred by limitation.
Consequently, the suit was dismissed. A has preferred an appeal.

a) Can B prefer an appeal or not, against the finding on the issue


relating to consideration of the promissory note?
b) Can B prefer cross objections against the adverse findings?
c) Can B challenge the correctness of adverse finding on the issue of
consideration in the appeal filed by A without filing cross objections?
Furnish reasons in support of your answers.
(3+3+3=9Marks!
Question No. 2
a. What do you mean by remand of a suit or proceeding?
Which authority may use the power of remand and in what
circumstances?
If an order of remand of suit is made, what is the procedure to
challenge such an order?
(3+3+3=9Marksf
Question No. 3
Write comprehensive note on each of the following, furnishing necessary
examples with facts of the case:
a. Deemed Decree
b. Restitution
c. Custodian
(5+5*5=15Marksf
-L-
i,

Question No. 4
In A's suit against B for recovering a sum of Rs. 1 Lakh on the basis of a
promissory note, B contended that the suit is barred by limitation as the
pronote is dated 01.04.2010 and the suit is filed on 24.O3.2OI4. He also
stated that he had not executed the pronote. The court has however decreed
the suit for Rs. I Lakh and costs against B, without discussing and without
grving a finding specifically on the question of limitation.

The decree is being executed by A against B. In the execution case, B


contested that the decree is a nullity as the court has passed the decree
though the suit was clearly barred by limitation and therefore the same
cannot be executed and enforced. Decide. (4 Marksf

Questlon No. 5
A' has filed a petition under Section 2I of Karnataka Rent and
Accommodation Control Act against B', a tenant in the court of Civil Judge
(Jr. Dn.), Channapatna seeking for eviction of B from a house premises
which had been let out to him by A 5 years ago, on the ground that premises
are required for his own use. B, the tenant had contended in the objection
statement that the petition is not maintainable and is liable to be dismissed
questioning the constitutionality and validity of Section 2L of Rent Control
Act. Explain the law applicable and as to how the court should proceed to
decide the petition. (5 Marks)

Questlon ltlo. 6
'M'files a suit against 'N'for recovering a sum of Rs. S00O/- on the basis of
the promissory note in the Court of Civil Judge (Jr. Dn.), Kanakpura. The
defendant 'N'contended in the written statement that he has executed the
pronote but had not received the consideration and therefore the suit may
be dismissed. The trial court decreed the suit for Rs. SOOO/- with costs and
current interest in favour of plaintiff on merits after hearing both parties.
Defendant' 'N' aggrieved by the Judgment and decree of the trial court
approaches you to challenge the decision of the trial court. What is the
course of action you would take to challenge that decision of the trial court
and under which provision and in which court? (5 Marksf

NOTE: Court of Civil Judee (Sr. Dn.) and Court of District Judse are
workine in Ramnaqaram who have iurisdiction over Kanakpura taluk.

Question No. 7

a. The Judgment debtor's house and truck were attached by the decree
holder in the course of execution of a money decree. Identiff THRTE
distinguishing features relating to publication and conduct of sale of
the said properties.

n2n
b. Later, sale was held and the truck and house are sold by the court.
The judgment debtor in the fact situation of Question No. 7(a) intends
to challenge the sale of trrck and house alleging fraud, collusion and
material irregularities in the publishing and conduct of sale process.
What course of action he should take? Explain with reasons.
14+4=SMarksf

Questlon No. 8
A, B, C, and D have obtained money decrees against Z on the file of City
Civil Judge, Bangalore for amounts specified below:

A's decree for Rs. 2 Lakhs


B's decree for Rs. 2 Lakhs
C's decree for Rs. 4 Lakhs
D's decree for Rs. 6 Lakhs
The decrees have not been satisfied.

The State of Karnataka has obtained a decree against Z for Rs. 5 Lakhs. A
has filed an execution petition and has got the only immovable property of Z
attached and sold to recover his decree amount. The property is sold by the
court on 6.03.2016 for Rs. L2 Lakhs. B's execution petition filed on
10.03.2016, C's Execution petition filed on 15.01.2OL6 and D's Execution
petition filed on 10.11.2015 are pending at various stages before the same
court. Karnataka State's execution petition filed on 5.11.2015 is also
pending. Decree Holders B and C have filed application seeking distribution
of assets of the JudgmentDebtor Z. Decide.
15 Marksl

ffi--_-----

n3-
ANSWERSTT,
III YEAR END TERM REPEAT EXAMINATION (MARCH) 20T6
c.P.c. - u

Answer No. I
The question reads that A has filed a suit against B for recovering a sum of
Rs.50,
000/- on the basis of pro-note. The defendant contested stating in the written
statement
that the pro-note *uffiported by consideration and that the suit was barred
by
limitation. The trial court while passing judgment on the merits of the case gave
a
finding holding that pro-note was supvorted by consideration. However,the court
S
dismissed the suit holding that the suit was barred by limitation. The plaintiff
has
prefened an appeal.

a.) The question is whether the defendant can file appeal or not on the finding
relating to the issue of consideration. Appeal is a statutory right of the party
and not an inherent right. If there is any provision giving right to a party to
prefer an appeal, against a decree or order then only the party can prefer an
appeal. If there is no provision in the statute to prefer an appeal against that
order or decree then he cannot prefer an appeal. In this case, B the defendant is
not aggrieved of a decree but he is aggrieved of a finding. The statute says any
party who is aggrieved of a decree may prefer an appeal under 5.96 CpC as the
statute gives that provision. In the case on hand the defendant has got the
benefit of the judgment. The decree is said to be in his favour as the suit is
dismissed as desired by him. He is not aggrieved of the decree. The finding on
the issue relating to consideration of pro- note is against him. He is aggrieved
of it. There is no provision in the statute to prefer an appeal against this finding
on the issue. Therefore he cannot prefer an appeal against this finding.

b.) The plaintiff has preferred an appeal now. O4l R22 is applicable to the
situation in hand. It reads thus: "Any respondent though he may not have
appealed from any part of the decree may not only support the decree but may
also state that the finding against him in the court below in respect of any issue
ought to have been in his favour......." We see from the reading of what is
stated above that the defendant is aggrieved of the finding on the question of
consideration. Therefore he can file cross objection against this adverse finding
in the appeal preferred by the plaintiff stating that the issue also should have
been held in his favour. Cross objections can be filed only when the opposite
party has preferred an appeal and the appeal notice is served on him or on his
Iawyer and that too within 30 days from the date of service of notice of appeal.
The cross objections will be considered by the appellate court and pass an order
thereonwhentheappealisheardonmerits.ofthe

-1-
case. If an appeal is not preferred by the opposite party the question of filing
cross objections against this adverse finding will not arise.

c.) In case where the cross objections in connection with the adverse finding
relating to consideration of the pro-note is concerned it is not mandatory or
compulsory to file cross objections on the adverse finding of consideration to
the pro-note. Even without filing cross objections O4l R22 gives the defendant
right to argue the same requesting the court to give a finding in his favour as
the provision itself states that the respondent may not only support the decree
in the appeal but may also state that the finding against him in the court below
in respect of any issue ought to have been in his favour. And further the
provision also states that he may also take any cross objection to the decree
which he could have taken by way of appeal provided he has filed such
objections in the appellate court. Here filing of cross objections is compulsory
when defendant is questioning a portion of the decree which has gone against
him on account of the finding related to that issue. In this case the finding is
against him in relation to the consideration to the pro-note which has not
affected the decree which is fully in his favour. The objection is only against
the consideration, therefore without filing cross objections defendant can argue
the matter requesting the court to give the finding on that issue also in his
favour.

Answer No. 2

(a) Remand of a suit or case means to send back the entire case papers with a
direction to dispose of the case by that court as stated in the direction to the
court against whose decree the appeal is preferred due to various reasons which
will be spelt out as under.

(b) Remand of Suit or proceeding is the power of the appellate court as enumerated
under 5.107 (l) (b) of CPC. Appellate court remands the case to the court
against whose decree the appeal is prefened. The provisions of law applicable
for purposes of remand by appellate court are O4lR 23,23A and R25.

R23:-Remand of a case by appellate court It reads that where the court from
whose decree an appeal is preferred has disposed of the suit upon a preliminary
point and the decree is reversed in appeal ,the appellate court may, if it thinks
fit, by order remand the case and may further direct what issue or issues shall
be tried in the case so remanded ,and shall send a copy of its judgment and
order to the court from whose decree the appeal is preferred with directions to
readmit the suit under its original number in the register of civil suits and
(if any) recorded in the original
tr
proceed to determine the suit and the evidence

lo',/ -z-
W
I
trial shall subject to all just exceptions be evidence during the trial after
remand.

Preliminary point may be a case relating to dispute over jurisdiction of the


court or bar of limitation or bar on account of application of Res judicata and
so on. When.the trial court framed the issues and proceeds to trial stage the
general rule is that ffie court should pronounce the judgment on all issues
under Ol4R2 CPC. Sub rule 1 of R2 says that notwithstanding that case may
be disposed of on a preliminary issue the court shall subject to the prwision of
, Sub rule (2) is to pronounce judgment on all issues. Sub rule 2 says that where

issues both of law and fact arise in the same suit and the court is of opinion that
the case or any part thereof may be disposed of on an issue of law only,it may
try that issue first if that issue relates to the jurisdiction of the court or a bar to
the suit created by any law for the time being in force, and for that purpose
may, if it thinks fit, postpone the settlement of other issues until after that issue
has been determined and may deal with the suit in accordance with the decision
on that issue. Therefore the trial court is empowered to choose to dispose of the
suit trying only any issue relating to jurisdiction or bar of limitation or of
similar such matters which can dispose of the suit itself. The court in such case
need not try the other issues on merits of the suit. When it hears only the
preliminary issue and gives a finding on that. Let us takfi?"is relating to
jurisdiction of the court and the court gives a finding that this court has no
jurisdiction to try that suit, the plaint will be returned to the plaintiff for re-
presenting it before the proper court. That means the suit itself is disposed of as
far as this court is concerned though it had not tried the other issues. Likewise,
if it is a case of bar of limitation or bar of on account of principle of Res
judicata and so on, if the court takes that issue as preliminary issue (point) and
then hears on that and if it holds that suit is baned by limitation or Res judicata
the suit itself will be dismissed without trying and giving findings on other
issues on the merits of the case. Therefore in such case where trial court has
disposed of the suit on the basis of finding on preliminary point or issue, the
party who is aggrieved of it prefers appeal and the appellate court on hearing
the appeal opines that the trial court's disposal of the suit is incorrect and
reverses the judgment of the trial court on that issue, the appellate court after
allowing the appeal setting aside the trial court's finding on that issue will have
to send the case papers back to the trial court along with its order or judgment
with a direction to register the case as original suit as it was earlier and retain
the decision of the appellate court on the preliminary point and try the other
issues on merits of the suit and write the judgment disposing of the suit. We
call this order of the appellate court remanding the suit to trial court with
,
direction as stated above.
&-,

-3-
The Rule 23A of 041 states that an appellate court can remand the suit back to
trial court in other cases also. It states that where the court from whose decree
an appeal is preferred has disposed of the case otherwise than on a preliminary
point and the decree is reversed in appeal and a Re-trial is considered
necessary, the appellate court shall have the same powers as it has under R23.
R23A is an amendment added in 1976 to give the appellate court full powers of
remand not only for reasons mentioned in R23 but also for any other reason
that may be considered as sufficient reason by the appellate court to remand the
suit on merits of the case also by allowing the appeal and setting aside the
judgment and decree of trial court and directing the trial court to consider
whatever point or aspect in the case identified by the appellate court and apply
the same and dispose of the suit by separate judgment.

Under R25 of 04l also the appellate court can remand the suit for a particular
purpose with a direction to do that whatever is stated by appellate court and
send back the papers to appellate court so that appellate court may consider
those aspects also and dispose of the appeal. It reads where the court from
whose decree the appeal is preferred has omitted to frame or try any issue or to
determine any question of fact which appears to the appellate court essential to
the right decision of the suit upon merits, the appellate court may if necessary
frame issues and refer the same for trial to the court from whose decree the
appeal is preferred and in such case shall direct such court to take the
additional evidenbe required; and such court shall proceed to try such issue and
shall return the evidence to the appellate court together with its findings
thereon and the reasbns therefor within such time as may be fixed by the
appellate court or extended by it from time to time. This kind of remand is
called partial remand. In such case the appellate court keeps the appeal pending
and sends back the case papers to the court from whose decree appeal is
preferred with a direction to take additional evidence on the issue framed and
give finding on it and send back the papers to the appellate court. The appellate
court willconsider that additional evidence on that additional issue as also the
finding on it and hear the appeal on merits of the case and dispose of the
appeal. In this case the appellate court had not remanded the entire suit back to
trial court for re-disposal by judgment. The appeal is kept pending and it is to
collect some additional evidence and material it is remanded to the other court
with a direction to send it back. These are the 3 types of remand of the case by
the appellate court to the trial court or any other court from whose decree is
appealed against and for purposes stated in the 3 rules described in detail
above.

(c) The remedy against an order of remand made by an appellate court is asked in
the question. The remand of the suit by an appellate court to the trial court is

-4-
either under O.41 R.23 which is relating to the trial court having considered
any preliminary point and disposed of the suit. And if the appellate court on
appeal by the aggrieved party has reversed that finding may remand the suit to
the trial court for disposal of the suit on merits. A remand order may be under
O. R.23A where the appellate court may remand the suit to trial court after
setting aside the decree of the trial court for any other reason or aspect than the
disposal of suit on any preliminary point. The appellate court may also make an
order of partial remand of the suit under R.25 of O.41. Remand order under R.
23 and R.23A are appealable orders as they find a place under O.43 R.l (u)
Therefore the remedy against the remand order under Rules. 23 and 23A is
miscellaneous appeal by the aggrieved party. So far as partial remand under
R.25 is concerned pslit does not find a place in the appealable orders either
under 5.104 or O.43 R.l and under any other provision. As an appeal is a
statutory right and no provision is available in the statute to prefer an appeal
against an order of remand under R.25 the aggrieved party cannot challenge it
by means of an appeal.

The only remedy against the order of remand under R.25 is under 5.105
cl.l.When the appeal itself is disposed of by the appellate court after obtaining
the information sought for from the trial court as per its direction of remand
under R.25, if the order of the appellate court goes against the party who is
aggrieved of the aforesaid remand order, and if the decree of the appellate
court is appealed against by that party ,any effor, defect or irregularity in any
order affecting the decision of the case may be set forth as a ground of
objection in the Memorandum of appeal. Therefore, the party aggrieved of
remand order under R.25 may put that ground also in the appeal against the
appellate court's order of disposing off the appeal itself, if it has affected the
decision in the case.
.:

Answer No.3: Comprehensive note

Deemed Decree
The Civil court may pass a decree in any suit or any order, including an order on
interlocutory applications. Decree is defined in Section 2(2) of CPC as the formal
expression of adjudication which so far as regard{the court expressing it, conclusively
determines the rights of the parties with regard to all or any of the matters in
controversy in the suit and may be preliminary or final. Order is defined under
Section 2(14) CPC as the formal expression of any decision of a civil court which is
not a decree. That means the order has got all the qualifications of the decree, but it is
stated that it is not a decree.. Appeal is a statutory right and not inherent right.
Whoever is aggrieved of a decree may prefer and appeal under Section 96CPC, so far
as orders are concerned only some orders are appealable as they find a place in
-5-
Section 104 I Order XLIII, Rule 1 CPC. Other orders which do not find place in
aforesaid provision are not appealable. The Legislature has, thought fit that some
orders which are not appealable for whatever reasons they thougilfit should be made
appealable and the aggrieved person against that order may be given a right to prefer
an appeal against such orders. And therefore some of the orders have been made and
have been givenhtstatus of decree only to the extent and purposes of preferring an
appeal by the aggrieved person against that order, as if it is a decree. An appeal could
be preferred under Section 96 CPC. Therefore, such orders are called deemed decreef,
though they do not satisff the definition of decree, but they are made and are given
status of decree only for the purpose of the aggrieved person against such order to
prefer an appeal under Section 96 CPC.

Examplef,' -
l. Rejection of a Plaint under Order VII, Rule l1 CPC is made a deemed decree.
2. Order passed under Section 144 of CPC on the question of restitution is also
made a deemed decree.
3. Any order passed deciding the claim petition by a third party seeking vacating
the attachment of his property under Order XXI, Rule 58 (4) CPC.
4. Any order passed under Order XXI, Rule 46-8,46-C and 46-E in relation to
garnishee are all made deemed decrees.

Restitution
h*l The provision applicable relating to restitution is S.144 of CPC. It reads thus: Where
and in so far as a decree or an order is varied or reversed in any Appeal ,Revision or
other proceeding or is set aside or modified in any suit instituted for the purpose, the
court which passed the decree or order shall, on the application of any party entitled to
any benefit by way of restitution or otherwise, cause such restitution to be made as
will, so far as may be ,place the parties in the position which they would have
occupied but for such decree and order or such part thereof as has been varied
,reversed, set aside or modified and for this pu{pose, the court may make any other
orders including orders for the refund of costs and for the payment of interest,
damages ,compensation and mesne profits, which are properly consequential on such
variation, reversal, set side or modification of the decree or order.
(1) It is also stated in the explanation that for purposes of Sub section I the
expression "court which passed the decree or order" shall be deemed to
include:
a. where the decree or order has been varied or reversed in exercise of
appellate or Revisional jurisdiction, the court of first instance;
b. where the decree or order has been set aside by a separate suit, the court
of first instance which passed such decree or order;
where the court of first instance has ceased to exist or has ceased to have
jurisdiction to execute itrthe court which ,if the suit wherein the decree
-6-
or order was passed were instituted at the time of making the application
for restitution under this section would have jurisdiction to try such suit.

(2) No suit shall be instituted for the purpose of any restitution or other relief
which could be obtained by application under sub-section (l)

Restitution means bringing back the parties to the suit to their original position which
they had occupied earlier to the execution ofthe decree or order passed by the court as
a result of either that order or decree has been set aside by the appellate or revisional
court subsequently.
Thus, if a trial court passes a decree against A in favour of B declaring that B is the
owner of the immovable property involved in the suit and that he is entitled to the
possession and mesne profits from A and the decree is executed immediately by B and
has taken possession of the immovable property and has proceeded to recover mesne
profits also. Let us take in this case that A files an appeal against the decree of the trial
court and that in ffif time the appeal is allowed by the appellate court setting
aside the decree of the trial court. In such situation, A's possession of the property is
not retained as B has executed the decree ofthe trial court and has taken possession of
the property already. If you take it that there is no funher appeal against appellate
court's decree in this case, A will have to get back possession of the property as he
was in actual possession of it earlier to the decree of the trial court and that he has
been dispossessed by B executing the trial court's decree. Now that the trial court's
decree is set aside by the appellate court and there is no further litigation in that
matter, A will have to get back the possession of the property i.e. A should be
restituted to the position he was holding before the trial court's decree was executed.
It is on account of the wrong decree passed by the trial court A was dispossessed.
Now that the decree is set aside, A should get back the possession of the property
from B. Restitution is that process giving the said property ,ofrr he was earlier in
possession of it. The provision says that no suit should be institrited to get back the
property from B. It states that an application u/S.144 CPC should be filed before the
trial court along with certified copy of the judgment and decree of the appellate court
requesting the trial court to deliver possession of the immovable property back to A.
That is what we call as restoration of the property to the possession of the party who
was in possession prior to the execution of the decree of the trial court. The process of
restitution of parties to the original position has been made very simple and easy under
S.144 CPC. This does not cost anything at all to Ato gbt back'possession, otherwise
he should file a suit only for that pu{pose and it is very expensive and time
consuming. It is expressly stated in this section that no suit will be entertained for this
purpose. Even in case of a money decree if the decree holder has executed and
collected the decree amount from the opposite party on the basis of trial court's
decree, if the appellate court later allows the appeal of the opposite party and sets
aside the decree passed by the trial courtrthe party who had paid the decrge amount to

-7- &
satisff the trial courthecree can get back the entire decree amount and costs from the
opposite party in the same manqer as stated above under S.I44CPC.
TY ryPlt *'vgLt^rJ L {1uyh^}'ir' tnl tt'u* q^a (toatn, 2'o.-l'd,A^I *,*
. -*y* fi-7{tSf* r-- 4 c-,t^rJ}- J.- fio'+aiX a W+wv'llyaLLall
uustodlan
-'- /4 2 The rule relating to the Custodian is under O.21 R.43A.Generally under O 43, R 2l
Uh,9

attachment of movable property other than agricultural produce in possession of


judgment debtor shall be made by actual seizure by the attaching officer and he shall
account for the same to the court. If the property seized is subject to speedy and
natural decay and the expense of keeping it in custody is likely to exceed its value, the
attaching officer may sell it at once and account for the value of it to the court.

However, in case of certain properties mentioned in R 43A, viz. livestock, agricultural


implements or other articles which cannot conveniently be removed and the attaching
officer does not act under the proviso to R 43, he may at the instance of judgment
debtor or the decree holder or any other person claiming to be interested in such
property leave it in the village or place where it has been attached, in the custody of
any respectable person who is referred to as custodiarn. The custodian will have to take
possession of the said attached properties and execute a bond in favour of court
undertaking to keep them intact in the same condition as they are, protect them and to
deliver the same to anybody the court may direct or produce them before court when it
is so ordered. He will be paid the maintenance charges of that property initially by the
decree holder which will be added to the decree amount finally. He will also be paid
certain fee for taking care of the said properties. The custodian will Wrhowever, be
responsible for any loss or damage caused to the properties {ue tqltfAefau[ He will
be liable to the judgment debtor,decree holder or anybody else as the court may direct
to pay the compensation for the property either lost, damaged or deteriorated in the
condition etc. If he fails to pay the said compensation as if he were a surety under
S. 145, the court may order the execution of that order against the custodian to recover
the compensation at the instance of such person who is entitled to it. It is also stated
that any order determining such liability shall be appealable as a decree under 5.96.

Answer No. 4
This is a case of suit for recovering a sum of Rs. I lakh on the basis of a promissory
note and has been decreed at the instance of A against B in spite of the fact that the
defendant B has contended that the suit was barred by limitation. The pro-note is said
to be dated 01.04.2010 and the suit is filed on 05-3-2014. The court has not discussed
or stated as to the bar of limitation or otherwise in the course ofjudgment and has not
given a finding on it. It is therefore that the judgment debtor B is contesting the
e}ecution petition stating that the decree is a nullity and it should not be executed.
-
\M
s
-B-
The question of decree being nullity does not arise in this case as the judgment debtor
has not questioned the jurisdiction of the court which has adjudicated upon the suit. It
means the court has jurisdiction territorial, pecuniary and subject matter but the court
has gone wrong in not considering the bar of limitation and has passed a decree
without giving a finding on the question of limitation, therefore it may be considered
to be a wrong decree. However the decree does not become nullity as contended by
the judgment debtor. The executing court may not execute the decree if it is a nullity
only and not for any other reason. It has no power to sit as an appellate court against
the trial court's decree to say that it is wrong decree as the court has passed the decree
in spite by limitation. The execution court's duty is to execute
"Ilt?tllt.ffibaned
the decreeras it is and not to question the decree on any ground except on the ground
of nullity. Therefore the executing court shall not agree with the judgment debtor and
may not accede to the request ofjudgment debtor not to execute or enforce the decree.
TheexecutingcourtwillhavetoexecutethedecreeforRs.llakhffi
judgment debtor as stated in the decree. The judgment debtor B in this case should
have filed an appeal against the decree of the trial court on the ground that the court
has gone wrong in passing the decree in spite of bar of limitation and could have got
the decree set aside by the appellate court which was the only course available to him.
When the judgment debtor has not taken that course of action he cannot be allowed to
contest the decree in the execution court.

Answer No. 5
The plaintiff has filed a petition under Section 2l of Karnataka Rent and
Accommodation Control Act, against the defendant B seeking for his eviction from
the house premises, which he has taken for rent about 5 years ago. Plaintiff wants this
premise for his own use and occupation. The defendant has contested that Section 21
of the Rent Control Act, under which the eviction petition is filed, is invalid and
unconstitutional and therefore the petition itself is not maintainable and sought for the
dismissal of the petition.

-rpft*
$* h
Provisions of law applicable are Section I 13 of the CPC and Order XLVI CPC, when
P'- ryou consider these provisions what is in fact applicable to case in hand is Section 113
4i+.e^"2.
lw*'h
|;; o,q6 of CPC only. In the case in hand, the civil judge in whose court the petition is filed
./&ty ' has to first decide, whether Section 2l of the Rent control AcL is unconstitutional or
constitutional. And then only in accordance with its decision, court can proceed to
dispose of the case in hand, which is for eviction.

Under Section 113 of the CPC if the Civil Judge comes to a conclusion according to
his own opinion that section 2l of the Rent control Act is unconstitutional, then he
shall refer the same to the High Court for its opinionr 4s he has no authority to say
that it is unconstitutional. It is only the High court or Supreme Court to say w ith
-9 - /L-
authority whether a provision of law is constitutional or unconstitutional. In this case,
the High Court under which this court is working or the Supreme Court has not given
their opinion in any other case, so far as section 21 of the Rent Control Act, is
concerned. After referring it to the High Court, Civil Judge hay6 got the option to stay
the proceedings in the case in hand before him till the High court gives its opinion and
proceeds with the case depending upon the High Court's opinion if the provision is
constitutional and give the judgment on the merits of the case.

He has also got the option of proceeding with triitland giving a final judgment also
when the reference is pending in the High Court and his judgment will be subject to
the high court's decision on the reference. The court is not bound to agree with
whatever the parties say on the question of constitutionality of that provision, it is his
own individual opinion on which court should take a decision to make a reference to
High Court or not. If his opinion is that the provision is not unconstitutional he may
record the same and without making reference to High Court he can proceed to take
trial in the case pending before him and give judgment.

Answer No. 6
'M' has filed a suit against 'N'
seeking a decree of Rs. 8,000/- in the court of Civil
Judge (Jr. Dn.). Defendant contested the suit stating that he has executed the
promissory note but not received the consideration and therefore seeking the dismissal
of the suit. The trial court decreed the suit for Rs. 8,000/- with cost and current interest
on merits after hearing both the parties. Defendant 'N' wants to challenge the decree.
The above case is cognizable by Small Causes Court as it is a case for a sum of Rs.
8,000/- on the basis of a promissory note, a simple money suit. In a case cognizable by
Small Causes Court and if it is not tried as a Small Causes suit by the Civil Judge and
has used the regular procedure to dispose of the case, to challenge the decree by
means of an appeal, 5.96 (4) is attracted. If the amount in the suit is not in excess of
Rs. 10,000/- and it is of the nature cognisable by the Small Causes Court, an appeal is
available u/S.96(a) if there is a point of law involved in it. In the case on hand the
point involved is only non-receipt of consideration for the pro note. It is only a point
of fact and not of law. And therefore appeal u/ 5.96 (4) against the above decree is not
maintainable. If we consider filing a review petition, uny%hAitions stated dS. 114 or
'lt
O. 47 has to be satisfied. And in this case as per the facts there is neither any glaring
mistake on the face of the record or any evidence not available earlier and which is
available now and so on is not there and therefore review is not possible. Revision
under S. 115 is also not possible to challenge the decree as there is no jurisdictional
elTor or illegality or material inegularity available to contest. Therefore the defendant
challenge the above decree. He will have to simply obey the decree.
iannot
V
-10-
Answer No. 7
(a) Three distinguishing features relating to publication and conduct of sale of
Judgment debtofs house (immovable property) and Truck (Movable property)
drrtl--
jsas follows:

1. XXI, R 59 - Where before the claim was preferred or


Stay of Sale: Order
objection was made the property has already been advertised to sale, the
court may -
a. If the property i{ movable, make an order postponing the sale
pending the adjudication of the claim or objection, or
b. If the property if immovable, that pending the adjudication of the
claim or objection, the property shall not be sold, or that pending
such adjudication the property may be sold but the sale shall not be
confirmed, and any such order may be made subject to such terms
and conditions as to securitv or otherwise as the courts thinks fit.

2. Time Period: Order XXI Rule 68 - No sale shall take place until after the
expiration of at least 15 days in case of immovable property and of at least
7 days in case of movable property, calculated from the date on which the
copy of the proclamation has been affixed on the court house of judge
ordering sale

3. Confirmation of Sale: In case of movable property Order XXI, Rule 77


provides that where a movable property is sold by the public auction the
price of each lot shall be paid at the time of sale or as soon as after as the
officer or other person holding the sale directs, and in default of payment
the property shall forth-with be re-sold. Further on payment of the
purchase-money, the officer or other person holding the sale shall grant a
receipt for the same, and the sale shall become absolute.

Whereas in case of immovable property, Order XXI, Rule 84 provides that


on every sale of immovable property the person declared to be the
purchaser shall pay immediately after such declaration a deposit of twenty-
five per cent, on the amount of his purchase-money to the officer or other
person conducting the sale, and in default of such deposit, the property shall
forthwith be re-sold. Further, as provided in Order XXI, Rule 85 provides
that the full amount should be paid within 15 days from the date of the sale.
Sale in case on immovable property is confirmed only after payment of full
amount and there has not been any application under Order XXI, Rule 89,
90 and 9l for setting the sale within the prescribed period of time to make
such application or if such application is made is disallowed by court.

-1I-
(b) In this case the judgment debtor's house and truck are attached and got sold by
the decree holder in the course of execution of a money decree. The judgment
debtor wants to challenge the sale of truck and house on the ground of fraud
collusion and material irregularity in the sale process.

House is an immovable property. Truck is a movable property The sale of


house can be questioned on the ground of fraud, collusion or material
inegularity in the sale process and the judgment debtor as the owner of the
house can file an application under R90 of O.2l seeking an order to set aside
sale alleging that the sale has caused him substantial financial injury as a result
of material inegularity and so on in the sale process. So far as the truck,
movable property is concerned R.78 of O.2l states that material irregularities
in the sale do not vitiate the sale of movable property and therefore the sale
cannot be sought for setting aside on such grounds. The same rule states that
the aggrieved person in such cases may sue for recovering the movable
property itself or its value which means R.90 does not attract to set aside the
sale of movable property. The aggrieved party, the judgment debtor may file a
suit against the purchaser and decree holder to set aside the sale and to recover
the movable property itself or its value from the purchaser.

Answer No. 8
A, B, C, and D have obtained money decrees against Z onthe file of City Civil Judge,
Bangalore for amounts specified below:
A's decree for Rs. 2 Lakhs
B's decree for Rs. 2 Lakhs
C's decree for Rs. 4 Lakhs
D's decree for Rs. 6 Lakhs
The decrees have not been satisfied.

The State of Kamataka has obtained a decree against Z for Rs. 5 Lakhs. A has filed an
execution petition and has got the only immovable property of Z attached and sold to
recover his decree amount. The property is sold by the court on 6.03.2016 for Rs. 12
Lakhs. B's execution petition filed on 10.03.2016, C's Execution petition filed on
15.01 .2016 and D's Execution petition filed on 10.11.2015 are pending at various
stages before the same court. Karnataka State's execution petition filed on 5.11.2015
is also pending. Decree Holders B and C have filed application seeking distribution of
assets of the Judgment Debtor Z.
rf,

\l
s
-72-
The provision of law applicable to the facts of the case is S. 73 of CPC relating to
distribution of assets. It reads thus: where assets are held by court and more persons
than one have, 9efore the receipt orl rg_ch assets,made applicatioruto the court for the
execution of the decree for the payment of money passed against the same Judgment
debtor and have not obtained satisfaction thereof, the assets after deducting the costs
of realization, shall be rateably distributed among all such persons-provided as
follows:-

a) Where any property is sold subject to a mortgage or charge the mortgagee or


incumbrancer shall not be entitled to share in any surplus arising from such
sale;
b) where any property liable to be sold in execution of a decree is subject to a
mortgage or charge, the court may with the consent of the mortgagee or
incumbrancer order that the property be sold free from the mortgage or charge,
giving to the mortgagee or incumbrancer the same interest in the proceeds of
the sale as he had in the property sold;
c) where any immovable property is sold in execution of a decree ordering its sale
for the discharge of an encumbrance thereon, the proceeds of sale shall be
applied-
i. Firstly, in defraying the expenses of the sale;
ii. Secondly, in discharging the amount due under the decree
iii. Thirdly, in discharging the interest and principal monies due on
subsequent encumbrances (if any); and
iv. Fourthly, ratably among the holders of decrees for the payment of
money against the Judgment debtor who have prior to the sale of
the property applied to the court which passed the decree
ordering such sale for execution of such decrees and have not
obtained satisfaction thereof.

(2) where all or any of the assets liable to be ratably distributed under this section or
paid to a person not entitled to receive the same, any person so entitled may sue such
person to compel him to refund the assets.

(3)Nothing in this section affects any right of the Government.

The provision explains that if a number of persons have obtained money decrees
against the same judgment debtor in the same court or in any other court and have
applied for execution of their decrees and the same are pending adjudication at
different stagesrone of the decree holders amongst them in whose proceeding the court
has attached the only property of the Judgment debtor and has brought it for salefhe
other decree holders have also sought for attachment and sale perhaps of the same
property belonging to the same Judgment debtor, so that they may also realize their
,hq 2
-73- u-
^
decree amounts out of the sale of same property, and in such cases the judgment
debtor6 property/properties are not sufficient to satisfu all the decrees. In such
circumstances, the provision explains as to how the distribution of sale proceeds
obtained by the court after selling the Judgment debto* property pro-rata amongst the
decree holders. It states that if there is mortgage or charge or any encumbrance over
the same property they will take precedence and their claims should be satisfied in
full. Then out of the balance of sale proceeds the expenses of sale will have to be paid
to the decree holder who has brought it for sale. The remaining sale proceeds should
be distributed to other decree holders who have filed their execution petitions in court
before the date of sale of the judgment debtor's property in the case on hand.
However, the rule says that if any Government /state government has also
rcentral
obtained a decree against the same judgment debtor and has complied with the
condition of filing the execution petition to execute that decree before date of the sale
ofjudgment debtor's property, will have precedence over the other decree holders and
the Government's decree should be satisfied in full out of the sale proceeds. The
balance of the sale proceeds should be distributed pro-rata to the other decree holders.

The property is sold by the court on 6.03.2016 for Rs. 12 Lakhs. B's execution
petition filed on 10.03.2016, C's Execution petition filed on 15.01.2016 and D's
Execution petition filed on 10.11 .2015 are pending at various stages before the same
court. Karnataka State's execution petition filed on 5.11.2015 is also pending. Decree
Holders B and C have filed application seeking distribution of assets of the Judgment
Debtor Z.

When you apply this to the facts of the case, A has got the decree for Rs. 2 lakhs
against the Judgmgnt debtor Z and has got his immovable property attached and sold

-r fn. property is sold by the court on 6.03.2016 and realised a sum of


ttirougt court 6b
Rs. 12 Lakhs. That means the assets of the Judgment debtor out of sale proceeds have
been received by the court on that day. B who holds a decree for Rs. 2 lakhs has frled
execution petition on 10.03.2016. C holds a decree for R9. 4 lakhs and has filed
execution petition on 15.01.2016. D holds decree of Rs. 6 lakhs and has filed
execution petition on 10.11.2015. All petitions are pending at various stages before
the same court. Karnataka state Government has obtained a decree for Rs. 5 lakhs and
has filed execution petition on 5.11.2015. It is therefore seen that B's execution
petition having been filed on 10.03.2016 (after the date of sale) is not entitled to any
money in the course of distribution of assets.

A, C and D are entitled for distribution after the Karnataka State Governmentl ."d
Central Government decree is satisfied in full. Sale expenses incurred by A shorild be
paid to him at the first instance out of the sale proceeds. The Karnataka Government's
decree of Rs. 5 lakhs is to be satisfied in full out of balance of sale proceeds. Out of
the remaining sale proceeds the decrees of A, C and D should be satisfied by payment
hl
\7 -L4-
of the money available in a pro-rata basis. Total amount due to all of them is Rs. 12
lu$t and the remaining amount is only Rs. 7 lakhs. Hence the amount should be paid
inf,ollowing proportion :

A will have to be paid 16.67% of the remaining amount decree i.e. Rs. 1,16,690 /-
c will have to be paid 33.33% of the remaining amount i.e. Rs. 2,33,310 l-
D will have to be paid 50 o/o of the remaining amount i.e. Rs. 3,50, 000/-

L.a^.>v*- q--*)*%

-15-
NATIONAL LAW SCHOOL OF INDIA UNIVERSITY
BANGALORE

III YEAR VIII TRIMESTER END-TERM EXAMINATION (JAN.I 2015


c.P.c. - u
Marks: 60
Time :3 Yz hours
Instructions :
7. stud.ents are expected to relg on the questlon paper as it is and, respond
to lt. No clarlflcatlons can be sought,
2. Electronlc gadgets are str-l&lg prohlbtted tnsld,e the Exo;mlnatlon HalL
Angone found in possesslon of the same wtll be subJect to dtsclpllnary
proceedlngs.
stud,ents are requlred to giae reasons in support, of thetr ansuters and
mentLonthe provislons of law and, case law whereaer necessary.
4. Bare Acts tttlll be prodd.ed, bg the Examlnatlon Department.

1. X obtained a decree for Rs. 1,50,000/- against Y and frled execution


petition to recover the decree amount by attachment and sale of sheep
belonging to Y. The court officer who was entrusted with the warrant of
attachment attached 75 sheep belonging to Y and in turn gave them to
the possession of Z, a respectable farmer and resident of the same village
where Y is also residing for safe custody and to look after the same until
further orders of the court. z agreed and took the sheep to his
possession and executed a bond in favour of the court undertaking to
look after them until further orders of the court against payment of
expenses and charges. However, due to failure of servants of Z, who
have been in charge of looking after the sheep, to provide adequate
shelter and proper medical care, the sheep fell ill and as a result 25
sheep died. When the court ordered sale of the sheep, 50 sheep only
were produced by z. They were sold and a sum of Rs. 1,0o,0o0/- only
was realised and the same was paid to the decree holder. Y does not
possess any immovable property or any other movable properties worth
the name. As advocate of X what is the course of action you would take
to recover the balance of decree amount due to X. Explain with reasons
and the law applicable. (5 marks)

2. A obtained a decree against D for Rs. 5 lakhs and filed execution petition
on 5.8.2014 requesting the City Civil court in Bangalore for attachment
and sale of the site situated near Kengeri Satellite Town, the only
property belonging to D for recovering his decree amount. B who has
also obtained a decree against D for Rs. 4 lakhs also filed an execution
petition in the sarne court on 2.IO.2O|4 to execute the decree seeking
arrest of D as also to attach and sell his movable and immovable
properties. C who also holds a decree for Rs. 1 lakh against D has filed
an execution petition on 10.112014 seeking for attachment and sale of
the same site of D. Warrant of attachment is issued by the court. The
Karnataka State Government who has obtained a decree against D for
Rs. 2 lakhs has filed execution petition on 16.11 .2Ol+ and a notice
under O 2L R 22 CPC is just served on D in that case. The Central
government has also obtained a decree for Rs. 1 lakh and has filed
execution petition in the same court against D on 15.10.2014 and a
notice under O. 2l R 22 CPC is just served on D in that case. A11 the
execution petitions filed by several decree holders referred to above are
not barred by limitation and are pending. In the execution case of A, the
site of D which was attached has been sold in court auction sale held on
4.LO.2OL4 and a sum of Rs. 5,01,000/- only is realised and the sale is
confirmed on 2O.I2.2OI4. A has incurred Rs. 1000/- towards expenses
to get the property attached and sold.
If you are the Presiding Officer of the court, how do you decide the claims
of the decree holders in the above case. Explain the law applicable to the
case. (5 marks)

3. In A's suit against B for recovering a sum of Rs. I lakh on the basis of a
promissory note, B contended that the suit was barred by limitation as
the pronote is dated L.4.2o14 and the suit is filed on s.6.2orN, He also
stated that he had not executed the pronote. The court has however
decreed the suit for Rs. 1 lakh and costs against B, without discussing
and without giving a finding specifically on the question of bar of
limitation.
This decree is being executed by A against B. In the execution case, B
has contested that the decree is a nullity as the court has passed a
decree though the suit was clearly barred by limitation and therefore the
same cannot be executed and enforced. Decide. (3 marks)

4. Can an appeal be filed and maintained against each of the following


adjudications? Explain with support of law applicable to the same.

a) Plaint is returned on the ground that the cause of action has


arisen outside the jurisdiction of the Court.

b) Leave is granted to a petitioner to file a


suit as an indigent person
without payment of court fee overlooking that the petitioner had
filed the petition through a Counsel.

c) Leave is granted to the petitioners to frle a suit for framing a fresh


scheme for the management of the society running a college as a
public trust, on the basis that the petitioners as old students of the
College are persons interested.

d) The court sets aside the order of dismissal of a suit for default
passed under Order 9 R 8 CPC holding that the date of hearing of
the suit recorded in the court's note sheet of the case papers was
at variance with the date on which the case was called and
disposed of, by dismissing it. (4 x 2 V2 -- LO marks)
5. P, a passenger who while travelling by a Tourist Service Bus having
sustained multiple fractures of ribs, hip bone and head injuries due to
rash or negligent driving of the bus resulting in the bus meeting with an
accident, filed a suit against the driver and owner of the bus and
insurance company in the Court of Civil Judge (Sr. Dn.) Mysore, claiming
compensation of Rs. 10 lakhs. The driver and the owner of the bus,
defendants I and 2 respectively filed a common written statement
contesting the suit, stating that they were not liable for the claim of the
plaintiff as the accident was not due to rash or negligent driving of the
driver. The 3'd defendant, the Insurance company contested the suit
pleading that the "lnsurance policy'' relating to the bus had expired a
week earlier to the date of accident and the same was not current and
enforceable on the date of accident and therefore it was not liable to pay
the suit claim". The court hearing all the parties decreed the suit for Rs.
10 lakhs against all the three defendants.
The driver and the owner of the bus, defendants 1 and 2 preferred an
appeal before the District Judge, Mysore, challenging the Judgment and
decree of the trial court impleadirtg "Y , the plaintiff only as respondent.
The 3rd defendant, the Insurance company, however, later preferred a
"review'n petition before the trial court itself.
Discuss the law and explain as to the maintainability or otherwise of the
Review Petition. (5 marks)

6.a) uA' filed a suit against nB' on the basis of a promissory note for
recovering a sum of Rs.S lakhs in the Court of Civil Judge (Sr. Dn.) and
also filed an interlocutory application (1.A.) along with the plaint seeking
attachment before Judgment, the residential house of the defendant B
for the reasons sworn to in the affidavit filed by him in support of the
application. The court considered the plaint and the application and
ordered attachment of the house of defendant. Warrant of attachment
issued by the Court was executed and attachment of the house was
effected. The defendant wants to challenge the order of attachment
before Judgment issued by the court and the attachment made and
approaches you. What is your advice to the defendant and how do you
challenge the said order and on what grounds? (2 Yz marksl

b) The defendant also contends that the plaintiff has obtained the
attachment of his property making false statement sworn to by him in
the affidavit and therefore wants to claim compensation of Rs. 50,000/-
from the plaintiff as his reputation is affected by the act of the plaintiff.
What is the course of action you take to obtain compensation to the
defendant? (2 Yz marksl

7. A obtained a decree against B for Rs. 1 lakh on the basis of pronote in


O.S. No. 25l2OI2 on the file of City Civil Judge, Bangalore city. A has
been executing that decree against B in Ex. Petition No. 555 of 2or4 in
the same court. when the notice was served on B by the court in that
case on 5.9.2OI4 to show cause whv the decree should not be executed.
B filed objections stating that he approached A on 6.9.2oI4 at his house
and paid Rs. IO2I5O l- the entire decree amount along with costs and
current interest in full satisfaction of the decree in the presence of C and
D common friends of both the parties. A issued a receipt to the same
effect in favour of B acknowledging the receipt of the aforesaid money in
full satisfaction of the decree and has signed the same in their presence.
He has also stated therein that A assured him that he would report the
matter to the court and get the full satisfaction of the decree entered by
the court and to get the same certified. However B having learnt later
that in his absence in the court on the date of hearing of the case on
15.9.2014 that A instead of getting the payment certified, had obtained
an order to get the immovable property of B attached and sold. B has
filed objections and produced into court on 20.9.2OI4 the receipt dated
6.9.2O14 issued by A. B has sought for certification of full satisfaction of
the decree. A has denied the payment and has contended that the
alleged receipt is a forged document. The court having enquired into the
dispute, recorded evidence furnished by both parties, heard arguments
and adjudicated upon it. The court has passed its order dated
3L.r2.2o14 holding that the receipt produced by B is a genuine
document and accepting the version of B that A had received the decree
amount from B on 6.9.2OL4 in full satisfaction of the decree and has
issued that receipt. The court ordered to enter full satisfaction of the
decree.
A has approached you, an advocate to challenge the said order of the
court. What course of action you would take to challenge the order of
the executing court? Explain with reasons. (5 marks)

8. Write a comprehensive note on each of the following:


a) Precept
b) Restitution (5+S=l0marks)
9. X has obtained a decree for recovering a sum of Rs. 2 lakhs against Y, a
retired attender of a government office. He never acquired or owned any
immovable property. He has no moveable property of considerable value.
He is residing with his engineer son Z. During the course of execution
proceedings of the decree Y died. The execution proceeding is directed
now against Z, the son of Y. The decree holder applied for attachment
and sale of a house belonging to Z and also sought for arrest and
detention of Z in civil prison. The court issued warrant ordering
attachment of the house of Z and it is attached. The court also issued.
warrant ordering arrest of Z and he is arrested and brought before court.
Z has engaged you to defend him and get him released from custody and
to get his property released from attachment. What is the course of
action you would take to defend Z? Explain. (3 marks)

10. Is a second appeal maintainable in each of the following cases? Furnish


reasons in support of your answers.
a) A filed a suit against B seeking a decree for Rs. 25,O0Ol- on the
basis of a promissory note executed by B in favour of A. B
contested the suit denying execution of pronote, borrowing any
money from A and also stated that the suit was barred by
limitation. The court after trial gave finding that the plaintiff has
proved that the defendant has executed the promissory note in his
favour. The court however held that the plaintiff has failed to
prove that the defendant had borrowed money from plaintiff. In
other words, the court held that the plaintiff has failed to prove
that the pronote is supported by consideration. The court also
held that the suit is barred by limitation. Accordingly, the suit is
dismissed by the Trial court. The appeal preferred by A is
dismissed by the Civil Judge (Sr. Dn.) confirming the trial court's
findings on all the issues.

b) In the fact situation stated in Q. No. (a) above, the Ist appellate
court has upheld the finding of the trial court on first issue. The
appellate court has reversed the finding of trial court on the second
issue by holding that the suit pronote is supported by
consideration on the ground that the defendant has failed to prove
that the pronote is not supported by consideration. However, the
appellate court dismissed the appeal holding that the suit is barred
bv limitation. (2%+2Yz = 5marks)
11. In a suit before the City Civil Judge, Bangalore, filed on 2.6.2OL4 for
declaration of plaintiffs title to the suit site and permanent injunction to
restrain the defendant from trespassing upon the site or in any way from
disturbing plaintiffls possession and enjoyment of the site, the plaintiff
filed an Interlocutory Application (I.A.) u/o. 39 R 1 and 2 seeking an
order of temporary injunction pending disposal of the suit and' on the
same day obtained an exparte ad-interim order of Temporary Injunction
till the disposal of the said application. The defendant on service of
summons and ad-interim order of T.l. and notice of application, filed on
15.6.2014 his written statement and objections to the I.A. seeking
dismissal of I.A. and to vacate the order of ad-interim order of T.I.
granted in favour of the plaintiff. The court posted the suit to 22.6.2OL4
to hear both parties on I.A. However, for some reason or the other, the
court has gone on adjourning the case from one date to another to hear
arguments on I.A., but has not heard the same. The defendant has been
urging the court that the delay is causing great hardship, inconvenience
and prejudice to him and requesting the court to expedite the hearing of
I.A. and dispose of the same eariy without adjourning the case anymore.
The court, however, has not heard the parties on the merits of the
application, but has postponed the hearing again to L6.2.2OI5. As the
defendant's advocate, can you challenge the order of the trial court and
if so, what is the procedure available to you to challenge and get the ad-
interim order of T.l. vacated. (4 marks)
********

)
NATIONAL LAW SCHOOL OF INDIA UNIVERSITY
BANGALORE

III YEAR VIII TRIMESTER REPEAT EXAMINATION (MARCHI 2015


c.P.c. - u
Marks : 60
Time :3
Yz hours
Instructions :
1. Stud,ents are qxpected. to relg on the questlon paper as it ls and respond
to it. No clarifications co;n be sought.
2. Electronlc gadgets are str'lctlg prohibited, lnsldc the Examinatlon Ho,lL
Angone found in possession of the same ulll be subJect to disclplinary
proceedings.
3. Stud,ents are requlred, to glue reasons in support of thetr qnsuters and
mentlonthe provisions o.,f law and case laut uthereaer necessary.
4. Bare Acts will be provided bg the Examinatlon Department.

1. A intends to file a suit against B for declaration of his title to the suit
schedule 2 acres of agricultural land out of the land bearing Survey No.
22 measuring 4 acres situated at Bommasandra village of Nelamangala
Taluk of Bangalore Rural District and for permanent injunction to
restrain B from disturbing A's possession of the land and to prevent him
from dispossessing A from the land on the ground that B was attempting
to dispossess A from the land and to usurp possession on the pretext
falsely claiming that he is the owner and is in possession of it.
The annual land revenue payable for the entire 4 acres of land of S. No.
22, by A is Rs. 50/- and is permanently settled. How do you value the
suit for purpose of court fee and for jurisdiction of court? In which
court you propose to file the suit? What is the court fee payable on the
plaint by A? Explain and calculate the same as per rules.
Note: There are courts of Civil Judge (Jr. Dn.) and Civil Judge (Sr. Dn.)
in Nelamangala town. (5 marks)

2. 'A'has filed a petition u/S. 21 of Karnataka Rent and Accommodation


Control Act against 'B', a tenant in the Court of Civil Judge (Jr. Dn.),
Channapatna seeking for eviction of B from a house premises which had
been let out to him by A 5 years ago, on the ground that the premises are
required for his own use. B, the tenant has contended in the objection
statement that the petition is not maintainable and is liable to be
dismissed questioning the constitutionality and validity of S. 21 of Rent
Control Act. Explain the law applicable and as to how the court should
proceed to decide the petition. (5 marks)

3. X filed a suit against Y on the basis of a promissory note and obtained a


decree for Rs. 2 lakhs in the City Civil Court, Bangalore on 5. L2.I993.
On 10.12.1993, X died leaving his wife "W" aged 40 years and sonZ,
aged 3 years as his legal representatives. On 31.12.2OO8 Z became 18
years old and attained majority. On 15.I.2OO9, W and Z filed execution
petition against Y to execute the decree. Y has filed objections
contending that the execution petition is barred by limitation and is not
maintainable. Decide. (3 marks)

4. X and Y jointly have obtained a decree for Rs. 5 lakhs against B, C and D
and are executing the same. They have sought for attachment and sale
of a site belonging to B situated in Bangalore. B has filed objections
contending that the decree amount should be recovered from all the
Judgment debtors and that his site cannot be sold for recovering the
entire decree amount. C has stated that he has obtained a decree for Rs.
1 lakh against X in another case and it is still not satisfied and therefore
he has sought for adjustment of that amount towards the decree amount
payable to X and Y. X agrees but Y is not agreeable. Decide. (4 marks)

5. Explain with reasons whether appeal in each of the following situations


is maintainable:

a) An appeal against an order allowing the review petition.


b) Appeal against an order remanding the suit to the trial court with
a direction to frame a particular issue, record evidence on it
allowing the parties to adduce evidence, give a finding on that
issue and return papers back to the Appellate Court to enable it to
hear and decide the appeal.
c) Appeal against the trial court making reference to the High Court
seeking its opinion in the matter of interpretation of a provision in
the Contract Act involved in the suit.
d) Appeal on a question of fact against a decree in a money suit where
the value of the suit is Rs. 10,000/-. (4 x 2 = 8 marks)

6. A obtained the decree for permanent injunction against B on 15.4.L982


in O.S. No. 25/1981 on the file of Civil Judge (Jr.D.t.), Tumkur,
restraining him from interfering with the Decree Holder's possession and
enjoyment of an agricultural land of 2 acres irrigated by channel water in
Survey No.22/1 situated at Tumkur. B, subsequently, died in 2OI4. A
had raised paddy crop on that land during 2OI4-15 and it is ready for
harvesting and reaping. C and D, the sons of B came to the land along
with their servants on 15.3.2015 and threatened with dire consequences
claiming that the land belonged to their father and attempted to cut the
paddy crop.
A approaches you to help him out of the situation. What is the course of
action you, as an advocate, take to help 'A' to save his possession of the
land and the crop? Explain. (2 marks)
7. Can a petition for "review" be preferred and maintained against each of
the following decisions? Explain furnishing reasons in support of your
answer.

a) The Trial court has wrongly construed a deed of "gift" as a deed of


sale and has decreed the suit of the plaintiff for recovering sale
price from the defendant.

b) The Trial court has overlooked the bar of limitation against the
maintainability of the suit available in the case records and
pleaded by the defendant and has decreed the suit.
(2x2=4marks)
8. Explain the grounds and the procedure to file an appeal before the
Supreme Court. Explain also the procedure to obtain the certificate
from High court to prefer an appeal before Supreme Court. (5 marks)

9. Hiralal, a jeweller filed a suit against one Bharathi Devi W/o. Ramegowda
and obtained a decree on 20.4.2000 against her for recovering a sum of
Rs. 1,50,000/- due by her towards value of gold jewels purchased by her
on credit. Bharathi Devi is an employee in Karnataka Government
Secretariat. Hiralal kept quiet for a long time after obtaining the decree
since her husband was assuring him that they were making efforts to
clear the decree amount as early as possible. However, having waited
for a long time and not finding any symptoms of attempts to pay the
amount, Hiralal filed execution petition and sought for arrest and
detention of Bharathi Devi in civil prison. The court issued arrest
warrant. The Judgment debtor is brought before the Court under arrest.
Bharathi Devi has engaged you as her lawyer to defend her. What is the
course of action you would take to defend her and to get her released
from custody? Explain. (2 marks)

10. Explain what you mean by "Symbolical possession". In what


circumstances symbolical possession of an immovable property could be
given in the course of execution of a decree for possession of immovable
property. (3 marks)

11. The House bearing No. 26, situated in loth Main Road, I Block
Jayanagar, Bangalore, belonging to X is attached in the course of
execution of a money decree on the file of City Civil Judge, Bangalore, at
the instance of A, the decree holder against B, the judgment debtor. X
has nothing to do with B. The case stands posted for sale. On learning
that his house is attached and is proposed to be sold, X approaches you
for advice and to assist him to get the attachment of his house vacated.
What is the course of action you take to safeguard the interests of X?
(2 marks)
L2. If the court after enquiry dismisses X's proceeding in the case mentioned
in Q. No. 11 above, what is the course of action available to X who is
aggrieved of the order of tJ:e court to challenge the order? (2 marks)

13. Write a comprehensive note on each of the following:

a) Distinction between illeeatiqv and material irrezularitv. Explain


furnishing at least one example / illustration of each of them.
b) Garnishee
c) Deemed decree. Furnish two examples of the deemed decree.
(3x5= 15marks)

***********
III vear VIII Trimester Repeat Examination March 2015

Clues to Answer to the Ouestions

As per the instructions in class students are required to briefly write the
facts of the problem stated in the question. They should then identify the
provisions of law applicable to the questions. They should explain the
meaning of the provisions of the law and apply the same to facts of the case
to arrive at the correct answer. If the question relates to more than one
point involved in it and the students are asked to answer each point
separately giving the reasons.

Question No. 1- Plaintiff intends to file a suit against defendant in respect of 2


acres of agriculture land in Survey No. 22 measuring 4 acres for declaration of
his title to the said land and Permanent Injunction to restrain the defendant B
from disturbing the plaintiff s possession of the land. The annual land revenue
payable in respect of that land is Rs. 50 and it is permanently settled. The
students are asked to calculate the court fee payable on the plaint and explain
the value of the suit for the jurisdiction purpose. Further, they are also asked to
answer in which court the suit has to be filed.

-
Provisions applicable in the case on hand Section 7(2) of the Kamataka court
Fees and Suits Valuation Act and Section 24 (b) of the same Act to arrive at the
deemed market value of the immovable property (land in question) for pu{pose
of calculation of court fee on the plaint.
:
25 x 50 1,250 /- Rupees is the deemed value of the suit (agricultural land) for
purposes of court fee. Under section 24(b) the value for the purpose of court fee
in case of declaration of title and pennanent injunction would be half of the
market value; or Rs. 1,000/- whichever is higher.

In this case Rs. 1250 divided by 2 i.e. Rs. 625. Since the Rs. 1000 (minimum
stated in provision) is higher than Rs. 625 (half of the market value) therefore
will 1000. I
court fee have to be calculated on Rs.
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As per Schedule I of the said Act, it is 2 Yz o/o court fee payable on the deemed
value of the suit i.e. Rs. 25 is the court fee payable on the plaint.

Value of the suit for purpose of jurisdiction of the court may be taken
(approximately) as an actual market value. 2 acre of land can be valued for Rs. 4
Lakh and therefore the suit has to be filed in the court of Civil Judge Junior
Division in Nelamangla Town, as the suit properry is situated in a,yillage in
Nelamangla Taluk and therefore this court has jurisdiction (Section f #8FC)

Question No. 2 - The plaintiff has filed a petition under Section 2l of


Karnataka Rent and Accommodation Control Act, against the defendant B
seeking his eviction from the house premises, which he has taken for rent about
5 years ago. Plaintiff wants this premise for his own use and occupation. The
defendant has contested stating that Section 2l of the Rent Control Act, under
which the eviction petition is filed, is invalid and unconstitutional and therefore
the petition itself is not maintainable and has sought for the dismissal of the
petition.

Provisions of law applicable are Section I 13 of the CPC and Order XLVI CpC,
when we consider these provisions what is in fact applicable to case in hand is
Section I 13 of CPC only. In the case in hand, the civil judge in whose court the
petition is filed has to first decide, whether Section 2l ofthe Rent control Act,
is unconstitutional or constitutional. And then only in accordance with its
decision, court can proceed to dispose of the case in hand, which is for eviction.

Under Section 113 of the CPC if the Civil Judge comes to a conclusion
according to his own opinion that section 2l of the Rent control Act is
unconstitutional, then he shall refer the same to the High Court for its opinion,
as he has no authority to say that it is unconstitutional. It is only the High court
or Supreme Court to say with authority whether a provision of law is
constitutional or unconstitutional. In this case, the High Court under which this
court is working or the Supreme Court has not given their opinion in any other
case, so far as section 2l of the Rent Control Act, is concerned. After referring
it to the High Court, Civil Judge has got the option to stay the proceedings in
the case in hand before him till the High court gives its opinion and proceeds
with the case depending upon the High Court's opinion if the provision is
constitutional and give the judgment on the merits of the case.

ttu'
-r-
He has also got the option of proceeding with trial and giving the judgment also
when the reference is pending in the High Court and his judgment will be
subject to the high court's decision on the reference.

The court is not bound to agree with whatever the parties say on the question of
constitutionality of that provision. It is his own opinion on which court should
take a decision to make a reference to High Court or not. If his opinion is that
the provision is not unconstitutional he may record the same and without
making reference to High Court he can proceed to take trial in the case pending
before him and give judgment.

Question No. 3 - A has obtained a decree for Rs. 2Lal& against Y on the basis
of Promissory Note. Y died on 10.12.1993 leaving his wife W aged 40 years
and a minor son aged 3 years as his legal representatives. On 31.12.2008 his son
Zbecame major and execution petition was filed by both LR's on 15.01 .2009
for execution of money decree. The judgment debtor Y has objected stating that
petition is barred by limitation and not maintainable. The students are asked to
decide the case.

The provisions of the law applicable are Article 136 of the Limitation Act and
Section 7 & 9 of the said Act. In addition to this Order XXI, Rule l5(l) CPC is
also applicable.

Article 136 states that period for filing an execution petition to execute a decree
for money or any other decree except a decree for mandatory injunction is 12
years from the date of enforceabilify of the decree. The decree has been passed
on 5.12.1993 and became enforceable from that date itself. X has not filed
execution petition and died after 5 days later. The time began to run from
5.12.1993 and ended on 5.12.2005. As per Section 9 of the Limitation Act,
which states that once the limitation period commences to run, subsequent
disability or inability will not stop the running of the time. Though his wife and
son have come into picture after his death, W his wife who was not suffering
from any legal disability could have filed an execution petition to execute the
decree on behalf of herself and the minor son as stated in Section 7 of the
Limitation Act as also order XXI Rule 15(l) of CPC. Section 6 of the
Limitation Act, is not applicable to this case. They ought not to have waited till
the Z attains majority. Therefore, the execution petition filed on 15.01.2009 is

N
-3-
certainly barred by the limitation and is not maintainable as contended by
judgment debtor Y

Question No. 4 - X & Yjointly have obtained a money decree against B, C and
D and are executing the same. Attachment and sale of B's site is sought for. B
has objected that his site cannot be attached and sold to recover the entire decree
amount; it will have to be recovered from all Judgment Debtors. C has stated
that he has a decree for Rs. I Lakh against X in another case, and it is still not
satisfied therefore he seeks for adjustment of Rs. I Lakh towards the decree
amount. X agrees but Y does not agree. Students are asked to decide.

The provisions of the law applicable are Order XXI Rule 18(3Xa) of the CPC
which relates to execution of cross decrees. The rule shall not be deemed to
apply unless the decree holder in one of the suits in which decree has been made
is the judgment debtor in the other suit, and each party fills the same character
in both the suits and the sums due under the decrees are definite.

In the case in hand, X and Y are the plaintiffs who have obtained the decree
against B, C and D, but in the decree obtained by C is against only X not Y and
therefore though the decree amounts are definite the parties do not fill the same
character in both the suits, hence this cross decree adjustments are not
applicable. C's request will have to be rejected. C may file a separate execution
petition against X and recover the money but he will have to pay decree amount
in the case in hand.

B's contention cannot be accepted as the decree against B, C and D is joint and
several. The decree holders have got the authority to recover the amount either
from all the judgment debtors or any of them as they think fit. B's contention is
also rejected.

Question No. 5 -Whether appeal in each of the following situation is


maintainable?

a) An appeal against order allowing review petition - order XLVII Rule


7(1) of CPC is applicable along with Order XLI[, Rule 1(w) of CPC.
Appeal is a statutory right and not inherent right. Further this is an order
il'
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under order XLVII Rule 4 allowing the review petition. Under order
XLIII Rule 1(w) it is appealable and a miscellaneous appeal is permitted.

b) Appeal against an order remanding a suit to the trial court with a direction
to frame a particular issue, record evidence and give finding and retum
the papers back to the appellate court so that the appeal may be decided
by it. Whether this order is appealable or not is the question. This is an
order passed under Order XLI Rule 25 CPC.It is not a decree. This order
does not find a place either under Section 104 of CPC or Order XLIII
Rule I of CPC which deal with appeal against orders. There is no other
provision which allows appeal against such order. Hence, appeal is not
maintainable.

c) Appeal against trial court making reference to the high Court, seeking its
opinion in the matter of interpretation of a provision in the Contract Act.
- The reference is made under Section 113 of CPC. It is neither a decree
nor an order, and it is only corespondence between trial court and the
High Court. There is no provision under which an appeal can be preferred
against such reference to the High Court; hence no appeal can be filed
against this reference.

d) Appeal on a question of fact in a money suit where the value of the suit is
Rs. 10,000i- . Section 96 (4) CPC is applicable. It says that there is no
appeal against decree in a money suit where the value does not exceed
Rs. 10,000/- unless a point of law is involved, which can be taken as a
ground in appeal. In this case, it is stated that it is merely on the question
of fact and no law is involved in it. Therefore appeal against the decree is
not maintainable.

Question No. 6 - A has obtained a decree for permanent injunction on


15.04.1982 in O.S. No. 25ll98l in the court of Civil Judge, Tumkur against B
restraining him from interfering with A's possession of agricultural land of 2
Acres. B died in 2014. During 2014-15 plaintiff A has raised a paddy crop and
it is ready for harvesting. C & D, sons of the judgment debtor B, along with
their servants have threatened A, the decree holder, with dire consequences as
/4,
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that the land belong to their father and are attempting to cut the paddy crop. The
question is, how to safeguard the possession of A and this crop.

Provisions of law applicable are Article 136 of the Limitation Act, and Order
XXI Rule 32 (l) CPC and also Section 51(b) and (c) of CPC. Article 136 of the
Limitation Act, says that there is no limitation period to file the execution
petition for pennanent injunction, which means even after 30-40 years
execution petition may be filed.

When the decree is against the judgment debtor B and that B never contested it
and obeyed the decree during his life time. He has died in 2014. The decree for
permanent injunction against the judgment debtor also hold good against
anyone claiming under the judgment debtor including his legal representatives
after the death of Judgment Debtor (Section 51 (b) and (c) of CPC).

Now that C & D are trying to encroach upon the land and cut the crop, claiming
their right under judgment debtor. The decree holder can make an application
under Order XXI Rule 32(l) CPC to seek for the execution of decree against C
& D. The rule says that they may be put in civil prison for a period of three
months and attach their properties and so on, if they do not obey the decree.
Therefore, by doing as stated above A's possession of the land and paddy crop
can be saved.

Question No. 7 - Can a petition for Review be prefened and maintainable


against each of the following decisions:

a) The trial court has wrongly construed the deed of gift as a deed of sale
and has decreed a suit for recovering the sale price from the defendant.
The provisions of the law applicable are Section lI4 and Order XLVII of
if
CPC. Both provision state that an appeal is not preferred by the
aggrieved person against a decree or order he may prefer a review
petition. It is also stated that if an appeal is not available, review petition
may be preferred. Provided that any one of the condition for preferring a
review stated under Order XLUI CPC is satisfied.

One of the conditions of the said provision is a glaring mistake or error on


the face of the record is committed by the court in passing an order or
decree, as a ground to prefer a review petition along with other

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conditions. In the case on hand the trial court has committed an error or
mistake on the face of it when it construed the deed of gift as deed of sale
and passed a decree, therefore making use of the satisfaction of that
ground review may be preferred and is maintainable.

b) The same condition for preferring review as stated above in QuestionT(a)


will be applicable for answer to Question 7(b) also - The trial court in
this case has overlooked the bar of limitation against the maintainability
of the suit which is contended and is available in the case, and passed a
decree. This is also a glaring mistake on the face of the record and review
is maintainable.

Question No. 8 - Explain the grounds and procedure to file an appeal before
Supreme Court. Explain also the procedure to obtain certificate from High
Court.

The provision of law applicable to case in hand are Section 109 CPC and
Article 134-A of the Constitution of India. An appeal before the Supreme Court
can be preferred under Section 109 of the CPC from any judgment, decree or
final order in a civil proceeding of a High court, if it certifies that -

(i) The case involve substantial question of law of general importance;


and
(ii) in the opinion of the High Court the said question needs to be decided
by the supreme court.

"Substantial question of law of general importance" means a point of law which


is substantial in nature and is not only binding on the parties to the dispute but
also all the public in India and also all the courts, and which act as precedent in
the future litigation. For instance: If two High Courts of different states have
interpreted either an article of Constitution of India or any provision of any
enactment in two different ways, those decisions are binding only on the people
and courts in the concerned states. The people in the other states and courts are
not bound to accept the decision of a High Court of another state. It cannot be
cited as a precedent in other states. In such case, the High Court which has
passed a final order in civil maffer, against which an appeal is contemplated to
be preferred in Supreme Court, can issue a certificate to the extent that case
involves a 'substantial question of law of general importance' and that High

-7 - t,
Court wants the Supreme Court decision on this issue, so that it will be binding
on all people and courts in India and can be cited as precedent also. In this
sense, it differs from 'substantial question of law' stated under Section 100
CPC, wherein the decision of the High Court in the second appeal will be
binding only between the parties to the suit, not the general public and it can't
be cited as precedent in other cases also.

The Certificate may be obtained from the High Court to prefer an appeal to the
Supreme Court as stated in Anicle 134-A of the Constitution of India. This
provision is included by an amendment to the Constitution of India in 1978.
Earlier to 1978 the provisions stated in Order XLV of the CPC were applicable
to obtain the certificate from the High Court. Upon insertion of Article 134-A in
Constitution in 1978, it is only what is stated in this article, will be applicable to
obtain the certificate and not provision stated under Order XLV. Though those
rules are not amended and find place in CPC even now, they are not applicable
to obtain the certificate, as they are in conflict with Article I34-A and in such
cases provision of the Constitution of India overrides the provision of other
enactments. Article 134-A states that immediately after the pronouncement of
the final decision in a civil proceeding the High Court itself / sou moto may
announce that they are issuing a certificate to the party who intends to prefer
appeal to Supreme Court. It also states, that if the High Court does not announce
on its own, the par:ty who intends to prefer appeal to Supreme Court should
make an oral application immediately after the High Court pronounces the final
order, requesting for issue of certificate. The High Court may issue the
certificate later or may not issue, but the procedure as stated in Order XLV are
not to be resorted to.

Question No. 9 - The decree holder has filed an execution proceeding for the
recovery of Rs. 1,50,000/- against one Bharti Devi. She is an employee in
Karnataka Government secretariat. Decree holder sought for arrest ofjudgment
debtor and putting her in civil Prison. The court issued the arrest warrant, and
the Judgment Debtor is arrested and brought before the court. The students are
asked to defend the judgment debtor and explain the course of action that they
would take to defend her and get her release from the custody.

The provisions of the law applicable are Section 56 CPC and Order XXI Rule
, 37 CPC. Order XXI, Rule 37 states that when arrest for judgment debtor is
h
dJ/
-B-
sought for the court shall issue a notice to show cause, why the judgment debtor
should not be arrested and after hearing objection if
the court comes to
conclusion that the judgment debtor is dishonest in not paying the decree
amount, a warrant may be issued for arresting judgment debtor. The court has
not served that notice in this case before arrest warrant is issued. The court has
therefore violated the rules and procedure.

Further, Section 56 of the CPC states that 'no woman could be arrested and put
in civil prison in connection with decree for the payment of money'. The case in
hand, the decree is for payment of money and the judgment debtor, Bharti Devi
is a woman. The Court has violated Section 56 of CPC as the judgment debtor is
not liable to be arrested and put in civil prison in the case in hand. Any other
course of remedy available to the decree holder should have been taken recourse
to. Therefore, the court issuing warrant and getting her arrested is clear violation
of the provision stated above. The lawyer defending judgment debtor in this
case can explain the aforesaid provisions and file objection, stating that the
issuing warrant of arrest directly without following aforesaid rules is bad in law
and not enforceable, and further requesting to the court for release her from the
custody immediately.

Question No. 10 - Explain what you mean by 'symbolical Possession'. When


symbolical possession for immovable property be given in execution of decree
for possession of immovable property.

Provision of law applicable is Order XXI Rule 36 CPC. To execute the decree
for possession of immovable properly is generally under Rule 35 CPC, where
actual possession may be given to the decree holder. But in the case of
immovable property where the property is in occupancy of a tenant, or other
person entitled to occupy the same and not bound by the decree, to relinquish
such occupancy, the court shall order delivery to be made, by affixing the copy
of the warrant of possession in some conspicuous place on the property and
proclaiming to the occupant by beat of drum or any other customary mode, at
some convenient place, the substance of the decree in regard to the property. If
this is done by the officer executing the warrant for possession, the properly is
deemed to have been given to the decree holder by symbolical possession,
which is different from actual possession M
-9 -
Question No. 11 - The House of X is attached in the course of execution of a
money decree by the city civil judge Bangalore, at the instance of A the decree
holder against B the judgment debtor. X has nothing to do with B, the case
stands posted for sale of the attached property. Students are asked to advise X
and assist him to get the attachment of his house vacated.

Provision of the law applicable to the case is order XXI Rule 58 CPC. X who is
not bound by the decree and his property is not liable to be attached.or sold, to
recover the money under the decree against B, can file an application under
Order XXI Rule 58 CPC claiming that his property is not liable to be attached in
the case for recovery of money against judgment debtor by the decree holder.
He may contend that some mistake has occurred somewhere and his property is
attached. The sale of the property is only ordered and not yet held. The court
will have to make an inquiry into the claim petition calling decree holder and
judgment debtor to put their objections, if any, and if the claimant X proves that
it is his own property and he is in possession of it and show the documents
relating to the same and he or his property is not concerned with the judgment
debtor and therefore could not have been attached. The Court can come to
conclusion after inquiry and pass an order allowing the claim petition and
releasing the properff of X from attachment, if he proves whatever is stated
above in the application.

Question No. 12 - In the case stated in Question No. 11, if the court after
inquiry dismisses the application filed by Claimant X, what is the course of
action to X to challenge that order is question.

Provision applicable is Order XXI Rule 58(4) CPC. It says that the order passed
by the court after inquiry in the claim petition filed under rule 58 CPC amounts
to a deemed decree and X can file an appeal under Section 96 to challenge that
order.

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Comprehensive Note on the following -

Question No. 13(a) Distinction between 'illegality' and 'material


irregularity'
'Illegality' and 'material inegularity' are the words or phrases used in Section
I l5 CPCto prefer revision to the High Court. Material inegularity is also stated
in Order XXI Rule 90 CPC under which an application to set aside a sale on the
ground of inegularity or fraud. Therefore, we consider illegality and material
inegularity in general to explain the meaning of them.

'Illegality' is one where the court passes an order in contravention to the law.
'Material irregularity' occurs when the court passes an order in violation of a
procedure laid down in the law to arrive at that order. For instance, in a case
where the plaintiff files a suit against the defendant on the basis of a promissory
note in order to recover money due to him after the limitation period is over and
applies for condonation of delay under Section 5 of Limitation Act, in filing the
suit. Let us take it that the court passes an order condoning the delay under
Section 5 of the Limitation Ac! and accepting the suit and registering it to
proceed with the same. This is a case of illegality, in passing the order on IA
and condoning the delay, as Section 5 is not Applicable to the original suits. It is
only applicable to appeals and applications, except applications arising under
Order XXI CPC.

Another example could be as follows, if the sale of immovable property is held


through court, the purchaser has to pay 25o/o of the sale price immediately and
obtain a receipt from the sale officer and he could pay the balance of 75o/o of the
sale price by depositing the same into court before the expiry of 15th day from
the date of sale, as stated under Order XXI, Rule 84 CPC. If he does not deposit
75% of the sale price within 15 days in court, the sale has to be set aside. But, if
the purchaser in a particular case applies to the court for extending the time to
deposit 75% of the sale price by 7-10 days after the l5 days limitation stated in
the rule and the court passes an order agreeing with the purchaser and extends
the time by l0 days and the purchaser the deposit the sale amount into court
within the extended period of 10 days. This order is illegal. The next stage in
the sale is to confirm the sale, if nobody has filed a petition under Order XXI,
Rule 89 or 90 CPC to set aside the sale, within a period of 60 days from the date
of sale and the court confirms the sale. Firstly, in this case the court has not
ir,
-11,-
been given any authority in any rule under CPC or anywhere else to extend the
time limit after 15 days period expires, therefore the order of the court
extending the time period is illegal and contrary to rules. Secondly, the orde
confirming the sale suffers from material irregularity. This is a case of illegality
the court has commiued in passing the order without having any authority and
jurisdiction in extending the time by 10 days to deposit in 75o/o of sale price in
court.

'Material Inegularity' occurs where, the court having jurisdiction to pass an


order and passes an order or decree without following the procedure laid down
to arrive at the order or decree. In a case, the court has to hear both the parties
on an application and pass an order in accordance with rules and procedure, but
the court without hearing parties passes the order on the application. In such
cases court has got jurisdiction to pass an order but has not followed a
procedure prescribed by law and therefore that order sufflers from material
irregularity. Likewise, in a promissory note case, if the defendant has admitted
that he has executed a promissory note but has not received the consideration
for the promissory note and therefore is not liable to pay the amount. In such
cases if the court after taking evidence holds that the plaintiff has not proved
that the consideration for the pro-note is paid to the defendant and on that basis
the court dismisses the suit. In this example also, the court has got the
jurisdiction to pass the decree or dismiss the suit, but it has violated the
procedure in placing the burden of proof on the question of consideration. The
presumption in Section 118 of Negotiable Instruments Act is that if the
defendant either admits the execution of negotiable instrument or that it is
proved that it is executed by him, he is deemed to have received the
consideration for the pro-note and has executed the promissory note which is a
negotiable instrument. In such cases when a dispute arises, the court has to
place the burden on the defendant to prove that he has not received the
consideration for the pro-note when he has admiued the execution of it. In
violation of that rule, placing the burden on the plaintiff and holdin g that he has
not proved passing of consideration and on that basis dismissing the suit, suffer
from material inegularity as he has not followed the procedure laid down by
law in arriving at the decision, though he has got the jurisdiction to pass a
decree or dismiss the suit.

-L2-
Question No. 13(b) - Garnishee - If a decree holder for the execution of
money decree against the judgment debtor files an execution petition, he has got
various ways of recovering the money due under the decree. If the decree of 'A'
is for Rs. 5 Lakhs against the JD 'B', when the decree holder comes to know
that one 'c' third party owes a debt to judgment debtor 'B' a sum of Rs. 2
Lakhs, he can apply to the court requesting for attachment of debt, owed by C to
B under Order XXI, Rule 46 CPC. In such cases, when executing court, serves
a prohibitory notice under order XXI, Rule 46 CPC on judgment debtor B
prohibiting him from recovering the debt from C and Prohibiting C the debtor,
from paying the debt to B until further order of the court. That completes the
attachment of debt owed to judgment debtor. Nowo the third pafry C the debtor
of judgment debtor, whose debt is attached under Order XXI, Rule 46 CPC is
called a garnishee. To make it further clear, it may be stated that all debtors of
judgment debtor are not garnishee. It is only debtor of judgment debtor whose
debt is attached by the court under Order XXI, Rule 46 CPC becomes or called
the garnishee, as per law.

Now, it is open to the gamishee, either to pay that debt amount into court or
simply keep quite till the court issues further orders. The executing court under
Rule 46-,{ will issue notice to the garnishee liable to pay such debt calling upon
him either to pay into the court the debt due from him to the judgment debtor or
so much thereof as may be sufficient to satisS' the decree and cost of execution,
or to appear and show cause why he should not do so. In reply to it, if the
garnishee pays that amount due by him into the court and cost of execution the
court may direct that the amount may be paid to the decree holder, to the
satisfaction of decree.

Order XXI, Rule 46-8 CPC says that where the garnishee, does not forthwith
pay into the court the amount due from him to the judgment debtor and cost of
execution and so on, and does not appear to show cause in answer to the notice,
the court may order that the garnishee should comply with the terms of such
notice. And on such order, execution may be issued against the garnishee, as
though such an order is a decree against him.

If the garnishee has any dispute and he is not liable to pay to judgment debtor
and mentions this dispute before the court, the court will conduct an inquiry and
pass an order. Including, in respect of any dispute where the debt belonging to a
third person as may be claimed by the garnishee, as per Order XXI, Rule 46-D
ofCPC.
/A,+l

-13-
If the garnishee pays the debt amount into court, it shall be a valid discharge of
the debt as against the judgment debtor. If any order is passed by the court
under Rule 46-8,46-C,46-8, it shall be appealable as a decree by the aggrieved
party including the gamishee.

Question No. 13 (c) - Deemed Decree - The Civil court may pass a decree in
any suit or any order, including an order on interlocutory applications. Decree is
defined in Section 2(2) of CPC as the formal expression of adjudication which
so far as regard the court expressing it, conclusively determines the rights of the
parties with regard to all or any of the matters in controversy in the suit and may
be preliminary or final. Order is defined under Section 2(14) CPC as the formal
expression of any decision of a civil court which is not a decree. That means the
order has got all the qualifications of the decree, but it is stated that it is not a
decree.

Appeal is a statutory right and not inherent right. Whoever is aggrieved of a


decree may prefer and appeal under Section 96CPC, so far as orders are
concemed only some orders are appealable as they find a place in Section 104 I
Order XLI[, Rule I CPC. Other orders which do not find place in the aforesaid
provisions are not appealable.

The Legislature has, thought fit that some orders which are not appealable for
whatever reasons, they though it fit to make them appealable and the aggrieved
person against that order may be given a right to prefer an appeal against such
orders. And therefore some of the orders have been made and have been given a
status of decree only to the extent and for pu{poses of preferring an appeal by
the aggrieved person against those orders, as if they are decree. An appeal could
be preferred under Section 96 CPC. Therefore, such orders are called deemed
decrees, though they do not satis$r the definition of decree, but they are made
and are given status of decree only for the purpose of the aggrieved person
against such order to prefer an appeal under Section 96 CPC.

Examples:

1. Rejection of a Plaint under order vII, Rule 1 1 cPC is made a deemed


decree.

-1,+-
a

2. Order passed under Section 144 of CPC on the question of restitution is


also made a deemed decree.

3. Any order passed deciding the claim petition by a third party seeking
vacating the attachment of his property under order )o(I, Rule 5g (4)
CPC.

4. Any order passed under order xxl, Rule 46-8 , 46-c and,46-Ein relation
to garnishee are all made deemed decrees.

t/ Teacher
Nr;"#ffiffir{gr
-^Course

-15-
NATIONAL IAW SCHOOL OF INDIA UNftERSITY
BANGAI.OBE

III YEAR VIII TRIMESTER END.TEBM EXAMINATION {JAI{.I 2OI4


c.P.c. - II
Marks:6O
Time;3Llhours
Instructions :
I. Students ore expected. to telg on the question paper os it is srrd respond
to it, No clcrifcafions can be sought.
2. Electtonic gadgets are strictlg prohibited, insid the F;.g;minrtinn H(ll.
Nryone Jound. in possession of the so,me will be suhject to disciplincrg
proceedings.
3. Stud.ents are required to gine reosons in support ol their ansrters antd
menf,lon the prou'rsiotts ol lau and case lau uhereaer nece*stry,
4. Bare "^cts witl be proorded bg the Exo;mino,tion Deprrrfiftefit.

l Can a review petition be preferred in each of the following sltuations?


Fumlsh reasons in support of your answer.

a) The trial court has dismissed the suit for permanent injunction
construing the "sale deed" as "agreement to se11".

b) The trial court has decreed the suit overlooking the bar of
limitation. 12 rh + 21& = 5 marksl

2. 'A' has filed a petition u,/S. 2l of Kamataka Rent and Accommodation


Control Act against 'B', a tenant in the Court of Civil Judge Ur. Dn.),
Channapatna seeking for eviction of B from a house premises which had
been let out to him by A 5 years ago, on the ground that the premises are
required for his own use. B, the tenant has contended in the objection
statement that the petition is not maintainable and is liable to be
dismissed questioning the constitutionality and validity of S. 2l of Rent
Control Act. Explain ttre law aoplicable and as to how the court should
proceed to decide the petiUon. [5 marks)
3. Erplain briefly the procedure to tre followed and the grounds required to
prefer an appeal before the Supreme Court of India. Also explain the
procedure to obtain the Certificate from the High court in order to prefer
an appeal to Supreme Court. {5 marls)

4. 'M' files a suit against -N' for recovering a sum of Rs. 8,O00./- on the
basis of a promissory note in the Court of Civil Judge (Jr. Dn.],
Kanakapura of Ramanagaram District. The defendant 'N' contended in
the written statement that he has executed the pronote but had not
received the consideration and therefore the suit may be dismissed. The
trial court decreed the suit for Rs. 8,000/- with costs ald current
interest in favour of piaintiff on merits after hearing both parties.
Defendant -N' aggpieved by the Judgment and decree of the trial court
approaches you to challenge the declsion of the trial court. What is the
course of action you would take to challenge that decision of trial court,
under what provision and in which court?

Note: Court of Civil Judge {Sr. Dn.) and Court of District Judge are
working in Ramanagaram. (5 marks)

5. When a suit may be remanded, by whom and for rvhat purposes?


(5 marts)

6. A having obtained a decree against B for recovering a sum of Rs. 15


Iakhs in the City Civil Court, Bangalore, on 31.8.2O12 has been
executing the decree in Execution Petition No. 215/2012. A got the
house premises of B situated in Bangalore city attached and sought for
sale of the same to recover the decree amount with costs and current
interest. The execution petition, however, was dismissed for default on
3.f2.2O13 as the decree holder and his counsel were absent and no one
represented the Decree holder in the case, On that day when t'Ile case
was called, the court observed that no sale fee had been paid and no
verified statement relating to the particulars of attached property
required for publication of the sale proclamation was furnished thouglr
the court had ordered on the previous date of hearing of the case,
directing the parties to do the needful as stated above. The next day, the
decree holder having come to know that the execution petition was
dismissed, approaches his counsel to do the needful to remedy the
situation and to recover the decree amount. What is the course of action
A's counsel has to tahe? Explain with support of reasons and the law
applicable to the case. (5 marks)

Explain distinguishing'Cross Appeai- from "Cross Objections-.


(5 marks)

B. Write a comprehensive note explaining each of the followinq with the


support of anpropriate case law or illustrations / examples with facts of
the cases:

aJ Precept
bl Garnishee (2x5=IOmartsl
9. A wants to ftle a suit against B for declaration of his title to and for
permanent injuncfion in respect of rh acre, out of his agpicultural land
bearing S. No. 2, measuring 2 acres and situated at Dasarahalli village of

I
Nelamangala Taluk, The annual land revenue payable for the entire
survey number of that iand is Rs. 50/- and is permanently settled and
the approdmate market r,'alue of the disputed t,4 acre of land is Rs.
I5,00,OOO/-. How do you value the suit for purposes of court fee and
iUtiscUqLion? What is the court fee payable on the plaint? In which court
vou file ttre suit. Ex-plain. (5 marks)
Note: There are Courts of Civil Judge Ur. Dn.) and Civil Judge (Sr. Dn.J
in Nelamangala and District Judge's Court of Bangalore Rural District in
Bangalore.

10. "A'fiied a suit against "8" on the basis of a promissorynote for recovering
a sum of Rs. 6 lakhs in the Court of Civil Judge [Sr. Dn.) and also filed
an interlocutory application (LA.) along with the plaint seeking
attachment before Judgment, the residentia.l house of the defendant B
for the reasons sworn to in the afftdavit liled by him in support of the
application. The court considered the plaint and the application and
passed exparte order of attachment of the house of defendant. Warrant
of attachment issued by the Court was executed and attachment of the
house was effected. The defendant wants to challenge the order of
attachment before Judgrnent issued by the court and in pursuance of the
same the attachment made. The defendant also states that the plaintiff
has swom to false facts in the allidavit and has obtained order of
attachment before Judgment and therefore he wants to claim
compensation of Rs. 5O,OO0 /- by way of damages for loss of reputation
from the plaintiff What is your advice to the defendant and how do you
challenge the said order and under wtrich provision of law he can seek
compensation? (5 marts)

11. X filed a suit against Y on the basis of a promissory note and obtained a
decree for Rs. 2 lakhs in the City Civil Court, Bangalore on 5.12.1997.
On 1O.12.f997, X died leaving his wife 'W- aged 4O years and son Z,
aged 3 years as his legal representatives. On 1.12.2012, Z became 18
years old and attained maj ority. On f5.12.2012, W and Z filed execution
petluon agalnst Y to execute ttre decree. Y has Iiled objections
contending that the execution petition is barred by limitation and is not
maintainable. Decide. (5 marks)
NATIONAL IAW SCHOOL OF INDIAUMVERSITY
BANGAI,oRE

UI YEAR VUI TRIMESTER REPEAT EXAMINATION (27tb MARCH) 2OI4


c.P.c. - II
Marks: 6O
Time:3%hours
Instructions:
7. Studnts are eqrected to relg on the question paper as it is o:nd respond
to it, No clatifications can fu solugh.t.
2, Electronic gadgets orc strictlg ptthibited. ittsid.e the Examinat'ton Hall.
Angone Jound. in possession oJ tfre same will fu subject to disriplinarg
procedings.
3. Students are required. to giue neosons in supprt oJ their anrs',Jerc anrd
tnention th,e prcoisions qf law a nd cas laut whereuer /l.e/cesso;ry.
4. Bare Acts uill fu provid.d. bg th,e Examinotiolrn Deprtment.

1. X, a pas-senger in a privately operated bus, filed a civil suit claiming


damages of Rs. 2 lakhs for personal injury, pain and sullering caused
as a result of negligent driving of the vehicle in the highway resulting in
an accident. The defendant No, I, owner of the bus, defendant No. 2,
the driver and defendant No. 3, the insuralce company with which the
vehicle had been insured are made parties to the suit. The plea of the
defendants is one of denial of liability, so far as owner and driver are
concerned on the basis that there was no ne$igence on the part of the
driver and so far as the insurance company is concerned that the
insurance cover was not subsisting on the date of the accident. The
Trial court decreed the suit on merits of the case agahst all the
defendants. The defendants I and 2 have liled an appeal against the
decree impleading the plaintiff only as respondent, while the defendant
no. 3, the insurance company has fiLed subsequently a review petition.
Discuss as to the maintainabilitv of the review petition. (5 marks)

2. In a suit filed by A rgzinst B to recover Rs. 2 lakhs on the basis of


pronote, the defendant contended in the written statement that he had
already, about six months earlier to filinS of the suit paid to the plaintiff
a sum of Rs.50,000/- and the same was not given deduction to that
amount in the suit. He however admitted that the balance of Rs. I l.4
lakhs was due. In the course of cross examination, the plaintiff
admitted that a sum of Rs. 25,O00/- only as having been received from
the defendant relating to the amount due under the said pronote and
not Rs. 50,000/- as contended in the defence. On merits of the case,
the court hearing both the parties after trial, decreed the suit in favour
of the plaintiff for the entire suit claim of Rs. 2 lakhs and costs. The
plaintiff filed execution petition after 3 months from the date of decree
seeking recovery of Rs. 2 Iakhs and costs as per the decree. The
defendant, now the judgment debtor, in the execution petition has filed
objection seeking for deducdon and adjustment of Rs.25,O00,/- which
the plaintiff admitted to have received, as stated above and agrees to pay
the balance of the decree amount. The plaintiff / decree holder is not
agreeable for deduction of that sum. Decide. (5 marks)

.i. In an execution petition filed by A against B to recover the decree amount


of Rs.SO,OOO/-, B has produced a receipt allegedly issued to him by A
stating that the entire decree amount of Rs.3O,000,/- relating to that
decree is satisfied as A having received that amount from the Judgment
debtor immediately on service of show cause noti.ce of t}le court on the
Judgment debtor on 4.2.2OI4 in the above execution proceedings. He
has also contended that the decree holder assured him that he would
report it to the court and get the full satisfactlon of the decree entered.
He also contended that he was told by a relative who had gone to the
court on the very day that he paid the amount to the decree holder, that
the decree holder had not reported to the court to enter full satisfaction
of the decree, but had sought for attachment ofjudgment debtor's house
and the court had ordered attachment. The very subsequent day the
judgment debtor has filed application and has produced tJre receipt
before the court requesting to certi$r the payment and enter full
satisfactlon of the decree. The decree holder states before the court ttrat
no amount is paid outside court as contended by the judgment debtor
and that the said receipt is a forged document and he has not issued it.
The court adjudicated upon it on merits and has passed an order
accepting the receipt as genuine and directjng entering full satisfaction of
the decree. What is the course of action available to the decree holder to
challenge that order ? Explain with reasons and the law applicable to it.
(5 marks)

4. Can a second appeal be preferred and maintained in the following cases?


Furnish reasons in support of your ansrvers.

a) A fiLed a suit against B seeking a decree for Rs, 25,OOO/ - on the


basis of a promissory note executed by B in favour of A. B
contested the suit denying execution of promissory note, borrowing
any money from A and further stating that the suit was barred by
limitation. The court after trial gave findings that the plaintiff
failed to prove that the defendant borrowed any money from
plaintiff, that he executed the suit promissory note in favour of A
and that the suit was barred by limitation. Accordinpfy, the trial
court dismissed the suit with costs. The appeal preferred by A is
dismissed by the Senior Division Civil Judge confirming the trial
court's ffndings on all the issues. A wants to prefer second appeal
before the Hih Court.
b) In the fact situafion mentioned in O, No. 4(a), the trial court held
that the suit pronote is proved to have been executed by the
defendant. It also gave a linding that the plaintiff has proved that
the defendant had borrowed the money and that he was due the
suit claim of Rs.25,OOO,/-. However, the court dismissed the suit
as barred by limitation. The appeal preferred by A is also
dismissed by the Appellate Court confirming the ftndings of ttre
trial court on all the issues. The plaintiff A wants to prefer second
Appeal before the Hig;h Court. 12Vz+2%=Smarks)
5. What are the limitations, if any, of execution of a money decree against
the legal representatives of Judgment debtor? Explain. (5 marks)

6. X liled a suit against Y before the City Civil Judge, Bangalore city, to
recover a sum of Rs. 2 lakhs on the basis of a promissory note. Y
contested the suit pleading that he has not executed the promissory
note and that he has not received any money from X and that the suit is
barred by limitation. The court after trial held that the defendant had
executed the promissory note and that he has also received the
consideration for ttre pronote. However, the court dismissed the suit
agreeing with the defendant that the suit was barred by limitation.

The pladntiff ")fl has preferred an appeal against the dismissal of the
suit, The defendant Y has approached you to file an appeal to challenge
the trial court's findings against the defendant holding that he has
executed the pronote and that he had received the consideration for the
pronote from X. He also requests you to contest the appeal filed by X.
What is the course of action you would adopt as an advocate for Y.
Furnish reasons in support of your ans\ver. (5 marks)

7. Explain the actual process of attachment in the case of each of the


following in the course of execution of a money decree against the
Judgment debtor:

a) Debt due by a third parff to the Judgment debtor;


bl A money decree obtained by Judgement debtor against a third
party;
cl A car belonging to Judgynent debtor which is within the
jurisdiction of Executing court;
d) A site belonging to Judgement debtor situated outside the
jurisdiction of executing court;
e) The usufruct of a Mango garden consisting of 100 fruit bearing
Mango trees belonging to the Judgment debtor situated within the
iurisdiction of the executing court. (5r3=lSmarks)
8. Write a comprehensive note on each of the following :

a) Deemed Decree - furnish at least two examples of deemed decree


which may be identilied from the provisions relating to execution
proceedings .

c) Explain the difference between "illegalih/' and "material


irreularitv" - furnishing at least one example of each of them with
facts of an illustration. (5 + 5 = 1O marks)

q Expiain what is "IqE!!q!tSE" by fumishing example of an illustration of


facts of a case. What is the object / principle behind this provision?
(5 marks)
NATIONAL LAW SCHOOL OF INDIA UNIVERSITY
BANGALORE

III YEAR VIII TRIMESTER END-TERM EXAM (22nd January) 2013


e.P.e. - II
Marks: 60
Time: 3 Y2 hours
Instructions:
1. Students are expected to rely on the question paper as it is and respond to it. No
clarifications can be sought.
2. Mobile phones are strictly prohibited inside the Examination Hall. Anyone found in
possession of a mobile phone will be subject to disciplinary proceedings.
3. Students are required to give reasons in support of their answers and mention the
provisions of law and case law wherever necessary.
4. Bare Acts will be provided by the Examination Department.

1. A intends to file a suit against B for declaration of his title to the suit schedule 2 acres of
agricultural land out of the land bearing Survey No. 22 measuring 4 acres situated at
Bommasandra village of Nelamangala Taluk of Bangalore Rural District and for
permanent injunction to restrain B from disturbing A's possession of the land and to
prevent him from dispossessing A from the land on the ground that B was attempting to
dispossess A from the land and to usurp possession falsely claiming that he is the owner
and is in possession of it.
The annual land revenue payable for the entire 4 acres of land by A is Rs. 50/- and is
permanently settled. The disputed 2 acres of land is not separately assessed to annual
land revenue. The suit should be filed in the Court of Civil Judge (Jr. Dn.) at
Nelamangala. What is the court fee payable on the plaint by A? Explain and calculate
the same as per rules. (5 marks)

2. R having obtained a decree for Rs. 2 lakhs against N in the City Civil Court, Bangalore,
put the decree in execution, attached a shop premises, bearing No. 22, situated at
Margosa Road, Malleswaram, Bangalore city, belonging to N and brought it for sale.
The estimated market value of the shop as stated in the Sale proclamation is Rs. 10 lakhs.
The property had been earlier mortgaged to C by N for Rs.2,50,000/-. At the auction
sale held by court C purchased the property for Rs.4/- lakhs and paid 25% of the sale
price to the sale officer on the spot. C however, deducted Rs. 2,50,000/- due to him by
N under the mortgage as set off and deposited the balance of the sale price into court after
20 days from the date of sale. He has also filed an application under Sec. 5 of Limitation
Act to condone the delay in depositing the balance of sale price into court contending that
he was an in~patient for severe heart attack and therefore could not deposit in time. The
court is now considering the case for confirmation of sale. N has filed an application
seeking for setting aside the sale on the ground that the sale is vitiated with fraud,
collusion and material irregularities as a result of which he has sustained substantial loss.
Decide. (5 marks)
3. B borrowed a sum of Rs. 5 lakhs from A on 10.3.2007 agreeing to repay the same
together with interest at 10% per annum and executed a promissory note in Bangalore in
favour of A. B paid Rs.500/- to A on 15.1.2008 and made an endorsement to that effect
on the pro note, signed and pleaded for one year time to pay the balance. Again, when A
demanded for payment, B informed him that he had applied to the State Bank of India for
loan of Rs.1 0 lakhs for developing his small scale steel furniture manufacturing unit and
to discharge A's loan and that he would discharge the loan after obtaining the loan from
the Banle A confidentially enquired with the Bank and learnt that B had applied for loan
on 22.4.2009 stating that the loan was required to develop his industrial unit as also to
discharge the loan due to A. Hence he agreed to wait. B obtained the loan from the
Bank and invested the entire amount in his business but did not pay to A. A finally
issued a notice to B demanding payment and on B's failure to reply to the notice and to
pay the amount approached his lawyer on 20.4.2012 to file the suit. His lawyer told him
that the Civil Courts had been closed for summer vacation from 18.4.2012 till 26.5.2012
and that he could file the suit on the Courts re-opening after vacation on 27.5.2012 and
filed the suit on that day, mentioning the facts stated above.

B has filed the written statement after service of summons contending that the suit is
barred by limitation. Decide. (5 marks)

4. In a suit before the City Civil Judge, Bangalore, filed on 2.6.2012 for declaration of
plaintiff's title to the suit site and permanent injunction to restrain the defendant from
trespassing upon the site or in any way from disturbing plaintiff's possession and
enjoyment of the site, the plaintiff filed an Interlocutory Application (LA.) ufo. 39 R 1
and 2 seeking an order of temporary injunction pending disposal of the suit and on the
same day obtained an exparte ad-interim order of Temporary Injunction till the disposal
of the said application. The defendant on service of summons and ad-interim order of
T.L and notice of application, filed on 5.7.2012 his written statement and objections to
the LA. seeking dismissal of LA. and to vacate the order of ad-interim order of T.L
granted in favour of the plaintiff. The court posted the suit to 22.7.2012 to hear both
parties on LA. However, for some reason or the other, the court has gone on adjourning
the case from one date to another to hear arguments on LA., but has not heard the same.
The defendant has been urging the court that the delay is causing great hardship,
inconvenience and prejudice to him and requesting the court to expedite the hearing of
LA. and dispose of the same early without adjourning the case anymore. The court,
however, has not heard the parties on the merits of the application, but has postponed the
hearing again to 25.1.2013. As the defendant's advocate, can you challenge the order of
the trial court and if so, what is the procedure available to you to challenge and get the
ad-interim order of T.L vacated. (5 marks)

5. P has obtained a decree against R for Rs. 15 lakhs in the court of City Civil Judge,
Bangalore, and during the course of original suit itself he had applied for and has
obtained attachment before judgment of a house of R, situated in the outskirts of
Bangalore city. P filed execution petition and sought for sale of the said house of R to
recover his decree amount. The court ordered for payment of sale fee and to furnish
detailed information relating to the said property in order to include the same in the sale

2
proclamation and for that purpose posted the case to 5.10.2012. The Decree Holder
and his counsel were absent and did not appear before Court that day. The sale fee and
information required for publication of sale proclamation were not furnished in the case.
The same was noted in the order sheet by the court. The court then passed the following
order "The execution petition is dismissed for want of prosecution". The Judgment
debtor who was present in the court that day, sold his aforesaid house to "S" by private
sale on 10.10.2012 and got it registered and delivered possession of the house to him.

P who had gone out of town after returning learnt that his execution petition had been
dismissed for default. He filed another execution petition on 10.10.2012 itself seeking
for sale of the said house of judgment debtor and furnished sale fee and particulars of the
property required to include in the sale proclamation. The court ordered sale of the said
property and has fixed the sale to take place on 25.1.2013. "S" having learnt that the
house is set down for sale has approached you, for advice and to assist him to prevent the
sale of the house. Explain the position of law and the course of action you would take to
help "S". (5 marks)

6. Can an appeal be filed against each of the following adjudications?

a) Leave is granted to the petitioners to file a suit for framing a fresh scheme for the
management of the Society running a college as a public trust, on the basis that
the petitioners as old students of the College are persons interested.

b) The court sets aside the order of dismissal of a suit for default passed under Order
9 R 8 CPC holding that the date of hearing of the suit recorded in the court's note
sheet of the case papers was at variance with the date on which the case was
called and disposed of, by dismissing it.

c) Appeal on a question of fact against decree in a money suit where the value of the
suit is Rs. 7,000/- (3 x 4 = 12 marks)

7. Write a comprehensive note on each of the following: (5 + 5 = 10 marks)

a) Precept
b) Cross objections

8. Can a second appeal be maintained in the following situations. Explain the law applicable
and answer:

i) A suit for specific performance is dismissed holding that the agreement in


question was not acted upon by the parties. The first appellate Court has
confirmed this finding of the trial court.

ii) In a suit filed by the plaintiff on the basis of a promissory note, the defendant
contested stating that he had not executed the promissory note, he had not

3
received the consideration and that the suit is barred by limitation. The Trial
Court dismissed the suit agreeing with all the contentions raised by the defendant
and answering all the issues / points raised by the defendant in favour of the
defendant. In the appeal preferred by the plaintiff, the appellate court disagreed
with the trial court on issues 1 and 2 and held that the plaintiff had proved that the
defendant has executed the promissory note and the pronote is supported by
consideration, but agreed that the suit was barred by limitation and has dismissed
the appeal. (4 + 4 = 8 marks)

9. A filed a suit against Band C claiming that the plaintiff is entitled to Y2 share in certain
properties and has sought for partition and separate possession of his Y2 share in the
properties. The Court of Civil Judge (Jr. Dn.) held that the plaintiff is entitled to Y2
share and B and C are entitled to the rest of the property. B has filed an appeal before
the Senior Civil Judge's Court against the judgement and decree of the Civil Judge (Jr.
Dn.) impleading A only as respondent in the appeal contending that the plaintiff is
entitled to 1/3rd share only and not Y2 share. C has not filed appeal. The Appellate
court in the appeal filed by B comes to the conclusion that all the parties, namely, A, B
and C are each entitled to 1/3rd share in the properties. Can the appellate court grant
that relief to C in the appeal which is between B and A? Explain with reasons.
(5 marks)

*********

4
NATION,II,IAW SCTOOL Of INDIA TJNIVERSITY
BANCAT,ORX

Ill rTAR v t I RtMr.st LR t:ND-t[R]rt Hi r\t (J.\Nt ,ltty !ut3

!i!c!!
ANSWIRS TO TIIE OIJESIIONS

{Not.: Studcnlr $ill tavc to $rite th. r.cb liren in lh. qucs(ion bric0y .trd th.n rtre
.rsw.. lo e.c[ o!.slionl

Q.No.l, A nnonds b lilc d 5uit asaiBl ! lor declararion ol his tnle


r\o rcrus of a8ricultural tand out ot thc tand bering S.No.22
ro dsrlin ll l n disrurbing .s possion of titrd
'njutulDn
siludrcd in a yill4e in \elmunsahT.tuk. Thc studem is as{N ro
rl'c Coun Iree payrbk by A on the pl.inl,

fhe lules {tlicable to th. c6e on hat !.c Scc.24.(b) and Scc.? 0flhc Ken lki (irurt
l:es n! suirs vduntion ct. -fhe Suil h.ing aor decrararion rnrl pemanenl nrjtrrcrion
['lls undcr Sec2{ (bl. lhc n rionll narkcl lalue oflhc ptupcn! should bc .slcutaled
und.rSec7of lhcC.tr f_u.1Acl

S:r. rorheNisc p.ovidcd rtrr. fc is Ddyobte $der lnis Acr dctends upon th! mo,kcl
of an' prop.ny, slch rabe h^ lo bc dcrcmined 6 on rt* !d. oa rhe prcrutrhrion
'zlu
ofrh. plaint nrc darlcl !.luc ofrhc h il junr blting trnJ.r sBc 2.r (b)Md (ortu
provisions shled thcrciD sh l b. dccdcd lo b. (a) *hea dr ldnJ toms,n cnrnc csiole
or r dcijrne sharc ofitr cstarc paying @nu.t rclcnlc ro rhc
eolcnrncm or tDnns Don of
such !n erlale md h r.corded in thc D,ctuty Comhissioocfs Rcekrcr as scporntcly
as*s*d *nh tuch .rnue !.d such Evo* is pemuentty sctil.d. 25 times rh. rclcnft

Alplyifglhe oforesaii nlclothefic6olrhcc.sc, n hxs ro hc st0l.d .s foll.$


Tlt lnnual land levcnuc $)nble foi th. t!trd is Rs. 50,L ,{t ir h pcma.c.n}, scnted.
Tlx disputcd 2 rics of lind is mr cpdrcly Ns.lsed ro anN ttrnd v.nuc I hcefore
Rs. iO. should b. hko cs rhc lmd @c.trc parabte rnd il shDtrtd b. rrrculalc,i .t 25
-nF
limcs lo the land rcvnu.. t0X25= I 250. nolio.al mrrk t lalR ol lhc ldd is Rs.
1250/'. A(ordirg io $c 24{b) half ol $e na*el lalE or Rs. 10001 whichcvd is higher
is to bc lien as thc mokct lalue for nayncnl of coun lcc. llallofthe na*ct valu in
thie mse is tu. 6251. Ihlfofdc mrk.t value is le$ lhr Rs.I,000/- and thelelbre Rs.
1000 should be considcred d Darkcl value for Pqmc.t of Coun Fe.

ln Schcdtrle I of CoL|n le6 Acr , th.Court fes payablc oo lhe plairh ir stat d Under
n.l(i). r the valuc do6 .ol qcecd lr.s. 15,000/' oua ree @ nre of 2 l/2olohastobe
p0nl. In tne case on h.nd court lee paydblc on lhe llainr is Rs. 25. (2 '/' % x IOO). A
shorld pay Rs. 25l' ns coun f@ on lnc lhinr.

Q.No.l: R hJlrng obrdine,l a d*fr lor R'. 2.00 l.lhs J:ainsl N h$ b.rn
.x.clring the decFu &d hd arhched thc sbop pEmises situled in BesdoF City dd
bclonging to N and hN brough it for ML. thc e$im.t d mdLet value of thc shop as
il0rcd in lhe Salc Proclanaior h Rs. 10.00 lakhs. llrc propeny had been erliei
monglged lo C by N lq tu.2.5 l.khs. C, te nodgas*. hls purchAed rh pop.rty in
thc coud auction elc lb. tu. 4.00 laths !.d Fid 25% of th. sale price on lhc datc of fie
sl.. C dedndql IG. 2.5 lalhs 6 dcpcitd th. bsloc of sale pric. ido coun
set ofr lnd
tno 20 days f@m thc dlk of salc. C hs also liled an npplication und* scc, 5 of
LinialionAclforcondoMrionof{leluyindcposninslhebolanceofsaleprioc. The coun
h Nw considcring th. c$c for coniDnaion ofsale. In Ihe nedwbile, N hls filed an
atpLic ion skinS for s.ting bide rhc sale on lhe eoun'l rh.t the sme is viti.l.d wilh
c
ld!d, @llosion dd n.ldial imsul&iris a Esulr oa whicn he h$ $sllined
$bsllntial loss. Th. srudenl is 6kd ro dsidc wherher thc coun bes lo confim rh. ele
or pss order sclting lsidc rhe ele in lhc circumsm@s oa lhc 6c.

rula applicablc io lhc lacts ol rhe ca u. O.xXl R.72- A, R.84.35and86 CPC


'l hc

sd S- 5 ol Limir.don Acr ud O.XXI R. 90 CPc.

C h th Moneagc. ofrhc propeny involv.d in rne sale If h h$ lo lele ptrn i! lhe sal
ond wanB to $ichosc th popdy h. sholld oblain pmission ofthe coln i! Mnins
s
h.foe p.nicip.ring in rhc sde srlt.d i.
R.72 -A. l. lhis ce
he hs not obaincd
p.misid of tt* .oud but hs b..n allord to ponicipale ir lh. sale ed lo pu&hae the
pbpcny $6ich is 6nfuy b Rrles. Hc @ also scl ofi of th molnt doc on dre
ong.8e whil dqiosiling rbc sale pricc inlo coun. HohastodcpositrhebatanceofT5%
or rhc plFhase pricc wirhir $c close of lhc fineenlh dly tiom the dare of sll 4 stated
Mdq R.85. Wnhout pcmissior of rhc coud he nN b.cn alloved ro *t ofofrhe /
anount dE to hio, I l. lE nor paid rhc h'l@c ol s.lc prjc. * nhin I5 drys bur hs psid -l
t/4
il qithin 20 days llis setins m odcr hr condoning dctay trrdei Scc 5 oflihilJln,l
c( is nol possiblc I Scc.s docs norlppty ro lhc appticalions undcr o xxl. rjrecutio,
Pdnio. and C s !.rilion in rhe coun e untlcr O.Xxl. lhcElnE. rh.oun it$llhns
tro
0uhority ro @ndone thc detry in dcporiri.s lhe b,l!rc of satc pnc Alt fi.
dborc
srltcd arc baredal in Brlditie comjlNd by de nons.gc C, rtrc ,!rchaser in d. ca*
Collusion sd liaud dd.s not appcar ro be lhere bul !h!r{i!l
iftegul&ities halc [.n uommined inptenly

(h a6oud ol mlr.rial iftBnl&iris i! rhc sate. $e judgncnt- dcblor N has su0.cred


substetial l6s c rhc poFn), is sold lbr Rs. 4.OO hlns onty as asaimr tu. IO.OO
l*hs
cltinaled mdket valuc dlhe p|oprly shr.d in ihc satc prootrnarion. tt is thcrclbrc
llcr thlr fie rppticrtion by $. judgmenl. deblof N comca urdcr {r.xxr R.90 cpc
shich enri116 him to apply for sering r{dc sdtc on lhe
sround ot n,rnal iftcularities
conrnirm rhe a'lL pr(md'ns, rd B r rc\utr ot ir . hc lb sutF.dj .ub6h;i,t
'n lors.
Thc Coun, thfttoa, should altoq,rhc !ruti.ation ofjudencnr- d.bror N md
$l osidc
lhc ele diEcring rsulenf rhe smc

'I be fi(\ ofrlr...* rr. IoIohr:


'!
It bom$td a sum of tu. j.oo lakhs lion o. l0l:O()? agrccins to dpq, rhc s,oc
al.'s $nh lhc inlctosr of | 0./ p.r. dd exdur ! pmmi!rl-}. noi in ljorgalor. in rarour of A.
k B diJ nol pay rhe anount d!. ur&. rhe prcnoL whcD,tenoded by A, lhcsun is fired rlrinsr
R on 27.5,2012. The dcfcndanr B has co cslcd fie sun naring dar lh. suir
is barot by
li.rihlioD lhc srdenrs ar. nskcd ro decj{ie as lo who$* the suit is bdrcd by timikrn,n or iL is

Ttrc pbvisioN of law rppliclhl. ro the c.e on hmd rakins ido consid.a
on the fads oa rhc
cdc !rc An.3t ofsIcdute ro tinibrion 7\cl SNs.4, l8_ md lgot t_imibriotr Acl. fi.
facrs
shrcrhlrdefendanBpaidRs500ioAont5.t.2OO8andnad.&cndors.nentonfieplonote
ahd e8trql . lhh parmnr is rithin I yc.d i^nn rho dale ofFono|c. ThdeforE
6 {.r.d tn
Scc 19 ol Lihilltion ct,lhe tiDiradon
Fedod commcoccs ro run l.rcm tj.t.200g and suii cii be
filcd wirhin I )es fion lh said d!le. Thc t_nnihrion pdiod ro lilc lh. sun on $c b.sis
ofa
prooiis,! rcre is :r !6 fon te da& of lhc dGumed s slltc.l in An.js. ,\g,io. lhc
dcrcnddl h:6 applial !o Sllte RrrI of ldia tor a ton oIRs. ro 0O tlths dd he is eid to
hilc
srared ftc applicaiion thor rh. tM \rs r.qut d lo discharee rh deh dE by nim ro uNtf
rhc rft&rc md tnr inprovinS hh business, lis npptication of loun ie dated
22.1.2009 lr
rhd Ie has mknosledg.dhis tiabilityldpl|! thcdebtducro $ltdnlifA withtn I yctrrs
tioDrhud e ofearlid tdyment. This actnostdtgomcni h urler scc t8ot.lheLimnaion,^cl. / /
'ncMs
lh.atnu\ledsemm' mJy h.(oa drrd pd) Jhd,nd rl nmr*(r"*r' rhr r .houtd h. t rk 4,

3
cdior himselld sutd undq scc.l8 lh(olblc,lion 22.4.2009 may tle thc suil wilhin 3
yca$ Th. defondad did nol lepay the dcbl anounl lo A. though oblained lom fion $c BNL
Thdcforc lhe plainlillA ha lilcd lhe sun ro rccoro ihe baloe dour due u&r $c trcmlt.
Ilo$rrcr.hecould nol filc rhcsuildor belorc21.4.2012. the lin dolc lo file lhe suit fron lhc
d& ofrknowledgmdl s lhc cods hld be.n closcd for sumner vlcalion frcn 18.4.2012 till
26.05.2012. TherefoE, lhc suil is liled on thc ncrl workinB day or lhe courls yhen t}c couns
{crc rcopened ancr racatun on 2T.5.20r2, ssrdedi.sec.4ofrhel,imirarionAcr lrs.ysrhal
whon lhc larlday to fl.lh. suil happeru ro b0 r holiday to the couns and lhey &e closed,lhc suit
*
cd bt liled on lhe next wrk ins day of lhc corn sd $eEfore, whcn co.sider $e facu ot rhc
c*c dd rhe OovisioB ot lae atpli@ble d srorcd above, rhe sun is ror brred by limitation and
il is pdfally sirhin thc peridl ofliniktion

Q.N!.4. Tne phihtiff liled osuil asainst lhc deGndmt on 2.6,2012 for declmtion ofhis
tillc to th. suit site ad pcmecnt injMctjon lo E{raii rhe deleftldt fron tcspassirg upon lh
site or i. anJ wy fron disrurbing lhe plaintifs posssion dd trjoym.nr of lne siie- Hc ale
applied lor rempotrr..-' injuction to resnin te dclcoddt fton djstuding his pNsion prndin8
disposdl of$e $n. fie als obkiNd m crFnc Ad i!1nm Ordei of rnporary injuncrion lill
lhc disposal oa lA lor lcnporary injunclior. Ihc defendad filcd rhe witten sbtencnt dd
objcdlors to lhc IA eckine fnr heMng llic IA on meits of rhc c$e md dispose il of by
disElel so that the tohpodry injunclion mly b. vacated. Tno Coun, hose!6. ha gme on
posDoning the hearin8 oa th lA far somc rca3on or rhe oftr, i, spne of the facr lhat th.
dctl{iut h6 ben uryins thar ge{ inconEnicnce is caused lo hin ad hc *ill bc highly
prejudicedillbelAisnotdisposcdolljnmcdirlcly. ll is alEady moE tban 6 nDnrhs sincc lA is
pcndins. Tt coun has poslcd lhe heanng ofdc lA lo 25.1.2011. The studenrs N askcd to
answcr&\ lo how lne dcf0ndet cd challenge llE olderof the pos\'onmenr of hednS ollhc lA
qilboul disposins it of oo inclits.

'Ihe polirion of la* appliqblc ro hcLr of lhc .d* is O-39 R.l-r\ of C.P.C. sr.Ls lhot
*h.rc e inju.ction hd brln Smred snhoul gilirg norice lo the opposire pant, "fiich
lhe ooun sh.ll
m{ho hdeavor to finally disposc of lhc applicarion wiihin 30 dnys fFh the dale on shioh the
injuoclion was Crmied and where n is unabl. so to do, n shall Ecord its inabihy fhcrc i3 no
any o$s rulc in C.P.C. for considemtion in swh siNaiors

An lpp.rl k not a d irhwnr righ bd n is only a $dutorr nsht. ftcrcforc ro pefcr e oppeal
to chrllcoge the order of rh. cou rhee musl bc a tmvisio. in tnc Suturc Eder snich rh. o.d.r
co bc challenBed b! mms of m rppsaj. l;urthe! h is onb/ m irt$im order and k bot ilnal
orderonthelA llrcrelore,rhcdcfendantisaiffrrhomthe intdim ordo! h pa$d is ina nx. In _
cr$s oflhis lype when tnc pnny againsr Rhom lhe order is pss.d ren|{dvcly and th coun h nol
ra
P-
dnposing ol rhe I:\ on hcits.lhc Suprcnc Coln his giyen the lry (ur in a case .epoded in
ArR 2000 SC 30 ll
: Vcnksr Snbbailh Nridu V, S- cnetbpprn nnd orher. w[ich h
npplilubls lo cascsof$h iytc on h.nd, lh.Su0we Coun h6 shred rhd hc aeldclcd pltny
nmcl! rltc dcfcndet in lhis !6c ruy prcls M rppeal (U/O.4:l-(a miscellaneous rppcal)
coNiJ..nrs thal llD orner postpotriq th hetuing ol rhc applicaft'n !s rlt ordcr p.s*<l disFosihs
of|ne rtr icllian it*lf (and tobablv coNiderinlj $ar rh ords hs Conc .gainn himJ atut lhal
the qpell0te .oun ryill holc ro entcrbir rhc atp.d dd adjudic.r. lpon n. r\pptyine rhc
princLplcs $ntcd in rhc .ho!c cas. by the Suprchc court o lnDeat mny bc pE1!trcd by rhe
a$icv.d pdy lh. deie.dant ll/o. xl-lll R I (r) challenging rhc order loqonine$o hearins
orANnhod dnposiry il ooon hcnls m{i ser rlx {d-intnh orderof'r.t mcared.

Q.\o.5. P hasobBnrd r dccree aeaiNr R lbr Rs. 15.00l hshlhccounofCnyCivil


Judec, llangdlore and durnig llE coose ol oigind sun i$cu hc hd oblaincd !n itnc[hcnr
be]nre jul8hcm.ldo hou\c oi R siru0rcd 8!.gilore Cny. t hu tilcd 3n Lxcctrriu l,clnion
to recolc. rl'c decEe @ounr bt sal. of th. an&h.n house of R rh.judgmdr deblor. llu coun
had po$cd rhc cae on 5.1.2(rl? di@rine rt{ drcrcc nou$ dd.ildgnmr debro. to turnish
inldondlion lulali.3 to rhc lrhuhed housc so ll rhc smc my be i.cluded lhu $le
FJclamdlion Md also rhc dccrcc holder to pry rh. *'le f.e Th. dccrcc holder ond his Coun$l
$de ihiol on that day md $c dccrce holdcr sr nol represcnrcd by diyone Slle lcc wN nor
plid ud lhe infomdltun rcquircd lor publildliuo of sale procldnnrion Ms noi luhishcd.
Tlftnrc. tnc &d pNed u oRler.s 1fu UxNtrtion Poilion is dismissd for *d of
proseuxon". Ttu judsmenl duhor who ry6 prc*nr in lhe coun sold his hou* ro S by prilale
srle o! 10.10.201? &d sot il Fsistered and d.livotod lx*esion of e hose !o S. Dccrcc
hu ( . Lr lc"drins dr 1r, L^c(r.on pcr.r, r 1r' he, J mFnd ro' oe ul' i\-.'n,rhc
'
exec!(tun tclilion on 10.102012 scckins sale ol rhc horse ofjrdgDc deb|[ aricr l0hishins
sale fee ed pMiculds of thc housc. lXc coun ordqcd ele ollnc soid house io lake placc on
25 | 201 ll. S hr ne lamt rhat thc hous lhal hc hns puEha!{n to'. R hs been \ct dosn for
rnc, hu lppruachsl thc lrercr lbr advic anLl b nsisr hin io pBvcn the sale ol lhc hou5c by
Lhe coun. 'lhe sludenN dc adtcd lo explain rhc Brenjon oflaw dd rhe con6e ot aution rhe
la$)nsouldiadcrohclpStoprcvsrlhe* eullMhorseinrh.colrtduction

The p.lvisions ofla$ applic$lc to lhe case.n hond .re O.l8 R.l | .nd R I I ,\_ o.2l R 51t)

o.2l R.57 (1) srys lhat *heD dtr *..ulion ii dismissed turdeliiult or lbr.ny rcdson rhe
Pcrltioh
coun sborld dlso stac os lo llrc subsisl.ncc o! cortinrdion oidrshmunr ofthe prctc y lor a
panicDl& pcriod R 57(2) lrys r
if horhir8lsrbLd byrhe coun d b $e conlinu,li.0 of lhe
arlachn&trl rvhcn the p.tilion h dhnissd. n mcans rhc dkchwnr is denEd ro hak ccn*df,,/
/-
lonh$ilh. lo dris casc llr ourchnml is madc bctbFjrdgment ir the couMof oieindt suit. In
such cdes O.XXxvlU R.l I sbres that whcrc the prcprrt is lndcr aftachment by vinue of
prov'sois of this order and deree is sub*quently posed in ritvour ofplaintifn shal not b
necessdry !po! !n applicalion fof execudon of such decrec to lpply for re-andchm.nr of te
popcny. ThcGfoe, rhc anehnnl b.for judgrc.t h6 @ iiud in rhe atove cN after fie
decrce is obr,jred ad ir is pur in e\eudor_ tr is. rhcrefoE, that lh. deE holds hG $nght for
sale of rhc eid po!riy. R.ll A ct{t) of O.XXXV|I| says thlt rhe prceisionj of CpC
anplicoblc lo allachmcrt mudc ir execurion of a dNee shatt, 0s Itu s my bc, opply ro an
atl.chncnt nude bcfore judshent Nhich contitru$ lner the jodghonr by virtDe of $c provision
ofR.ll. l hRfo R.57 of O.2l k applilable lo lhe executiotr Flition in rbis csc though lhe
at|achDhr of ihe hoN har b..n dade b(n,E judeDeot. Now rhar ine courl ha.l not slaied
or-lhing rlain3 ro conrin\Erion or Dtlc^visc of$c a achnent of$. hou. ofjldgmnr dbror
in thc !bov. case Nh.n lhc cx(u1ion p.lilior is dismisscd for wel of Dro$cuiior fie
atllchnicnl is deemcd ro hdvc ce6ed on thc dlk of dismissdl ot $e excujoo pcriton on
5. 02u12 Tt. DU{ ol Judgm.fr J\bror i. ro' uqJer rrJ.hm.nr lner dbmi;il or $e
ex*urion p.iilioD. R IN sold lhe house on 10, I 0.2012 lo S by privare sle dd lh. $le is valid
ad S h6 b6omc rhe o$n* of rhc hoN.nd atso hc hd lokcn Do$csion ofthe houe. The
judgncnt dchor n no moe ow.cr ol rhc hou$ in queslion wh6 rhe d.fte holdcr h6 fild
liesh Iixsulion Petition and 10.10.2012 md hds jrsht tor salc ofrhe ho& perhaps $inkinc
rhltthctrllachmenlnasoon(i uedffdrh.uounh{sordcre.llhcsalcotlhchouse.

la rhe coun ells thc ho!$ on 25.1 z()B rbc purchrsd wjU nor ser rhc lirje lo rhc hoE os rhe
bou* des ool belong ro jrdsnot de6ro md it betongs ro S. S is , rhnd pany. His pbpcdr-'
cnn.or bc $ld by lhe courl lo slisfy the dccr.. aSiinsr thejudgmc debbr. lr is no doubt rrue
that ercn wirlioul anachdcnt the propeny en b.sold in rhe coun ouclion sate but th. houe in
,tucslion in $ir case do{ docs not belons lojudgmcnldeblor bui ir bclonss ro S. a thid parry.
To obldh e oder in ravour ofS in cases ofrhis
rype R.58 ofo,2l h not applicablc as ir reldtes
lo s*king v&arinc lhc a &hmcnr ot lhe prcncrty on rhe grclnd rhd ir belongs lo thc poridoner
and nor t\c judenot debrr. rn $e cse on hdd rhqe is no dl,clt4dt of rfic hous of
ludem. dcbtlr ar pl*nt. O.2l R.90 also js nol applibte ro fiis cse d n is only ao. *dds
aidc lhc slle !fter lhe s!1. h hcld if rhcre is ,ny tmud. collusion or maFnal inegula ry in rie
condmr olsale. TheE is ro ony orher povision in CtC to rcqucsr hc @un nor ro sel thc houe
whrch h now oideFd bl rhc coun. theieforc insuctjc*es S $hould fite e,lDlioaiion
undq
qA l5l CPCto rh. inhcrenr poqeh ofrhcrod and!,n(tlheodsD;edatRddvfor
$1. ol the hob('ntole
on ?r | 2oli in rbc tovc u.* a lhe prcpeny ,.tuo no *tong to
ludg.*r
dcbror ad it belonEs ro S *ho is a sLaser ro thc prftedings in rhr lboE 6e. Iarh. mun is
co.vinccd that lhe propeny bclones lo S nnd not l{, judCnnr dcbu, ccnajnly dc coun sholld
nlolc i$ inhcrenl powets lo caDcctlhe ordft ioi sle ofthe houscissucd bv rhe coun otrcadv in
rr' .oor.cor. lh..I h.tr.D ror\elc\ry.rtunsrrSanJ helDhrmro"oe harhstrrucisnor
$ld b) lh. @!n in rhe abovc cae Inhcrenr Doeer ofrhe Civil coun is ftat to be used in
cNs to dojBdce r,o lhc p.nics *h. rnee js no prevision in C.p.C, undd q,ttch rtr Coln nay/

- ta'/
plss rhc neccssar! o^ler i. IavoM oflhe appli4nr ro do jlstic. or ro prcvenr ibuse 0t oun

Q.No.6. a) Lcav. is smnted lo th. pefiioner lo tjle a sujr tor fEhing frsh 5uhcme tor rhc
ofSoci.iy running d (oll.ge as a Prblic Trust on thc basis rhar thc ioncs 6 r
'ntuidsimeni
old srudenrs ofrhc Collcse re persoN inrresled.

Th. snd.nts aE osked ro explain lhc lawdd dswcr rh.lh* e appal cm be ljled aeainn rhe
albrc ordcr grdntihs leave ro thc petitoneB t0 file a suil. Crunring teavc ro tho lelitione^ to
strid
lilc{ suil sraled in rhc above erand. .nncrs Sc..92 C.p.C. retiting to pubticChdiris. To lilc
a suit fd fmin! a $ncme by I'ublic l rusl, one or r$o pdons fr.r, file an apDlierion betbe
thc coun s@rine lc,vcotlheorrI. Ibccounallqconsideringrh0ldepeoplc*.kinslavearc
inteft$sd tqsons in rhe adninisrlrion of rhc l\rbtic Trusr qi gdnr tedvc to lile rhe suir.
Tt.Enft n is an Oiicr psscd by $c ouri undq Sco 92 C p C.

ApNd is a srairlory aaht and norm inherenr ngnr. Ttereba. hcrc muj bc pro\ision in ihc
slolLrc slvrg soch ght to anyon. *ho wols to prelei m dpprul asainsl a.y order or dccr.e,
'lhc lborc sid is an order ud.r Sec 92 lnd not a decrcc. fhsEfore se.r6
C.p.C. is not
appli.obl.. rvhclh.r r ni$. apFll mrt be pEftmd asaid such ordq under $c.ro4 or und.r
().43 R.l C.P.C. shich prcyide right b prefq q'Fnl should b( considered.
Undcr sd.lo4
(l) (1h) c.P.C it is sr.Fd rhd under Sec.91 or Sec.92 agaiBr m order iclLrsing teavc ro
instnutc a suil of lh. nature refetred lo in rhos scorions N Oc ssc n y bc ud {ptjeal mat b.
prcfcncd. tuis is not ipplicablc 10 $. F{rr of fi cde s rlc it smlen b} hc coM to file a
suk and mt thar lh. coun h6 Ellscd lanc. ]le is .o e, ofier prcvision C.p.C.,
pc!toillin8 or ennring a nghl to F.ler d dppell osoinn & odur 'n
sFnlins tervc under sec.92
c,P C, Thercfor, {ppedl cannolbe liled rcainsl lhc eid order.nd iffiled is not nri.tdnabte

b) wnethr rhc nppcrl ag.iar rhc coM snirs asidc lhe order of disiiss.t of a sun tor
deliuh pNd undcr O.9 R 8 C.l, C, holdins lh{ $o dare ofh.irnrg of thc suii i.corded in $c
couir\ turc sheet wls 11\diocc liom tbe darc on llich lhe casc wrs c,lled dd disposed oi by
<lismissing iL \rhehcr m aFell nly b prefcrc! asand lhis ontcr is rhe qusion.

n appcal is asanrbr/ rie}1. ftc ||oreeid sal.mc.r Df lbc coud is m ordd and mr n dcceo.
ThcrolbEpsvisionsofSec.l04C.P.ClndO.43lc.P.c.whichptuyidcri8h[olppedasaiDl
orders snould b.5ccn Doth rhes prolisions do nor live any intbnnation ElatinS b sucn odcr
/
rgJini *hkh i dppsld pemrnuJ Ihcudcrp{,yn $mdc,oL
'nrherh'vc!3.cN 'h.<.un
prcris'o'B antl rhrcrbE no

.) \rlllerh* a lpeal on r qw$ion in a mon(y suir Lvhm lht !l@


ol lhc suit is Rs. ?,000/- mry bc prefered

Appeal is r strlulo.y riehl 'l he qkslion nfcdql dse


md rhercforc Scc.96 C.P.C. which
ro is
dcals wnh |he dShl !o alFal agai.sl decFcs is applicable. Scc.96 cl.4 C.P.C, is b ln ellcr
lhot no apFal sholl lie exccPl gll4,qs(qn ol law, from d deEe in dy slit oilh. nqture
cogniable by Couns of Smll Cruses. when the lmount or v, uc of the subjecl-naftei of the
orisinal suir d6 nor e$ed Rs. 10.000r-

'nr suit valuc is l{s. 70001 rd


ii is a noncy sui( dd rherciorc n is cosniable by the snall
c0uscs couns. ln such cases d dccree cm be queslioned in lhc rppeal if the lnoul rc.cds Rr,
10,000/-lflhcmounldoesholcxceedRs.l0,000/'apF.alismainrainabl.ondcmbeprcfcftd
udcr the above phrision ifth! lieB ollbe cfc inlolv6 a aucnion of law onlv. ln fie cac on
hand n is sbEd in lhc quErion tu lo *nlhcr an,ppeal cau b( pEfned ,nd nainbindble on
qucslionofli{I.'lhcrelirre,$cansrcritlr{rnianpealas.insquestionoffadinsuchcascsis

Q.Nu.?

d) Precepl: ' Sec.46C.?.C. cxplains whnl lrccepG ae,Ir nares rhat upon the applicalion of
rhe dNree holdcr, the coun enich pNed lne dcc@ @y vhcrcler n rhjtrki fil isE ! pr.c.pt ro
ant oder @urr ahich rrculd be compddr ro cteurc such d6e b alrach ey prcpdy
bclon8i.C ro thcjudgnenl dcblor d speilied in rnc pr&.pt. rne coua m qhich a pr.@pt is
sc nr shall poc..d ro auach lhe properry md povilcd rh,t no anachm enr undcr $e
Feett s hal I
conlinue m@ thln two bmths unlcs dE tdiod of atLchmcnt is exle.dcd by d order of thc
cuurl qhicb p*d llE dmc or hcfoE lhe dcltmimlion of sch a rcnmmt 6c deN h.s
b$n ltufeRn ru rhe cod by shich rh. afiaohmer! has bccn Dad. dd rh. dece hDldcr h6
applicd lbr d ordcr for lhcsalc ofsuch propcrty.

'I hoquBtion of hsuins p@ett rri.s in rhe cncunstdccs of rhc co* rhal b !.coyu ihe dccree
dho!!r, $e deec h.s lo b. mnsfcnd ro anothd courl by ihe coM which tu !6scd the
ddrcc ds rhe prcpcny ol de judeoent debto! lgainn which $c decde has io be qeculcd is
situlted ouh e(hcjunsdictionolrhmunwhichhdpascdthedecrcc.'lhcprcpenyoflhe
J D. is silualed io anoder rcun's juisdhtbn. Ii {rh cascs rhe dcEe nouq Mnls ihc decrd
/
b h< hNkm'l ru rhe Loun nrrhin $hose Junsdidi,r dF pn,pen) o, rhc iudEne Jeblor ii4t
snuahd. ]11c cou( rvhiuh has p!s$d Ihc dccrce cdnnot alrduh r prop0ny $ti!h h beyoNl irs
jitrisldior Ifrhedcqcchold.rscrs inli'marion rhfl the judghcnr dcbtor lw ltrs lcann rhar k
dccr is Nnrg tdsfcdal fd hi! !rupenr is lik.ly b bc oft.cn.d is natins cfons ro icllftc
prcleir) by privare sal! in order ro s. fid rhe plop.dy h not av.ilable ro rhc Jede. hollcr ro
recover rhc drcrcc amorrl, tl[
dcclc. holder will lplly to thc co\ul shi.h hns n6scd rhc dooree
rcquesline lirr tslir al dsr.c td ihe coun \yhi0h is comp.tcnl to ,nach the pftJplnt and
cx(ur. rh. dccEe lo ruch @s rhc tmsfcr of decrec ptucednrss *iU l.k. considerublc rimc
lo s.l d..rcc uansfened iolh conrpcl.nrcoun liircxccurion. llnlc*\ rhc doorc! N transfene.l ro
lhc orhcL 0orrt, ihc dcoee holder 0dnnor nlc d\ crcrlrior pcrjljon in rhar uo0n reqrcslihs ro
crecft $c dccrce anlj inmh rhe tfl)ltnv of thc JD. In rho ncdn*nib th. lD nay disposc of
lhe pmpd). lhedeEc holdcr ro p@nt JD frum dkpsing !l r niopcn\ $ints ro gcr rhe
pfopeny or thc JD aikllNd iDmedirtcly. lor rhat pu]rxe hc msy request thc colln *hioh has
Fsscd rhc decree r. is$rc an ordcr nlmcniady to rhe conpctcnr coud which cxn exe0utc rhc
dccrse !1lc! hnsfer, !o duch thcF&peny. Evcn bclore ranslir trukcdings dre conplte. lhe
coun {D i!n'c m ordd direcrin,s or rcqrsdng rl! wmp.hnt corn lo dkh thc prop.lJ' ol ID
rrcd in Bl ord.r nrn.di cly Tne $mlllcnl cou un rcccivnre rhis dncction \!ill
lfrmedialcly arrachlD\ l1nrpcny lichissirhinilsj0risdiciion tIis proccdure *il1$te!ufud
the inle!(!l of$e decrsc hold.r in ordr to recor$ lhc d{rcc onount by s.le o, JDi propcnr.
Ttis di(.tior or ulN{ .f rhc corn *nich h$ pssd dL dee. to thc coun $hich is
compe'enr h oxccuru rhc d.creo nh.r r!.nsfcr b rt&h ihc JD s prop.ny is calkd preclpr,

I lis ilr0chmem sould c! inue nxmrhs. In qnsM*hilclhcdccreeh.lddcilhrr


orl! fori$o
slnuld s lhrt dc(u lraNilr pft{cdn'gs .rc c.mnlcted and thcy reach rhc @mperenr coun
xnd filc .r.utun pclirion in $. conrpcrcd conn setine salc ol ihe artrch.d Fopnr ol JD.
orherwise rho dcc.c holder nrn] rcqtrer $e cou xhich hds prssed rhc dcofee $ extcnd rh.
time priod ol arlrcln{rl ol JD s l)lo|cna befoE tr'o monlhs poiod expircs. Tbis is lDs $c
d{Feholde.dprcvcnrthelatscof.ttchnen!lnerl*onoolhifrunthcd.ofaralurnr.

lr.dcr R,2: ofO.:ll (rP( - cros objRdons dc panitrdl r. hc filet by rh. Gpondcnl in rhc
{pFal silhin l0 days fiom the sNicc oflppoalrolic. on hin or his ldvooale. TlNy can bc
liledu { 2 cncumsldrccliituatuns

lr' ursc .l r Nry obtoi.ing dccro. h Ii, livdur h r $,il


but in thc saN suit, ih thc
corFc.r.judg eht th counhsEilo ft
ins/findinAs dgainsr hin!nonc or t*o lssues
rtrd in spnc oait rh. enrne dsM is ir his hvour dE t
rhc lindinsr on anr, onEr issucs
rppcrl c.nnor b. ri'ed by him objecdrg ro rhc dlersc rindings otr tholc isues $ m /
{ppcal is t {alulory rishl rnd5.96s.ys rlhl arybody who is rgsncy{Lioflh. dccr.e nay ;1.2,.
Dlefer an dppcdl. No wh.r. it h slatL'd td nshl lo prcbt an appcdl l'gai6t
o peson ha\ a
r li.dilg on lny Gsue whcn the enfi. dccde is ii his favoni. f'o. e.s. h a Fo isery
@re 6q t6c defod4r pleads lhar h ha not dccltd th pbdisory nol.. ha nol
rsend cotrsideation lor th mc dnd the sun is b@d by linibiion. Tlt coln on
ndjudicltion pa$s a judgment disni$iDg Uro suit ol the plaidiffos bred by limitalion
but at lbe same tinc Ciing lindi.gs on the ofier 2 issB asaiBt the delend4nt lo th
clTcd $al hc h.d excurcd $e pohisorr .orc ud rhe sm. e6 spponcd by
$nsidcndon. Nos lhe d.fendel in whose fa,..ou lhc flriE $il is d*'ded hd no dshr
to ptefer an appcallg4insr tc advese llndings on lhe issues. Howcver he can lilc cross
objediom il rh plain fr fihs d appcal asainsr th. disnisal ol rhc suir ad notice is
scred on rhc defqdarr,,Gpondenl Equcsting lhe coun to eir $c fudir{s on thos
issles al$ ii his farou. I hc crcss obj.ciiohs $ill hrle the smc .r41 6 sn app.ar sd
rhe coun will coDsidcr lhe lppeal oirhc ploinlifiand crc$ objeciions ollhe dcfcndmt
roecther md pa$ an ordcr,

!, -t
be 2'd liturion lo fi l. crois objetion! l. B rollowll
h a pionissoly nore ce,
oleining Rs. 25.0001 asdinsr rho deamdant md thc dcfendet
conGnds ih0t he h6 psid already Rs. 15,000/' md h du only Rs, 10,000/- which tbe
plaindtrdisptrr6. Inlh case ifrbc courr adjudicalLs Nd p6s a deE for tu.It,0001
lx'lh tne prnics ao rggriev.d lo somc oxlcnt. The lbinridfels |h.t the coun has not
gilen Rs 10,000r dd fi. dcfcnddr fccls lhat lhd court has unneoosseily mdds hin pat
Rs.5,000/- nor
Thecforc both of rhctn have right to pcfq appcal aSainst cach other
lhe steir rh.y &.srriacd ofrhe d{cee. But ifthe plaind[or dcfddmt pEf*s a
'o
lppsl. ed Uc opposic poriy lhoush hrs a right to .!pcd d6 not pEfq 4 app.al for
wh.tever Edsons he m0y lfiink nt, ic cln file aos objrclions in the appel filed by lhe
othc. pany within 30 &ys lion drc J . of seflic oj appal notic. on him. lhe 6os
objectios will harc lh. eme ef..r $ if he ha prel.rd d at!.dl and rnc coun *ill
coBider botn of$em t(4cllEr.nd daid. th. oppe,l by a single.tudgmcnl. Insuch 6es
.!cn ifthe atpeul is disnissd for dcaaull or has bccn wi$doM , $e crcss objectiors
could b hculd dd deidcd by de coun. In such cNcs, ti. po.ty p.eferirg crcs
objerions slDuld Fy rnc coun Iee o. (h. vrluc oa cNs objedioni

Q.No.8. i) A $rir for sp(ific Frfomancc is dndtused hoidins thar the


4rcenrl in qEslion E ml &red upon bt rhc panics_ The I'i6l Appcltarc coun ha
confimed lhis findin! oI thc trirl coun.

Now il will hnve lo b c&mined wherhcr second alp.al cs be mrintained 4ainst


j"d8mnt ol rhe Fi6r applhte com.
Sccond lppe.l undcr Sec 100 CtC cM bc tror-cftcd before lhc llish Coun if $e lligh
Coun is eftfied th ftc cM ! rubshmial qucstion of law. Subslrnlidl
qu6dn.alaw is a point of las 'nvohcs
*hich is onrnded br ih. am.llmr md if rhc High
Courl aers vilh lh lmeuer and siv$ d linding in nis fivour on rh. qnenion of ! w
dpld.cd by hin, th. dection in thc dlirc casc should get rcvcBrd in favour ol $c
{ppcllet. ln such cnscs the poinl ol luw would b cDnsidercd {s subsbnrial ques!tun or'
ldw. ln spile oftc Hish Coun lgreeing with the appcllml on $c poinl of law tc
jud8Dcnl of $c Firsr Appcllale Courl docs Dor chanse and n Enains thc sme, fie point
ol la* lur ldtu&d by rhe appellat in rhc src.nd appcal dc3 not omount ro subslflnrirl
q!.slion of la*,. ThftfoE. $r will havc lo cximine rhe q!6tion snerhq subst&tial
qucsrion oflaw is invol!.d in iL lathcslit for the spc'fic pcrlonnscc n dnniscrl on
rhe ground ihal $c agrcenenl in qEstio., wd not actcd upon by rhe panies is only r
qulslion of facl liistrolclenaqucslioroflaq Therefoe, scond appeal in rhh cisc is
nol possible and ilprlctred ir no1 hoinlaiMblc.

ii) ln a sun filed b) lhc phinlill or fic baris Df pmmissory nolc, ihc delenddr contGlcd
slatins that hc hld nol cxsured llE ptuhirsDry norc. hc had nor E@ircn lhc
co.sidention ud lnlr rhe sd is tiftd by lihitation. fhc-l .idl Con dinissed thc $tl
dg*cine lvith all rh. conremions rliscd b) $0 dcl-endmt lnd uswcrine all rh i$u.s in
lirvor offic dcfcMnnt ID the epeul lrclcncd by thc phinlilil ttu Amcuate Cou
dirasBed Rirh thc 'liidl Coun on rhe issws I abd 2 and hold ftll lhai plainliff hod
IDvcd lhar lhc d.fcnda h6 execuled rhe Frunissorv notc and rhc Fo- nob is sulponcd
b consideniion bul rgrcd iur rhe sn is barcd by Linnaiion ,nd hs disnned dc
dr)!.i. Tbe qudion ro be ixmired in lhis casc aho is rvhelhcr r second aDpea! may bc
pfti.ftd againslhcjudgh.nr of lhe rinr Aptcllarc Coun
SnbstMlial queslionol Inw is al.eddy 0xpllnrd abole. We shonld .o.sider qhclhcr
subd..rial qu.sion of ldv n mvolved in this cas to put fo ord .s a ground in Uc
tumoEndum of o!!.!l beloe thc Hid C!un. Ih r*b iscs in |hc @ vnich wcrc
roqsed by lhe Appcllalc Court and onrpcEd in lar.dr oalh. pldn lt'appellanl le
poirns of fa.t o.ly. Thc lhird isG ol bnr of linilation in\rlv6 point of l,w fhis poinl
of law h mswered bt lhe F n r\ppcllarc ( our1 as dho by $c Irial Coun rgaihsl rltr
pldintifr/appellant md rheieture $c suil is disnissed If $c pldinliff pFltB sccond
appcrl before d.lligh Coun he will hsvc ro substanriltc projcctin! the poinl ol law ol
liinnalion inroFen in it s a giodd for socond app.j lflhc HigI Coun acccpls thc
com.ntun of thr plainliltappeuat tld dc sft k ml b.rr.d by rhc linilation tbc cnrnc
c8e trms in fawur oa $e rpFllant ird d. jld,snot oalhc fr61 .ppellate codn $ill 8cl
ilsclf Gied in tnour of the appclldl ds $c ofier rvo i$!ce oD fdct har already bccn
decided in favor 0athedpp.lldby lhc lrirst Applhte coun 'lhdctore, inconclusion
rh. I ligh Coun should rllow tb llped dd dcctue rhestrir infovourofrhe appellintrncr
/
s.ui.s dide $ejudgmcnl oflhetusr rppellit cold fh.rciorc, a scond appcal in'l'it/) -
c6e trav br filed and it will b ndiroimbl. m tle Doi of limilarion involvcd itr il
.moutrts to sbslantiol qsslion oi he in vicw ofihe l&{s md cncunslances ol thc c!*

Q.Noq Thc hc$ of fie cde d


Lhal A frled a suit lSainst B md c claiming rhai
plaindfinnli cd ro hllfshde i. ccnain rropenies dd sou8ht fo! p,rtirion dd scpdrlle
Dose$ionofhh hilfshdc. lheTnd Coun helddratlhc oldirlitl is endiledlo halfshdle
and B ed C de snrirled rogether to thc resl offie popedy. ll ncms lhal *ch B .!d C
vi! bc ditled to oE founh shm. B fil.d atr apFil bforc lhc Scnior Ciry Ciyil Jldge s
cod inplddi.g ,\ only 6 Espodor in thc aptsl cmleding $ar pl.inrifl is .rftled
1o % sle only dnot% slac. C h.s not nled lppel. 'lhc Appelale Coun in th.
appcal ond lo lhe coldusioh thar all lhe panies nmly, A, B and C ae each cndlled lo
one lhi.d sh{c in Thequcslioh is whclhcr lhc Appllale Coud oun grmt
rhc propenies.
thal relieflo C in lherDDealwhich is bcl{ccn B md A.

Th. Rui6rtpliqble 10 r.dr olthe d*c !r. O.4l Rt c.P.q.nd O.{l R3l CP.C.

R.,l slarcs rh0t whcrc rhere ee nore bldntifs or morc dclcndeIs rhm one in {suil md
th decre app.alcd foo p@eedJ on iny gbnnd comnon to .ll lhe plainliits or to aU
tb. delodals, dy one ol rhe plai iffs or any oE oftE dcfcnd&B my apFal frcm rhe
*,bol d6Ec and dEre upon lhc pn llot Coun my rcveM or vdy $e ddrft in
fNou of alllhc phintifis ordefenda ssrhewmaybe. Il m@s the @ud in seh
m appe.l may rcvssc dd vary 1lle d{icc in &vou of of all lhc Aanies sho e in the
slmc inlerest as $c llpelldr. Ii d$ Drdns tha! mrinly beoruse only sorc of lh
phintifs or dcfcndana had appealcd dld not aU. the coln is not po]Eles lo ghnt rh.
b.mnis of tlc appul in favour of rhj appeltanl to all rhe otha panies who hove nor
pEf.ftd appeal & f,ho e mt modc ponies itr lhc apFd bur rh.y werc pani.s to rh.

o. 'll R- plioh sllles the po*.ts of Appellale Cou.r. ir rhat the Applldtc Coln
33
sbaU t[ve powc! lo pss mI dccre. and hatc &y ord{ *hich olelt to tave b.en pssed
or made and to l!$ or m,le sucn tunhcr or othr decce or odcr 6 lh @ nay
'cquire
ed oris poucr may b. dcrcised b, rhc appllare @urt nor qirhsldnditrs rbal th appcal is
10 pd onlr of lhc drrc. sd nay be crcrised in lavour of all or lny of the respoddcnts
or pdies ahhou8h such rcspondenrs or pxnies moy not h.vc filed my appeal or objecdon
/
lnd nay whcre rh.rc hale been darccs in cros suits or qhore rs oi moF &ues .e -
^t
p6ed i! ore suil b ey ol $c dccEes dthougb e apFol
exrcisd in rcspccr of all or
my not hrve beb fil.d .g.insr swh de.c6 'ftcrclbre. is cl.oty sc.n rhat the
app.lld. coun hds tull rnd cnouSh powcrs to g@l th. Eli.f in favour of lh. app.tltur in
lh. @ ed extend $e em..clicflo ftc p!ni6 $tE wE !nics in lhe T.ial Coun bur
not n.dc panies ro th. appal or thlr thcy hM nol pFfeftd ey app.at a8.i.sr rhc
judgherx dd de d..re of thc Tiial Coun, Whc! wc comi&r rh.* iwo rutcs ed ih.
po\s of th. !pp.lhr. coun which mqy bc crcris.d undq E$ ru1.s. rhe N& ro
th. qEli@ is in thc lmnndiv. tqr thc appclhr. coun co gmr rclicf in rhe lppat lo C
ule rhoud hc is nor ! p.rl} to lh. appc.l bur lE ws oG of thc dcfddsrJ ir rh jlit in
rhc Tftl coun dnd h3 mr pe&md u .p|lsl aelin:t thc judsoent md d*Ee of drc
Trial coun.

,
<j-J.t -r'l-
( D. S}IANKAM REDDY)
__11
.--'
NATIONAL LA W SCHOOL OF INDIA UNIVERSITY
BANGALORE

III YEAR SPECIAL REPEAT EXAMINATION (31st JUL Y) 2013


c.P.c. - II
Marks: 60
Time: 3 Y2 hours
Instructions :
1. Students are expected to rely on the question paper as it is and respond to it. No
clarifications can be sought.
2. Electronic gadgets are strictly prohibited inside the Examination Hall. Anyone found
in possession of the same will be subjected to disciplinary proceedings.
3. Students are required to give reasons in support of their answers and mention the
provisions of law and case law wherever necessary.
4. Bare Acts will be provided by the Examination Department.
5. Students are prohibited from bringing anything except the Pen to the examination
hall.

1. Can an appeal be filed and maintained against each of the following


adjudications?

a)A plalnt is returned on the grou,ndthat the cause of action has arisen
outside the jurisdiction of the Cpurt.
!

b) Leave is granted to the petitioner to file a suit a~ an indigent person


without payment of court fee overlooking that the 'petitioner had filed
the petition through a Counsel.

c) 'Leave is granted to the petitioners to file a suit for framing a fresh


scheme for the management of the Society running a college as a public
trust, on the basisthat the petitioners as old students of the College are
personsinterested.

d) The court sets aside the order of dismissalof a suit for default passed
under Order 9 R 8 epe holding that the date of hearing of the suit
recorded in the court's note sheet of the case papers was at variance
with the date on which the case was called and disposed off, by
dismissing it. ' , (2 Vz x 4 = 10)

2. Write a comprehensive note on each of the following: (5+5=10)

a) Precept
b) Crossobjections
~

3. P, a passenger while travelling by a Tourist Service Bus having sustained


multiple fractures of ribs, hip bone and head injuries due to rash or negligent
driving of the bus resulting in the bus meeting with an accident, filed a suit
against the driver and owner of the bus and insurance company in the Court of
Civil Judge (Sr. On.) Mysore, claiming compensation of Rs. 10 lakhs. The driver
and the owner of the bus, defendants 1 and 2 respectively filed a common
written statement contesting the suit, stating that they were not liable for the
claim of the plaintiff as the accident was not due to rash or negligent driving of
the driver. The 3rd defendant, the Insurance company contested the suit
pleading that the "Insurance policy" relating to the bus had expired a week
earlier to the date of accident and the same was not current and enforceable
on the dat~ of accident and therefore it was not liable to pay the suit claim".
The court hearing all the parties decreed the suit for Rs. 10 lakhs against all
the three defendants.
The driver and the owner of the bus, defendants 1 and 2 preferred an
appeal before the District Court, Mysore, challenging the Judgment and decree
of the trial court impleading "P", the plaintiff as respondent. The 3rd
defendant, the Insurance company, however, later preferred a "review"
petition before the trial court itself.
Discuss and explain as to the maintainability of the Review Petition. (5)

4. A has been executing a decree for recovering a sum of Rs. 5,00,000/- from B in
City Civil Judge's Court, Bangalore city.; A got a debt of Rs. 2 lakhs due by C to
B attached during the course of execu;tion proceeding by getting the necessary
prohibitory notice through court served on him. Later, in due course, at the
instance of A, the executing Court served another notice on C (the debtor of B)
directing him to deposit the said sum of Rs. 2 lakhs into the executing court for
payment to A, the decree holder towards part satisfaction of the decree. C did
not r~spond to-the court's direction. The executing court at the instance of A,
ordered execution of that order against C to recover the said sum of Rs. 2 lakhs
for payment to the Decree Holder.
C has requested you to challenge the order of the Court directing to execute
the order against him. What is the course of action you should take? Explain .
. (5)

5. A, in the course of executing a money decree against B for Rs. 20 lakhs sought
for attachment and sale of a house and an "Innova" Car both belonging to B.
The estimated value of the house is Rs. 175 lakhs and the Car is estimated to
cost Rs. 8 lakhs. The properties were attached as per rules arid subsequently
sold in court auction sale on 5.7.2013. C, a distant relative of decree holder
purchased the house for Rs. 35 lakhs. D, a friend of A purchased the car for Rs.
2Yz lakhs. C paid Rs. 20 lakhs to the sale officeron the date of sale towards
sale price of house. 0 paid Rs. 2 lakhs towards sale price of the car on the
date of sale. D deposited into court the balance of sale price of Rs. 50,000/-
into court on 15.7.2013. C made an application to the court on 20.7.2013
requesting for extension of time by 7 days to deposit the balance of sale price

2
I
)
)
1. /
~/

/ //
and the court after hearing both the parties rejected the objections of Band
passed an Order extending the time by 7 days from 20.7.2013 to deposit the
balance of sale amount by C. C deposited Rs. 15 lakhs being the balance
of sale amount on 27.7.2013. The court has posted the case to 25.9.2013 for
confirmation of saleof the house. On the order of the court, the Car is already
delivered to D on 15.7.2013 itself on payment of the balance of sale price as
stated above.
B, the judgment debtor has approached you complaining of fraud, collusion,
illegalities and material irregularities committed in the course of conduct of
sales resulting in substantial loss to him and seeks to get the sales set
aside. What is the course of action you take to get the reliefs to the
judgment: debtor B? Also identify the illegalities -I material irregularities
committed in the course of conduct of sales. (5)

6, In an execution petition filed by A against B to recover the decree amount of


Rs.50,0001 -, B hasproduced a receipt allegedly issued to him by A stating that
the entire decree amount of Rs.50,0001 - relating to that decree is satisfied
having received that amount from the Judgment debtor immediately on service
of show cause notice of the court on the Judgment debtor on 14.7.2013s in the
execution proceedings. He has also contended that the decree holder assured
him that he would report it to the court and get the full satisfaction entered .
. Heualsocontended that he was told by a relative who had gone to the court on
the very day that he paid the amount'to the decree holder, that the decree
holder has not reported to the court/to enter full satisfaction of the decree,
but had sought for attachment of judgment debtor's house and the court has
ordered attachment. The very subsequentday the jU,dgmentdebtor has filed
application and hasproduced the receipt before the court requesting to enter
full satisfaction of the decree. The decree holder states before the court that
no aCl)ountis paid outside court as contended by the judgment debtor and that
the said receipt is a forged document and he has not issuedit.
The court adjudicated upon it on merits and has passedan order accepting the
receipt'as genuine and directing entering full satisfaction of the decree. What
is the course of action available to the decree holder to challenge that order?
Explain,With reasonsand the law applicable to it. (5 marks)

7. In a suitinstituted by plaintiff for recovery of a sum of Rs. 1,50,0001- in the


court of City Civil Judge, Bangalore, the defendant admits the claim to the
extent of Rs. 50,000/- and disputes the claim regarding the balance of claim.
, The Civil Judge upholdsthe defence of defendant and dismissesthe entire suit.
What are the remedies available to the plaintiff? (5)

8. A, a resident of Bombay proceeds by flight to Bangalore to file a suit for


recovery of money due on a pronote on the last day of limitation. The flight
develops a snag on the way and flight lands at a station near Pune. With great
difficulty, A reaches Bangalore on the next morning. Can he seek condonation
of delay in filing the suit? (5)

3
" ..

9. A filed a suit against B for declaration of his title to the suit schedule garden
land measuring 1 acre and permanent injunction to restrain B from interfering
with A's peaceful possessionand enjoyment of the said land. A had also
obtained an order of Temporary Injunction restraining B from disturbing A's
possession of land during the pendency of the suit. After trial, the court
passed a Judgment on merits dismissing the suit. A intends to challenge the
dismissal of suit. For this purpose, he has to obtain the certified copies of
decree and judgment and this process takes a couple of days and without
certified copy of decree or copy of the operative portion of the judgment,
appeal canl)ot be filed. In the meanwhile, the plaintiff A apprehends that his
possession'of suit schedule land will certainly be disturbed and he would be
dispossessedof the land by B, in view of dismissal of the suit. A approaches
you and requests to safeguard his possession of the land by obtaining an
appropriate order of the court. What course of action you would take to
protect his possession, immediately and till preferring of appeal and
subsequently till the appeal is finally heard and decided? (5)

10. In a suit filed by A against B to recover Rs. 2 lakhs on the basis of pronote, the
defendant contended in the written statement that he had already, about six
months earlier to filing of the suit paid to the plaintiff a sum of Rs.50,000/-
and the same was not given deduction to that amount in the suit. He howeV:~Fuu
admitted that the balance of Rs. 1 YzAakhswas due. In the course of cross
examination, the plaintiff admitted tHat a sum of Rs. 25,000/- only as having
been received from the defendant relating to the amount due under the said
pronote and not Rs. 50,000/- as contended in the defence. On merits of the
case, the court hearing both the parties after trial, decreed the suit in favour
of the plaintiff for the entire suit claim of Rs. 2 lakhs and costs. The plaintiff
filed ,execution petition after 3 months from the date of decree seeking
recovery of Rs. 2 lakhs and costs as per the decree. The defendant, now the
judgment debtor, in the execution petition has filed objection seeking for
deduction and adjustment of Rs.25,000/ - which the plaintiff admitted to have
received, as stated above and agrees to pay the balance of the decree
amount,. The plaintiff is not agreeable for deduction of that sum. Decide.
(5)
************

4
l'~t~TIOl\JJ\.LLAW SCHOOL OF n~DIft~u}~IVERSIT'f{
BANGALOP~

III YEAR VIII TRIMESTER END-TERM EXAM (JAN.) 2012


c.P.C. - II
Marks: 30
Time: 3 hours
Instructions:
1. Students are expected to rely on the question paper as it is and respond to it. No
clarifications can be sought.
2. Mobile phones are strictly prohibited inside the Examination HalL Any onefound in
possession of a mobile phone will be subject to disciplinary proceedings.
3. Students are required to give reasons in support of their answers and mention the
provisions of law and case law wherever necessary.
4. CPC Bare Acts arepermitted.

1. A obtained a decree against D for Rs. 4 lakhs and filed execution petition on 5.8.2010
requesting the court for attachment and sale of the site situated near Kengeri Satellite
Town, the only property belonging to D for recovering his decree amount. B who has
also obtained a decree against D for Rs.'6 lakhs also filed an execution petition in the
same court on 2.12.2011 to execute the decree seeking arrest of D as also to attach and
sell his movable and immovable properties. C who also holds a decree for Rs. 4 lakhs
against D has filed an execution petition on 10.1.2012 seeking for attachment and sale
of the same site ofD. Warrant of attachment is issued by the court. The Kamataka State
Government who has obtained a decree against D for Rs. 5 lakhs has filed execution
petition on 16.12.2011 and a notice under O. 21 R 22 epe is just served on D in that
case. In the execution case of A, the site ofD which was attached has been sold in court
auction sale held on 4.1.2012 and a sum of Rs. 10 lakhs only is realised.
If you are the Presiding Officer of the court, how do you decide the claims ofthe
decree holders in the above case as per law. Explain the provisions oflaw applicable to
the facts of this case. (3)

2. X obtained a decree for Rs. 1,00,000/- against Y and filed execution petition to recover
the decree amount by attachment and sale of sheep belonging to Y. The court officer who
was entrusted with the warrant of attachment attached 80 sheep belonging to Y and in
turn gave them to the possession of Z, a respectable farmer and resident of the same
village where Y is also residing, for safe custody and to look after the same until further
orders of the court. Z agreed and took the sheep to his possession and executed a bond
in favour of the court undertaking to look after and rear them until further orders of the
court against payment of expenses and charges. However, due to failure of servants of
Z who have been in charge oflooking after the sheep, and due to their failure to provide
adequate shelter and proper medical care, the sheep fell ill and as a result 30 sheep died.
When the court ordered sale of the sheep, 50 sheep only were produced by Z and they
were sold and a sum of Rs. 50,000/- only was realised and the same was paid to the
decree holder. As advocate of X what is the course of action you would take to recover
the balance of decree amount. Can he seek an Order against Z to recover the same?
Explain with reasons. (3)
,.,
-'. P' nas ootainee
.L
l' ~,
a oecree against ...,."
~
r~TorKS. 51"alu1S ana'd'~unng t h+'"
e course~ngIna 1 SUit
O.L
.
itse1fhe applied for and has obtained attachment of a house ofR, situated in the outskirts
of Bangalore city before Judgment. P now filed execution petition and sought for sale
of the said house ofR to recover his decree amount. The court ordered for payment of
sale fee and to furnish detailed information relating to the said property in order to
include the same in the sale proclamation and for that purpose posted the case to
5.10.2011. The Decree Holder and his counsel were absent and did not appear before
Court that day. The sale fee and information required for publication of sale
proc1a...'Tlationwere not f'.lmished in the case. The same "vas noted in the order sheet by
the court. The court then passed the following order "The execution petition is dismissed
for want of prosecution". The Judgment debtor who was present in the court that day,
sold his aforesaid house to "S" by private sale on 10.1 0.2011 and got it registered and
delivered possession of the house to him.
P who had gone out of town, after returning learnt that his execution petition had been
r
dismissed for default. He filed another execution petition on 10.10.201 itself seeking
for sale ofthe said house of judgment debtor. T~e court ordered sale ofthe said property
and has fixed the sale to take place on 20.1.2012. "S" having learnt that the house is set
down for sale, has approached you, for advice and assist him to prevent the court sale of
the house. Explain the position oflaw and the course of action you would take to help
"S". (3)

4. Write comprehensive note on each of the following

a) Material irregularity (3)


b) Garnishee (3)
c) Deemed decree (3)

5. X, a resident of Nelamangala is the owner of agricultural land bearing Survey No. 12


measuring 4 acres and assessed for annual land revenue payable to the Government at
Rs.50/- and is permanently settled. To the east of X's land is the land belonging to Y
bearing Survey No. 10 measuring 6 acres, assessed to annual land revenue ofRs. 80/-
which is settled but not permanently. A dispute has arisen between X and Y as Y is
claiming 1/4 acre of western portion ofX's land abutting Y's land as belonging to him
and is making efforts to put up a fence between their lands including that 1/4 acre ofland
of X into his land taking advantage of absence of a clear demarcating boundary mark
between the said lands. X's effort to convince Y by mutual talk and discussion to
convince him that the said 1/4 acre ofland is part ofX's land and not part ofY's land and
to dissuade Y from putting up the fence including the said portion ofland into his land
failed. X therefore approaches you for advice to obtain an order from the court to prevent
Y from trespassing into his land and fixing the fence so as to include that 1/4 acre of his
land into Y's land. He wants to file a suit for that purpose immediately and to obtain
necessary orders. What is your advice to X. Work out as to the court fee payable on the
plaint by X ? (3)

6. A filed a suit against B on the basis of promissory note for Rs. 5lakhs on 10.1.1998. The
suit is decreed in A's favour of 5.12.1998. On 16.11.1998, A became insane and was
admitted to Mental Hospital. After continuous treatment, the doctor of the hospital
rl' lSS11eCi a Lertlilcate
C1eClal~eaanu --. .~ 1 Qon
on ~/ .1.1 . tl1at A'
J~i'~ statlfig - IS cured . Of'lnSlli*11tv
-' aria11ne 1nas
beevine sane and is able to understand everything as any other normal person. Ho\vever,
on 10.1.1999 A died due to sudden heart failure. X, the only son and legal representative
of A was a minor aged about 5 years then. On 10.1.2012, X attained 18 years and
became a major. Immediately on 11.1.2012 X filed execution petition to execute the
aforesaid decree against B and to recover the money. B has filed objection stating that
the execution petition is barred by limitation and is not maintainable. Decide. (3)

7. X, a passenger in a privately operated bus, filed a civil suit claiming damages ofRs. 2
lakt,s for personal injurj, pain and suffeiing caused as a result of negligent driving of the
vehicle in the highway resulting in an accident. The defendant No. I, owner of the bus,
defendant No.2, the driver and defendant No.3, the insurance company with which the
vehicle had been insured are made parties to the suit. The plea of the defendants is one
of denial ofliability, ~ofar as owner and driver are concerned on the basis that there was
no negligence on the part of the driver. So far as the insurance company is concerned,
the defence is that the insurance cover was not subsisting on the date of the accident.
The Trial court decreed the suit on merits of the case against all the defendants. The
defendants 1 and 2 have filed an appeal against the decree impleading the plaintiff only
as respondent, while the defendant no. 3, the insurance company has subsequently filed
a review petition. Discuss and answer as to the maintainability of the review petition.
(3)

8. A has filed a suit in Civil Judge (Jr. Dn.) Court in Ramanagaram against B for
declaration of his title to the suit schedule immovable property and for permanent
injunction to restrain B from trespassing on the property or by any means frOin disturbing
plaintiff's possession of the same. -A has also obtained an exparte ad-interim order of
Temporary Injunction to the same effect against B till the Court hears both the parties and
the LA. is decided on merits. B appeared in Court and has filed written statement and
objections to LA. and requests for hearing and disposal of LA. pleading for dismissal of
LA. The court has gone on postponing the hearing of LA. on merits for some reason or
the other for the last six months. The court is not showing any inclination to hear and
dispose of LA. on merits due to which B is greatly inconvenienced. What is the course
of action available to B to challenge the order of postponing of hearing of the LA. on
merits? (3)

********
NATIONAI" LAW SCHO0L OF INDTA UNfVERSII'Y
lJANGAl.Ott|t

III YEAR VIII'I'RI;\If,S TER END-TERI}I EX.\III J?\N, 20lz

C.P.C. ll - Kct Anlners

(Nole.The stldeDLs should nlnalc bric y drc iacts of tbe casc given in rhe
quLrtion l'hcn rhcy \h(xtd lrinr out thc provision of law applicabtc lo rr md
cxplain lhc meaniDg of the same. The srudcnr should apply rhc ptuv;sion ro lhe
tacrs oilh. case and anivc ar.oncluiion )

l. The provision olln\r


rppUcable ro thc ficrs ofrhe cdc is S.7:t cpc Gtaring io
distribnion of nsscc h reads thus: whcrc asscrs {e hctd by courL and more
persons rh.n onc havc. bclbre thc r.ceipi of $ch ass.'1s madc lfplicltion to lhe
coun ibr thc cxccutiur olthe decree fbr tlN paymeDt of ooncy passcd :igainsl the
5amc Judsmcnl dcbrr and harc oot obtaincd saiisfactioD rhereof: ftc assec alier
deduding rhe cosrs of rcaliarion. shall bc ratabl-r distiburcd anrcng all ech
pesons pmvided N li'lbws

a) wlerc any prcpc,ty is sold subject ro | or charge rhc tnongagee o.


'nortSage
tncunbftnccr shsll not bc cnrilled to slr c in any $lrphu.rising fruri srch sale_

b) where any propcny liable ro be $ld in cxccurion of a dccrcc is subjcc! to a


hortgage or cha4c, the court ma) w;th the conscnl of tfic morlsagec or
Incumbtucer order that the propeiy be sold fe fron lhe mo(gale o. chdge,
giljng to tbe mongagcc or lDcumbmccr rhc $nle irtqesr in the proceeds ofihe
saleas he had j. the pr0perry sold.

c)whe.e any inmovrbLc propcny is sold in exccution of! decrce ordcrjns irs sale
1br the discharsc olrn encunbfecc dlcrcon, Lhc proccdsofs.lc shallbc applied-

Iirsliy. in defrayinsrhe exp.nsesofrhc salc;

Sccondly, in discharsing dF anootdnc undcr (he decree

1
Thirdly, in discharging the inielest and principal monies due on subsequent
encDrnbreccs (if a.y); and

Founhl), ol{hly among the holdea of deoees for lhe pqrenl of money against
rhe Judgmenl debtor \ho have prior 1o the sale of thc property applied to rhe court
{hich pssed thc decree order;ng such srle lbr e\ecuiion of such decrees dd bave
nol obtaincd satisiirction thereol

(2) whcrc {ill or any oithe assers liable to be rnibiy distibured under this section
orpaid1o n person not entilled 1oreccivc tlle same, my person $ enrilled may sDe
such person 10 compel him lo efund thc assers
(i)Nothing in this seclion arecb an) right oflhc colemmenr.

The prolision cxplains that if a numbcr of pcNons have oblaincd nDney deqees
aganrst lhc s0mejudgnent debror in thc sllme courl or in any othcr court and havc
applied for cxcclrtion of dreir decrces md thc samc are pending adjudication at
differenl strges one ofrhe dccree holdss .mongsr them in whose lroceeding rhe
court h6 athehed $e only p.opcdt of the Jldgnenr debror dd has broudt ft for
sale rhe orhc. dec.ee holdeF hale also sougbr lor attachmenr dd srle pe.haps of
fte sde propcn), belonging to the sadE Judanenl dcbto., so thar rhe) nay also
realize ftcir dccrec amounts out of rhc salc of sme property,and in such c6es the
judgment dcblols propeny/propenies .rc not suffioienl to sarisfy all thedecrees. La
such circumstrnccs, lhe provision exphiN as to how ihe distribution of sate
proceeds obtlined by the court after selling rhc Judgmenl debro* propeny pro-rata
amongst Oe dcc.ee ho1de6. lt states !h.t if fte.e is mongage or charge or dy
encumbrancc over tbe sme prope.ry rhcy will lile pecedence and tbeir ctains
should be satisficd in tull. Tbe. out of thc balance ofsale prcceds the expdses of
sale will havc to be paid to the decrec holdcr wbo has brought ir for sate. The
remainins sale proceeds should be disrributed ao other dercc hotde$ who have
filed their execution petitions in coun bclbre the dare of salc of rho judgmenr
debtols property in the cac or habd However the rutc srys, tha! ;f ey
Govenrment icenlral /stare govemment has {llso obrained a decrec agains! the sme
judghenl dehtor and las c0mplicd whh rhe condirion of filing the execudon
perition to cxccute lhar decfte bcfore datc oi ihe sale of judgrnefi debbr's
p.openy, eill lave pecedcnce oEr rhc otber decrce hotded md rhe colements

lI'
decree shouid be sarisficd i tutt oul ofure sde proceeds. l]rc balance ofthc srte
p.oceeds should bc distriburcd pro mrd !o fic orher dec.ec hoktcrs.

When yor aFfJly rhis lorc fads of ftc casc, A has got lhc rtccre tbr Rs.4 lakhs
againsr rhe JlLdgmerr dcbtor D and has gol. his idnovablc pfope.,,t- artachcd
0nd
sold duough courr on 4-l-2012 and a sum ot ns.10 lalbs is realized. .lhlr means
the asscls ofthe Judgmenl debtor out of srlc proceeds havc hccn rcceiled by thc
coun on Lhat day. B $ho holds r decree tbr Rs.6 takns ha fited execulion pctition
on 2'12'201 LC holds a dccrc. for Rs.4 takhs and has filed ex*urion pctirion on
l0-l-2012.Ktun!!!ka srrrc (;ovemment has ohtained a decrrc fof i lakhs and hds
filcd excculion petition ol l6-12 20lt.ll is rhercforc sccn rhri C,s cxcouLio.
pctjtion hoving been ilcd on 10-1-2012 (alierlhe dale ofs3h)is,ot enrntcd ro lny
froney in rhc co6e ofdislr;burn,n of Lqsers. A and B !rc enritled for distributicn
afiet thc Kamataka saic Coremmen6 Ae.ree is sarisficd in tull. Sale expcnscs
,ncuncd by A should bc paid to him at rtrc fiBl insiance out ofrhe sate procccds.
The Kdmataka Governmcfi,s dec.ee of t{s.s takhs is to bc sdtisfied in ft our ot
balance ol sale lrocceds. Olt ofthe remaiDiig sale proceeds lhe dccrees ofA and
B should be salisfied bv plymcnr ofrhe mone! avajtable h a pro rara bjsis. lior
thc p!ryosc ol olcrlation ro hc eas-v. lct us lake in ll)c instan! case dut srte
expnscs are paid 10 A and lhe balocc rcmahnrS oler aftc.saristying coveomenr
decrcc is Rs.a lakhs. Tor l lmorn! due to borh ofthem is Rs. t0 takhs and therelbre
each ofrhco will have lo be paid j0% of Lhcir decree arnount. Tberetorc A
EeLs
Rs.2 iatlN& B gets R!.3 lakhs.

Tbe rulc rlso eys ifiD rhc case on hand if bv misrake rle court distriburcs rhe
aftount prc rdta to C .lso wbo is nor entirtcd to disribuljon, A and B nay fite a
surt against C challenging illc courr,s odcr grAnling pro rara disfiburion ro C dls)
seekinS .r decree to cancel rhll order md to obrain refund ofmoney ftom C if ir is
already pdd and to gei il distributed !o A .nd B oolr.

2. The pruvisions applicable ro fie case on haDd are R43 md4tA ofo2tcpc.rn
thc cdc on hand X the dccrce holder againsl y in lhe cou$e of execution ol.his
decree ftr rccovery of Rs.l lakh soughl lbr.ttachmenr od satc ofsheep belonging
1o lhc judg,i.nt deblo.. 'lhc cou.r ordercd atrachmeDl ofshcep belone;ng r. y.
Sheep is nrlablc properly. R4l retares ro .tachment ofmovabte propedy orher
than agricultural produce irr t)osssjon ofJudg,nenr debtor a d rbe s.id movibte
propcfiy will be atlached by actual xcizu.e ofihe propcny and removing jr liom
possession of judg'nenl dcblor.R4lA is in exccption k) such actual seizure.
GcNrally rvh.n molabLc propery i:j .(nched by seizurc, ir NiU bc takcn ro rhe
coun. But in 6e of ccnrin movablc f'fi)penies eiich arc fieary alld is difficulr to
rcmove them fiom iheir place wbere lcy rre rrtachd ro thc coun prcmisca and in
cases ol cattle, shecp and so on tlhioh will lave to be taken cafe of after
anachmenr they sre not removed and hkcn 10 tie coun prcmises after artachment.
In such caes, the cou( o{lier sith lhc consensE of Decre holder or.judgmenr
dcbbr ifa.y present. lc!!e the adachcd propeny in th pLace whe. it is !(ached
hmding ove.lhe samc 10 the custody ofAny reslectablc pcrcon ofsame village or
place.'l his lerson is cdlled "custodirn"

the fncN ofthe case st re rhar at rhc iostance offte decre holde. X ha adached
80 sheep belonging ro Y. a.d gdle thcDr b rhe posscssion of Z, a rcsFctabte
fam$ and resident of thc salne villagc fbr safe cuslody .rd look afte. the same
u il fuiher orders of drc couft Z dcoording to rhe rules who is rdmed as
cuslodian on his lakiog possession oflhe sheep ageed ro look alier tbe same and
executcd a bond in i:rvo. ofrhe 6u rho1 he would pr()duce fte sme befde the
@url $hcn4'er requied dnd look aher rhem agairst payment of expcrscs ed
chdgcs. However duc 1o failure ofscrmnrs ofz \no wc|c jlr charge ofrhc looking
after drc sheep and duc to their failorc to provide shehcr and proper medical cde
the shccp fell ill and As a resuh l0 shccp died. When rhe courr ordered sale of
sbeep.io sheep only were p.oduced by Z dd rhey were sold for a sum of Rs
50,000r.on1)'- The decrce amounr duc k, X is R.S.l lalh. Therefore slill Rs.50,
0001 is to be@lizd by him. Ihe qucslion is Nheiher (he dec.ee holder cal seek
u order agant$ Z the ousrodian io recovcr the balance ofdccree amounr.

Tne cuslodid should produce the total nunibcr of shec! in the sme condilion iD
whicb they were when llley wcre entrustcd ro )im_ tn rhc cas6 oD hd4 his servants
did not rake 6e of thc dlcep and $ercforc 30 sheep oul of80 died. The rute is thar
the custodid js tror p.aducing rhe propeny eDtnstcd b him or has produced the
sme bll not in the samc condiiion, he is liabte for the loss of the propeny $ ifhe
w4 a surery under s.145 cPc, ilit is on Accounr ofhis deihulr tlar the propetty is
lost or ir is reduced or detcrioraied in condilion. And rhertorc rhey did not felch
the v.lue rhar wa5 expected ro be, wben $ey lvere sotd_ I he facrs cteady stale ftar
it 6 oD lccobt of default of *wtuts ofrhc cusrodid dnlt0 sheep died. Z has Dot

v"
irfomred s to ficir fallnrg iil erc. 0lrlier io Lh. coui. lle hN siDpll puluced 50
sh.T $hich wcrc ali\.e. 'theretbr. .ccoding ro fic rLrles rbe .ustodim Z is liablc
ibr $e vilue of 30 sheep which dicd on aocouit ofdcjnult ofhis seNants. Ifyou
lake !h \'alue of lbe lheep which Nere sold ingconside &D, the l0 sheep if
f,oduL(ldd Nl+oulJ hre( Jl'o lcr(hc,l Ir. i0.000L lh.Rfinf a. |.ct rhf r',1<-
tlre decrce holdcr can scck an ordcr against the custodian Z ds if he wcrc a $LrcLy
a.d rhc @un cln o .r ro thar ellecl .r-s ifthat is !n aptlication fitr cxccution.
when lhe coun p.ses an order, it c.n bc .xecdcd as ;lit is a dccree alainsi Ihc
cueiodian to rccover thc sum ol lts.I0.i)00l.Thc frnhnce ol thc dcorce am.urf
should he r.cov.rcd iiD'n drcjDdgm.nl debktr onll.

l.P1.. obri(drJ,,(i,! 1IRlJ,R :.If"rDC d r'.hi l'o'ls. 'r ,c"cl


beforc judencn( .Flc is i*cculing lhc decrec ro*. lhe erecution pcriLnn $!s
posrcd to 5- I G201 I
lor pu.poses of dccree l\oldcr lo lirmish the pafticul.rs reldl i'r8
to rhc trtrched prof'erty dnd Fay drc srle tec to nrblc the court Lo inclule the sdmc
in fte pmclarnarion ol s!lc. On ft.r d.re lhc dccrc holder lnd his cornsel $crt
absLnt and selc lc. and ldlfied $rt.menl hdd not blcn fumishcd. Thc (rn havi g
noted rhc sanc jD the ordcr sheet t{sed !tr ordei disnising the excculi{)n plition
for *rtrt olprcsecDlion. The judgnr.nl debtor *ho \'&s fascnt i.tbe coun sokl
away l)is house which had bcen l'ltrched h thil case to on. S by tiivao jale on l0-
10-2011 and go1 it regisr$ed and possession was rls) delivcred. P \ho had gone
ou! of rorh rotumed .nd having leamr ft.1 thc execution pcridon bas becn
disdissed for dcial 1, llled eothcr cxcculion p.tilion on 10-l(|20ll Md sought
fb! 1he salc of thc eid housc. Thc courl ordcred tbc srle of thc house t,' lake placc
oD 20- l-2012.S $e pDrclu*r olthe housc l.ving lcnmed fiat dr. sid house is set
dow. ft,r sale hrs appn)ached thc Advocatc iifadvioe and to assist hinl to prevnt
the courl sale ol lhe horsc. llc snienl is askcd to explain thc lalv aptlicablc !() h
and .nsrver as t() what is tbe colrse ofaction thar S should lakc in o.de.lo sarc lhe
hou* lron bciDg sold in lhe courl ruciior.
The rule applicable h lhc casc oo hed isR.57cl.(1)nnd (2) of O2l:llc rule rcads
rhusi where any property h.s bccn tachcd in execution ofa d$ree ard the corrl
for rny redon prsses an o.der disnrissing the aptlicalion lbr the e\ecution oi the
dedcc,lhe coun sfiall dircct {herhcr fie nnachment sball conlinuc or ccase rnd
shall also indic!rc the pcriod upro qhich sLrch dttachtrrcnr sluLl contillc or lhe dntc
on llhich sDch rachscnl shall cqse.Cl.2 srys rar ifcoun omils lo give $rh

'
direction, the otlachm eni shall be deemod to hlve b9r{ cesed. I he facrs in the
above @se slaterthal thd rhc court has passed !n oidcr disn;ssing the execurion
pedtion for default,lliereforc rhc coun hrs no! fLed d),thing abour the atrachment.
ln such cascs Cl.2 comes iDlo play its role and therefore rhe anachJnen! is deemed

We should also consi.ler th. ll]lcs ll


aDd 11A of O38for lulposcs ol ttris case.
Rule tI eys rh.t whcre ihe propsry }as been nnached (before.iudsmcnt in lhis
cas), by vinoe ofprovisions ollhis order and a dccree is subsequenrly passed,ir
sh0ll not be nccessary upon r application for exccution of dccree to reartich ihe
propedy. Rule lI-{ srares thar the pRnisions oi rhis Code applicable ro an
attachbenl mllde in execution of a &crce shall so far ns may bc, apply to an
attachment mr<le bcforc judgmenr which continucs after lhe jDdgmDt b] virrue of
the pDvisions ofRl l.

In view ofthc aforesdd nles when rle ax.chmcnr of the hons hrs ceascd on 5
10-20!1, $cjudgment debto. is free to scll rhe house .ltc has eld his housc on lO-
10-2011 to oDc S and S has dcrived good title and possession oflhc house. Since
10J0-2011, rhe house belongs ro S and no1 to thc judg,nenr debior. The .leoee
holdcr ha5 sought for $le sithour knowing rhar rhe afiaohmenl has ceascd dd
counhas orderd fof salc.It is irue tharsdlc wirhour auacl)mlnl is v.ti.l. Bui in &is
6e, thejodgment debtor h6 hs! his rirle and possession of rhc house as hc has
sold it awa!' to S .The sate ord.rcd by $c coun is lo take tlace on Z0,l-20t2.Ihe
holse not blonging to judgmenr debtor from t(ll0-2011 camor bc sold in coun
auclioo. Even ilit is sold, lhe purcher sill .ol get rhe rirle or posscssion of rhe
house as the judgmert debtor whos prcpeny is to be sold in auction is no1 the
owncr of the house now. Thereli,re $e whole exc'cise ofsate oflhe house in courr
audion will bc ofno u*.

S, fte presert owner ofthe house has ro file ao application requesting rhe coun noi
to sell $e house vtuch is odtered for salc staring rhat ir bctongs to him and nor lo
the judsmenl debtor and lrodrce lhe sale deed {ndo which he has purchased i!.
Another point wiil haa to be oonsidered he.e and rhar is as to under which rule
tn6 apprkarrnn by s:1o hc lrled. rFFonl) rule ro a claimlnl of proppfl! in,ulh
instances is R58 ofozlThttdpplicadon could be ody for vncarins Lhe auachmcnt
if a rhird pa.ly's propeny has bec! axachcd by mislake. tllere is no any o$er rulc

4,',
under which an apptic0rjoD by S cout.t be litcd to prercnl rhe .I.hcrelbrc
satc. $is js
. fil cas in which jfS ir able to convi|ce lhe co!r1 rlEl rhc housc Do more belongs
1o judsment deblur rnd hc has prch,sed ir rtx.ough
a ratid srlc and fie decee
holder had noi b(ud ir ro rhc noric! ot.thc coun rhe ali,rcsnid iacls ad ha
sourhr fo' sale rt.ar du4hm(nr sri $r.iirLs .nd rbc housu hctors. Lo
lllhns
Jud8h(nt debrir\ U d.
cnun is ron\in(cd ot rl.r Jbo!/ :rlu. ron rhc ._ rfl qhould
consider lhar rhc (pplicarion rlted byS isro invoke fie inhcrenr
po$ers olrle
court uncer S.l j ICPC and pass rhe Dcccssary oder cancellhg
rhc cutier order for
s01e ofthe propcfLy [s therc is no olhcr r]e in rhc
si.rute Lo nteel tr siluation tikc l,!rJ
ar |? a. c-s!r-!Ehsni&f!a!

a)Marenal irrcgutrrib.:
'Ibc illegalb or mal.,rial ir.eguiar;ly linds
a place in S. I l5(,p(t wbich entirtes I
pony to prelef revisi('n pcrition bctore rhc tLigh Cotrrl agaiNr
lhe dccision/o.d*of
rny subordlnarc court jD mr), suir .r ptuceetirg Ir is ore ot rhc con<lhions
L) be
sulisfied to prcfcr re!isil)nfctirion je l.hrldecjsion ofdje subordinlte
ourr should
be illcgal or suffcr fiorn mrterial inc8ullrit! I.hc condidon
is li, rlE ellcc! rhal
rvis'on lid wberc ! sul.ordinlrc coun h$ ered in rhc exe.cisc oi itslLrisdiction
illcgalll or wirh tr)aterirj ;regula.jw. Thou-sh Do precisc d.1in;tion has
0rr beLn
gilen ro rhcsc words, rtre Supreme Co\n in K.rhdptea t/ Ru.thd Kiss;s
has
(rplJincr'r".- f,r' (a, - . o\,ea-!aL d \a. j . at ael.t ..t
frc -.,,".. o"a not
ta eta6 al eithu ta|| ot Jik.t afier ht.lbmalities which ttu kt\|
lres*b.s haw
been.anplied w,?/, 'lhc).do nor refer ro rhe decision drived ur bur the manner
in whicb it is Mched. Ihc eroB coDtenrpt{red bI this clausc
ma}.s sbt.d b), rhe
Snprcme Coun rel e eirhe. ro brerh of some p.olision of lr*
or ro marerial
detects ohrocedurc i|fcting the utlinrarc dccision and not ro
croa ofiacl or tarv,
nft. rhe iresoibed io'matiries have been eonptied rvirh

lir eg: Whcre a court dccjdes a case wjthour coiside.ing ihc cvidcncc on
reco.d or
decides on cvidenc DoL tegaly lakcr or oihcftise inadmissiblc
or docs not apply
irs mind ro the f:crs and circumsrmces ofthc ca* o. fails to
follow i dccision dl.
O|e coun h rrnich it is subordinare, have bccD hctd
rhar $e court had cxcrcised its
jurisdictio. illegalty or s,irh malerir ine$ltuny If in
rhc case of sate of
immolable poperty in rhe coun sotc, n pc6on purchases rc propeny
tof
Rs.10,000,00/- but dcpos rs Rs.200,000t rowards ttre sale
l)ricc by pLrying ir io fie
J,
s.le officer and pays ;nlo coun Rs.5.00,000L wirhin 15 dovs iirm rhe date ofsalc
and .ftd obtairing pcrnissio! of the court pays ihe balancc of Rs.1,00,000t a
week laier and tlre courtlccepts thc paymcn! ard confims tlro salc in his favour.In
this cae the coxn having no authofily !o pcrmit hin to pay Rs.t, 00,000f onc
week after rhe prcsoribed period of lj days, has connhled illesality as his
pemission is contlary, 10 R84 ofozl C.PC. Ihe sale officcr shonld hale rjecrcrj
lhe purchaser's bid when he failed ro pay ?5 %nnmediareu iDd should have
conducled re{ale. ln spile oft}e sale officer not folloNing lhe lrocedure $e coLjrl
has confimed the sdlc contrary to fie rulcs of procedrre hefore he a.rivcd a1
conchrsion. The abovc exanples sarisl), "marerial iregularity" comfriued by lhe
sale otficer and lheprcsiding olicer ofihc coun.

()21R46 refers to rlrdohment of debq shire or oiher p.o|err) trot in the posession
ofJldgment debtor. ln suc! cases, the rule srys that rhc auaohmcnt shatt bc madc
by a w.iuen order, in rhe ca*ofa debr ptuhibiling rhe crcdird frdn recorring rhe
dcbl aod the debtor from making pariDcnr rhcrcofundltunhcr orde.offie corri. h
mears $at under R46 the execuri.g coun ot the insr2ncc ofdrc dccre hotdr n)ay
serve a nolice prohibiting the crediror (tle judgment dcbtor iD rhe execurion
petition)tlom recovcring the debl sd the dcbror trom making payment rhereof&
thc judghent debto(c.ednoturil furrhr order ofthe court. Wien sucn nodce is
scrvd on bolh ofthcm tle debror becomcs g.dish@trhe r.clnicnl name given r!
him-in larv. lt means thar rhe gmishcc ;s a deblor of tbe julSmenl dcbror whose
dbt is atlached by lhe order of the coun under R46 of O2l.Thc rule turrher stalcs
that the gamishee, may pay the ahounr of his debt inro coud ud such payhenr
shall discharse him as cffeclually as payment ro the pany enrilted to recoive thc
sane. Rule 46-4 speaks that the coun in rhe c:Lse ofdebr whjch has been anached
unde. R46 isue notice to rhe gamishe on the appticarion of tbe arbchjng crediror
(deoee holder) liable ro pay such debr ,calling upon him ro pay inro the cord thc
dcb( due from hin k, rhe judgmenr debror or so mlch rhdeof as nay be sufficicnr
to satjsry the decrcc and of execuri('n or to apfEar and slow cause why hc
costs
should nor do so. Iflhc gamishee pays thc amornr into court, tle cour may dircct
tha! amout be ldid to thc dere holdcr towards satisl:rcli{rr oilie decree.R46t}
t..
spaks thal iftlE Samishee dos not idrhwilh prv i.ro ihe coun as s(rcd carlier
md does noi appcar to shon caDse, rhcn rhc cou.! m.,y orde. rhc to
-lnmishcc
complt' qilh drc tcnns of sch noricc \vhich nQls rh.r he sh.lt pr] thc .momt
inro rhe court lfhe frils to pa_v the anrcuDr int,) rh. coDn rhei the oour( mi). ordcr
that execuion issue as though that o of $cE a de.ree xgrinrr hinjt46 C
'nay
says ifthc ganiishOc dispuics paynenr ot Lhe amounr jnlo rhc coun and illes
objections. the court rvillhearlbe tdrlics couccmcd and decidesthc sdnc jrctudjng
the claifts ol u! (hird person reladng 10 llut dcbr bv issuing nolicc ro fiar rhird
psson and .1lcr hcrriq hiD. -th. ordcr drat nra,v be passed by rhe cou dir.ctina
tle e\ecntion of lbat order as il ft h a d!'$cc dains! earnishee and orher o.dds
pased undcr Rj6B..16C o.46F arc dc.Ned dccrces appealable lmrtcr S 16 as ;fir

A Decmcd d0crcc ls an ordq pa$.d by uiviL courr. Ir is nor a dccrcc rs such as ir


does not contbrnr to the co.ditiors sLslcd i. rhe detjnlrio. ol ,t)ccrcc' u/ S 2(2)
Some ofthe ordcrs pa$ed b! rhe ci\,il courL fc atfealable !s \(rle(l S.l0.t or
O..ll R.1. An! oficr ord.r q'bich docs nor find r pl&e nnder d,e rbo\e srrt orl
prolisios has ro b. trc.red .s lot appcalable bJ rhc agerieved ttAoD for dre
ft.ason thul righr ro.ppeal is a st!trrlory rjgli tud nor an inhcrunt riBhr. Itd$cv..
sone ordrs qhich re nor rllclhblc uc livcn rh. starus ofadccroc uidcr larious
+ecific provisions of (l P.C and thclcibrc $osc ordeis hale bclohc appe.lable
u/S.96 as if they tre decrees. That is only ro givc thc aggricved pcrson n righr ro
prefer an appcal aglinst such odcrs. Such ordes are remed as dccmd decrees.
the meannu of\lhich is thal il is no! a dcdec and lhar it is natle a rteoree only toi
the $rpose ofgivirg.ight ro the aggricvcd pc6on 10 appql aganFl s,cfi order as

trgs. lhe oldcr passcd against the gamisbce lndcr O.2 I Rules 46-It, 4(FC and 46,E
ae given $e stnrus of x deemed dccrce as nalcd dR_46 H.
I-ike*ise an o er pdssed by fte excoiling coun on a Ctaim pctirion ltlcd n/ R/58
of O.21 by ! srrangcr contcnding tlr.1 his pr.oped_v has been anaclcd b) decree
holder ag.iDst a jl(lgme debior thongh liis property is nor liablc ll) bc dLlached
and sold in th.l crse dnd rhercforc secking rnis g of the annctlncnr of rhat
propeny is mad r derEd decr. as shrcd in P!58 cl. (4) olc.p.C. And thercfore
agerieved prny rArinsttbar orde. rnry prctcr all appql u.jS.96C.p.C.
JL
5.Tte facts ol thc cde @ lhat X is thc o\lner ofan agiclltural lturd Suney.no 12
meauing 4 acres and dsesscd k, lnnual led revenue lts.50/,!vhich is
pemdertly selllcd. To the \st ofhis land there is Y's lmd bqri'rg Sl]rvey.no l0
mesuing 6 acres. Y is said 1o be alrempling 10 en$oach unon 7a th ade of
westem ponjon ofX's land abutlins Y\ land lalsely clainjns ir to;Salonging ro
him. Y is also atempling to t espass upon thc lod ofx to the extent of % th acre
and fix a fencc i.cludine ;l as if the samc belongs 10 him. X wants to prevenr Y
1iom aBpassing upon rbe l&d dd fixhg thc feoc. as his efons ro coNince Y
lhat % the acrc of land belongs to him and nor !o Y hale hilcd- He s'anls rhe
advice ofthe advocale as to iiling oi-1hc suit and obtaining an urgcnt ordr for that
purpos agai,rst Y. ln this cde rhe ldvicc to X is ro file d suir again$ Y for
decldation of his litle ToTRAT % th lcrc of land ;n dispule as !m of S un ey no
.12 heasunng,l acrcs and for pemanerr iDjnnction to restain Y lioDr trespdsing
upon thal % acrc ofland belonsing ro X dnd ftom fixing tr fefce. llo musl also
ihnediately {long wilh the plainr sholld l',le an application undcr o39 RI (c) CPC
Equesting for rn order ol tenpoEry irjuncriod re$raiDin8 rhe defcndrnt Y from
tlspaing upon X s land dd fron fixnrg thc t_ene erc pend;r8 disposal of rhe
suii Dd obtah $e sse from rhe coun.

The court fte t yable on ihep)aint is as liillows:


The facrs stated in $c question thal thc an ual land revenue ssessed ro Y's land as
Rs.80 ed $o on need not be considcrcd .'s it is not necessary to answer rhe
queslion.It isonly the ldd rvenue ofX's labdrbar is b be comidcrcd.

The p.ovision3 of kamataka Coun tccs and Suirs Valuation Acr apptjcable re
S.zarb) md S.7.The suir4for derlarrl'on or'lirle dnd pemanc injuncrion ra s
u/S.24tbt lhe norronSl'r"aa-e of rhe suiL srll ha\" ro be cdlcut.tcd uS TIor rhe
purposes ofcoun fec- The basis is the annurl land revenue payabtc for the dispuled
ldd. Tle disputd lmd is only % rh acre o ! of 4 acrcs of Sy Do.l2 and js not
sepately assessd+o land revnue.Ii such o{ses the land revnue Assessed for rhe
slire Sy.no sholld b iaken into considcrurion, even for pan oi the lund i. tllli Sy.
No. which is disputed. The mxnl land evenuc ibr rbe enrirc Sy. No is Rs.j0/,
and il is permancntly senled. 'nEreforc, rhe narker valu for rhe pu.pose of

4."
pAyrnenr olcoun fee shall be calculatcd
uis 7(2) G) which srales rhar i! is:5 rimes
tl)c rcvenue so payable (i.e.it works oulto 50x25 -P-s.i250t) UnderS.24(b).1/2 of
thc market valDe is the vah oftbe sril 1or lhc prymenr ofcoun fee. Thcn h rhis
cesc % ofRs. 1250 wilt be Rs.6l5r. Uur rhc rulc u/S.24 (t) sals rha! lhe tnarkel
valuc would b. Rs.l000l or 'l ofrMrkcr laluc \vhichcve. is highcr. Hence in ttiis
case Rs.l000/ ;s the rnmket !.lue for calcularion ofcoun fie Lhder S.tedulc I,
Arl.(i) of Court Fcs Act 2 lr2% ofRs.1000/- is Fyabte as court fees on rhc ptainr
is lts.25.

6.Thc thcts of rhe quesrion ire rhat A hrs obraincd a monel deftee ofRs.5 l.kbs
against ti
on 5'12 199E.Brr on 16-ll-1998 iBclf A bccame tnsane md was
adtr'itlcd to mental hospital. Ii Deans priof ro thc daLe ofdecree irsetfLhc dccrcc
holder bccme insoe and rherelbre srs not ablc ro file rhc cxecution reliriur oD
accoMt ol his suffcring ion legal disrbjliry. He becdmc alrichr and a mcdjcal
celrificale was als ei!D cedib,ing thll A was o norhai te6o. and was ahte !o
undcrstond elerlthing s u!
otber Donnnt pcrson lith eff{l trom 7 I l999. s
pcr thc ihcts, he las nor frleil execrrion peririon ororatierT,l-1999butdiedon
I0'l'l9g9lcalinShis mino.son aged boul 5yer 0s hjs legal retrescnbri\.e _.t-he
lhcts lidhcr state thal on 10-l-2012 X rlhined majoi,)- aDd on ll,1-201t filed
execulion pcririoD to exexre rhc dccre ag{insr B.B h6 objecrcd sbring rhtt
executtun pefiion ;s bded by linitalid lnd is nor mainldinable. The sNdent is
askedlo decide whelher tnc petition is batrcd by timitatioD ornor

As po the facb, the dedee holder .{ rvas iNAnc on thc dare ofdecree nsctfls his
nrsanrty comhenced on l6 I l-1998 irscll Whcn he becrme a nom.l person on 7-
1-1999.he colld file the cxecution petition to excclre the deoee and rcrctore as
pcr fic S.9 of Limitalior Acl rhc rurniig oj limitarion period has staned on 7- t-
l9r9 and lhcrefoE when he died on 10-l-t999 evcn if his soD is a minor his
disrbility ha! (o be taken lo havc come inro considc.ation subsequent 10 thc
nhning of linitation penod hai @mhen-ldd xnJ Lhnefurc his drsdb't,ry wirkn
nrle Jny e e,l ro 8lve hrm rhe rdK$br.{ s(creJ undd s 6 ro 8 oI | ,mrdtion Acr
.Dd wil not stoplierefore he should have filed hc cxecution peririon s.irhin 12
ye.B trom 7-l-1999 uking rhe aid oi a gu{rdim. Ther, tbe tast day for filing rhc
execution petition will be 7,1-201l.lhc cxecurion petition havin-s been filed by lhe
X on I I - I -2012 after he became major is baned by linitation. 1he objecrion ofthe
lt'
judgnent deblor ha4,1o be upleld A d thc execution pelition should be dismissed
as bared by limit.tion dd is not Dminlflinablc.

7, The facis ofthe qDestion de t}fi pr;vately operatcd bus sho


X, n passcnger in a
sustained persoMl inju.ies dlring an accidcnt oftbe velicle claiming damarcs ol
Rs.2 lakhs allegLng ftat due io the negligcnt dr;ving of tle lelicle.il me! rvith ,./
accident- The defendol no L . rhc owner dd fend.ni no.2 the dr;ver claimed lhat
de

ftey werc not rcsponsible md rc not liable to pai lle suit mounl s {be accident
is no1 due to the neeligent drivin8 of lhe driver. The thnd defendant insurancc
(omfaly cldireo hdr |ne InsJr.nce ('\Lr wa\ no .' b :sriDc or fie dare o if<
accidell dd thal they were not liable to pdy the suir claim. The ldal coufi howevcF
deoreed rlre suit on merits otthe case ryaiust all the delenddts. Defendants onc
dnd two bave filed d appeal aSainst the decrce impleading the plaifiiff only as
,e.pordenr. De'e
'ddl r'TtJn) \,. b"cq' e"r 61.3 t*ti,;
pclilion. thc student is 6kcd to discuss Lhe above said facrs dd ihe law applicablc
and.rnswer 6 ro rhe mainrd,ndhil,L).frLvic* pruo,'
'Ihe provision of las applicable to lhe cac on hdd is O47Rl{2).1! reads thus; u
pany sho is oot appealiry norD a decree or order may applt fo. a Evie{ of
judgment oorwilhslanding fie pendency ofihe appeal b) some otber pady excqr
wh.e the ground ofsuch appsl is common to the appticmt dd the appellant or
who bing respondent he @ prese.t to the appellale court the cde on shich hc
applies {or rhe revieo. Out of defendan$ lto 31he ownd hd drirer logether havc
filed alpeal agaiDst the pl.intiff Thcy havc not impleaded insddce company as a
responded in fteir appeal. The appeal as such is Dnintainable by defendants oDe
antl Lqo a d ev d,e assne\ed or rle acrr(c. Thc ruh "a)dhd ,. k . ca be lileJ
only if thre is no appeal aaailable or lhal the lppealjs avail.ble but nol prefe ed
by a party to the suit 6 stated under S.l 14 and O47Rl. The condition that the court
hos commined m eror apparent on the face of the reco.d hd ben satisfied ir this
case to 6le lhe review petitio. by thc insurance company as the; coflention clearly
stated iD the wrino statement lhat thc insumnce policy was nor subsisting oo fte
d.le oflhe accideit bas been overhoked by the coun dd a decree h6 been pas$d
againsl it also. tlafing salisfied that condition a.d lbat the company has not
preferred an appeal though available fias chosn ro prefer a review pctilior.
Though fte revier'letition is prcfercd subsqtuent !o lhe appeal br., defoda s I
and 2, tre sme is maintainablc as stated in cl.2 of O47 Rl.The conditions
$z 12
mntiotred therc, are satisfid by the insumncc @npany. The rule says lhar s.hen
one of the dcfendtuis lns prcfered an appcal and if another detbndar
subsequently prcfeB a rcview pctirion and to ma;nlain the same rhe condjtjon is
tha! appeal g(runds musi bc differenl ilonr grounds of revjew lcrition. Ihe
insurmce complny isnot madc a pany to thc appql and thereiore ir bas no chdce
lo state in ihe appeal, its objeclion stated in $e rcliew pcririon The grcund of
appe3l is that tllc drive. has not driven the vchicle icgligendy and ihe rccidenl
cannol be aftribuied 1o his drivjng. Thar sround is differenr liom Ltje insurcnce
compdyls gound in the.evicw pedtion. lhe insumncc coDpany's grcmd for
rcvjew is that irsumnce covcr Bas nor subsisting dmhe dare ofaccident dd the
cou.t ha com'n'(ed a gleing cnor or thc f:cc ofrhe rccord in not considering it.
'Iherefore .ll ic condiliors
srnrcd intheNlci, are sarisUcd a dtheretbrc rne.evicw
pelition lreferred by the irsurance co$pany even alter filine ot rpleat by
defendatrts I and2 isnai :ri0able.

8. ,\ has filed a suit for dcclaration ofhis title ro a. immovlble p.openy and for
permanent injurction to rcsuoin B from djsrurbing rhe thiDtif s tosscssior ofthe
sane. The planuiff has aho obtain.d m cx-pan. ad- intcrim order ot temporary
nlunction 1o ftc same effrcr aAahst ts till thc onn hc{s l..rh rhe parries dd the
applicalion rbr tcmporalv injuncnon is decidcd on ncrirs. Thc defcndlnr has
appcared beibrc coun, filed writlen $atencDl nnd objections to rhe application for
tcmporary injlnotion requesting the coun b hea. $e applicaiion oD m.its dd
pleadina for thc disposal ofthc applicarioDby disDissing it. The coun howcva h6
gone on posrpon'ng lhe hea.ing of applic.rion on merns for some rcason o. the
otler lor the lasl 6 months. The defendanr is greatly hconvcnjcnced md
pfejudiced. Thc question is what is lhc colrsc olaction flvflilable ro B to challenge
thD ad inldm order oftemporary i/njuncrion passed asainst hin, i'ien rhe @un is
not hcding dd is not dispoing of I-A on nerits asrequired under the rulcs.

R.3Aof O-39 is to the effecr lhat where injunction hns been granted wjthout
aiving mtice !o fte opposite parry .rhe coun shatl make an cndeavor io fbalty
d'spose of the appli@tion within 30 days fRrm the darc on which the injunction
wis grdted and whcre il is unable so ro do it shdll record its ieasons for such
inabjlily. 'I herc is Do other rulc in C.P.C exccpt R. l-A ot O.l9 for considerarion in
such situatiors. lbe coun which has passcd tne ex-panc o.dd is slpposed 1()
A.
dispose olthe application on nerils wilhin 30 days of such order and ifil does noti
the peNon againsl whom the o.der is passed is tbe sufferer becalse of
poslponement of hearing of iha! applicatioD. In the cde reporGd in 4!&100qtse
3032: Vepkat/ssobbaiah Naidu v S. g&!!a!!3s od others the Supreme coun
has pased ao ordcr that in such cses lhe agarieved pany may pefer an appeal
(U/O.43ra nisc.llaneo'rs appeal) @nsidering that the ordei postponins dE h6ins
of lhe applicadon as the o.der passcd disposing ofi the application itself (and
considefing ihar ft order has gone against him) dd thal the appellate coun will
have to enretain tbe appeal and adjudicatc upon ir. Applying the principle stated in
the above case by tle Suprde CoDrl,an appeal may be preierred by the assrieved
parry! the defo.danl, and xrSe the same bcibrc the appellale courl.
(Not* Tte ltudcnts are advised to rerd the Strpreme Co$rt ca$ refened to
herein to Lrow ttc full detlils of thc facts of the case a.d th. hp.pplic.ble to
the slne along lrith the rasN substaDiirred by ihe Srrp.emc murt)
NA TIoNAI LA1VSCIIOOI,OI'tNDIA UNIVERSII Y
BANiJALORE

III YEAI{ \1II IRNIISTER REI'E{IE-Y\IT

C.P.C.Ll ,4!sl$.
{Norj Sludeul! wtl.hNe b,-.rire lhe flcts given in th que$on lrjolly lnd rhc0 rhe

LOrr K r r.rJe r, . -ooldoal rtu.un rg, Ljds,,o,.. i 2O-r-rJ t o, n,-,h r


od. ro "J,nn_t.
r.r d r igrn'.r jk .l n.n.ev S,ngh. J r.,Jfl I ot Bdqrt^F t.r t$ t,<Oood dJ
nr! on bNsot.r, ok dicJ:(r 6_)l)0d the Jar ddrc Lr litingil \uir *J\.io.
6-0'$:'n4{r
1 O 6c ra' 'hc
lh.ntdn(J,!doool TEhJnrcitrtuubtr and l}er(,JE.nutJ tro,.nr.riru.rhe
tN,,.. dd' mhd a.\hTalrbrd An dtkmd. nid\r otr ,hd JJ) n. rur mad. rditoote b
5D8abr:ld r crct\,rc f..d d nu' ?r.h t],n.ut^,c i1rt.r tdt H..,mcrotr,1d:.o,ronrr
Ctrrt rl ua , \, B,:.:., t. t. ;.. I 1,J d
^ .a
applrca.on u/S5.ol Linrirdion Ac! seekrg coDdondon dctay irj tjting rtF suir h $;
c,.u dc. rlr?_r..b(d,or. hd{.r",o, !J "..cr(Jr! rrj\ier i.e
l.rc-J b.o! o,r.rh.r.rr ).dJoor a,..n.{! J.knlr.o.rhe
rpplr:iMl.\ ni.,rt..im 1. dm..itrdi,nn;(\.4!tr)trr,.,r,.c,uirJrdr-sredrhe
th( d.1., trnr dqic(n b) oro.. ,n LA I d
,pptur hd rh. iJfN).(-n !hn.rnri rhr or,ld. thc.a,t.1,
rn ir{!!, $hflhd h.
doo | , |,\ | r' hL !h,]m;( | iijo. Dn *h{ gnrnu\ cru ,n'.*h.!\
'equFJu
corn. Ihr rud.nr .houtJ
in$r:r a-.1c rlrtrR.rr rr*.dinr b! \hhh rlN urdo n ,\ *, hd.n*cJ

litu,' 1cr(.lr'. \, I Ittrorrhrfiua, r,\etr..oB.n8rr^riLrm \hrn-oabdd


rd.r.t-. |-.d,' ,.( t-$.r .f.onorc ,r r,_N.rh t, o
.r .'Jr . Lhd, rc.b rs r.0 r,.rJ, r p.,, d xjrdi qh h 7cU-b
l,,".ii,_'. l':1'"," t0-6 .0. I he u
tdn drc . , r, . ,\e .rr rtc cou.r. h c h.ed
bangrhre'rh.r*.anure.h.nir,oubt.,nrt,(pjdernd\.,autJt_r\.rj.rdrh.sudonlne "L
I uoubte phn. Rnr bi.t ro Ahmed"bad. Sv h. outd tite rhe
eronl-ddls,Jrcr:2-G)0|IlenLdtsot-,tdrn.nph.dionL.\iotLimnorinnA(rjftino
d'Jotur,n .fJ!h) Th..oui B|le mbr,mg rhu JpptrrioD d\ ta t ha. rn(r hehq bodi
kpr,e..n ! | rxavr,lrhc rnoti,aj,onconJrninCrh.CeL\ In rt,nerhcongrrrt iuir
rhe deterdrr \a. U.rn $Lcd i fite rhe qrirn:ukaen, b) trer.,d..h:,i(feno"1,b
rs{i$tu, h. iJd "11 \ ..dr,,
"mGi,.\).Jse.
r$tr' oLh.rr1rh! -d.,. be.h.te,r!..d "."F, lhs.tdd..,.,,\cd.o
r,d,r oor .\ngr_Ddr.r.1,r,.h
@!n md ih"r . +. hlrt,'1. p.o-*, ng rhc l.tnJ mr n ra.p,u cnJ sEc r..o.de.
"..
whe. an poi.rrioni,rit.tdi.o..m:brjun^!rir.ondoraroloiJct.'rrfting11.._,1
fi.,{ud nulnr n,i h tmvc r(r' rered r s ongmit nnr.r d he,oh p6sng rn orJ(on | \ L II
irn.dt"rd rhd !mJuNrion or detd\ umr b! ma,le. rhrn rbe 6un.h;utd h.r. R,,(kd Jp
pE{ rNqr thc pbccdr(.Jopred br- thr @ud k ftda\ b hc rut$ IL h$ 1,5F,d rhe
{ui rid refl In. r \ Jnd h. hd i\\ued <urnnols 3nd L\- dv*a'u ,* r"i, tt. r,^
'\nJirq

Lltskakt
"^'liitiil{.""cllr.'
heard borh thc prdi.s on I A I rd pNcd cn oRlo .ondoning the delay. This pru@duE i5 nor

S.5 olLiniulion Acr applies lo appells dd applications md nor lo suns.s.t is $e onlt wtion
uder which baroflimirdion in nlina tbe.pplio0lio. or appeal may be condoncd,It dod not
exlend lor condonalion of dlat in tling d oiginal Suil. The word "$it' is not mqtioned in
s.3 nre wods "atieal" dd appliotion" linds d ploe in the S.5. When S,5 of Limitttion ,\ct
docsnoiapplyloolisinals!its,itmnoibcapplicdlbrcondonationofdelayinJllingthcsuili.
lnc sbole cse. In such c66 ilismedaory 10 lhc coun ro dismiss the alplietion affer heding
the plrintifrs th. suit is baft,l by limibtidn by 2 day\. Whalelet nishl be lhc Mont cven ir
they N jusriii,bl. lh taw do6 nol allo* @ndonllion or delay in filing lh. original suit The
coun h6 d.-d.n i6 powds ad ha ondoned th. d.lay quit onhry to whal is sl.led i. S 5
Ite cfoc rtc tlcfcndart *ars toLiallflEr il
Thc coun has pasi n ords m I al.lt is not a decEe. tusnl to alpal is t nannory ridr ed
nor inhe.eot rigr'r whd ir is ndra de@, S 96 is nor.pplibletopreler d appel.
Somc onles ar. rpp.lable sd sne oldets arc dol appealeable. Tbe provisiM in dc statute
eiving nshr ofappal io the asseved pdy lgain$ an odein OaiRl CPC inehichalist6f
orde* arc sot.d ro be rppealable a aho sratcd u/s 104 cPC Under these provisions the order
pNedoDlA.lrclalrEtocondomti.noldcl.yu/SSollihihtionAddoesno(findaplaceAnd
$ercforo ir is tror oppc.lable and th. defendol h6s no riglt to prefr an dppcal
$ber we srsidq it ro appl] ro. revieN rhc aggi.red pany $ill have to elisfy lhc conditions
meilon.d rrs.l 14 ed O47 CPC 'fte orde. ir qucstion is Dol app,lrble .nd thd.fore review
a b. onside.d 6 lEr .tr16 mdd S.l L4.Whcn rhc order is not app.ol.abl. ho will h:ve b
oNider whdlM rcvieN an b. pEfend. fte @ndnian to4?rlis rhd rh. .ggri*.d pany
slolld halc a ground b con'ine rh. on rhd rh. coud h6 ei6er @mid.d d mr artent
on lhe h.. offi. rc@rd or lhat snc nfl evidcne is di$ovmd which *ill hnvc ro b placdt
on r*o'd, r.d thc. n such a @. dvi.w uan bc rhorghr of. In the @ on hand, n is not rhe
cde ofanybody that ihcy have disoveled any ovidenc *hich could.dt b. plac.d on lord
beiordeco0n fhe coun has hdd both thcpatricsonl.A.l and has pa$ed thc order .lloving
rhc application condohins lhe dclay I means tho cout has sunmoned de defondEnt and mui
h3vs 6ked hin to file objecrioN od then arguc ind Lhe coud had hedd boih ihc pani.s oh LA.l
dd lssei an ordd as nay be underslcod from th. frcts ol the c6e. TherefoE, n is not a cae of
de @un cohminirs !n eror on lhe fae of dc tMd An emr on lhe fa@ of thc cord nu$
b availailc b dy p.Mn whd he loob ilio rhc ss pap6 .To find out thlt .ror m th. fa@
ofrhe.eod lhcsud need nor!m* int pl.adirys o. avqndrs nade by panies aor !|d dlainsl
in fie appliBtioD &d rhe courr Fsine d odcr. ln the cc on hod tho eNr is not lva'kble
and.annor b. srm in rhe fae of rhe rcod unlB onc reds the orde. or dc @urt in d.rail. Suci
kird oferoF or mnhkes will mt bc q.alifid as .tror atpiftd on rh lace of tlD ccord in order
ro give $e pany the ri8ht lo pEfd r revieu applicdrion. Therefore evis application cdnor be
fi!ed 1o que!tiod t[c above order.
'Itle @ufi har
lded the oder qune conrary lo rtrc content sd ordinary baring ofS.J olthe
Limilatidn Acl ir allowins the applicalion ud @ndohins the delay. Though the court has
jdisdictio. to pa$ lhe order wherhq condonatior of dclay h6 to b mad. o. 1o be Eject d. but
the 6Dn ha Isd an ordd 6.!d,1o whar is stated in S 5 i. the sense holding fia1 h is
appliable !o original suic al$ ihough in fa.t n dci hot aDdy b origjDl sui$. The order pa$ed
by lhe @un is iucsal6 it h otrhry b S.5 il$lt He ha ale ommitLd marial iftgulei4
:ii"tl;,l;",i: *ft:r,:f""i;:"."# ;t;i: T:"[1,["li],ilI ""1.iil i;,ir;f I:
tunJnon lo Fsr,5r,ed ro prkr, E!6run pclirinn r.i.r D I L i. |,, _r,sfied _d
,rtsdrr. d $dthnge de 0rder by prctcrr8.
$*,;;;;
kvision Frrion.s r,, cp.t*b,",; H;;

iil,* :',J.';t; ff :s: l1i::,l,lji1l""jj." **,h( appJ' \ p,c,n.d h',


j".*;
rruri#'d:tiffl*'*r;ilifi"f,::.= il:l1 i;:,rii:
r"",.r. *a ^ ",." -." .r"i ..;:.:.;.. i:ii;:;l;;::il.l*::*?:',l:i:f*:
llT,l;l*,.;;l -'am hc{id*cro r'ap'r"' -" ""''"ii
.,["1',:nr
Jt'lilH ;t l:l: *;:"T':ff ;"ffi :ifl f ii li:i[:,]i:::::::iili:5it.,1,.#t,i::
r'.rso-means thal $ch is\E shNb nayc bLrn liamad ind rhe parries w.uld haee adduc.il
: fi::;':iilll'f:t'::Ji,"';,l"Hil1ii::tii:.:T [i
'..dh .;J. ;,:; .; ;U illi
llk-.:ctr | c.our hd,' R.2.t htr gor hc ro Jlmo.iy n"m. {, h Atue on i\, qn o, s
r ,.
^ rr.||-' dun*r r. t ..d h]\ isrc.d ri,r,,r,".-"".,,,:.,pp.rr,., ,
. rqc
lll.".Ii
Thq.Ior. rhl atpcltde coh und.r rhe aldn*i.trute Ni sd rne erre ase fite ro the trial

!iilJ:-1,.'"ista{ ",H:Tj #j;,,#;tl; m"**: *,*ll:


,@rdr b rrirt(ounw,|Jl rdrdion,o "llli:t
eq $.evi,tsn&udd!
o. Fe. d*tom rhe p.pns b,*,o*,*.," _ *",,i.101ffi :i", ;nll#i;:
q h dh''
il"1:;,il",";iili"fli.i?irr.rMq '"*''. '*'t'u' -
T'" *"ia' -J
\lln {c s$t lrct to rh ,ppeltate courl by lriat murl aner doing rhe needtul tlc
rhc .4ords
ffy33arrwlurrl'crird'iq',grven.Dr.)JriDrebybe,,,rt6un.-jy.,t.oblar,olb.foE
ilj:ti ffi :Xli:;il,lt;ii,,Tj'ji' I
[1i:':li:,,,".:#:," d: -"". r ;r;;;:
l',i;i1".i:*iTi;#i*Ti*$ i:i'li"l"ff *'oun'or evic'[ on o,hjs,enanr

,::;r*.*; ::iri;n":ir-t;: ;"y*ilt;:l;,i;: * I r" i::lil


l
shautdpor..d !, Jcci,le rh.tfl(,on
: rrlnJ oab r' dpptnabh In rhc.r!. \.llj irs.h.r: Subjat ,o ,u.n
rondr.on, tud
lil iii;"'":.iJ#"ii5il?"il*; IJ:Lli'":,"jliI' "r' t '-" r.' ,r'.
"1"" ""
.r

:;r"wl* ;fil';i:"":x ** i:*inl


"*,Hl*;Hi" m
fi :Stil#:T l.'J,:lJ ;T:il.11.1;iiit"",1H":x"."":ifl iJ ;; guH
ut rhc H'tsh (oua b Bhn h lhd (oun b surhditu,c or hyrhc \uprcm. oun rhe ftur shal
;ll
jDh
fic css. sstring oul ils opnrion ud de Easons d@ibr and refs rhe sam for the dpinbn or lh.

o 46 i! b rhc efTeL td it $e @un hs uy douh on , ,oinr of law, my iefer rhe sme !o the
I lish coun for its opinim lr 6e codn df.6 .i$s a natr r rehline !o rhe uen$illtiouliry of
m l\d or pnrision daloi ollxNasrohir Duhl scckirgfie opinion oflhe High @u4 thc
coun $ill bave ro *zjt md a'1ar re.civing $. opinion oa lhe fiigh 6un bay Droceed will de
$ 5clbrc ir in acd.dae \rih lne opioion oflhc Hisn oud. sirher rhe nult may sai dd
sta! rhe prsecdirgs be&, ir, rill rhe High sun\ otinion tu @ived or pmc-d uith the
ddiudicariotr of the suit Td cone lo thc tnal ord.r md elen if il is deqEd it will rol be
.xgcured iill the opioion ot Hien coud is rGivcd. men we onsider {har is disclssed
r[e couft lo dide the 'h.
suit o!procccding bcfor. i{, the validily dd n$innionalily of6
^bovc,
prcvhionmnlested intbesun shouldbe dccidcd nrst.nd in such caies, ifthccoun nofopinion
thrl ftc Act or the povision is unconsrirutional md inoperarive rhn it is compulsory tor il ro
rolcr $e mauer lD de High coud. ri thls oas. ir ir S l13 which is appliFble and n.t whai k
$.tcd i O 46.lithe tial coun rs ofilie oririor L[tr( thc provision under which the peliton is
ficd s trot unenslitotionaL, rheD, thci! is n! needl! Nler rhc same to Hieh c.urt for ils opimon.
Thorialcour cd sirc a rlling to thd' cff.ct ior wharcvcr reEonshe coNides fi1and prdcecd
rn adjudicate upon $e suit oi proce.ditrB bcforchin l hc lridl co!ft is .or bo$d by whtever h
irrcd hy thc pady/panies The coun hs b raku iNlcpcidcnt d*ision .n it eirhei rcfs it o! do

.1. Ihrque<ionrsdsdd,1h.rnl.dasuirag.ihlt rovcrinaa $m ofRs50,000-on thc


aor
baris of prc{ore l-lE defendd cmrercd !r8ri.! in thc writtn *tnenr rhat the po-noe es
ror luJrFn.d by @nsiddation nd lhar rhe suil uas barrcd bI ln brion The tial 6rn \rhil.
pa$ing judgment m rhe mc.ns of rh. c.* gav. a findina holdi.g rhar po-not *a nor
supponc! by consjdedion Ilorv?vcrlhccouf,dirnisscdilresnilioldingrhar$e!deabair.d
hylimn. on. Thc plaiililfhas pEfeii anomc.l.

a.)f[c quesiion is ldner rhe d.fender.e fi10 epsl or nor on the findine relaring b tie issuc
dl.onsidcrati.n. Appal is a sbtuiory dght ofthc p.ny dd not 6 inherofuigbr tfllu h any
provision sivinc ishi lo a pany ro prefer an 4ppcnl, dgdirst a dccr.e or order then only $e pdty
cdn prefcr.n appcal.lfrherc isno prolbion ir rlr lrartrte ro prefer an appeal agaiNr thal ord.r
nr dod* rhen he cenoi profcr ar rpp.ol ]n $is os.. B (he defendanr is not a83riekd of a
-fhe
docrce but he is assieved oi an order. s0lulo s.rs lny par.y sho k ag8ieved ol a d.cre
Dq ptier an arusl 96 CIC 6lhc sldLurc sives that prvision. In the c6e on hed lhc
'tS
dcfcrdMt has gottnebenefii oflhejudgrc.l.Tbcderee h said 10 be in his favou. d $e suil h
dirniss.d as desiren by hin. He is lor aegricvcd of the dec.e. nre findins on the is.u. lrting
to onsideration oapG noie is,gainsr hin. ll. h aggrl.v.d ofit. There jr no prcvisioo in thc
sdtut. 10 preler d rppal asainn lhiJ liodine o. 1lD issre Thseror he cmot prcfer m appcrl

b) Thc plaindfhs pEfered iD !pp6l norv- O.ll R22 is applisble ro thc sjtuarion in hud. h
rc?ds rhus: An) r.+oDdem $ough he may ror hova |ppolcd 6om ant of fie de@ may
lat
nor.nl! suppon lhe d4re bur my llso srarc rhd rhc finding against him in rbe 6Dd bcloN in
dsld of any issE ougtu b have bm in his tirvour..-.....Wc r
fron ln radine ofwhot ie
ralcd rboye lhar rhe &lendant is lg8rid.d ol $.
iinding on rhe qustidn of onsid@tior.
\erl:' lr.d fi e.r .\,,:q (r :e!D.r r\,) iJler,..-d,n; 1 a. rpp.Jt t,"kh! - | t
pr., I Gr s rhar i>ucr\\.5\tlt,a.rh..r1.tJhhirtr\.j ,,,..o;ft,0...; he
- eo u1 . r r 'ht
rhe oppt,retnn) h ! prjr.ir.l...
trq.t rtltic rlf rt. o,.e r.. n.o o.n
o.il|n 0dr)\!rmrhcdnc. )c^i4oiru, -o rpteJ. Iirm
ro obr.'ro . rill bc ! 1.0(,.J ur ft 1Drt..r.,
D. c0n)11.. unqh' t,. aptrr ! fcd toL r.rr rh: cs,c. r.pnc,t c{ .eob rhe
npm p. r. qu? u. n or rit -ror...1(n 1r.S.rj..,d,..-'ii,,ti"g"r
'\ "..,.".i
c) rn casc sheJc rhe cross ohjcc$ns h connccrio0 wilh rhe MveBe nndiDs
reLarins lo
onqderati.n of$e pro.nob is conc.ncd i is nor m.ndlluy o! compukdry
lo tite mss
r:'d:ns . | ..nrJ.dhn h, hc p,o-ro,c .,er .h;ur r,
l. l:' l.:"".ldl:"- rhet.crd{!r roar+.rc gm.R\_e1.g.te.our1
IrtffrDr',Lrdu1tm\r " s.ro..
$r cve "
-_-mr f-r r. h\our a rh. trc\i... o jrkr 1ar hr ."y . nq ."pp". ne
0?,r- In r. dpptut Fd m.D rt5/ )kk '$ti rhn . rtr,h,s JmT{ ^.')pnndcr
h,,n j $< 6un
"o, be ;{,;,e
pelr
or jn. uLSm rv hdvr bRn.n hh td\.{ .\no fuf,hrr rhu prvri nr it.n
Lar.. rfir h. mJ\
ale ckr'suc
dy qos objcdion r., ljc .ccrco $hich hc ootrkt havr;!- by *"y ;i
5
Lhd jl'I!
J. i. h obJ.rn'.j m rh: rpprlts r.n. (R fit,nA,ri .-* ";;;i;;;; ";
\n- kknurrFqu.{Dnmr J toninn nr'ti(,lqrE. $hi!h ha !on? rgr,nq "tren,on",..".io,r,"ry
hrm on a. oul uf
tra bo,13 rrid rv rhJr ttr rh,r ct{ ti( ti,,tins h rgi.n! h,u ,n (t,,on ro rhe
cm o.mrun r. b. pro nnr. 'sr shi, t, har n Jff.Tru.t rltr J..d *hih, fu y rn h,\ td\a The
ohjertu. is only asanri rhe .on5id.rIior, ficrcforc wirhour irine sqs oir"oi"r dcn.alni
an rruue rh. marlcr ftquGrin! rh. c6un b Snu |h. finding.n rh.! isu. ats. in his hrdur

i. Cohpr.hensir. Not6

rhe povnion applicable rchang io tosrturion is S.t44 otcrc. It r.ads rs:


!\,hdeod in so
L' 6 a dn (e or d orJe n e, ul rct-.E.d n ary AppcJt .R.vnio1o, ods Drc(red,1gor r.
^r
.ririninukd tnr rtk purFN.. rhcc,,un u\i\h p"seJ dre da.* or
otuq "hrr of rhe dppt;qri"n of otr) prd) Lntit.d r. ,n, benefr by qry ot *{iruris
.r .a\,,.. t juf srh'e{'F io"'o bc m!d. n ui . so irr.i r,y re,o.de rhe pme in rh. .,
po n, qhih.het *, rt,l h^e oc...picJ b.n f\r ruch dccrcL fi d order or .u !
nrn .h,, jr L
.Jc,, rnlifiol n.o tir rh: purpos. r\- loun mr) m.re d J
olher ode6 i.cludins ordc6 for $e rcturd .t costs mit turihe payncnr or tnre*!r,
inp- r o' rJ m6rc_ prnf .r. rt i- 1 :rL prur.r|! c.-scoucnuJ -r,,c'r vfl br, . aamag":s
re!e^r,
rr ndc or mod't e51'on of rhc dccre or.rd.
I I Ir i o,. dcd in .nc erph-nrnn rln lt fr-t.sc. i jub .ccriof Lhe ,p, r ..orr
wnrh pJ\\ed thc de.reeoru Llq,n,atth.denr(tLu i,LtLJ.
a *lErc rhe decree or ords hd bccD vriod or rcv.scd r cx.rok..faprethlc or Revis
onal
jurisdiclion. the audoffirsl in{dro
b .l r I e de.'Tor- .' L sb-cn <e- BiI o\. >(t_,_t.ru... I rccvLr.oti n 1, n." {n(h
c where tbe coult of fir( insrlncc ha ccsdd ro .kisl or hs ccased ro have
ilrisdicriotr to
erecure the oun which ,if ite $n wh.f.in rhc d@rce or o!de, w4 p6sed were inslituted
d
the rime 'lol making $e lpplicdti.n for restir!rjoi under this sedion woDid bavejuisdictioi
10 iry
2 ) No suir shall be insritlred for rhc porpos. ot dny rostirution or orher retief which ould be
oblajnad by applicalion uidersubsccdon I
Rsnruri.n mos brinsine back rhr pafties to tho suit lo thcn originat p.snion wtrich they had
oq.DLdorlierro h. r.e.L'ionol r J<Jk. or ord.r poset b) ne coLn d I res-tl oreihe,
l|6lo'da dde!reeituber {srdcDtrherypc.trrc,re\iiron!roLncro\e\tre .rtrnayd"
explained nr the folloyi.e namcr
if the tdal coult psscs a deor! againsr A ir talour of B declarjng thar B i 6e owner ofrhe
jmowble popeny inlolvcd ir th. sun and rhar h. is cmnled ro rh
Do$c$ion dd 6esne
rrcl: no- 1 ro i. da'R ir er.curd Tmcdrht) b\ B and 1\ urs po"f( 01 or rhe
.nro\zb -prapdL ddhaprocced(dL,rc@lqm6n.rmlKatso . er L5tateinLhsrs.rhd
A til$ o apDcal againlt rhc dec(e offic rriat 6un and rh,l in cus. of rime rh appeat is
allowed bt the appella(e @un eltin! sidc thc dc@ of . riat eun. ri $ch situati,;, A s
po$esjon or the prcDeny k nol Ebincd as B hs .xeured rhe decE oI tnc trial @un ad hs
Gr.d posssion of rhe plopn, ahady. tf y.u rakc n rhlr rheE is no tu6hq appe.l ,gainst
a9pellaE oud\n*E in $is c&rc A wilt havc ro gcr back pos.$ion ofde p,"p;y s h; q
in actual posssion df ir dlid ro Edccrecorfi.lnd 6un,nd rtsr h" h6 b; dispossed
b)-. B csuting .hc rial court\ der. Nov thd ihc riat sud.s
d@ra is sd 6id. by rh
rpp. ab court a.d rhere is no funner higdrion in fiar oariq, A sitt h&c to eet bdi rhe
poss6 on of rfie fnpdv i. A shdtd bc Eiiurcrl ro $. poqnon hc sas hotdins b.roF Lhc
Ib|.. d\ da rc*s.{Rur.d. X a or u!counrotthr sbne dc.Fe pssed b, rhe ud 6d A
NL dipo\\Ncd \utr rhd rhc ocne ,s {r did., A shouto sd b;cr rhe iossson or 6e
pmp.l lD!! B Re$iturion is !ha! lroass sivjng rhe e'd Dbpeny ro s he w6 6liq in
pssion oa it. llc provision ej,s dal no sun sn@td bc in$irulej b s.r bek the prcpdy fton
B. It s@s rhar d applierior rrs.r44 cpc should be nted b.tbft ihc rti.r
cdrrfi{ copy ol rh. FJgnenr dd d.Lrcr.f rh..pp. nr coun rcqusring.he -; ricl:lons md!
6Ld b
del'F posioo uf ih. immov'bte nropcny b&t b 4 Tha( tr khsr $e FI 6 Rtumnon dt
tre popny ro r''e Do*csion ollhc pd) who ws ,n pu*$ion
Fior !o de e{ulon ot rhe
daee 0l de ria (od fte prMs of r.niurion .f pdi6 ro rh. originatpo\irion hs b6
htue \ery nmpre md e$y ds ta]lcPc.lhi, da: nor en onyn,ng ar a ro A ro gd bak
po-". m. or,rfri.e h. shor.d fle..di onb Ior rhd nueos. sid t i; vdy.\pehrv.;d rime
'oo.rr'.ellfexp'e\J.raredinfiis!.crionlh.rnosd.rsr b..nr.tu.ned.orLhisp,,pose
Eafl i. cae ofa noney d{rce iflhe d.qee hotdo hd cxecukd dd neccd rh; d;ee
amounr lrod de opposire parly on lhc bsh of rtd courr\ daE.,
iflhe appeltale cou,r larer
allows the appeat ofrhe apposiE prny otrd scls dide th. dec@ pdssed by tn. tdal
coud lne
pd, '.50 h"d paid .h. dcr'* ,roulr ro nfy fi4 k..t Jo d d(r.. .d 3q bac! $e F f
0(+".moLlr drd.o.l\ lrom rfe oppoerc llany in rne 5aF. hanre, al .@red abore
"nder

b.) Nrircd Quenion ofrlct.nd l,N*,


The isss dDt may bc iraded by rhq rial coun,rc 01.Ltuee kinds. An
hsue otfact, isse of
laq rid an ksue or oixed qustion oi idd ard t.w. An jssu. of fdcr is td
set tn intomdrion
fron $epanres ar ro a panicular thi'r8 d|cscd Lry the pdics hrs oeured or nor ror rnslmce. rf
A lilcs a ruit againn B for rcdov{i.g mon.yduc undd I pro nolc {nd ihd B oonr.nds lhlr he
har not cxocDrcd that pro-oolc {nd nor re.eiven $. considerarion and d$ $ares
$ar rho suir is
bard by limilliion ihe 6!r hds r, frme rhc hsuos as folo*s
L vherhc. du plainifprovct rhar 6e defendul his cxecure{ oe Dbndle
2. lr L\e plainliff pmves thd fic defendmr h6 cxcurdt rhe FntNe, *nelh. rlE d.fadbi
pmr6 thd hc h.) nor 16 4!ed rhd(.n\:d.Erm
:i. wherhr th. suit is baiie,i hv timibtion.
b thisc6c, we witt also .onsidcf lhe facl as srllcd by rhe ptainriff rhdr rhe detenddl cxcclied
h
.prorrcl<
s 1. n. u d d$ I d ut .uos.lrcnrt) deman cd b) rh. pL.o.,.r.n !o,ac daJ
a
hrl'rn ) 1
-b I
h,n.h. d:rc oitro.no r he hdtr,d .um or R( tu and hd TdoNd rh( ,s;
on tne ptu-nor-r|mp wnh rhc ddr. dJ,ignduE tud rh( pta,nriIl fik< rhe \ui
*,rhin t )ea
,an ne Jarc or Fh{r dnd Lr. .M!' rm4r mrcnJins $Jr rhe Q il ,r d Lm<
ll rhl!rE, \\crhelhF defcnddr hr.rrRUredrh(pro-r.rc !, nor h i.!r rd a or NohrL
'r\olqcd
i' \
,' 'er d rlr t:rn_rofbr|6-.nrlir..rntr..a,Arrs.r5mrhc
tirii{ion gives rhe lidnalir)tr pcriod 6 ryers from rhc dare ofprc_nole or
dale otdch&d.
Thr,o-d 1...:^dtu \dD 6". e:Jr whtrn g.adk tinrd Bl Jr:^,nd dpp,J I.o the
^nm,N
trctuiion $h.dcr rtr. strr .n{,nicd qi$rn , !ea6 irum rhd
I
dt. on snich rh..ruse ofodidt has rien.
so tu6 0n isu. olmixed qucstion offact ad hLv k c.nceoed in rhisds.. tneisjrerct,line
qhe\.' Lc r.n i.h,rrd b).im o
d.,. 4(
s,oj.rm.d G!, t 4 tnq!. -,.e,o,- ptt.(l ro
, n-"rr1-r.\i ,tefLi'.rit La.d . L e odln.tA I hd p. J r )Jm ot . ,*"p_*,.,
^\J,
'r.. Lr'1 '. !d. I' r, rf. o. I lbc J.(rl,.1.,nd hd
- h.,r - oo .d ino.,mtred
hissi8nrtdrs {ddaed aho. Th. dctandnls cmrcnrion in such cdso$ $outd,eenera b. shen
ha has nat er.cu.d $e pm ndc d :u and nor Eei!"d rhe onsidqarion lhE
t
Lt^.10.r. \6 ;
! qnurr bsar.tr rh( rnounr dr undcr fte no.nrk . l1ld ,aaL h. k ,l r,) n q
E6on ro
'feJm.rrsr.Jc.dormq.iaD,lsoo,\owrh.prdrnintr.fihrv.,irro\"*d.hedd.nd,Di
o drt. qdc tin ...ndor.c, c1 d ,d I e\ .
J."d!hi.tr.or'.snoq- \ tr11-orn npr.{()jcroq"n sn.iaF lrcd I e .rJoarmrr jL
dd entoFm d
'iAneJ he., hr L t hd\c o ipDb tas,o rhd rnuanon und.r S.c.to. I Lm,dron AtL d
natmdr is mcJ. by rhe p*on who due rh. mone) uds rie pn-ror Mlhrn rh timidrion
'.
pd d m'l .ndo's6 and rfiirs .. s,gnrbrc Dd dar( rhe rh,brion b fi.e rh. jun wi b. j
6on lhc iaE of paynenl. ln $oh @, dcn if ih. sun my be harcd by timirarior, ir ir is
's
GkulacJ fDm$.ddr r. do.um.nl r does nor a{ecr rep,,;rirfitr\e; fico$rhirl
of Ftrrc. r ,..d eioFrd r s, .Gad Lrdcr S to or I m.kri-n A.
,Therefore$o is0. relating ro lihirlrion in lne 6e on hdd isa mix.d qksrion of fsr Md taw.
'fhe frr
G wh.rh.r rh tarn.nr i made ioards rlE hounl duo ;.dq rhe pd{or. and
enduemqi k rign.d bv rhc .That hd b br poved by $. ptJinrio b, .\rm,nrs
n,msrr or dy obe' pNn 'Jct$J:nr wh,*e prese ftc tuFFnr ws nad..ud trdo,)emmr 6
'n
sjsned Thcn 4ply S.l9 to rho rijd facts to nnv. at a fiDdnrs whdhcr rtre sln h bMed by
linihion or not of wherhcr il is ir time.

6-.l. a $i
fihd by A osains ts tor recov.ri.s 5 ,un ot Rs.2, 00,000/- on the baris ofa prGDdre,
B !r{:!in wi'rei shrmcnr rhar he lud nrior ro 6 nonds or nling $c sn Ld l,ai;
Rs.t0,000/. ro'h.
thc ptaidif. Th. sdne \6not gilcn dedudion ro lhal amud ia d. $ir: He
hokvtr adminql rhlr $e balMcd ofRs.l,5o,o00, w.s due tnthemuN oirheevidcne A, the
piainriFappcrru lo havc admificd rh.t h had rceivc.l tts25,i,0o/_
onty tronj B lloqc!.; ihe
ooLLn dc(eed tbesuit infav.urof^ forrhccn!n.claim ofRs.2,00,000/ udcos6.Ahasfiled
ex.cufth pctirio. scekins $e recolery ofcnt rc 0houDl ofthe d*ree. B lhe judgnenl debto!
har sotrght ior dcduction ol Rs.2i, 0001 iion Lhc decree dnounl as the decree hold.r had
adhilcd rhar hc bad Meiled il A is tutdscqblc,'l he firdent is 6ked 10 decide rhe 6c,
Thcduty ofrie er*uting 6un is@exeurclhc dccrc6 ir n b this 6q iris Rs.2,00,0001
Unds S.47 oi CIC $e exdrling eun r gi!. dcdrction Lo dy mour paid lowrrds the
dccrcc as pcr rules subsquflr lo de d{c of dcrE. lt cdnor go behind $c derc. h the
lnnciplc. Il nas $na&rer is prid by lhc judgndt d.bbr dunng lhe oue ollh. rirl or
b.fore thc nial is de imk our oi the kial coud bul dol of the erduring oun. Ih lhc .s 6
hmd, doush lhc judsn-r d.bro. a defenddr h.d pl.ad.d in rhe tial coM tbat he had prid
Rs 50, 000/- dnd rw dueRs I,50,000/'onlt ed ii spir. of rhe plainijfA baving tdnin d i. (he
.vid.nc. that hc had Eeived Rs.25,m0r- $. t.ial co!fi ohmited m e@r in lor Ejeing
dcducrn,n b Rs.25,000/'rvhil pdsing $e decr*. I is .o doubt a w'ong ddree. Tb. judghot
debior ousit Io have prefered d appdl agrin$ ih. d.(c. to Cet rhe sade cofteclcd but hc h6
ndr nl.d rh. appealin rhis.ase. HoN*q $o lxccLring oaun hd no powr to tak notofitdd
10 givd deJuotion ro rhe said amount inlh..x.oulion procccdinss. The execuiils court willhav.
to thereIolo rcjoct rhe conieniion oflhejudg$crtdebtordDd erecure the dedce as it i, to rcovcr

7. A dblined a dcr.e lor pennanst injuncLion asainn B on 154-1982, Eslrlinine hih fion
inrcricdng Ri{h plai8liffr porsion dnd cnjoyn.nt of ag.icultual land of 2 sd6. B
subs.qunrly dicd in 20ll A hd aied paddy cor nr rhar hd duirs rfie cuMr son
i..20ll-:012 ed :s Ed! lor lra6ti.g o,ld rcrpiog. c and D, $ns of B ft lhr.ahing lo
.nrd ih. lrd dd dt dd .enolc tlr prdJy cbp on rhe g.ou.d rhal rhe ldd b.lon8.d lo rh.it
larhcr B A rols advie 6 to uhd &tion s narc b b. blen to pEvut c ed D frod
'nurculdngtud Enovingth.plddyft!..
cnr.ring his land md
Pemacn' irjunction dEe is erar.d lsainn B in f{vorr of A. That demee G Esrdining B
i.n.ncring inro rhe hd.fA o. by by ftca6 f6d distu.bing thsplaintifsposscasion ofrh.
land. so long as B N6 alive he h6 ob.yod i!, he has nor attcmptcd to v'olab n or diebcy thc
dcctoc passed asainn hin. We would comc io thar conclusion as A h6 nor sared lhar B cver
rn.mpred Io.nter that ldd after the deree was p!sd. when B h6 dicd, C ud D olaiming to
bc thc so.s of B are plting theii cl.im 10 rlrc land as legll Eprssenblives ol B. D.crce for
pcnr{ncnlinjuncrionisexcutabl.againsth.judgmdtdebloroiev.nanrhhdeath.gainsthis
lesrl EpresenlalilBs or anyone claimiryunder lim dr any lime. Thee is no linilalion bd so fa
a r d.cr.c lor pmanent injuncrion G @nsned, The LiBitllion Acr h6 not got any afiiclc
speiiyins the liftnrtion perjod ro.xdL th. dde lor pme.t injurdion. I]iNforc, cv.n
iI it is moE rhan l0 ya6 qhen l.3al Eprcsolariv* of B. the origMl jtrdgmgr d.b.or claiming
md.r hin u.d.ning to drd upo! lbe l&d tud cut .nd lmoE rhe paddy cop amounts lo
dhobctinS ihc pemme injundion d&r&. Th.EfoE A may be advjsed b file qeudon
ldnion uo2lRl2 befoE dle 6u rvhicl has prsd the deqe as:insr c rd D aqucsdng the
@utn o plnish C and Dfor dieb.ying th. pmsmt injuicLion decEe The coun will take
&lion is per law ro call and quenion thcn and if$ey sill atrdpr to dkob.y th. ddE.4d
dkob.t th. con's ods they mry be amled and pur i. civil pien or if rhcy have any othr
prupdny the sme may be anached md ninh.r proc.ed asainst thm in uoddce vtuh law.
Thi! is how A an preve0i C dd D lron cnrcrins upon the land dd iiom cuniigand r.apingthc
3.Tl; i. rc0\c ul pb'nri| Y ihng. sur on rhe has,. ufd pnrlrc aldin I rhc defendd \ b,
Rr.l 000O0/- 11. prc-$F i) Jacd jo-o-)Oh llk ir r t,ted on 20 t.20tr tne oL$uon sa\,
rhu x h6 raiscd the quesion oilihnaiion as d sbund Tne eud.nb are b decid. whelher ds
strit k bded by lirnarion or nor
Th! pdiod oflimitalion wirhin which $e suil shoutd be rile! ro,e0
)r4 fiom the dlrc of pm{dc ir.tf a nared ir An.]5 of $c l_inil4ion Acr. The plainnir
.hould nmish ddails ro pmE iid tne sun is in rine 0r[6 r. ir wi! be bk.n d bared bv
limrLrion. fhc :uir N tt J h) Y ,Fainn \ on ?0.1,:()t2.rn rhe n"m!l ebe, Lhu |,niuh.l
Dcriod for filiDg rhc sun slans fdm 10.6.2006 ad e.ds on 10,6.2009.tfydu lakc rhe dale of
docum.dr and ihc date of filnrg oithe suit here ir rhis ase, n ij more than nve,cad ircm rhe
dar.or$edo.umo',rbsuithiitcd.Howeverthcpt.inti{h5rccivcdalersdatedt0.4.2009
witen by X to Z who n: commd 6i.nd ofbo$ X od y, a$uring him thar he rvould ftp,, rbe
DoEy rue undc. rhe eid ponore ro x wi$io 3 monlhs imi llh ahounts io
,cknowledscn.nt hr lhe delendel X or hh liabiliiy 16 pry lhc rrojt.r. ooum b lhc plaintilt
Aqknowled8non olrhe liabitily mado ro a drjd pany is,ho aoce|tabtc * rn mkiowdjscoent
.Ddei \ r3 of ho I rrion A(.'}t.. ro - he rLlo\ -oB-mcnr o1 tod.^09 ir nnh,n de
p.nod ol litrirn.n xhen \iu c^ncorr i kod lh. dore orddun\.n, :O,6l0On IhcRto,. rhe
prainrir Y colld lilc rhe suir \rirnio I lds tiom lh. daE of Nknorvlcdgendr as narc! uder
S.l8 oi tne Lim'sion Ad il. tihibrion pqiod jm running afiesh ton fi. dd oa
tctnoslqlgne ic 6on 10.4.2009 and ends otrty.n t0J.20l2,l.herefore d1e suil coutd be
lil.d wilhin 3 lioml0.4.2009.Ths suir heft [ i]tcd on 20.r.2012, *irlrin abour 3 \!d! rron
r. u tr'l r r .rmirdron p-,od .hr!.fo,! rhF, .r b nnr bareo by l.mi$on dd
la r r00o,nd'ora
rhc.onen.'on^irSr Lr,sddr xrhd edb.\crutrn br{br hmftr,o, :\baek$r.dorpnr

9. and B arc ex-uting ajoint d6rce asainsr C ro eturcr rs.5 takhs hd blvo soushl f.r
^
r'&hne dd ik 4 h^.{ r rr ko .ar lg dd_ ,.rre . b) d.du(.i;1or
$n ofRs 5 laltu fron 'a moioy d&Ee obiaincd^tjr('io^
b, hid asainsr B ti)f tu.8 takhs in Borher suit"
6d which is rrill nor sdisned an! thn.forc he *uts fu srisfacrion ot rle dcEe ror tu,t tatns
tdyable b' him ro md B adjus@d tud desisr im di.chins iis hou*. B is aeEe.bl. bl.t A is
^
Thc nrNision of law alplicablc lo thc 6e on hsnd is O2tRrB(3) CpC RiS rcods $us whe,e
qJplicdions &made throush a 6un fo. exoculion ol cro$ de$e.s in *Daare suirs for the
paynent oftto $rms ol mon.y pascd between th. saFc
lanies d
capa6leofexccurionatde
$ne ine by strch coud. rhen
a.l if rh.so $'n\ aE equl erisf*rion \hrlr b.orcred lFn bodr rhc dqre! dd
h.) ir $e rso sums e
unequ2lqaurion may b kt.n our ontr by rh. hotdo oflnc to, d(E
thc lrgd sunr and for so much only as Emains dltcr deducting $c sDaler sM and *rhfadjon
rofrhe sm:ller sum shall be nie$d on the decree for tha txrge. sum !s we as satistacrion ofthe
dcarc io. $e $nallersuh
strb tole I olRl8 hNeve. srales d.l rnis nte shlll nor be dencrt to apptyuds th. d.cre
holde iD onc of lhc aDits in *[ich de dec6 hrve b4n made is $c j;rgnqr dcbtor rhe r
ornB dd uch pdy frlk fie emc chede. in both thc suis dd rhe sums du undcr lh. de@s
In rh. illusrions given mds (hn rub ih. illDhrion 0) k inilar b rh. @ on hand lt Rlds |nN: A
and B crpl.inrifls obbin.d a decE. lor ls.lcoLv-lldi'Bt c bd c ob&ia , de.G lo! R! 1000/_ 4riBr
B. C coiiot d.4 this d.crce s a tro$ decrc. und* this !u1..
ln lhe qse on hand. A and B !E dre desee holdcs and ir k a joid deo* in rhejr iavou againtt C
lor
tu.s hkns. C S darce asais. B only ibl R! I ldkhs in $otbd $n .md be cosideFd 4 a d6!
decM rsainrl the d.cre of A and B m R is ih. only . udgmeni debltr in C\ dlcrc. dd not A dd
rleFnirc thj! ruh k mr a@licable .It cdior bo coDsidtr.d 6 ros dffi dd tha p.m6 do nor fill rhc
lane chs*d in bo$ &. sui6
Th.r.6F r|\ objccrion slEuld b uphcld md C\ hoe 6 be atucM a EquiEd b) A ad B c ha ro
Fy Rr. 5 I'kls b A dnd elist rh. d.w. rd $vr hk h{N frcn bhs eched. C q. d.cut tu.3
Iakls dercc in a dilteEd .Eurid p.ririoD rg.irsl B only di rcova tha me

10, Any w oi th. mndilim U/S.I lt atd O{7 hr* io b srrkfi.d b pr.fq a Rdi.s Ftition Sl l'r
rads rha iny Dercon cmi&'ing hins.lf.g8ricvcd byi
,) a d.crc. o. d dd* im vhich d appal is .llo!.d by di cou4 br 6m which no app.ll h:s bc.n

b)bv a dculo or oder tom vhich no appell ir allow.d by rhs coud

may rpnLy fdr tevkq ofjudcnent to rhe cord (lri.h pr$cd rhc de.rce or made rhd otdd {nd lhc.otrf
Dey slch orld thfton s ir rhi,rks tu.
'ndke
Unde'O4?, in addiljoi to Nhar s sabd abov! i S.ll4,ltsldsrhd:apmmwhdl6nthcdhoovatdr
ne* dd impotutu nstur or evidenc. *hlch altd !h. ex.rcise oldE dilicencc w nol within hh
knoqhdgc or could Dor be pmduced by hin ot lhc rinc whd 6c dsed M pss.d or .rd4 marlc, d on
a@r or $ne misble or mor 'l]1)@l oD lh- ho of th. 'ord. or fd oy olhq suflicidr @6,
ddiB b obain a kri.v ol th. dffi pds.d tr dnt r dad. aerisr bin m,y apply lor t di* of
judsncd ro rlE coud \hnh p:$ed rh

a) rhe ifoE$d pmisim ro rh. c.\d on hind, th. tnll ld h,s moryty onirud . de.d of
sin 6
^pplying
a ded of sle md deEd rh $il ofrh. plaindit td ftcowing dF srle Fi tron $? d.f.ndM
lr dcs nor 3d. rhat tF ld
h8 disus.d rh. motrn ro affi6
rhc eatd in rhc d..d lnd hs
coDc ro i snclusion rhar n n a sd. d.cd sd nor 'cldin3
a eilt deed md thd.forc rh. dal eun tusly
cone.uin8 rhc Sifr d..d s r deed ol slh hls ro b. takon tlar it is an etror .Ftud (eltuing .iEr) on th.
ls. of the Ecord. The aglie'Ed pdy cai pL.fd an appdl in fih cat r he does not pl.fcr app.sl e
and cliodd! ro nlc. revie{ leririon in th. ,.me coun hc cM do so s L\e 6un hs conmined tn .mr
ippeil 6 the tace olde record. Thorcforc th. Eviow pcrjrion in ihis 6e is minbindblc
b)In thi! c6o, the cod hs olerlmked drc b{ of limikiot agaiDn tu mainbinrbiliry of tho luit
arEil$l. ir rh 6. Ecork aid plerdld by thc dclcndml hd in spn. ofrhal lh. @un ha mhs.d tIBr
poifr aid h6 dcr&d rh. sujL Agaiq i' rhk 6c olsq 4 td rh. facb ofdE 6. n is nd siat rl ihr drc
coun h6 disurs.d s to rhe linifalion ba plad.d by rhe defendd ha otu b ! .@lEi6 dd n
'iirial od h4 ordMk.d rhe br.
d nor brnrd by limibrim dd ba d4r..d rhc suir. lr is srded fiar rhe
ft r.6 rh. judg. hs mr o6ider.d n and d di!cu$.d and @d lus mne lo a 6'ElEid. I1lis
ovrl@king m.y b. t.*d 6 meuing $.t il l$ e.Fn ln. mrice of tne 6d dFu3h n ir tvai,tblc io
ln. dod. I hftcforc he als th. coud hB comDiftn anffi +D?mr m E6@ofrhc recorddd
th.E orc Evi.w pdnion my be filed b.forc th. ram. @un H.ne rbe did pdilion k mtiftainrbl..
LIBR,CRY
I;;RA\ANRAOMFI..,,
nrrioner L:v, sciioii ..,,,
bANGALOiiE
NA'NIoNA! LAW SCIIOOT, OI'INDIA UNIVNRSTIY
IIANCALORE

TRIMNSTT,T

1,.) ,\ lilcd a sun !sdn$ ll sccki'rg r dcotoc lirr Rs jo.l)l)l)/- on rhc blsis oir nromirsorv
norc. ts ortested d'csun dc.yi!!crccutnr otro mtu boro\jn8 ony moncy iio and ako
eard rhar $n ir b!n.d hy tirlillltun. thc cou,L ,ncr d,l N,;!c ; i.,line rhar thc pl,i.riif
lhc
hdl pro\cd h. Jct.nJd hJd crc .r.n rfJ odni,\i) rnrc .r h.. r,\our nr. !oJn
ho:cr' hru'hr\d h.h lqil.r'ropru\rthrt,tEt.n.r(i),uppun!hJ.n-\iJ.Jjr,rn. trJ.!o
\eld \ IiftJ h) tihir'nr ar,J J,jnrsut ft. {trr tnc tr.r iDdIJL co.d trj rhc
'hd 'h-.d1
appol lile! hy ,4'ilred virh 6criatcounlnd ontirhdl i[ rho tindiner dirhcrrhlcoud]id
drm'.{rl +r ,,pp.nl .\ \r!rr ro filc .' {dh,l rpFJt. ,. , .rL{ i, *hgrhe, I ,e er. J

\'00 rlr' !t rh (ilh q,uir.i rnMt, bctuR 6. lt,eh {ltr.n h ruJ\ rh I \a\.. rrh, n\.{ d
dnrdr pmriJ,l in rhr b.{r,,ld's ( nJc or hy ir} uhd tru r^r rhL rint' hc.n\.n rone .ur
app.d shall li. ro rhe ltigh C@rl tn,m c\.rt dsE
li$J h apncat br I hu,1$tftdinale ro
rhc tligb courl if F High oun is lrisfied rh$ rtr crs i,rvotrls I . hsb.rirtquc{idr
ollJrv.
.\ s'bq.mrirl rtu r,on ullN mry h. .id,,ir,rtr, I prh( Df trr \hLh n ndt .b r F,rd r..
ennd dpp(at bnJ rtJi rt rh. H, (uu,r r!N$ \irh rt,c lFn. i dn,t $c\ ., ,indi,g t hn
raku' d rhI nn'1r or llrs, rhc,irrlo.drr in hc q,ir,tn{JJiurum.iLr !MJ.J
sn r, td\nu Jl
rherppcll.'n' lhr mtrs rh( rJerofrh. r:^r r.N irc(uud \, gcr k\!nul. In-u!hc,s.
rrc po rur /,r\.rrr.d hv thc rnR. anr $i bcrsuh<Mri,.urk\riuu r\ tnc,,{ r,.t,t.ol
rhe Ifign coun giving. tinding in ilvourof$caDp. rnt on rhe
noinr 6fl rmcnrion.dbvhin
sr @und. '1"" firr apptttJr( r@ri i fin{toRtd rh( suirJGr;nr gu,-"*.,1. r""",, "r,h"
appetlanr, rhar loinr otlnrv c.nnor brooNnbrcdrssubsbfiirl qucjin oflaLr.

Applying rheafor*i'l posilion ofsDlBhnriat qu.iion ofhrv r. rhc c.* un had, rh. rial cout
:seclrastbu nd arp.llarc cou hovccodnill.dan cmr h plrcins lhc buklei;fFo!i.g rhar
h. nnm,ssoN nor. F unNn l bv @nsid(dinr ,,n rhr pta rittJnd h.tdir,G rhar hrha\nol
p'.r.'lrh.we s ll3 !r Ntgrirbt. In: rtumdB Acr{.r.. rh{ if i nrs,{i"ttc in.rrume1r (,i
lhk ce d* rromis$ry nolc) i\ provcd ro have h.en cx.culul or is mjr.d. rhc orcstrnjDrion
urder lv is rh,i rtu nesorjabl{ insrrum.nr hehcurot rnc,frcciving rh.cotrsturnihn t this
case rhe plat ifhas pruved.xeDtion ofthu poDjsery norc ht rtrc dcfsnna The burd.n
of
prdvins !ha1n k nor srps,ned by @nsj'terntun snou[ hild boun p]oced on rhc dct idrnr and
Nhen hc does nor prow il,lhc oourt sholtd havo codrc to oonctusion thot rhe o.onlis$N nlrc js
strppodcd by consid.hion. h 0ddirion, rhc ba! of tjmirari.tr is ntso rhcre as d
srolnd. r.i.ss
r rhr ).(rn,l Jmerl rnd ri rhc h,g,,.uLir JdE.\ sir.r,t.. ..ppc t..nr,.r
hohrhr$;m'!..rnJgiv.{t.tngi.rrtnrrrh(ruirrul{^ir.f, si.rdcrutcJ.!,-ed n
his I!q,ur, rev.rein8 thc fiNipp.lJdrc coud.sornfi ir rfurpport. Therefor., rhc scco,d rpreal
utr{+. f..' nrilr"F.!,nurJshmod^,1..t.. th(lro_nl,.rrgr..f,.tr,.p,u.,.td\
rrrr'\ca.nlrrtn![.ri].a Ar\.t it\. ],c .. | {ir.r u. J{d<--Le h.
rrial court and 6 nd applllt. coun hile codrniuod an enor in interprctina rbe sRnc &d
applliigir to $e facts of $e ode,

b). Tbe ldcrs ofrhe ce ore $c sno a sured in r (!),l hc fi$l aDpcllarc coun has trphetd rhe
I aJ'n6 or rhc kidl .oun on rl.. f.N nj-c {arin! |nir rhe
Fhintiffh$ nn'L,l r1.r rhc ;,on k
executed by thc dcfendflL lhc app{llare oun h6 rcvctsed rhc ,nding on rhe scond irre
holdinglhallh sun Drcnor. h supFncd by considcariun on rh. grou.d thd rhe delenddr hb
&iled ro prove rh s0ne, Th. coun held dat lh. suit is bdred by linilalion md dknissed rhe
appcal. tne aimiff@t5ro prelcrthe iooond lFpcd. Th. bafoflihiurion, itrakcn as a glound
inlhe$o.d appql and ilthe High coun ogrccs snh $c.tpc ant rh.t rh. snn is not b,red by
limitation, tne .ntn dcchion h the suil rvould ser ns.lf tdc.scd i. tavour orrh aDFIMt
pla.nrifr ond rhe.orn Nuld decE. rh. su,r scninB silc lhc urLl{ of dhmist pr..gjbv bo|n
thc lorer couns. Ths.forc lh. poinr of t.w @ldins b b.r 6f timirdrion oo r[c fac6 shrd ahove
yould b subsrantial qustion ol l.w in\hich rho $oond alpc.l knainr.inabte.

s,16 deab wnn PG.F. ( ll'e iud.nt \houtd.xphin ott $ar is iatd in 5.46 dd disus rho
se 6 follows.) Prepr is u order s Rqu.sr ot hmnron pasd and issucd b, rhe execuring
@un \vhich has p6sd rlF d.crcc b E conn *hich is comD.rhr ro exsurc auch dec.e.
dirlira lhe said 6!n ro a(eh prop(ny /propdics belonein8 ro lhc judcEtn dcho. *{rich
F sirua&n *nhin ihjuitdiction. This.ri*s gcmnnly *h{n rhe decE hotder sets an o.dd
ftom fi oun whicn h6 tnrsd lhc deN lo cnabl him ro t@ed asain$ lne judsncd
deblois pop.dy b @vE (hc dsc mounl ad thni propeny is ior wilhin $cjui;icdon of
rhcoud$hicfi ha ps*d rhc dse bd is situdrdl \snhin rhc rcFitori.l judsdidlon oadofie.
coun Tnc de@ holdcr sndu lptlt 6r rnnsfs of rhc d*Ea 10 rh. .rhc. coun rb. decudon.
In s.h cas{herc th. drE holdcr s.pprchcndins rhnt theJldsmcnr dcbror n drnpling ro
yI a*ay or d'<po* ot hr FUp(n! lnd rhdforc rhc Jd..c hotd{lo DrNd, \rh dismst ot
rxe trcpcrty by rhe judsnfit d.hor bcaorc lhc dccr* is h.srcred ro rbc orher cou|!
anochnenr oflhe popen, inftcdi.rcly is EquiEd. Th. thhsfcr otd.ce puee{t'nBs fron rhe
ouft *hicn has pasej $e deec b $c ourl which hs jujsdntion ro .xeub n;g.iN rhe
proFrty ofthcjrdsncnl dchor .hd lntcls ltrc rd.sfq of the dcrc. p@edines @ e;eivel by
thc lmsacr. @un, .x.curion pro*udi.es qnnor h. iniri.tcd lhcrcii by U. d;.c hotdr ,nd
i;
Ine ms shrk the jud8menr dchor may dkf.* nI rhc pNFny. t; surh \i,cumlbes $c
de.e nohd mly sel th. atrochmcd ofjudgm.nl d.btoas rmDcny inmedia,.ly beaore rhe
Foeed'nss 10 lresfq thc dccre aE @mpt.rcd. tnh faciliutcs lh. derec hotder ro ael ihe
judsb.nl debtols pbp.dy atl&h.d ihncdi(cly b.tbrc lh. hnsfd ot dsrec uMedi;s aft
oTddcd &J i sitlh.lp hrm ro prcv.nr rhcjuJgm.fr dcbror rom,jispusing;n hr p+1y.
Tr,e anachnenl ofrhejldgmcnt deblots propcny by rho ransfeE. cou;1witi be in
fo@-aori
nonths tom rhe dateofa[achncil, flr dccrco tolder in inc ocdnwhitc shoutd gcl thc rMsfer
o, dcc'R ?rcacdin8< pdpc6 ore r.aneJ b) thc rdnrtskc coun Md n e .,; hn pe rion
.Frinssaieorar.hcdpropcrubefd.r\..xr'ryutali,,Rs tt 2 monrh. OrheB.e$;d..,o
holdswillhave b b rh. coun wtrioh his prss.d thc dccrce ro cxlod th. peiod to any
turlho priod befo.e"pply
lb..xpiry oi2 lnd rtjc rdjd oourr nDy do h, so $dlhc lrlachnoj
made will ror ee1 nscli vdcal9(t. By'norrhs
$is ncltrod l[o lcoroo ho]d.r con Drocced aa,insl d.
judgtunt dehhr's roFny bedlshisden anouDr. tt is in rhe ofiok cirtunrra,es onty
preepr neeis h he obbincJ.

l--ndd R22 ().1 | ot cPC, Cts Dbj4rio.s are p$mnrd ro hc titrd b, rhc Bpondcnt *,nhin l0
days rrom rh. scn..ie of Appcal nolice on him or hn dvocdc Thel c.n bc filcd unrl* 2

l)ln ce ofa pany obhining a dcr* i[ his f,v6rr i. asrit hu in thc srseen. ii rhe @u& of
lldgmMl ihc oon h6 givcn firdingfindiuss aglinsr hin on ooe or $o isrs &U in spne of ir
tnc entiE dcorcc is b his favour duu ro rhe findjnss on oy orher issuc t' $ch .ascs. aDoe,l
mnnot be lncd by hid ob.jcctinS ro t[c adveN findjngs on rhoe i*tres 6 r n aDDcat is A
s|]|Jhr, ndhr sJ \ a6 ey, dd mlbody sho ut Ine J.a rcc m:. p,(tft rn appql
n hi( r riehl lr ',tE,fl
'goFtcJ
d ltFrtJsrn{ J t, ,ns on mr i$uc
ForEs: ln r lrl(l noc c&sc, rhe dofcndn Ftcads thal he hN ror executed deDn! nore. has not
r4.ived consi.lqatq for $. lde fli desuir is baftd by tihibrao,. t.he @u.r on diudic,linn
pas\ ajudgn'ur dismi$nrs $e sDn ofthc pliinifd bn.d b' innad,n brrr $c sme rinr
giving findirlson rheorhq 2 issues dgainsl rho Jct.ndani ro rM effccl rllil hc had executed rhc
Pm. norc.nd tlr same wrs supponed by considsorion. Now llE dcfcnlLi in \vhosc farour rhc
slit is daid.d h6 m righr ro nretll zn app.rt .gainst lhc .dvce nndinos on rhe isu4.
Hoq.ser he cln fite cnss it rhe ptrdilI fites.n Jptt .!d Jh; JFtr,,$t or rhc
{'ir{ 11,.i,( \ , do ',btc!r'dnr
rh drrndirr R,b.-d..r Fd,e\irgrh..i.Jn c gtr rhl r:nr.1j un
^ \it h...r|l.. n.r tftr ..r j FJtJor\c
arur rvilr onsidcr rhe {p.at or rhe pldnrira rnd cross obj.rrions oi rhc n.fcnd.ir r;eer}er ard

2.) he 2 b file c()* obj..riuN js as aotlos3 tn n oo-nore cas.. craiminp


nd sjtuarion
R<.2r. 0'l4-+,"'rhctle.lJdr$J.tcJt..nJdnr.n..fJ.rh,r,.1,. n, ,t..,1\ R_.rj:
our)/- rJ
'. ddc ontv r{r to. utrr-, $h'ch dr prJ,nrin Jlprrc\ In rhd .a,c .f ,;e c,n
,'rtudrara.nJnsesaJc'qfo'R\.t\.000-hnrhrhcn.n,6sig8r,evedro\me.rrnl
rhcnlainrifireeL'hrlh(rounh"qrurdirenR\'0n00::,iret,.tindxn,l.rrnn he!.un
has uinecessarily nadc hiN p3y Rs J,oio/ Thcreioe bolh ot rhch hivc isln ro nrcrerxppcil
4dnst h olher b rhc cxcd the! rrc .eeiicvcd of $e dere. Bur if tne ptainiil o, dcI;;.nt
prcf.E d oppI, md trc opposjre p$dy rhNSh lm a righr h .FFet doFnal pEt r d appcnl
ldr whar*ft 4a$Ds hc may rhint fir. he ca. tto coss obj.crions in dc appeal fitud hy,;hc!
pan! wnhin l0 days tom rhc darc ol scflice oirppcat nolice oD him. T ;$s objecijons wiu
halc rhe smc rllftr 6 ilhe h$ prolircd an appczt and tu coud Lvi| conridf both of lhdn
rogcrher znd dccide rhe aptdi bt a sinStc ordq. In such 6cs, cv6 if lhc alFl is dj5missed for
d.fr\ q hJr blcn $'fid6in. 'h..n^s o(jari,.n\ {,td hc h..ard i1,l dc.;ed bv r\..o,r In
ru,1,..1,'hcndn)o'cferi'grn\{.\hJ(1unr:\outJp,hc.ornt.,Lonrci..rd,or,

3,In osuit nl. byArs.nrrBforrccovcrinsnsunofRs.rj5s.ooo/,ondebai5oti!rc-norc.


B plelded thor hc had di*h.rsed r[c cnri.edebt(l0c unJdrrhc nro-norc HcrhoDtcad;$al rhe
plrimifi A did noi ldm thc ltr{' .dc on rhe g.oun,l lhd ir \vas nispt.cd bur rsntrln thar h.
$!uld d6roy rhc sdq whcn ir h hced lo the oore ot$c cvidcnc. i,
dD ptiinrifapperN
b hale admitr.d rhd h. had reccivcd Rs 55,000/- only non I]- Howovr lhe oun decEed thc
sun i. bvout of A ror fie ofie claim ofRs I,5t.000/
A hds filed ercuuio" p.ftion scekingrhsentirclmouniofrhcdeaec. B rhcjudgm! debro! hds
sought for dcductio. olRs 55,000/- tom dre dccree amounl as $e d.cr.e holdcr h.d admilled
th,r he had E@ived it. A is .or agrcgdblc. The srldcnt is 6lcd ro dsidc rhe ce.
Tn. duty ofthc dauri.s corm ii b cHrt th. de.e a\ n is.In ris(a.nisRs.l,j5,00u-
.Unds S.47 of CPC $e cxccurins @un cm Sire denuclior to ant amost liid rovards thc
dccr.e s
p9 lules subsc4uenr ro th. date ol decr*. h ornol go bchind rhe dccree is the
principla h m.m vhatcver is piid by $e judgnetn deblor duinB lhe @@ ot rhe lrial or
bcfore the td.l is lhe l@k out of lhc fial aurl but nol ol de executi4 oun. In the ce on
ha.d, lhoush rhe judgmcnr dcblor $ defendanl hsd pldcd in the rntl court rhii li. had paid Lhe
enrirc amouit Md w6 ior due hylhirg to and in spileoflhe plaintillA haling tdnitted inthe
.vid.nc. drr he had @ived Rs.55, 00o/- $c trial nn commined demr jn nor giring
dcduclio b Rs.55, 000/-qt!ile passint 6e dm.. lt is no dolbr a rrong deG. l]1c judgncnt
dsblor ousht ro hrve prcfcred m apt{al sgailst lhe d{r@ 10 ger thc sane comclcd but he hG
nor nled rhelppealin dk c$c. Horvover the cxccuringcourt hb no powo lo 6k. note ofir dnd
ro sive ded&ridn b rhc eid mod in dE seurioD Dlucding! Th. cxmtins @un vill ha!
to rhcrce rjcct th. oni.ntion oa lhc judBmcnt dbror and crKure rhc dccee $ n is b Igvcr

,1, X defte holder h cxdrins r noney d.cde 4ainsl Y lor Rs.2j-ooo/- Ihe judnunL
the
dcblo. Y ha c6ntendd th hc has prid a sur.fRs.lo,000l slreidy dur oacoun ro d4@
holda xanJ has plsdcd fordedu{ion orrhat.mount.It is are skrcd rhalx.ssured J thal he
loulJ sl du mount .djusred to*urds pd salkfaclion of the decrcc. Rul decrcc holder X is
dcnriog rh. onrcniion of Y. srudenrs lre 6kcn rD didc on il
o2lRr (l) (b) CIC k ro rho effed rhar D.rdent ofrhe dscrcc amounl oul ofcoun o tbe d@rcc
hdldcr should b. madc cirher by post or monc) order or lhlorgh Bank or b, any orbo mod.
wheEin larnor is evidcn@d iD $iling. In rhc c@ m hdd $c lads of de ce do nor di$lo*
thd lne jrdsnMt debbr hs madc lh. p.y64t by po$ money ordur or lhold' a$L lhc
ollcged palhenl appea* to b diEcrly lo the dccree holdor ind no documenr cvldencing ir is
fonh comitrg, lfthe paymert h6 b.cn nade tbcn rhe Dtcrcc holder Uo2lr2 (l) should ccniiy
ro the coud thc aljushdl .hhd $holc or in pd oflhe decEe .mount nnd tbc oun vill havr lo
lgrd the me in ns @ods Dsrce holder has lor Eporlcd ro lhe cdn dd be is.ls de.yine
lncpaynmtil*ltThninsuchcascs,u/o2lR2(2)thejMgn.ntdeblo'mayinfonnlhccoonof
such parmd or adjlsh.nl ed apply to rhe coun io isue r ootice b th. Decree holder to show
cdNe on a d.y b be fired by fte coun rvhy such p.ynat or (ljuturt should Dot be lqrdql
as cenified. Thc judsncnt debtor .cithe. bs nor rcpoftcd it lo rhe @un ad fidcfore ihe @un
has nor eodcd the parncn. rr Deatu fiisnrncrha nor ben broughi rd rhe noticc of$e courl
by lhc judgncnt debtor wirhi. :loJays fiom the dali oialleged paymc seekins ior cenificarion
of tbc se ar cqdn d Dndcr Ad 125 or th. Limirdion IcL Und(o2lR 2(l) p.lmdi o.
adjunddt shich h6 no( been enifi.d oi reodcd a rfor.eid shall nol bc rcognizd by dy
courl exsulins fi e decrce In rhis casc os statcd in lhe anovc rul$, paymenl h nor in aocordsce
silh rhe rulcs. Neilher rhc dccEe holder nor rhc jldsnml dcbror has rcp.ded rtu n n ro ihe
coud ro dord ihe palh.nl DI d4. lmenl and rhefor. rhc d4ur ira @ft .rnnor eognjzc
rhc naymmr .s co.icnlcd by thc rslgmen( debror. Thc craurinB ourt should rhcrdnE ftject
rh. contcndon of rhc juJsmenr nchhr r]]ar hc has |{id such mnu drh,rnshontibercJtrc.J
out ofrhe dcqce rmounr and rhcn pnc.d to cr0clte rhu d*dc ro recN$ ih. rirn. sunr of

s. Ih. tprelllrc @un s p.wer r. rcmJ.d is enuncmred und.r s 107 (tl (h) orcp(:. Remritinr
r.rsc isby rhcnppellate cdunh rhc ..tr|t aallnsr wiosc dccree rhcippeal istrcraqcd Itcimrd
ola nrito.rdc mnsrDkd hrck fi. {liE crsc papcrs \virh xdiNcrion r,Jisposc ofrhc. c
by rhrt coun ds $ared in the di!d'o' !, rhe court dgan'sr \horr d.crce rh. rrurxt is pRturcd
due o vtuious rc,sonsshich riLlbc sntlL out as uDdcr
ll)e provjsians ot Ia$ rtplicable for F'llc6 oi by app.tldc cotrn L ().IIR t:1.2j1
'mrd
R2l:R.mmd otr cdlc bv .lnellar colln 11.ids that sh.rc d. ootrn rion *hor Jccrlo nn
arpqlispofcmd h3r disposol dflh.suir upd. i prclnri,n'ry Flinr md $. dccrc. is r.!.Rd in
.ppeal ,rhe apptllale co!n may, iln $nrks fir. b)- order runanLl nrc cxsc ind mtry tunlrer iirNr
Ll.r'rJ,o.'r!rt rr.rbe
'id r' ,e-J. o n,rJ J.Jno iLJ...,f',.
and or&r ro rlE mud ftom qh(N d.ctoc the qrF3l is prclmi \rirh Jircctions !' rdnn dr
Li.imJ,
sun trndcr iis original nu'nber h rh. regish.l rivll suirs dnd pr.cccd r! nullrmniu rhc sujt$d
llF evidon@ (ll an!) reorded in 1lEorisiisl r rl\hrll subj!(h lllju$ excepln,ru bceviJ$.c
du.nrs ft c lnal llier rornd
Itclimirary point nay bc a casc rehrnre to dispuie ov.. jtri{Liction ot lh. ({trr or bn oa
limn ionorba..nxrcounroflppliotionolRr\jldicaraundsoor.Nh$1lrr]r (o!n li rrd
ln ond prckds b ti.l dee lhc gcnutul rulc h iha h. .!on \h'utJ |tonoun( rh.
'snis illissus uidrOl.llt2 ( P(l Suh rulc I !ll{2 iJsrlmtnor*ir}riaf.lnrsrhd(rse
judg'nciton
m,y h. dnposcd of.!r jycLiDiindr! isuc thec.!n shallsubjcd r, rhe p..rnon ol Srb ru c (2)
is b proDunc. judsn.nr on rll i$Es. Suh nrlc 2 els rhrt\ieto irsuu\ borh .f tr' rnd tid
rrnr h de srD,c suiland rhc cor d is dlo|inion lh[$. lrsc or dr] |rn rhutuofnly b. disfo\ed
ofon un nsuc oflaN orly.ir mly rrl rhd nsu. fiN il dal issus rclnrcs h thejui{ idnro.trhe
cdn d r bar lo rh. $ir .rtn b! d' larv lor lhd rim heing in llrc Jnd fdr ihrt ptrrpor. Drr,
ifn rhlnks nr, posqonu rh. se lcnGnl oi onrd ls$ss rtrlit rn* LhN issu. hns b.cn deremiNJ
ard Day dedl Nirhlhesuil in.ccordanm $iih rhc dccisinr on rlrt krue Thorcforc rlE ri.tcoun
is cml.r@d ro ch@ to disN$ ollhc suir rryinconly $r isrr rct.ri'rc rojuriii(rion it tqr
oflinrirdtonorolsimilarsuch'nitqswhichc.trlisposcoflheruirilsctl th.coudinsuchcrss
Deed nol try thc olher nsues or me.ik.fdre suit Whcn ilhca^orLy (hrprclimltr{f! issuebd
givcs r findios on rhar. Ld us blc ir is rlaring jurisrlicrion of rhc coun ind ds coun $cs.
iindnisrhar rhk coun h6 nojuisdidion r) r] tlnr '. suir, rhc phinr $itr bc run msd io rhe ptri0dII
tbrrc-prcs.nllrg n bcfdr.lhe prop(coufl. Thd mers rhcsujr irsolt isdhtosell ol rs tu.\rhis
@un is mRmcd rhotrah it h.d mr uicd rhr .$& issu.! Liksi* ia ir is. c!* of Ur of
limilatior orbarofor accou.rolprincitle oiR0rjudi l0 aid soon, ifrhc counr{k$ r.ris\us
sprclinindr ksue (rirnrt) and rhen hca.s on rlrl and ifit holdsllrr suir rhrred br lin lNnJi
or Rcs judic.h $e $n ilselr*ill be dismissql \irhour ryins od givi.g tnltings.r orhdissuci
on rho nerns ofrhec&c.Thcruforsin$chcasenhercrrirlcou.lhasdisloscdorrlrrruiioirhe
balitorfindinson prslirinary poinrqissue, rhc l]arty \vhoisagrricvcd ot ir pr.Icrs rlArtDJ
rhc .ptrl,.t coun on ha.ing the anF l opincs rhar rhc nial cuud\ Jirprst of rhe n'ir is
incofrcl an rcvc6.s the judg'rcir df the !ri!l coud an rhd i*ne, rhe ipp.ltxr. corn dner
alloNing lnc dFpeal scnirg a\idr dr. trirl 6un's irding on rher hs'c sithlc ro scrd dro $
pap.s b:rck lo rhetialcNn.lonsNnh ns Drdd orjudg'ndrvnh i dnccri(trr ro r.gisLeruc cia
tr lriginal e I6 dltr and r.rdin rh. d.cision of rne a!r.|aF oort Dn the pretjninary
n w6
dhq issB u mrirs or rtE stn {d ntnc th; judgnal dnposins;a rhc suii
poiDt dnd rry th.
wecall $isodsofrhc appcttdlc coun rcmadinglbcsun ro lrirtcoun witiincdion
a chtd
l)JA:Thekrlc 214otu4j {d(\$ dnapF sk{udqr.md rhclurbackb,riatoln
1 .rhc' !ar!\ . {. Ir ra!. dJrrhekfterunton !ho.e!t!,r<eaILprdtnpnteNJ|&
di.poicrl oi rh" ac diirurc rh& on o pRt,m,ns
noinr eJ,he d..* i" *,*.a 6 uO*"|
Md . Keh^.r {NrdcEd n(.aJry, rlx ?pF are @un sh, halc rFu ymc p!\(s
's a. ; hr.
rt JJJcd in tt-o b Eio rhc.ppet,r-c coud.u po\..( ol
FmJno nor onD Lr rcMh< mcnr;on.d in R)r bul *o ror ov o6c, Esn rhdr mry
(miilmd a slli\rnl lfun by rhc {pFldrc 6d ro Enrnd rhc .uir rn nn,6 rh. be
d^o byrtnrr! rhe rn\'ted lenirg T,de lh.juodnenrrd J.rr..ofrirtcuun_
ot c&
d dm!r.ns
ue,tDr.nLn b maiJer $hdNd pomr or dp.(r r rhu 6e idrnr,tjed by,h.nnF de6;
d Jpprv he some sd ,Ji5p.ia nf the iu i! by {DdEE juden,rnt.
RJ5:!lde,R5olo!tno|,(Jppc .i!!ourla,re;.rJrhe.dro,JF,n.ut,ip.rporNirh
d diElrim b d. rhi' whd(w K ndeJ hy,ppeltd. @un Md sd odct lh. p,ps roJpp( dle
.on\idndN.!p"d. zrJ n.|o.c.,t rhe nfF3t ti tud{
dtsu
v f.ie lhe {i 1om qro e decre ,hc J|pst i:
b rd'mn( M) qusrid
tfr trcl fa. omi.red r, trJre u;6 au i5. E
^r ot talr ,rhi,h dppor. ro rhc ,pp.,trk roun .sdiJ ; rh; ,rghl
u.c6rD or rhc \ur upun nr.ib. rhc rpp(t'.tc @F rr) :fne,esrrJ rrnc
o.n Lom $ho\ede.Ted. rmelt.! "aet an.t rctr ihe
Fer.r.d.nd in <!ch crs.h-t Jn(l
{u.ncotn ruhr(,'heJ.l,ti,nMtcviden{ rquhJ. rnd such @xn \hd pF\cln
b rN \[h i*k
rhe Jpp! de \vun ..gcrf.r rih 1. , rjire. ,hjft,.n 1n.t rhe

:::::i.lT .'i. "1, 1 ,,,h ,mr FL ulcrtrryhf rN.o o) i. rmer.Jr. c., n,.r e,renJ.d b) r f,om
:ll"_.."_lll: li:l1."":r "T":J Af ,.r fmand rd .urh ra* rhc rpF_ drc @d rap.
Ine-spPar penJrng nJ *rd\ b(k rl-e dr pper ,! .h( roun jrcm _hu+ d!.,.e dD.(at i
rErercd $rh a r .e.r.r . , rarc dJd riurr'flrd.rcr on +c , .Le rhrcd rnd
rd,{nJ brt lhe Fpq\ rc rhc.ppe rklod fte dpplok.nun r, (dstn cj\( firJ,;; on r
rhd addlriddr
rs at.u rhf LnJins on ir dd hc,r.he rtpcdt o- hriB o, rte
cre rno d, po\. or-rhc _ppdl. In i. rj.Ine JpF dc (add hdJ no. ftmffoed
or.r b,trd 6un to E_Ji.poqt bJ 't d. edi,c !u r
Judgmml lhe dppdt i\ kq\ Fnd,ng dnd i ,. ro 6 d
Fme ddamrNdrtuc sdmrrcri3l i.rmanJcd.orS!or\er!.,1r rrl
.:'I- rdire.uon ro s$LJ {
:1.:1,.".'rrr.su,Nhrn,rui.h..6ebrrhe,pF.rJrccounrofieu.t(ounordy
*ho{ dee. i! cpa.rted .arin< dd tor rrrpoq{ {drrd In ,h I tute\
&sc.,bcd in dck'lBrnlc

\
5. *ho*,uir s iu pcnMmr Inrm(riunaFinsr y isJ,{n,sed.tte
h.tb, rhcloud of I \t
Innancc wanc.lo prerer r
rpFatand )e(b rhe Adrdrr$ 1d\ice ano h hSi.m fid
sldng ne.r ord\utr.nbrJ A,dene .n suprod or rbe pnFn) In,lalon;bnh ";hs,
h( dutd noL
rrdkc r *brc rb rf,atod $ hc @utd d dmmmt hon rhe I dn,ikts,, omre
oblain rhzr
hct fim no*.o r,ddu.. r now in,t_e rpr.., tor c,n.ideturi^n
ov rppo are.0In. rhe iq 6tcJ *hdhcr ttr routd he,p rh. rpp!,ttu.dnd Jrd
^Lr\n'rc 6 re
Ihe oovlion of'rq aptt,oble In rhr .Ec h 04tR). | | ,t,.Ih.
tute F ro rhe effr.r rhd rhe
t\nv -cr(,nA In. du.e rd,t{,on0t e. iJfl(e c-rJbthl c. Inor nutr\iurrhdxr! rh. exck,.e otJur
diliecncc,snch eliden@ rv.s nd wnhiD hn knostcdse or outd nor .rher rhe exscise ofdue
diliecncD bc produced by hnn.r lhc rinD when rtic J0crce appe.tcJ rAdt0n wxs pasiei
lh! appcllini who h6 lost rh. sun i. $e 1ri0t coud Frhrps for ior heing rblc to prolucc
qidencerelaliDsbFru,fofhis l,r$e$ion.fric politny in {tueslnr trdscomero krdq nthc
dmnnenlary eridene ro. pu,aoihis pose*\ion *$ not rvritabtt to hin. in spitu ot his duc
dili8ene to pr.du.! rhar dauncm bcloE trjat coun xnd rhar docundi i\ nd*araitnhtc ro hin
rns fte sun is disnisd asajnsr hin. qe hN come r, rhe Jlvocrte $d drenB<t lo Drctq e
appeal asainsr rhe dhDhel of rhc suir Td xlso rcqu6ls hin b pu rhh dounjurt Nhich G
avribblcro him dow so th.r apncll.rcourt mi) considcr it in $rpporl oi hn case in th. lnned.
ln rhis caso rho plaintifi/appelllnr during rbc cousu of orieinat sun pcntency rrololg ttre rrial
oun 6dld ndt obkin rhc ddclr.cd in srppod.flih cirim f.r p.i*(rion oftM prol'.n, rrom
(he TrF.rkid s ollie. He ould nor pt du@ ir b{usc 6 he .outd not oblain thc
@p! tiom
larlsildrr's .flicc. fhe dftrded is nor snh hid htr n \ys in $c hhs'tdrs ofiicc He
*iI
have ro obrain thc ddcunenr itsell or copy ofn tum 6e T.hsjldlis oince md rhen prodNc ir
l,r!e1rr.'l!.ur-.hr.n..r(Jrhrhrrr',1,{,.rtur'1"!.,fJ,tr(.,{Lrirrr[n-.1
TahsildaisofficehJproduue itbeli'retjdl $uir^Tnh\ildals 0llioe hrsn.rciven irb him ii
time The coun gcnerally Brils tir Basonable Dcri(il ofdme fin tn\trcrtun otd..unrcDt or anv
u6e. evidemc but m.o{ kccp it pa ing \irhour dcciding ir tor !n! lcnqrh ofitnc $hq rhc
pl.i ifisns nnlhlcra prod!.. ir iliq giving i dNn.btcii,ncrhc hiitcoMha{ o6.eed.d io
closrh. casu rtrddelivered lh! jtrdgnenron rhu bisi5ofcvidetr* attu{d) avaihbt0 h.i{r. him
The sulr js djsmnssd,gain{ $d plain fi md $e Rason tu djstojsrt j! Dobrbtv thc
docunrerhfy Dnoflor posd\si(ir olhis prdtdny wtu nor m.d. dvritnhtc N.s r|[ rotnilitras
rcaliad rhc rasoD ard has urarcd ro eurd rt[l tocumenr froD trhsitdd\ o|ioo rn.r rhc
suit by lne t ill .oun is disn s.d oi Tne.efo. h. has r.querbd hisldvosk k,p{ it futi,. the
.pp.Jrarccotrn rhc.ppcal pr.fdrcd. Thc advtrdc cin hctp him ro fitc an appticarion in rplml
'r
toalR:27(l)(ia)srarineallrhu msoN in rhamdavir iD jrDnonofhis nor bcir!abt
i' p J.h- ir in rhe r Jl,u.ir $d 'nbrsid
.o pnrdtr.. ir J.tr..r8 r r..pp,,t b.i"rc I c.,pp,...r..,;r ro
consrdcr thrt tiece of evidcnc. if his supporl in rhe app*l th. rforesaid rulc niovides tur
produdi r'r 'uf1 . Jenr. uh,r qLn.r . r,.t.... .,..rf.bjx.o
rbdein dd lhc samc m bc podtrccd in dc .ppcllarc oun.

?- X' hs lllud r vir 4nins|Y secking a J.urc ut Rs 3,000/- rhe coun dt (j;rit ludgc
(JrDn ) Ramnr8ron. Defendunt co ened $r $rilskrins rhxtpromisso.y ndrc is rur supponei
by considcmrioh and fiereforc scokins lhe dismh.dt of rhe sun. rhc lrirt coun decrc.d ih. suir
ldr Rs 3,000/- wnb costs arl cutreDr inreresr on nrqils lner hearils bolblhe oanics. t)crcndanr
'\ ssr.,. cl.Jll.nre rft,le-rc.. fte ($< i. - /rht -\.smJ.t, r i.r,. "
"bove
.6e lbr r sln or Rs. 3,000/, dn 6c b6is of I prdnisery ".J"n
'rr norc. r rnnrtc moncy suir. li 3 re
cosnizablc by S@ll C:!Ds Coun md ifir ir r.{ rrjcn as a SmI CN$ sui by lhc C:ilit rudae
and hrs uscd rhc rc8uld pecdDre b dnDose oath..rse, ro ch0tt.ng.rhe decree hy m.$s ofr
rpp..l, s.96 (4) n aoracted llrhcrm.unr in rhc nih is Dor in *0.!s ofras 10.000i 0trd ir jr df
r'c dreudn\-ll b\ 'l ( Sn.'ll .d- , \ r . r ..'nipp t' u.ri.,btcL\doLtjrl hcrc.d
point oI lr\v iDvolv.d in rr. li rlrc ce on hdnd thc poifi itrlotlcd h only nonjee] ot
co.sidedtion lordc pro odc.lr i5orlyapoi ol laci and nd oft?w And rtEr.fitr nrEat u/
S.ft r l' ieo'nq rhe rbo\. deR A nor mniJinJbtc. tr t run.i,ts nt,nl r n\r$ puti,run, -nl
conJiiions sratci tr/S. ll,l or O.l? i6ra bc sirisJicd And in $n cdrc 15 Dtrde fa.G rhere ij
nenher any NlfinE misr'ko on rl'c hcc ofrhc.ccortor xny.vtdufcc oor auilrbtc da,Iq ind
vhich alaiLble no! dd e on is nor rhq &d $crelbE rctq k nol D*ibl. R.vision u/ S.
is
lli is ale nor po$ibl ro chdllcnge the dccE. as rhde is no j!ricjiclional enor or illcgality or
material inoguldrny lvailsble lo contesr. Ilctufbe $e defeDdanr cdnrot challmge lhe above
decEe- Ho will have lo simply oby the decrcc.

8.\!1ahd an lppeal in each ol thc folloNihg siluations h maintdinabL is rhe qu.sri.n l


.-) An app.alagainsr ihc od.ralloNing r rsvic* pcrnion.

,^pperl is nor a. inhaenr right of a pa.ry aggii0vrd ofa dectec or ln oider. Ii is a udlutort rlghr.
'lis is only an order dd 0or a dc&e nor 4n a deehed decrcc.-n'ecfor reg]llor oppel l,
5.96 is nol avlilrble This dd.r finds a plae d O. 4l R.I (*) th.dfor. n is $ appslable ords
ad a diselltubus appal L avnihble asninn $is ode. furlhcr it is .le sldei u/O.4? Sub
ole 7 thll an orde. gtuting d appliddon to! rcview nay be objelcd !o at ore by u appeal
r.on tbc order ghnrins rhc applicrlion ior review. Thereforo, a mi*elldous dppe asainst
slch ordq i! rhainhindile.

b) Appal Nsai6r d o'der Emandine rhe sun to lhe dal coun si$ a dir on ro hane t
pdnicule issc, rMrd yi&rcs od n alosing ih. pdi6 ro adducc evidmce eivc 0 finding o!
th.t ksc a&l relum prr6 hack ro lhe App.llNrc coun b drhl. it b hear and decide the

An ordcrtomrndins rhe suit b the rial coun ailh a Jiecrion to fromerpanioul issue, re@r,l
*ide.co on n lllovjng thc D..lies to addue cviden, gile a findi4 on (hd isc and dun
p3Fn b*k b rhe Appcll.rc .otrn ro srbh n ro hd md decidc rhr ApFal is Enand u/ R. 25
Gtrrial MdDd.) The apDal is kepr p.ndins by the appellab court Tlle appllak @un is of
opinion tha! rn issue whi.h oughl t6 hare bcen fEsed by thc rial aM is roi fidnod ahd .o
eridnco on sueh issue is fl0iluble md llftlor. fiames such issc dnd Ffs lnc moue. to lbe
trialoud tu ollorlingth.pnic, to dduceaddnbnd evidcnc. r.quiEd io cowr rhat issue dd
@rd th. enc. Also diEding 10 ai* a unding on lnd isslc a dm lh. taprs 10 the
rDpellare 4un e thd rhc atp.llrte coun my disposs of $e app@l |?*ing $ch clidene aie
a
irlo @nsidanion. Thi! is od6 of panidl rcmand /o4lR?5 cFc md nor ! d6rc. To
@side! ir shcrher n is m.DD6l.ble oder, {c will havr 10 look dS.l04 sd O.43 R.l wheE
appealablc odss are lisrcd. In bolh rhc pbc.s rhh orde. of rumcnd d R. 25oi O.4l is not
av.il,bl..'llcrdfore it is nol r lppcalabld o
c.. Hence appcil oslinsr such order is not
nainla oblc.

c) ApFd asoinst rhe rirl cdn mking Elmncc b rhe HiCn @!n slting its opinion in tbe
ldr of inl.rp@'on ola govisio. in rhc Contdcl Ad involv.d i. r $ir
The lrial coun bcfoe whi.h o soil or procasding i pdndi'ia Io odjudicalion cm make a
reterenoe ro fie Hish coDil d S. I 13 or for rhe rcdsors sraled O. 46 rlhe sludent is rauired ro
't
nation biefly ri to \hd is staEd u/ s.l 13 and O.4O Tne rcfcronce made by rh. lriat coDn b
th Hich dd $cling its opnrion in dF m!(r of inte+rbtion ot a rmvision i. rhc C,nhd
ct is @Nspond.nce bc|\Bn rbc eirl {nn Md H igh mn. h is ncithd an ods nor a d@.
the p@eedin8 of d. suit d. not involved in il. Funh.r lhis do.s nol nhd
or O. 43 R. LHnce d .pp.al a8.insl sch ref*icc is nor
'nainrairable.

9
:::)
~

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~
NATIONAL LAW SCHOOL OF INDIA UNIVERSITY
--3 BANGALORE

-:) III YEAR VIII TRIMESTER END-TERM EXAMINATION (JAN.) 2011


,,~ c.P.c. - II
Marks: 30
~ Time: 3 hrs
:::) Instmctions :
1. Students are expected to rely on the question paper as it is and respond to it. No
-3 clarifications can be sought.
:) 2. Mobile phones are strictly prohibited inside the Examination Hall. Anyone found in
possession of a mobile phone will be subject to disciplinary proceedings.
~ 3. Students are required to give reasons in support of their answers and mention the
provisions and case law wherever necessary.
~
4. Bare Acts are permitted .
.:J

~
1. a) In a suit filed by A against B for recovering a sum of Rs. 1,55,000/- on the basis of a pronote,
~ B pleaded that he had discharged the entire debt due under the pronote, but A represented
that the pronote was misplaced and therefore could not be returned to him, but assured that
~ he would destroy the same when traced. In the course of evidence, A admitted that he had
~ in all received a sum of Rs.55,000/- only from B. The court, however, decreed the suit in
favour of A for the entire claim of Rs. 1,55~000/-.
~ A filed execution petition to execute the decree. B seeks reduction to the sum ofRs.
~
55,000/- from the decree amount relying on the admission of A in the course of his evidence.
A is not agreeable to give deduction from the decree amount. Decide. (3)
J
b) X has been executing a money decree against Y for Rs. 25,000/-. Y contends that he has
~
paid a sum of Rs. 10,000/- already to X out of court and pleads for reduction of that sum in
~ the decree amount claimed. X denies the contention of Y. Decide. (3)

~
2. In the suit is based on a promissory note dated 23.8.1999, on the back of the promissory note
~ two endorsements are made, one on 26.9.2001 and another on 24.10.2004 recording
payments towards the amount due under the promissory note and duly signed by the
~
defendant. The court which was closed for Dasara vacation from 24.9.200freopened on
3 5.1 0.200~ when the suit is filed. When the question of limitation is raised by the defendant,
the plaintiff produces a letter dated 11.2.2003 written by the defendant to a third party, who
3 had introduced the defendant to the plaintiff assuring him that he (the defendant) will
;) discharge his liability to the plaintiff without fail in six months' time. Discuss the position
of limitation with reference to the suit and decide whether the suit is or is not barred by
;) limitation. (3)
;) 3. M filed a suit against N for permanent injunction to restrain N from interfering with his
~ possession and enjoyment of his site situated in Gokul extension, Mysore. M also filed an
application in the suit and obtained an order of Temporary Injunction against N to .restrain
~
him from disturbing his possession of the site pending disposal of the suit. N preferred
~ appeal challenging the order of Temporary injunction passed by the trial court. The appellate

~ 1
')
court though opined that the view taken by the trial court in granting temporary injunction
in favour of plaintiff is possible for the reasons furnished by it, however, allowed the appeal
setting aside the Temporary injunction order and dismissed the application holding that its
view (Appellate Court's view) for the reasons furnished by it, is a better and more plausible
view than the view of the trial court. Discuss as to the correctness or otherwise of the
appeallate court's order.
Now, the plaintiff aggrieved by the appellate court's order intends to challenge it.
What is the course of action that the plaintiff should take to challenge that order? (3)

4. A wants to file a suit against B for declaration of his title and permanent injunction in respect
of 1/4 acre, out of his dry land bearing S. No. 20 measuring 2 acres and situated at Kengeri
village. The annual land revenue payable for the entire survey number of that land is Rs. SO/-
and is permanently settled and the approximate market value of the same is Rs. 5,00,000/-.
How do you value the suit for purposes of court fee and jurisdiction? What is the court fee
payable on the plaint? Explain. (3)

5. What are the rights and liabilities of the parties, viz., the judgment debtor, the decree holder
and the purchaser in the following instances with reference to the land of Judgment debtor
in question.:' '

a) X, the Decree Holder has got the garden land of the Judgment Debtor Y attached in
the course of execution of a money decree obtained against Y. Before the land is
sold through court, Y sold the said land to Z by private sale. X applies for sale of the .
land through court. (2)

~. b) In the execution proceeding to -realise the fruits of a money decree, X the Decree
holder obtains an injunction order against Y, the judgment debtor restraining him
from selling his garden land to anyone by private sale. Inspite of service of the
injunction order on him, Y sells the garden land to Z, by private sale. X applies to
get the land sold through court. (2)

6. The House bearing No. 26, situated in 10th Main Road, I Block Jayanagar, Bangalore,
belonging to X is attached in the course of execution of a money decree on theJile of City
Civil Judge, Bangalore, at the instance of A, the decree holder against B, the judgment
debtor. X has nothing to do with B. The case stands posted for sale. On learning that his
house is attached and is proposed to be sold, X approaches you for advice and to assist him
to get the attachment of his house raised. What is the course of action you take to safeguard
the interests of X? (2)

7.a) If the court after enquiry dismisses X's proceeding in the case mentioned in Q. No.6 above,
what is the course of action available to X who is aggrieved of the order of the court? (1)

b) What was the position in law as to the availability of remedy to the aggrieved person in such.
cases prior to 1976 amendment? (1)
/

2
,.

-:J

:)

,,
:t

,,
,
c) In the above example mentioned in Q. No.6, assume that the house of X has been sold in the
course of execution of the decree in that case and that C has purchased the house in the court
sale. Can X, who is in actual possession of the house as owner thereof resist the delivery of
possession of the house when C attempts to take possession through court? What C could
:) do to retain possession of the house? (1)

,,
:) 8. Write a comprehensive note on each of the following:

a)
b)
Cross Objections
Distinction between illegality and material irregularity. Explain furnishing at least
) one example / illustration of each of them. (3 + 3 = 6)

) ********

)
)
)
)
)
l1

.,
)
)
)
)
)
)
)
)
)
)
)
)
)
) 3
)
~
b5rr.\ &a'. -- -t*

I,A\I SCTIOOL OF INDIA U:{IVI:RSITY


D NGALORD

III YI:AR VIII TIIIMISTER RI'I]UA1'f,XAM

C.P.Cll ,^trNc.s
(Not.: Stud.nlr oitt h.ve ro nnrcrhe f..r3 ri!.n i, t[e qo.rrion D.icny lnd ih.n rhe
8ftw..to cn.h oueslion)

Q,l.OXLl R.25 CP.C n lo (hc cftcd th rt,c coun tun \vhosc d4re the rppeal is
prcrcnd h! s oniued ro Finc and q d issuc, or ro derernjic Jnr quenion orfaci, \nicJr
0tFa'srorhc.ppcllc-e(ounrsenhtro.\.nBhrdRn,on.rrhr!.i.porrh(n,rn..,.h"
JpN rn- cnLn m])' recc(riry li.he i..Les.,nl,(tc! J. ..,m( rn, -..t b.r \or n kom
qhosc decEe the ippeal is plcfcned, dd in such ce shalt dnror sucb cotrrl
to lake rhc
.ddiliomi evidcncc Equiredr and such coulr sha[ lry such isslcs m.] shilt relum lhe
L! en. rurhennpdtJre'oun rogc|ncr *rh rt\ tin,trnc!; e,{J
h rlr on hd'l rhe
coun h6 nor'6cfiolncd tu issucrm.lbnl \.oursct his Nr r ro thr rppclrts u,un rh r rhr ,r-l
shich was rqlncd tncdn Ir m.i$ no e!rd.n.c rs ndduced
.n such jss'c. lr dlso bees thar such ksue shortd lrvc bcen lidn.d and dc soutd
hnc odl..d c\rJ(rc( requ r(J ro pro\p'he i.,dr the app. ) v n e. t ijInrtios
ri r..r rdr I b
n{6. Jry rhd rh. aiorsrd N'dcnlc hn{clsdryaN rhereto,. hs r.qu*r.J r.( JTnr.t r
c^in r. do rhc trRJrll rhc,pnc a'cro,nun\j(rR2rhrsc.rrr,rJrho,,,triL n.\bh
r{s!. on I s oE or.s fquitul hJ rhe dppc anis luunyt Jr rhr lnun ti\
i!,cf.t ^,rh rhe
con enr on ofrh( rp|c.ldrr', cour(t.
Ihereforc ths appeilale courr uhds rhe aforcs0id rle wiu ss lhe endre cfic ile to rhe
lrial coun wirh a dircction ro enhf iiajne rhc ij$E necdsslry i, rhe csc ,nd dilccr rh.
lvnK\ bdddkcced.u In.hdd rh. ntFrt*eud:r-( mJ) Innc lk.isde snJ
fn'r rhr RDrds b rnd olri 'h.rcon
snhs drnron h 8., rhe cidacc adJu.rd rhflnn .nd e,ue
'
hs rmd'rg,onrhu a!dnd (lum lh" papeF to rh. lppft,rF !ord rhdr thcapprl.k
! !;f
T.'y.onrJs'hcncLiLc!nJ.videnre.,rdtrdrneito,-\.rh/r1.1mdrcrh,!r\JrtJhtc.n
rhc rLo dssd drl\oseolrlrc nnN^lon meri . ol Lt,!Lrk
q2. fte appclletc coun whctur it h High Coun oi any o6c. coun slich is tMrirlg lhe fi r
.l)pql lhe posrs ol such at)pcltnle coms aE onc and thc emq .l bs po\cB of lhr;pFcllaF
lTur r m.nrioncd ddo s 107 rnJ n XLt Rs 2t .21A. 2,, 25 _n J rJ tr i,.rrr .; s lu7
1N. po*n ro Jirr iT J.dr
lirhlty. ro,"nnj r -. f, ro I rc Lnt!oL,r qi,r,".n,,.1ion ro
iu qhare\c' I N{u[cJ.obe donc!nodr pi scut rnuLd..o tr!nrs isJr.anor,i. |nem lor
ln.l r*c dddnionrle!d.n@ or to Rquiru ruch(ideM lo Fc blcn theJptet|Ie.our
ro
:hrllh,.e thcqme ro\r^ rftt prrtom d- ncart,6 ma) be lh. $meddi.\$4c conh rJ
,.L'rnpo ed hy rhc, nd- .n Co ns ofOr e,nal .ui.d,.L.
x T%r. , ,. '
'tr(
l,rt . ,,. uh.n ,erinS r\c _i, | .ipp,.i . ! d. . J't \.
.^ trr,,r Jh , ,r. r,- .or ti.r ,11tri.,t . . r

f"-::- :**1
I r;.s: ffill l
.1?
{ I^,'.""'"I
lil il i
dcna.nd disnriss rllc apperl It lnay ser didr lh. ri.lcoun r d.crue fld allow rhc appeal
! l pN the ordq whate!r astcd lbr by rhe atrEllanl Nnich my b pcmisiblu u.der la!v.
I he High Courl may panlt ag*c wnh rhe ri.l coun or panly dislAre vilh it $<t lheEfoG
ser aside rhe ldrl coun s d.crc! lo fie exhr *hich is noi agrc.abte to $e lrish Coun dd
conlim lhc olhc! pan of$e dccree md dlsposo ol$e appealdccordilelr. Elen U/O.XLI in
rh. rul* menrioned rbovc, rhg rlish Coud rs tlrs appellatc.oun nllow rh arpoal s.r aside
uiil 6un s judsm.nr tud dectoc fd renond $D case ro rbr rint coud silh a dircdio. ro
r*od evidencc on rhc orhcr i3s!s dd disposc of tbc @ by judgncn! i. cds where rhe
tnal coun had disposd on rhe suir on considcins lh prclininary issue only d rcquned u/
O XLI R 21, ft miy rcndd wilh solne dn*don to e-do thcjrdgncrl as Bquifed Lt R 23A.
Ir fr.y also rcmrnd th c.s. lbr li.mios a new issue nd ro tecord the evidrcc ed give
fi.dins a s!t.d u/R.25.1t has llso .nple poqcr u/ R.33 lo pN any decre or nake dy
odd ehich oughl !o h.vc b.en pased or madc lnd ro p6s or mate srch fdher or orher
dccE d ordq a! $e casc may rcquire Tnn po*r nay be er.rciscd in favou ofltto.ey
or rhe EspondcDl$ or pdies dlthoush such ftsFnderrs or prrlis m.y noi have tilcd.ny
dppeal oi objcolion lnd so on.
Thc Hish Coun entn:ins Scoond appeati il rlN ce involvcs . subs&tid qucson of
l.w 6 shted in S,I 00 Tbertlorc whcn de lligh Coun is heuing the Second apFal ir wil
Esticl iisclf lo lhc poi.ls of substanri.l qusrior ol lae onlt. lr h4 no poec6 to coBidr
point of laN onlt \vhich does not mounl lo subsr.olill questio. of taw. C6e,ally |hc Hish
Coun s rhe scc.Dd appcltde cdun has no powe6 16 considc!my issues retrling to lijcr so
.s ro dcrgn )c rlrc slnc in thc course ot rhe dppedl. Howev$ lnd ds poinrcd our in s l0l,
rrc Hid.oLJr In rny clonJ.'pperl ma/ ey\(bc poqeh ir rhc cr.den(e on rc.oro s
strlll(Hr ud ,j(tumrne Jnt uluc nclesdry ror hc drposat ot rh( appat on ,$ucr ot td.r
dso rnich havc nd ben ddefriNd by $e nr$ appetl; coun or bod by rhc coun oa li6t
rnsane and th. los?r rppell{. coun or which hc b.en sronsly d.rcrmined by such coud
or cduB by r.ason ola decision on such quesrion of taw a h ret jrcd ro S.IOO. -rher.fore to
rlt.\r.dpimiJdr r s l0l,,rly rtc q."n c-Li,F e unJ,pp..txe coll hd! pakcr ro
(l(mim urla.r Bul rhc i.rdcs oft.ct cJnnorbe..uErL.nJ oy.hc HrEh CoM,
'hc;n(r
ficy @ por s gounds ol aprcal,
qi The deRc holth in rtns .hsr is qdurn! rh( Toncy JdR asrinst ttr judemrd
dldvr b. He nd \uughr tor dta(hm.nr 'ud satc ofhr< hou ro Move- lh. noncv untjer lhe
dece Antrhm{l snm, i! ,$.R't b) r\\ n.dt Joun wt.ch has grrled ,hr Jcccc. B rhe
Lrc|.ld{G r'Jsm( lebror i)).iJbfrverd(d!,rhc....ut.nBrou1r\dlh(hastrcrcned
on dnFal ,sliNr thc decree indica(i.s thal rhc cxccution 6ay nor b procecd.d wirh. Th.
t,al ioun di'l nul iop ep.arion procceJ'ng tfu Judgrenr dublor rhen Rpccnld rhr hc
hs dppfied ld' r.y ul(\c J(r( pend'ng dup.$tol appert lhe rriat Luurl cxdulnp th.
d*Ee drd not ddEe ro qop N.lutidn and r\..efnrc rhc Jd.Cment dcbror t4 d(posired $e

l)roLqlrngs lr!u hrrpencd u1rl.( iJrc dr, h( JFp.Iie.uun hj F-seJ ,n urJc!n"rrng


rhc rxrurion of rr the'crorcJrdsnen' dcii.rha\,,ted fu.,nDIitd,,on forrhc,cru1d
or d.losiId d6re 't(qe
amou.l in licw of ds slar order. nE applicdion is oppNd by rhe
d.cenolds nEpoinlnoq h$h('hcrrhejuJsnu JebtDr * enxrt(\t b Bd b,! t rs .ctqd
Jrp, sired bJ hir ,,Inejprctkr .oln ssa roh"r" r. , rcd rtr {a} ol

'c
oxsurion of rho de(ce ,a-
ln thir .ase O XLI R 5 which Jppties ro th. crse on hJrd h,s b be consid{ed. Cl.t or
R5 rads rhd an appcnl rhau nor oFrare 6 srat otrh p.ocadinss urdcr d dccre udcss rlr
cppellolc rorn ,cturlly pr\s\ .ur oder of rat in rhe Jpp.:it. ,h. rspt.nauon ru I ul
Hra).rhJlheeqcnrhe rJJor.rcris'uedb|n,"poe rkrrJn,.t,,l.p,r..ed, r.D.,n.
n nccd nol be rctcd by rheri.lcoun unt6s thc orncr is.crualy connruric{cd 10 n td lhc
o on lrid. fa.rs do nor dkcl{'s rhd rb $a, orde. t0rscJ by rhc nDpcltare coun 6
lomunicdrcd b rhc rnol roud ThRtoF,l na\ bc u[(n rhr rhe kiot cou,r mrt nol
rh( eme unle$ al leor rhe delendet /sppe dnr flss f afldj.r b.ao.. |nc uul
'doB.trc
ioun .t,i 1d 1d rr( pq:ondll) rj rr.m or rh\ n.n ur tc, gridrLJ o|hc .epe t""..uLrl In
rhn c.!e r j n bcing run,mrrcd ro he tndt (oun r 1d..d rn...pt,n.d;, n nr.i krrd ol
amdavn i! nol lilql h.E in rhe r.i,l coun. rinhcr Sub Rttc I oI R I or O.XLI l,rs do*n
a
condition \h.re lhe ippol ir rEnrnsr I {hcmc for
Fync.r or monty. rltr rrpr .,nt Jhrtl
Mthrn \L(h rrme J. rnmttore \oun tra\ atlow dcf...r r\o ihonnr di.p{,cLt in .h. ,ppcit .r
aumish such secuily in leslecr rh.r.of6 rbs coun may rhink tjr.
sub ruk 3 orR.5 oib xr.t
.lso eatcs thd noodcr foi sray ol crccuno. by thc coun which ps$d rhc,lecEe sh.ll be
mJd" urdo $b rule I o' )ub rutc 2 unt.$lhc tuuir mdlx,! rr is!ni,-n.l rtarrrr"
been I'vd by lhe omlicJnr to h. due pc-f.rh.hr. of lr,(h dpc.(e. IhL(rorc ".u.iry rra,
lnL rdlc\
slated rbove_ are clear lhar evcn if thc nial couir or thc appelde.oun sh{ll agrcc lo sr{y lhe
noTy.h(p m.ins dFpoq .f rn..prcrt r. .,, _r.,... ,_ . .;r .f
ercxuul ot.
rhdRrF.mrd i.JcprsiFd,n rlr hrtou,, ur.uJsncrr JLbru
^r rumr{h()RM,) ,irr u,c
dq re( ,muDr khm rh. ,ppat i! rtijposd on ,larbr h,n lr a $., ptift uter , \Jr J(Fwsr
nr de.Rr Jmour is o ari itsecun'y a rcr tu.nu,ed tr oroq rh., 1 c s, rr, J) .,1j rnc
execulion oflbc d.crco. Ilcnce dclosncd decruc umodnr cannor be rehnd.d D s;ne ofrhd
.p1r0ltc.ur\Jrtrsrl1e,.'r.,!'rather.,tirder,!Lorc..Lr,.j,tr..J,r.rr.,jr,on
rd rs mrdih') 6 rh.,$rd shill r qd in rhcrDvrmn ,cjujEn(r,.h.F.o,,r h,nrt.,n,
tr.or.rurlcd mhld ord.po\ircrt,lRtr lmnunr Ldi rhcrrtsatF J,sno,{ o,.t h} rh.
appell.rc coun 'u
md it b subject to thc rcsurrotaDDcal
Q.4.X wh! has obldin d a noncl decc agdiisr y on l-t0-t981 d not jmmediarety
pcccdloerAudhcde.reebu'dredonae tol5 tcrmrLlrrhJhjs!,nisrJJbour n)Jh
s nF onry h.tr | n. son dh4ned mJjority in too? rnd fi t!,J $cruriun n{rir.n in tavT Hc
also r'led a pririon rs.5 or Lnnibrion Acr tbr seking condonatu; of detay
infitirg
execurion pctirion. Thc couft appedis ro have hs&t bolh |hc pdnies on thc said apptioarjo;
aod had condoned $c dehr md ordered rhe crecurion ro
') rocedd lhe judsh;;r debbr
wls to ch,llcnsc th. ordq .ondonins de det,y.
Thrrunnin8of irm.f fihngrh.d(uonndr,onbyrh.\tcc,.rhotJ(rX hJ. rln(\ton
rh.d..cotdc.pc t-t0-t03ri.cti thede..rLnrtJ-wrr.,trer.r.a-r-.,8<DL t.,)nrr
filed $e erecurion peljrion riti thcn as rhis aoci hs not bcci sraicd trr thc pnbilm ltul
mean{ rh..\(LDon r.ririon.horll bc lit"d bt nr, lc,.rtJ .n(rL,.r.,,, . rt.,
., t., ,oh ( n,n
12 t.ors fiom I I i,ni'dion Aur lrb. rh,r,,n.c h. Innr ro, r.t..L rhr
esrdrionpdirion.nmh.rts'.rurnw, no,rop.ubreit,.cnrtrc\cn,f.,n)boJ.*t_,ji:a
0rJDer r?non teti rt! rhe pnrdre ind rher.f.re rhc soi nfX L
inlo $e picrure subsequcnd), in 1985 Rh{ X dicd but rhc tirilalioi hds conhenccd
from
l983 n$lf Tnqe|or. it h rrcbabtc rhar rlEson otXs{ro has tilcd s recurion p.riri6n
h6
fil.d rpphcaran u/ S.5 oi t Ad s.kjn8 rondondron ot detr! os rh. .ycclron
'mndjon
p.roonsrrcdbjhrnaui.trcr.r:Uom$eJre.,dr..e..N,v,t_en.ifr.nt_ertFrrhe
conrl is righl incondoringthcdclay. h iscleart, ratsl ijr S t lhltl $c sirjd saljon do$
noti
i"^13;li'i'; ll,.il,l#,il':lll, l"l ;i':"iiiIi. "",he.xe.u,ionp,,,,on,b(,,r
;xff r1',1't"""* il:'iJ"'tfi""rx;:h,r,lrui*l jI"_, ::rf j;i;tii
ii:i.i:ii- tr*iii:r;.:'ri'":;l*1fi :.i:: ;:ri;g *.*r fli#"ii
,",::;.flt .,",*" r.,.-eJ s,les,r. rs wirhour Jn, .u,r,.".y.rr"_, ,r,.._.ii_
"
.,.1"T;i,',;:iil"i":1":'i":t:t*::;#.,"i.";:: . *h) .,n connec, on *i,h,he

#iililif ..n..'i!$t;.".,",,;::;rnilI*:,[idlff ,,f"H'iltr


b ipp*' ,. J's d p.s,bk 6
;t:t",ffi;::1.T ;iii:fli:;,:;t il:,::"ij:lin;. he

m: iruil;imr jfti*.x iH:g ;ri# :i:il];r,$:il,:J:i


I.i;lliil'i#'11iti,l ii,liliT;I.#Il.*:ii; * ^', ',,.hs ',hc n L, cc-l
^
p *,;af i1* ""r1*ulr"."ritril#:t j:l n$itri,'##li
dilll ,!fi ii;!;h
(i
.
\ r
pa_${
r-"-
(xro.
ri.,::l[i*
Bdhsh..
b
Il":.,[{*
Jid 0or rcspond
-*..J,..i", ni,,.ii.
rh.
jf*
;[; *:' T:*|s,1fr ui ji i Ltr j:i,rirr.t;t si.rrl r':l
f .g1$$.,:,'i+#ntu,.m*#lt#.l:i"m
Q.6. ConpEhosivd nores.
.J
..A,3'ff'.H'f,.:,::il:i'"ili.,.,ll,;ll,l;i,ii.i,*r"dc.,.e,",u.,.r.n besnu,
l,ji,:
j.P". T :,;: :*, : * *,", -il ; il "
?t ;i."
".f .;ll j J;i:,,S,".i*l
llll.;!;;i FtI,r.,, fi *ll,,.r, :m ii:#u:m ; : ;ii:Ti?. :.*:1
*-+in*.h.1*';5rl:idH:{:#[tr$H,ir,}:,,"tt
*;6* i,i:;,' tr_
:rt,.":r :l:';::t"i ::"][Jl,,l :i ;l, Tn:
:::l:::t : ;,
ligs. Iicordcr passcd rgliDsl the 8roishcc under O2t llLrtcs 4GA. n6.C rnJ16 [urc
3Lv.n rhcnduso, r ceneddeoruc a5nared |'tt.l5lt
Litcwnc an odcr pr$cd by rtu cxcculi.g coun oh a Ctrin Fltilidn liled u/ &53 !t O.2t
by a srhng$ mnl.ndDs lhal hh prop.nl hs beer dhchcd by dccrcc hold.r aSainsr e
judsm.ir debbr rhough hn prcpcny is not li'bt. to be arbch.d and sot.l in rtlal ;c,id
therclore sek'r! r.isins lhc rnachnc otrhar properlr is madc. dccncd dccrccrsn,rd ir)
R.t8_cl.(4) oac P.C. And thdclolu itgricvcd F!!ly rsrinsr rhd (trdcr may,r.fer dn amcat tr

b)Subsraniirl Qrstiotr orlaw ot gener,t idDorl{re


Sul'stfllial qucsrion of larv of gcneral inporrance al lirsl must be a poinl df ta$ aod it
should b. poinr of erbnddal qu.srion of law. It is not e.ourh ifn is o;ty poinr of la,v or
s'bItutinl queridn of la$, if.ny d8erievcd pdriy ro pr.fcr dn opl.at ro rtD supBmc coud
as0iru { linalo oror ad{rcc prscd by lhc ligh Cour lhal odsc shoutd invotvc \ubj..rnrl
qu$rion of laN of gcndal imponincc as slated u/ S. 109 of C.t.C. SubsrMlill queslion
ol
la\ h a mlsr for pr.fctring a s.coid .pp.rl in llrc Hieb ourl_ .t hat is linircd ro lh; paniq ro
rhc sc@rd rppcal h c&mt be.ilcd a predE. in any olh.r cas. Subsantidt
lrn be -.p in.d tr- n f ir !h. Jti8',, un tr. .ei ond 3ptqt
de*'on ot
'$ -!,ccq,o rr(.,.or, ot tJ\
J 1np".,t ! .(L.r i,, r Jn.sc6.h rp.rr, !l l i.n r..\orl
. rtfcllJl. r\e rculr cr I rr entic _pka. .hodtd Lm .r tn.L- or thc .,nnct.Jnr i su(h
cascs lhc poi .l hs ureed the Se@nd appeit sill b. coisidcrcd ro bc a subctidial
'n
Srhshnti.l qusti.n ofhw ofg.neratiml)onanc. k onc *hjch itdeidc.Lhy rh. S0prcrld
coun Nillbebnrdine trotoilyr. fo.rics in rhd nmc0t bd ,trj kr rLLl!lhq Dcorlc inihecr!iru
cotrnlry in simile crscs bcrwecn lhcm and rhc sme can be uned ua a mecedenr.
'\n ry ol srbJhnru. ot lds rI scnrmt rnllondnr mJt ht rhd. ,I ur
Inrcrtrd.rion of iny prolision 'turiun
of.n c d-cnr or,. i"ErpFhlion of or Adicte olrh;
' u1)ri''r m oi l1i r r) Inr r b\ rq. L k'!. (fr. rrh...r. rr tt k,e . rj1;n, n c?eDs
^ 1' nih rl - il.r.. faJttJ Lrken |h( f-.0, n .r oe.rpm rc ro, i 1c. tr<
ntinA!) r.mrdnrr tut br(umc, d slbednl+ qfriorol t.r n, sLn(rt nt".rJr(..
d ir is hindinS on ott rhc psntc ot rhc @unrry JnJ rs nor Innr|cd b rbe,dlic):o$. s,J
casu bcIorc_@un. !f tbc SuFeoc Coln hs nor inr.pEted ir thc dfrisioFof diticr.nt
Hish
.d,rrs whioh do nor hgree Mrh rch other wittb. bindinsonty in ihe resFcrilcjurisdictiomj
slal$ under sudr lligh couns. Th. ihreareratiotr of any hw by lhc suprcnrc lori of tdin
) 6 art clsc isbinding on alllheteoplein the counrry- and rheEiorc it isLncd $ subsleiial
qucslion oflaw!l geneml inFtrtJnle i\o orher poinr ot hrv crcept subsrantint qusrion
ol
l v Dfscnenl imp.daDce sill b. consiJcnd.s a emund r, pEtc..n flpr.it bcrirrt rhc
q7, lhc dccrct noldcr X has boun cxecurjng a money decEe tj)r recoverjng 0 $m ot Rs. 5
larhs agrinsr Y od 8ot 2 ac,csol Y s saldcn tand aLl]ched. when rhe Deririo; Ndj oNred lb,
hurinu on l<.o.:00o and thc pntrs had den Jir.\re,l rd ritc rq,red .rjiem.ds;eqrdrnl
rhc mr*sr vrluc rt $e .(ehed propenr dd so on od rhe d.$.c hotd$ ro
I[y ,rc'css t ;
for publicalion olsale proctamdion, bod $c panics and rhcn rd*-e" **":,iU,""r
-,r *,
onc rc!rcscnled lhcm Sale lee &d verllied sltrlenenrs rverc not fumishcd. Thc c{eculion
trlrii a\a'. ni\*J t.{ Jet:rll nn,0 l0 20ou .e,r.em,o, o^br^. v.d J\.J .t.c
bv Dnrr( \ak. I hc,l(c,e mtdur un tem,nts,hur h,- rd{,ur
N\ dkfrirsed 6l.dnnorhere\ccuri.npdnjanorS-r0-2006sc.r;,,e.r"ir.rt,"eu,,t""r,nar.
which had bco a achol earlicr in rhc cae adj plid rhe ncesery proc$ ttcs and filcd
!e licd $aredenr. lhc coud has ordcrcd sale ol$id bnd lo tate placu on 25-t-2007The
purchasc! c has lednt that his propeny is ordcrcd lor salc and hds filed a pefiion beforc
coun lhrtthe propcny belongs to I'im and nol roYthcjudgmenrdcbrorand rcquesting not ro
scl I rhe lahd Ihc decE holder is conlesting lhc pctirion. rllc coun has ro d.cidc rhe srne,
O2l R.i7 (2) is applicable r, rhc ce on hond.R.57 cl.! says lhd wh.n executi.n
peririon is dismised for defauir or fo! any rg$on rhe coun shoutd atso nlrc .s ro r
subsisrcnec or conliiuation ofl|tachhenr oi rhe propeny lbr ! plnicular poriod.R.5? cl.2
stales b6t ifnothing is staled bt lhc cou'161o the continualion of lhe atra.hmenr rheh rhc
petitio. is dismised, ir eeans rh. or&chD6l is dened lo har. G3ed rbrrhwith_ In this c6c
lhe aln h6 nor shcn,n}llins ahout rhe @nrinulion ofthe rljrchncnl of.he propcny
wher rhc pelnion *ds dismis$d. 'l h.rcfoE on t5-9-2006, arkohnefl ot prcpeny of Y is
docBud ro havc ced&{. lfthe rntuhnrcnr is $rbsisrinS, prilite satc is not possibte and will
nol be vdid to thc oxrdt of lhd !!lue of lhe itr.ched propeny
'theElbr. the salc ofrh. propeny by Y to
s shted in s.64 c.p.c.
C on 10-10-2006, ehcn rhe prcpcny w.s f@ from
aflachm.nt is ralid slc. C ha &com th oum{ ol rhe s*dcn land. Thc coun h6 odercd
ihe sdlc oflhe prot dy ro bkc phcc on 25,r-2007 rh;insrance ofthc dcorcc holdet who
() lildd imthcr exe.ution !ririon on l-t0,2006 which meass lhdr lhc decree holder and coun
havc nor applied th.if nind ro v{ily s lo rhe ltfthnenr ot th. plopeny qa subsisring ot
nor tlc \rrhodr r &hmenr is rtsn Fosibte rnd v.hd pmrid.d rhe popcdy ontinu; ro
bclon3 ro juJsmcnr Jcbro' h'n.(tl. Ru( lsc rhc .d trmcnr ,tbjor h," jotJ ,ua) r\.
prop.nyro c a rhnd prdy Nowirdoosnor 'n 'hi)
bclonSrojudsrncnrd.btor. ThercfoE rhe sate b,
rlre co d on 25,1-2007 nay nol givc rhe Durchasq rhe d e ro Ihe plopeny. Now C tho
pres.ir ownsol thc Eop.ny has filcd a
Fririon Bqucari.s rhc coun norro sclt lhe lad in
abov. casc 6 n b.bss lo bin and nol y. rhc judsmcm debror. -t hc qEsrion is !nd- *nich
rulc rhis prti.ion is d.medr harc bccn fitcd.'Ihis Eli.ion c.nnor be udcr R.5B ofO.2l $
rh..l.trmdr' could ee^rw'\i(d I g rtu:.i.(hTen. o. rhc propery^n Lrc eroLro rhJr
'herc'n
rbel,ild|ohmdndnotL oohorand LoL'l not nJ\e bfen llhcheo Bn.n
'fcj'rJrn(.
rhh cis. rrshmcnr of rhe propcd) D nor subrsrrs cnd hcdorc here k no qu6rDn of
vading rh. crrhhent. lhh rhc( m oln.r rutc in cp. tora$nd pdy ro fita a
eqwsrns rhe @un nor ro scll rhe 'sprcperq ]vhich is advdhqj for satc nr rhe xecurion Fririo!
p,oc.din6 r n.rh! g6und rh4 n betongs ro hrn,nd nor ro rhe rudgnenrdcbror tl i, perh.ps
on rn dtuLnd thc,t.cr.c h\tder co'.(ring rhe
tctrlior. Whd rheE h no tuk tor frhnS
such a petirion, and if rh. orher '{ ol rhc p.opcny h.s coDvihced ihe @ud lilr ihc pop,ii
bclones ro him ard not the judencnr debror, rhcE is no point in Fllins $d p,op;ny, th;
claimrnrcan tile appliltior un'jerR90ot O.2r h scr aside lhe elc afier thc soL i; heid and
n lcids lo luither uMcccssdry Inildion. Thoctbro ifrhe caun is salisfied of $is snuaiiotr
andlh{cis no rule tocnrnain a ctdirn pctionssuch nol ro sclUkpropelry, $c.oun trdy
cenarly invlke it3 rhcrenl potv.rs to pa$ an odDr $!shr fo. by ihc clciomr C..l.h;
peftion tled by hid car b consideEd to bc on. u/ s l5l C.p.c to inlote lhc inncrcnr
po*cs of lhe courl dd et addnrgty Theaihrc ncririon of C should be, o*ed by thc
coun irtd rhc property ordered tor$tc should bc oanue ed.
Q.E.lhis k a c6e olslit br kovcring a sum otRs. I takh oi rhc blsc of! prohhso.y norc
aDd h.r Ucen decrc.d d tbe mjansc ol r\ asainrr 0 in spn. of lhc l.ici ihat rho drl.en,jdt D
h:E conr.ndcd rlh ftc suir \ed bitru{ bJ- linirdiur. lhc n,orn{c is said ro Lc dated I_,1-
2002 rtrd rhc suir h itcJ oo j 6 2005 Ihc coun hns n.r d;cdjsgd o! s1lred ns io rhc bar di1
dndion or olhcnvisc in lhe couisc of iudehcnr .nd h6 nol sive. a lindins on n Il h
rhcforc (hnt rh! jl(lsncd dcbbr a is conlesrinS rh. qecurioi pc ion srariq rtmr ftc
dccft is a nullny d! n rhould not bc cxccurcd.
The qucsrion ofdcree bine nulhy Uoes not lnse in $isce as tbe jndencnl dcblor hs
not qucsliorcd rhejuisdicrion oi rbe col|ll which h6.djrdicded upon rhc s!ir. tr Dcins rhe
coun hasjuisdicrion renirorial. pecuoirr) and subjcd hatrer bur the coun has gon. qrong in
nor constdcring th. bar oflinnndon md h$ piss.d d decree rvirhour grljng n Undjng on rhc
qucsrion oflimifuft,n. th$elote il moy bc coDsidorcd io be a u,roDs declco lloqcvcr (he
decfee does noi bcoqhe nulliry as contended by rhejudgmcnl debbr..lhc oxco0dns &!n
Day nol cxcculc thc decree itil is a nulliry.nly and nor ior a.11 oftq ENon. tl hA no,owcr
lo sil as.nappcllat court again$ rne lrial.oun s dccrcc ros,y rhar ir is @tu dccrcc as lhc
roun h4 pascd rhc dn'R spirc of rtrc strrl b!in*hmj by Ln,uuon lhc $cLUrFn
cotrd\ dtrry i5 ro cxccurc rhe'ndecrcc s n is ed nor ro qmsrion rhe dccG on 3ny sround
e{cepr on the Sound ol nullirj. Ther.tbrc rhc .reculjng courl stEU not agre \rirh rhc
iud8ment d.bor and mrr nor J.t qle to u\ rcqucsr or Judgmsr debbr not to c\e.ic or
enrb(0 rr,( &rEe. T1E e^e,ulnq corn *itt hn\rru{rLurelhedc,((tnrR) | hrh ,\
starcd tido lhcjun$nenr debror as sared in $o decrce. Thcjudgmcnt dcbrq t in rhis cas.
should h.vc lllcd an appeat.Cain$ rhc d.*.c otlhc rintclun on rhe aioMd rhat du colm
l a. Eofo qnrg in pn5si1; Le ollrce ir .Fir., | | tr {.imrnrf ." ., I U LN.,.. I r.e
decree,er sil. by rlEapb"lre, orfl *har w4j rhc ont) ou e r d abtc h hnn \i-.r.h^
judsncnl dcbror hls not blen rhat courec ol dcrnnr he cunor be aflowd to conresr {he
de.Fc in fic cxEuri.n coun
Q.q, Thn rr i orc ot rhc pdr.na,e' utrn imu\abtc prcpdt ,n rh<.Jte hejd hr rfc hrr ,n
e\(drun or d mon<) dsrR. h rh. exduuon pNceJrnc belseeF { rnd B, n \
lr.Ilcrl] hs
brc. $ld dd C hs plrhased thc p.opcnr vhich is a hoK. afrd rcnfrmario; oi rha mh
be rpplicd lord.liv.rt oIpos$ssion oa hou ro hi lircugb coud ft mea,B $c lpplicarion
is.und.r R 95 olO,2l Cpc. \!dmt of detivcry is isnrd b, rbe cour 't tE purcha*r C aJona
wilb Dc co0n omcirl went ro lhe hous. conccln.n ro t3ke detiyc0. D ]vho is o stran.er ro
r\. p (<edrn8J tr a\rJr.l\ n po$c. or .t fie ta!r. tnlrre dL ,.. .r lt y(rs Ufirom
one E. Hc docs nol owc any money ro thc dccrcc h.td{dnd
does not kno! rhc docrcc holder
md j-udsm.nt dabtor lhe housc in qLcarior ucvcr bctonscd ro rhc judSm.nr dabr.i, D
rhelefbrc obsnrok dnd conrends rhlr fic houso c!tror b delirered b
thc pu(trdscr. D
havi.g obstrucrcd the purchaser a.d rhe cou omcidl ioD taking detivcry oi housc per 6
the court e.mni Mnls bii advo.ale lo prorccr him [,om Lci"g disposs$ed of his hosc md
3
lveti ro seek ord6 for th.l purpos non rhe coun,
Thc pccdurc ro be adopred by thc p Ehscr lnd cod otficiat ,t R.9t is b dti!r
D.session ol iou* ro pnrchaser ia no absrrcrioD fron mybndy or if $c judSmcnr dcbkn o.
anybody on his b.hrlf ob6hcl5 ro rcnovc rhc obsrrucrj;n ad ddnu oos;s"ioh. rn c.sc
r1\ bclv cls a nmdcr I'kp l' !.rc Lvln rtiin^ rt,c huusc Js hr. o,,1dnl n{.t, dila
'n 'ha
'hro h rl-c.uJ,flcnr dchror.!\" hL rfr -nud rtfi.r.t .hod.t.J1.(ruttr(.\*,rnr.t,e
'. (\nLld..plr ro rh- ior d P \_.((king En n!,1 o.
pu(h-c. I ob,a..r,-,r,.,,.t,,.1
Jcliv..y ofpolession lfrhc purchder rnd court ofliciotoo nor hk. rcoouNc ro raw as
starcdabovcandillegllly usforceandicnovcrhcobshcterandIakcdslivervof thehouse
rhe obstarh!Mo h dispo$qFd could tih an itptic jon u/ R99 narariu ati lltr !'brusaid
la.t r.qlesrr8 rhc coun lo dclivcr rhe houk bdck ro him if duri.! {hc cnqrb hc coutd
pblc rhrr it is his pbpedy md has norhin8 b ,lo wirh rhc d(..T , rhd tDur ruvc7_
bllong.d ro nr j'\rsnunt debrar 2d rhee|nrc .ould ;r
tuve bcen sotd jn rhq {xeuuio
proladinss-,F'rhrr rh. F{mon ite,l u/ t{.r7 or 6 p.r rh p.urron
fited undcr R.9, b, rhc
hrd,pdnt trc D in&pendmrt! ciarmrn! rhc ptuFrir. rhe cou.l wr mal,e s
enqli;y d
qkd h n.l0l ad tlKb( eirhc, rhe strrgur i\,h. oMer rd he
s[ouu nor hrvc ben
osfolcs rrinr rhc ho6c o' ifhe $J notab.cotro\crorddFmo\Jlofubskurionol
u'r rccoutdnurprov.'hJ he,.'TosncftnJ$on JnJ J1h\erpu\c$iono,houscrorhe
prh her. In thr tus t) f c\ . pe on bctor( n( b J \po..e..d,o rrr
nr pos:esron r I
oe.o.nrucd rs l( tr.s kqFled,\c -,trr:0ri ro
rl *.\\r. thcE .s nJ p.o\rion,r ! p' rbr t) ro tru0..n,n "om gerds li"rd*ses"cd
titc I penrol rd rcqucn rhc qLn b
o'oc.Lhupos$iunidrc b.t iL.rn ro gd Jxnore.sco!n rhe!,engrhuf rhc\"nrnr
nrcJdJ rs('d bJ rhc ('i1fl. The qu,jion nD* so.rJ bc kh(de! lhc coun
pcrnon rr.r by D btlbrc his dj.poscsriun tbr hc rca$n
crn.cr on a
that rhe,e s no provision o
entedaD a pdrlion ollbar t_vpe. tf$e coun is convinced
tar D a srmger md ric oM$ of
rhe propeny a.J n aruillt D po*essnn anJ th. prope y
neler b.lomed lhc iu,lmor
dsb, c dt'l hc *d pnna-tucre on rh. documunc qhich md, b. pt";cJ ro bctoR.-fi-cou
Dy u r"6 nor lu.lticJ tbr rhe loun ro con,cnd rh! lhere N no pruqisior
Dsron rom u r $d jrrge dd ro lej. him ro 8.r dbpo$es:m aler rhe watul sd *en
b cdc.rdn a
(} .omer,Jck {'lh rh?
r.-nn u/ Roo. n,a.csofth6l\pc. r_do ruri-e lo rhe p!.li(s ftecolr
n, dn|hmhd.,nlfoa..s i,.l b+,,.J.{ r 0rr,iJn n,r n-rd,.
Invor. In[cEhr It w!'!-,nd _clo Jo rii.c !.j(pern-n.r Lr n
i n.Jns ,( (.un qhou,o
| ,rs , n Jr.p^{$rJ -1, ld, rd,c.re uA,n ir onJ il pro\!J.
,ed. | !e inhq(nr pow,.i rr. ori is c;ndnt) ro m;r.e 6e
,.:
:jlli ," :.".1 . !o,urtr. ,o rhc pd,,rs. rhc,ero*,he p{h,,otr;fD {h6!rd b
(onsme(o6rt rr rs 'l,t,t9l
u.s tit roinvokr rr inh.rcnr&*(6
(J.Io.ln a sui on rh( pruni<b,r nore
rh. JefsnJ&r hrr t,taJ,i rt,ar he hd not.rqucd
p,omt$ry mE n rhrr hc hJs nor re(cilc,l consid(muo|nd
"urr k bar.d bv
thdr rJrc
ha dnmnscd rhc rrt on rd,udrcduon. rceflins rh. bar ot.
rmr arm, rhe Nrn f !r Jt$ gtrrr fi ndrng( on
o u 2.(u$ hotding rhr rhc ditcndr b
<p(Norrcn!,nut..rd hp!,{enpJcoredcrir:unrtso."hequelr,onNaro qhJrrc,\e
r. rta n'irl _,J oct(r Lr.. ( rn .te) nre.e, rpp(ats i, an) ontr,
iemcdv is,avaihbtu '.,
tu rhcm ro cha.tense rhe riotcoun Je!ree., the rtr
o}ed b/ ihrta!.on.n,t lhc.efor. ,he pt,rnun hx toy lhc" sui. .ho".d $ dbnir$d d
tl thqcf* ;. ;;;
(! J) bc rhc Rr5uns sbrcJ by h,m
n. -r" r'tur,
,.-*:.:':.:1""ii':.::1
p*rc' s dpnut
11' "gel':"a p-v i" "tro.*.^
^ i' ih.pr"'';';r
-*
','"
ti1'll!:ul
r'
o:.1..:,:,:r,
ilr ^,*0."'-,. -..;"0 i,.![ ilHKfl
' otr@ A In iutt tJvour $ 'he
rui rt Jdnrsrd r dGred b, him. "fi,:TS":
Ihrctorc h(
a prcG, s dppe.t
'loesnr hiK J r-sh n,l,ni. o.:
o.-DrBrdb)rhec\unnsc.nrt n "sdin{ rtr JJ!Re. rr,.
'ro.r.\crr',!r..findind. h"!e no, anscrcJ ^*u..,c.o
rhc dL-rc!,
hd,. s oi nntlhs-\
iD..j.(" d,\ r dj"in r J pJ,r). n$J\c, he d. renaani.uir prrr.cr tius
::,:l':3y_1r,.foarJsd1.r$.nnoi.rlsonr\r.c.:...f\.onrenrrnr,!rrhusrrso
d i h.. tJrolr b, rhc ,.nt
oreo hm rhc JtJcrr.r( udr | , \c.' side rho5( tindn,g. .d,Jco. r _ d hcrcfdr. scfki,,! dn
rr{ ord{ rhe :Je ,n h,s lilour.
p^ihrr onry.rrhe pr.rn,1r ,rho ,. drsn.cd uirh< d.c,*.
^ e.r.^,;,;;"i ;;,;;.:/,
lhe d.cr.c and a norice ofthcdpteilk$pdon rhc ddind. whowjll bc rhe,esDondeni in
lhe apprl rnd rvih'n JO ddy, ol .r^i..
ot rtui nux((. J!fendJn, p,- .,.,o . .,
It rpFil ,s nor ,'led b\ rhe plJ'nulr rh( dclcDuor h$ no !hrnfe ro "r,"u
",. Lk rhe cn,,4;JNr,on,
Q,11. ln rhis c6c lhe judencnr dchols hN* lnd mct aE all&hcd md eor sot<j by thc
dEE. hord* in the ro@ ofcxccuriun ol ! nun y d.cN fhjudement deblor \rnrs lu
(hrlhge lhe ele ol,ru,k md h.u( on rhc !rcu,j nf tnnd io Nioo rJ mJr.rJl
itr.suliriry in rhe sale ocess
Hour h a fdck 6 o mo\abrc prnFdy Thc sdte ot hoN,,n he
qBhoned on rhe 'mnordbr. Fopcrl)
Fornd ot laud. Lollu.ion or malenal irregutrnr) ii ,he ete pmce! JnJ
lhcjudEmol debto. as the osner ofthe housc on Illc m atptication d R90 ofO 2t rekinC
in order ro set asidc sale allesina rhat lhc slte hrs cduscd him subsdrial nnancrat iniurvas;
rcsult of narerjd irEeuleir) ard so on in rtN s.tc prccass. So Lr as rhe rruck, nd!$le
frcp.ny.c"ncenedc78ofO.,,tnd(srharmJr.rirtifterrta-rR!rr'.e. '.,linr....rr
r\( {leofFoLJFle orop.ryJnd rhcrct, r0 rhcratc(rrnor -c.ourt ro, .nrie,..d,., r.rn
grNnds Tnesmcruleshles lhai 6c dggticvcd pcr$n in such csesmay sue lir rccorcing
drndvsblepopeny iisclfor ns vanrc which n1cons tt 90 docs nor dracr ro ser aside ltu s.le
ofmovlble prcpcrly. Tlre assricved tony, rho ju<jghcnl debror mly lile a slir as0insr llrc
purchacr and decrec holder ro scr aside rhc sh .nd io Ecovq rhe molablc oroDen; nstf of
ir, roluo from be pFhser
Q,12. A ba tued a suit for d.claririon of hn rhh 16 an inhovabte Droeny and for
Fmanrnr runcnon In ({min ti,iom 'luru'h'n8 rhc nri,n',frs po\sN,onorrh. vm, ft(
th,lill hos J\u i btained,n c\ panc ru. rnrcnn a^t!r ot h,mrDnry ,n un, r:on ro rh|Jme
ullft again( B rili lhe court heaB borh lhc l,rni.s and ln alpticltio. for ienpo,ary
inifrL'on i d(iJed on mflrs thc dulcnder h,r.meakd dt;R.oun fter $flk;
{d.h(nl ud obJcdioN b rhe.pplicdi.n lor t(mpunrv injunaion rcqF{,qs,hc.oLn ,o
hr_rhc .'ppli.rio" on mtr h,mJ rtuJx,g for ft. dEF6,, ot rhc rppti. r,on br Ji.m,srn;
I r*.oun ho(r\ci h3! gonc ll.:rpvnjnB rh. h.r,,lg or apptd.on on nc,ir. for.om(
et&n or $e other for rhe I6t^n6 nonlhs. Thc dclln.t nl is Crarly i.@nvenienccd ond
plcjudied. l he question is *har is the counc of&rion avajtablc to B !o clalense thc orde,
oroo{ponen err,' heJrir c - r, pu.al nlrh. rr,1n (.i unon merir.

q r {oro lo i, b'he ner' I u nh.'e dn ir{Lrclon


hJi bccr C,turcd \.r1.rr ;r\ing ro, c
ro flrc upporh pun) .r'rc.oit hdttrJt.idcrtu'vurrofirb ydkooqotrfcdppi...Lor.
'W *rhin l0 Ll"), on rhe dah o' qh..h rhe ljMct.^n vb !d !d a1d k rE r i- r, e,o to
lo irlh,lltrm'd i.. m- lor.1.h i'.br.i) rhcR h do o.he.rutc r. p. -v.efl "; R.I A
'ea
ol Ol9 for consider:rion insu.h sirudrions. Ihocoun whjch his passcd rhcex mne orncr js
slpposed io dspose of6c appliQiion on hcrits wirhjn t0 days ofsuch order ifn does norl
+c pcf-o1 "gitur $\or rT.r,l.r r. nrssad ir th( sltdr.- o(rl.c oi poipor.T.nr ol
Lcrm! ( t rhar Jpp i, nion. In .tc c.he repodhl in.\tR )000 Sc J0l2: Vnk;r,subbrnh
.rrduvs.{ perrrnh,n JnJo$er\rheSrnEmccou hJiFrs,J Jnordn rhlr rn.drh,r+
rhe !8gric!.d pany nay pcfer an rppcat (U/O.4J-a hhcrloeous appeat) cotuideing rld
rh. {rdd pdsrporins the kdins or rhc appticarion ,s rh. Drdd possd disposins ail lhe
appliaion nsl{ and probablr considcrins lh thc order hrs Cone ;sai6r him) aDJ rhal d.
ippcrrat coun *ill hnvt ro ..rnain he 0pp(rt and ldjudic,tc upon n Apptyjne rhc
.44
principle,{ded rhe rbo\e co\c by F supMc Coun 0h rppccl
'n dertn,jinr
rA8icved pdly rhe
mry b. prctemd
rn,t drBc lhesanc b3tbErh. ipDeid. coun
by e

(Nor.: Th.stud.nB rrc.dvn.d b rdd rh.


Sup(E. .ourr .e .cr.r.cd to h.Rtu ro
rnoBln. rult itdrle ofth. arcr5 otrh..rr..!d.hc h,,pptic,bt..o
rh. s.m. rtong
hrn rh.r..!otrs subsr.nri.r.rt by rh. suor.m..otrrd

Q.13. Mendon whe$r appealli6 d @r in $c rblowjru Lds:


n) a,opcor oni .tlenion ot t cr againsr a d!o!c. ih o noncy suir whe.e rhe
value of lhe

rrc nshr of .lpplar klm cvcr) occRr passed oy any coLn


::r-.:j .rygy"
:l:ll,:"q e -' runld.cr ons06 (. 4 srdr(s rhar no appoar .ha rie eycdr on d

i'.t#:fi l;"; fi ;i::TtitT. li: :1iiil*1."::11tr :: :tJY; j:.:ilj


e(ed R5.10.000/- Thqerore an apFdt E nor m;noinob
dppu F rgdrn qus o, fsct e,jJpl'ml Jos nor Lc. rtr appeb ro be a simpte
mon.r ri 'on
Jnd dhrdeLit{ re u rhr. ond rhcNtbr. ir s !oso-Ut. Uy s.uttr_,we

b) Aprel dr'iN rn
orde, Jrsmbing ,n ,ppliulion for Rvrcw
Apred,6 a lrdtutory nght aod nor s irhcEnl on..
O.XLVU R.7 sub rutc I ot C p.C

dr.}::,.fi
ek:T6 ili,:#",J':.J[$'ii:i3::'i1,:?",';yl],#J .*":,H,:.$;1i
fi.rerom a mie ,n@w apFat I dr$ nor posrble.
An-d
nFeroe tu
JpFat do6 nor tie agdinj a ordodisnissDg; apph(ariotr tor rcview.

{-/^ao-rc' o7l. .4 .
D.shait6 Reddy)
-:---Z
lR[1li^t1
,.)

l0
,'atr
,f;D?s
sc llr rul or /NhtA uNtvF(\li

III YNAR VItI TRIMESTER MID.TERIIT fYI r}I DEC,

c.P,(.- ll -
^rarc6

T'ri, qcirnl Nlo'..'o rhcp"*e. orr\cr.i,1groun.,! r, :cc 4r.r,t.rt


ar qucn,urj Jrisinb he.sRn rhr p.d.(s r|hr \uir ,n q\r:h.hc Je!rce n^
i
eayd oi rcpcenrari\s
'l.l daEe shrtt tr nd,cialns
s!\i(rmn.,frhc
h.he c,ccdr:on. dr.(hJ,6. u.
dcruanincd br th. @un c\ccdrng Ine 6E
atu nd by a s.prbre suir. ftc dccEe hotds in rhis csc, having obbin.d
dec. ror-Rs, J0.000/, aBrin( rhr judgjrcm debtor B h6 b..n e;ccurins rhsa
dRrcc anur+ur c6e rcri.. Nr 5cE.J on rhe dd8mcnr dchk{. he app.d^ io
ruve peFun4D gure ro de.re hutdcr un.15.|| 10,0 1
rr J d( {nurr -r o rl
o'hr J('.. r^ \ih'nd h"3 .br, r.d, r.acrf,,c[noqh,Jling rl.. rc.c,pr o. r.
q o qn I,1n rlc Sotde Ir .,pp..ars L h. oelrcl t,,,tJL, ,Drncd .,m
'hr hc qdu-gn b'hn..rhc !u F jnd rrpun r..e,or o' .hr dntt Ll Be, .hr .ut,
i.n4trf .l rhL J,rn c !(n f.d d$.\cr. rhrocJermoncJ F.td.r rppc.6,r,rd!.
Sonc b.rh. !vud, bd ctusrd ciud rr !d rhe hou\c .r rhclu,t*mcnr tleobr
'm
rr.nc yEyn.$di!*sr hrhc 6un lnd r.p.qcnred In rhc@rnrh.r hcFrpd d
rhmoM' n \iJc ! od .s .ur.d ud.r R t(t)rb)andh,!^brr,ncd,hc,rr?,pl
He p'od.r(J r\c Rroprdi requcLrJ fu loJd unJe, p r ru i.\Ls a
1- dN'* f.rltld rc tno( ri m h,o 4 ru rh. -(e,p, r rr{1, mun() .,nunori.e
rnen .
ro

'orgc'ldqincnr rnd ftd .he Mounr i! nur p"id. InrLordsfcrrnrRue,


mqunfJ mo rh( mrF dd ad LdT{c,J Lpon Jr',!en3 qrt ,hJ ruJumc deoi,
rnar rnc hur.4cF {nuud n priJ uJ rh. r(crpr obhined
b} hrm r Senu,re
ud rh*to'c diR!red rfi. entrr uf tu ernrrd,Dn ofrhc dcre. I.hrr m(rn\ thc
cod hr cdificd fie srisf.c.io. of rhu rl6.e. Tte dercc hitder $no is
qu{ioninS fid rhe Rerpr is, forgLrt,lo(umenr \dnrs In chi cnS. (he ,r,1fl
whar islhc(rdRL of,cuan I$him Rrhc,idc{,un
Il'c O'Jrr lJsed b) ! !u. r.cnrijing hJr,he r!r.,. rL, ) .^1rtid.. r . 4,
,lr.rcdrhc ae " ,r r...ro cc qirr,u
and pro.edud as i(ed rbovc. i odor ^n..rb.y rhe courr uidcr
ta$cd tt..17 Nas r
demcd dccr...drlie. ro 1976 6 rhe $dc hrd han inctud.d i. rhc dctinirionof
.hcE. u/i 2 (2) CPC tn 1976 am.ndment of CpC, rhis O.dc. utuj.r r J7 i5
dele!.d lrcn rhc definnion of &c@ and dcEtoE sincc !hen. n h .or a decmed
deae.Dd rhcrloE no ,ppot u'ntc, S. 96 is alijhbte ra rh..8gricv.d pany ft
isonlyanOrd.randnoradeemcddc.iec Wi.nrcxanindl^ tO4andO..u,
R l, rh6 ordcr does nor iind ! pla.. rs ni ippe,table Od.r. Thcrcn,c, thts L
nol an rpteri,bre ord*. Hence mis( ansous .pp*i is atso nor rvdilabtc. lfvou

I IRRAR\
o'
'*'Jnii'rw 'c'too'
fiDlA uxlvEnsFY
consider rcvi.v rsainsL rhd order the condiliohr \. l14 ond O 'l? cannol bc
salsfied andrhccfore noEvLew is posibc Re!ision uA ll5 is ako not po5siblc
as there k nojuftdictionaleror or ill.8!|ny or maleial ircgultrny in lhe O.der'
'lhe.ct{ft. thcE h n6 remedy u.dc. thc low to rhe decne hoLtlcfagli.sltheOrdcr
u/s.,17 Dasscd by rhd coon in rhis clsc lnd he ctn.or ch!llen!. it.

L Ihe dccrec hold6 who isxautins t d.uEc fo. Rs. i0,000/" as,instrhe iudBneir
debtor .ppli.d to rh. q@rins coun h alBh .he deb. of Rs. 2 lalhs owd by om
'c t, rhc judsFent debroE B. 'fhc court arlached lhc d.br osed by C b,
sedingrtruhibitorrnorieunderO 2l R. .16 prohibninS fom paymB lhe debt ro
judcmcnr dchor 'B' rnlil hc hcos llnm rhc coun. Thc Nachmenr of debr is
complet now.ndrhereforc C hasbcohed Barnnhec' Thc O.2l R 46Aro46
Harc opplirlbl.ro fiec6e. c, $.Somisheecould hrv. poidrhc tmountof Rs
2 lakhs iiro.xcDtinc coun, he did not do so Thc coln 3ubscqlcnly en.d n
No.ice undd R.46 diErins him ro dep6n fic raid ilm ofRs 2 lakhs inb
coud r.r p.yin8 to $e de.rF holdci H. did nor r3po.d- IhEtoE rhc
execurins mu.r scryed a Notie undq R.168 an c aslina hin eirhe. to deposit
rha! amounl or appear bcfoE coun lo.xrloin why he clnnor dcPosh rhe same lnd
pur hh obj.ction, ifany, so dar thc coun frly enqune eid dccide when he did
nor pay rhc irnount inro coud rnd did nor tle objections, fic coun ditcted lhar
order sholld bc uxecuted a8ainst him $ ifil is a declcc aor Rs,2 |tkn,. All thh
Pldcdui.follo*ed by the coun undc.lhe rbove Rules ir in iccord.ic wilh rh.
lN. Th. somLiee C *,ntl to challungc rhis o.der R.46ll isblheelircrlhd
a. o.dcr mdc under Rule 168 or C .r E shall be aDNa|lbk 6 a decEe.
Ir.eaor., thir ordd is a dccmcd dccrcc and rhe gamishe C mar prcfs .n tppal
ude.S 96 io.hrllcige rhh ord*
d) A riled a suit.gain$ B seeking r dcftce for Rs. s0,0001 on the bsis of,
promissory nor.. lr conle$ed thc suit dcnyinB execution of plo note bomsins
anymorcyfimA a alestarcdth.trhc5uit isban.dbtlimibiion. The@uft
der tial Ear. . Iinding th{ ih. phifiif had Fov.d that thc dclendanl hnd
eR&d th. Fomissory notc i. ni &vou. llc un howsv.r hcld rh{ h. had
fail.d ro povc h ll'e ponore is srppodcd by consid.rrtion. h ako held .h!t
$Bsun h band bt lidiration and dhmkscdrh.suir. The llsr .ppllare coun m
the anterl nl.d by A' asrecd wirh lhc ri.l coun and oonfim.d lll the findinSs
oflhetalcounrnddhmnscdthsappeol A wlnts b filc r sccond rppeal. Thc
quenion is wh.ther the second !ppcdl h mointrinable.

S. l00CPCdals wirb s.cond aptah b.forc rhc HiBh Corn. lr rBdsrh.r: Says
orbenvis ai .rF6sly rBvided in rhc tnxiy of rhis code or by any o$r lt* fot
rie timc b.in! in fode, m appeal thrll lic ro rhe HiSh Corn a6n every dccrec
pased in $p..1 by a coun sub.rdin& b rhc H,gh carn, il rhe lligi @un k
salisned tnat $c case inrolrcs a \ubnanrill queslion of law . rubeanlhl
q@sti{rn ofliw may be explaincd d d poinr of lrw wh ch is put os^r ground lor
lecond ipp.,l .nd th.t ii fte tligh coun rgrccs wi'h lhs 0pp( lsnl ind sivs i
fin'lin8 in hi! flvour on rhar poinr or los, iinal ordcri..he \uit rh.uld
'he
auron Lcllly soulJ eo in tdvolr01 thc ippeltafr lhar meais rhc order ofrhc
lnd appclhrc Nud *itL gcr rNcNcd hi such ca$s, rhe poin! o|!w nared b,
rhe appcll l trill be a $'bnanrial quclion o as In ca\e_ i.spirc ot rhc ll gh
cDudgninSd findin8 in favouroflh..mcttrn( or rhcpointol ta* mc.rioncd b!
\rT r. , 3n,unJ rhr rnlr roocl'r'c (!rl \ ',n.,t ..dcr ir ,'. \ul doe. tur cir
reveAcd in lirvour ol rhu appellanr, rhhr Finr .i hw rannor bc (nndncd rs
nrb$anrbl qucsrion of rw

:\pphingrh.arorceidFsirionotrubsl liat quGrion oflaw ro rh.ca5r on hmd.


rhe rialcoun as w.ll is rhc fi6t.p|).ttor coun hrv. commit.d.n emr jn
tldcins lhc btrrdcn of proving !h.r rhc pomir*try nore h supponcd hy
.onsidndiononlhepl.ntllf andhodingrharhehasnotprovedrhcsimc. S 8
ofNego.iablc Inshmc r Acrsrar! rlDr ia. ncsoridbt. i.strurn.nr (in this {rc
rhe Fumisry norc) is prcrcd ro hre ban eiEuied o. is ndmnred. ltE
prcsumpron rndcr hw is thar rh. n.sotiabte iisnmeni js cxeculcd ali*
rcceivitrs thc cotrsidflaris In rhh oN0 ttrc plri ill hrs provcd crccutton oirhe
tr.misory nore bl rhe d010nd.nr Thu burden ofprovins ihar n is nor supFnrcd
bt onridcdtion should hrve beq ple.d on rhelcfodanrand shen hc d@s nor
pmre ir. rh. coun shoul'l hrve ome ro conct$ion rtllt thc prehksory nor. is
ruppofled by considsralion. b addiltor, rhe b oi tjnirarion ir rt$ rh.r. .s a
Bround. Ihse two gmunds are rrken in rhe second lpput aid ii rc high n l
sgrees wirh rhc rpprllmr di both rhcsc grourds. atrd Sires findings on rhen rh!
roir .urooatially $ill lrre ro b i.ured in his f.lour dvcBino .he fiRr
,'ppelr.k (oud\.rd{ in rhe rpFrl ThlTto'c. rh( *@nd do9u,,t :,Sdinr
fi6r dpp.lhrc coud o.dc. k nDinbinrbt.. Ihe ground eiaring ro prurumplion't,. ot
Law retaBcd b Lnder s. ll3 ofNogorirblc Insrrurnors dwittitso he s poinl oi
Lrs bccau$ thc tialcotrn indlhe fi6rrpFtlare mun hNve commrlrcd.n ciior n
rh. eme ud lpplring ir ro th. fets ofrhc ca*.
bl 'nb.pEtin8
ltu racB olrhc casc tr rhc samc.s i.t.d in I (!).Th. ri^( apprltarc cou.l has
uphcld rhc findin3 olrh. rial coun o. rhc fiEi issuc {0lina rh. hc ptaimifi hir
rroved lhd lhe pmnote is crscur.d by thc detindanr'lhe apNlt o mun trs
rcve6.d thclindingon tM rcmnd hsuc h.ldingrhat$esrir pfrnoro is supponcd
b! consilchiion on rhc gtuund rhar rhc dcfendanl hds frilcd .o fmv. rhe sme
rhe cuun h.ld rhat rhc ruir is bmsl bt tinribrion.nd dismiscd iE ippc.t.-th.
pl.inriilqlnrs to prcftr rh. second apttnl. Tb. blr of tinir.rion, jf rrken rs tr
grcund rhu s.cotul dptxalond iirhc High coun i8rcer rvirh thc !l]peltanr rhd
lhc sun 'n
ir not barnd by limirarion, rho odrire decisbn in rhe soir $dutd ser ihetf
rctcrse'l in f.vour of th? appEllrnr/ phintill ed rtr @url $outd dccrce rhc suir
seftng ardc rh ordd ofdiimissol p!*cd by horh rh? to*cr coun5 TlNEaoE rhu
plinr ol liw rclalin8 to bir af timirariM on rhc frcls sralei ibov. NouU br
subnannd qNnion oiluw on which rhc suclDd appurtir mrinrai'uhlc

A ias filcd r pcririo. u/S.2t of Kadaraka Rentdd reonnodadon Conrot]\d


agairor B ! tenanr *ckin! for cviction ofrenanr fn'm rhc horsc prcniss on lhe
ground rhrt tlc preDk.s rr. requiEd ftr his own {$.'tlF l.nsfr hrs raised rhc
objccrn rh{ r[e Drriti(ri i\ nor niirtunrbb rtrd k tiabre he di\mi$cd
h
questionins $e constiturionalitt and validny ofS2l.Thcquesion ir: whar h lhc
la*appli.able Dda3roho}$e counshouldpmcc bdecidefi.Frhon.
s lllmd 0.46 rc.pplic,ble ro thc ca*- S.lll s.ys rhar: subjcd ra slch
condirions and linndrions as may b< pre$dH ony coun mry sEte . ce dnd
rcfcr lhc same lor lh. olinion ofdrc Hieh coun and $e llish .oon nay makc
such ordcrlhereon as it thinls fi'. Ihc pNvGo b rhe scction rcads thlt where fi.
coudissathliedthardcnrcpendingbcforenmlolv.raqE{io.as!orhevriiditt
ofan, Act, Ordimc. or Rcaularon oroflnyprovnion co.iain.d ir mAcr thc
ddminltion ot which is necess.ry ao. the disF60loade 6e lnd isoaopirion
$ar such Acr, Odinancc o! Regulation o.Povision is invalid or indpmrive bur
h6 nor so bcen decldrcd by fte rlish ooun !o which Ihrt coun is nrbordinare or by
rhe Suprcmc coun, rhc coun shall nrt a dse !.ring our ils opinion and lhc
eNns lhe,cfor md rcler de sanc lbr lh. opirion of th. Hish coun.
O t6 is to lh. etTect if rhe coun has ay doubr on . point of l.w. nay rcfcr thc
sm. ro rhc Hig! coun lbl irs opinion, lflhe coun rcfc6 ciiher o maficr Elati4lo
rhe uhcoNrnotio.aliry orm Acl or povision or d pdin! oflaw as !o his doubt
sekin3 lhe oplnion ol rhc HiEh couri, the coun will h,ve to woir dJd aftlr
reiving rhc oDinion offi. Hieh com my proc..d rvnn tbe sul bcloe n. in
aaordane *id d'c otinna of tne I ligh murl. Eilh$ rhc coun nar wan ed sby
rhc p6...dings b.loa it till th. lliSh coun opinion is receivcd o! proceed with
the adjudirotion oflho suit and como lo rhc nnal ord.r and even ifil is dec@d il
will not bc.xecoted rill rhd opinion oflhe High coun k recciv.d. When wc
considcr whar n di$uscd ahovc, rh. coun b decirlc lhc iiror pccedios beforc
ir, rhe validilytnd con$iluti@aliryofthe povision 6nrdd in ln. srftshoold b.
dsidcd IiN lnd in such cases, ir lhc @un is of orinio. rh.t th. Ad or fic
provision i! unconsliluional and inop.Etive rhen il h .ompuhory for it r Efcr
the mall.r to lhe Hish coun, l.lhis cise it is s. l13 whicb is applicable dd nor
$hd i3 norcd in o.46.lfrh. triar coun tu of rhe ooinion that rhc s.2l of Reir
(bntDl Act h nd unanlrirurional thcn th.E is no Ncd lor ..f.ning rhe sde ro
HiBn coun fo. ils opinion. The rrial coun can sivc a Nlins io lhd efaecr for
wharsvd rc0sons he co$ide6 ft and pmceed ro ldjudicale trpon lhe sun or
prccccding befoE hin. -fhe tial cotrn is no. boun! by whre!.r js srard b, thd
Fdy/panies.'ltc coun his ro uke iidcFendat decision on il. enhcr.qfc.n ordo

'M- has fil.d a suit asain$ N sccknrs a dccec of Rs. 3,000r in $e coud ol
civilludgc (lr. Dn). D.Lndanr conrcsred fic ir nltins rhar h. hdr execured
e prumissory nore blr nor.eeived fi. comidcGriotr d d.ftforc seekins rhc
dinisel oldc sun. Thc irid euft dccEei, thc soir lor R3. 3,000/- wirh cdsr and
c@nt Inlcrcsr on me.ns.nor hea.inB both thc padior. Defendani ,N wanrs ro
challdhBc rhu decEe. lhcabove c.sc ir cogniable by Snallcauscs Coun as il is
acasc llr!
sumorRr.8,000/ on thc b6sisoar pioftksory nole, asinplemoney
sun.I. r.ase cogi;ablc by small Calscs Court ind if ir is nor ki.d 6 a sm.ll
caNcs soir by dr Ciril J!d8e and hd uscd rh esutar Foccdurc ro dhposc or
the 6$, to challensc rie d(Ee by mclns ofin apFal, s.96 (4) is arEct d. Ia
rhe ,mordr i. rhe sun k nor in exco$ of Rs. t0.0001 and n k oi rhe nalurc
cognsoblcbythe ShallCauscs Coun.iDdppcd navritabtc u/S.')6(,1) itrherc isa
point ol lN involved in n ln lhe ca$ on hatrd rhe !.id involvcd is onty non
EceiF ol .oosidc..rion ror lhe pru nd.. lt is onty a poi of ttd rnd &r ofla{
And th.Eaorc appesl u/ s.96 (4) ngliin rhc ,b.ve Jecrec is nor n:imainabk tr
*. @nsidc. fi lins a F-icw peftio., rn, @ftlitio.s nikd u]s. I t4 or O. 47 hrs ro
b sdisfied. nd in ihis 6e as p.r fic fods lh$c is ncirhr any gtaring disakc
Dn the |!.e ol (hc acord or any cvidcncD not avritrbtc cartiur lnd whicn is
availablenuwMd so dn n nor th.r. lnd t.ieforc f.view is nor po$ibic. Rcvision
u/ S. I l5 is rlso not p.syble ro chdllcnss rhe deciee as rher is io j\trisdicrionaL
cmr or illog.liry !r nErerial hrcgullrity uvailable b conresr. Th.reide rhc
defendan! rmnot challenge the .bovc dNrcc. Hc wi hrvc ro iimpty ob.y rhc

in cach of lhc followins situarionr is mainrrin:bte k rhe

thc ord.r allowing r Evi.* Ftnion.


Appcrl h ior 0tr inherlnr ighr ofr prny {sgrieved ofa dccoc of afl ldfi. tr is a
sralurory gru.'lhi5 is onljr an odcrlnd nol I de.ae no. ev.n I dcened deofe.
Therefnc rcgular alpeal u/ S.96 is nor oullibl. rhs order Jj.di0 ptrce u/ O.1l
R.l (w) thcrcforc n is an,pFalablc odcraid a mkceth.cour ippcat is avaitabte
aS.inst rhis ordcr Funh.. it is abo natcd u/o.47 sob flle I rhat m order grMting
an applilion aor Evies ro! be obj.ckd 1o d one by r appdt tiom rhe ords
gn.ltng rh. lttlicdion for rcvi.e. Ih.rcaorc. a mnattan.ous.pp.at aBaicr
sFh ordcr h nEidainable

b)app$l0s!in$rno.de.remlndinSrhcs!nrtheriatcotrnu/R.25 Dro 4t.

Thc re'nlnl u/ lt 2t is plniel rer{nd, fhc appeat is kcpr pcnding bt lhc


appcllarc coun.'rhc appcll3tc coun ir ofopinion rhat s
Gsuc whtch oushr lo
have been fm.d br rhc r.ial court is nor fdncd and .. evidcncc on soch is*is
lvail.blc lnd rh.rcfod fdnes \uch isu. ud Ea.6 rhe matrq ro ftc kiat@un
for .llowin! lhc pani6 lo odducc addilto.l evidene .equiEd to cov.r rhm issu.
ti @cod rh. srn.. lso dicling b 8iE n findins Dn thnr ksrc ind rctum $.
pap.u !o lh. .pp.lllte coln so rhar drc appcll ecoudnay dirno& ofrhcappal
bkins such 0viJcnce ako inio consldnrion. 't hk is an o.dcr.nd not a dccrce. b
considcr ir whcrh.r n n .n appealable odcr, we witt have ro look u/ s.t04 and
O4l R I wh.r. dppeaLablc ordcE ar. li'cd. In boft rhe phc0r rhis lrder or
emand u/ ( 2tu1 o.41 h n.r availablc lhcrcfore ir is nor an appcrllbtc ordo.
Hcncc .pp{al agaitur such order is.othlinrainable

c) AI'F.I trsainn rh. tial.oun mrliq rcfcEftc ro rhc lliln coun scckjns
of inrc.pr.tatior ol a pnvisn,n in !h. Conrrcr
^d
Trre h.l trrnbtrore qh.cn a 5u[ nr nnredr ! . p-nding tor
JL,],cdion can
md( rct.r.nccrorhc trighroun J S. )o rorderc6nn.narc, r O 40r,hs
d
\.udmr r N.tu'rJ r. nerrun bmcny.!.o *,ar,. Jorcd d S I t.l aro O 4r,
I hc
Fracn!( mJile by riJi .oun ro rhc,t,gh coud icckin8 ( op,n6n ,d rh.
ndtr ol intrlp(buon 'hc or ptoviriun
I in,he aonhd 4(r b luGporden(s
bds&h lh. rn.t ed I tish @un. tr is ncirhe. an ordcr nor a decrc. I herctirE rhc
parrrs ro thr pceding otln. $ir re nor invotved in it. Funhc. $is
doe, not
findaphc.cilhcr !/S I04o.O.4l R.t.Henceanapp.olrlainssuchreferene
r nol m0imainrbt..

7 Thc remcd.y {Sainstan orderoaftmond madcbyan appela


q eniun. lh. EnrlJ ot j< \uir b) .n ,pp.t,.,e .oun ro rhc r,at
co,n b cirher
. o dl R 2l shi(h b,etJinC b rhc kirt.dun h/r,ng conjJrRJ.ny
prtimjnary
pa'nr md Jtrpo$d of rhe rui And if rh( appldk roun nn
appdt h, rhc
r8sira.d p.nyh*rcE ed rlDr tindingm, remdd rhc sur ro ft. t;tcod tq
orposr nr ur tur on n.,ir, a r.mrnd order md) bc 0/o. R 214 *h.E rh.
.pp.llatc counmly remand rh.sun b trial coun afterseltin! lridcrhe
decrcc ot
'he,L'al fo' mr o'rr nson Jr rpcd rh.r ,h. dhpu)rt of lur on sn)
p'{. mr\ 'JLn
pninr The oppr t,r .oun h0J h\u nate rn (rd.r.t pon,atrcmdd
ollhe{,iru R.2tor O a,. R.nanJ o-d(r u R rl anJ R.2.rA m.ppeatabtc
_

mdeu rhc) tnd a pla.e u/ o. 4t R. | (u) Tneto( lhc rch.dy ai;i.j th.
rcmed,sord.r |' Rulcs. 23 ald 2t ii risceldneous app.d hy lhe aAarjeved
pdv.
So fa as panhl rmand / R 25 is conce.ncd a, ir d@s
nor rind a ptak in rh.
rpr{lat lc ord.6 cirh.ro/S t04or O.4l R.t ,nd undcran,
orho! pbv;ion. As a,
appal is { nduory rish! and io prolhion h rvait.bre in rhe shiule preter
ro an -
dppdrgdrn h(rder or,emmd! F.25 rhergF,,e,edNit) r0nnor
cha cnge il
Dymeon\ii dnryp.rl
lhe only r.Dedy.Sainsr the order ot rcnand d R.25 is u/ S.toj ct.l.Whe. $c
rppecl jt54ii i\ JDIrscd ofby d. opp(lLr( (oud dnd ohrrininS
rhe Intonauon
Fr iB dreron of,emrnJ u R.25, ,frhe odcr
or rk:ppenarc oun gc\ agaiNt lh.
Il{ny $ho F d$ffv.d of rhe ctoard
ftf,an't ddc, rij, if rhedeEof rhc app.ltar! cou.l isamc.tcdlgline
by ftar
pan, snr {^r d.rrr m ,msuta,i, in m, fier /.feL.ms rhc
d;qeon;t rhe
d otobr.!.,on n he Mcm.rondur or ,ppeal
r.,floE. Ir rrn) ,38 otrcnmJ orJtr r R 2r rr) Nr rh.r srcrn; aho
In rhe 3opcJtrsrmn,rhr dpoe,tdc.,.ud\
'r\cd o.dc otd.-po.insortrhr !;pc, i"etf.
I r nrsrrrcd.drhcJc(,s,ui in rtu c,\e

8. Compahcnsivc Nor-

s c6 d.'r, * fi P(.pr . t hc nudcnr \noru $ptrir ..tJ rhdr i{ qirc.l In \ 40,nd


0,c.\ rh.,qtrr s r.Iox\, Pp!.pr r .r..rJer u. reqre{., !.{rri-o p-r\er
:no r Jed h) ihr.\c!L ,nA !orn shich fJr pi..ed g- dc.,(r ,o rh..oun nh(h
s compsrcnr ro cxecut such dccruc, diftctin8 rhc said @un ro !n!.h propny
rprcp*li.s bclongins the jldgmcnr dcbror $hjch is situ.kn uilhin irs
ju.isdi.lion. ftir ..i*s 'o
gftmlly wh.n Ou dccEe hotdc. \e.ks an oitcr tron rtre
coud *hich h.s passcd rhe decrec lo.nlblc him ro pDced agrins rhcjudgmenr
debrdr's propcny ro recoverh. d4d lmounr Md rharprcpcny tr tur sirhi. rho
Junsdicrbn of rhc mun which has pa$cd thc d..rcc but is snudud within rhe
tc(ilorill julhd crlon or anolhcr oun Ihc decree holJer sho0td dnDlv n{
Jnrfft.r rfr Jc!rcc d. orl'o !r.I tu (\(.urion. t1 {.r 6s *n;k rh.
' 'o
docru( holdn is apprehendins rhlt rhcjudgmcnr ddbror is arrcnprlng t rctliuay
or disp{s. ofhh propedy md $.Eiorc lhg decEc hotde.ro prcvcnr $rh djsposal
of rhe pn,peny by rhe judgnenr d.bld b{bre r}. decre is ransfcftd b rhe oficr
coun, nsclm?nr ofrhe proFny imm.niarclt is EtuiEd. Th. ttu.sl.r ofdec@
prceedinSs lmn rhe 6!n *hi.h hos pass.d fic dsEe to rhc cood Nhich has
juri<licri.n ro cxccure ir aslinsr thc prclcdr ot$. judsnenr dcblor rnd unlc$
lhe kanncr ol the decft pMccling3 !rc rcceived br fte r rrc.ft 6ud.
cicculion prccedinss cannor b. initidtcd $ercin by rhe decrcc hotdM,nd in rhc
m.an whil0 drc judgnent dcblo may dispose ol rhe propcny. In such
crcrmshno$ rhe dc.rce holdcr mly $.k lhc suachmcm orjudgtrrir <lcblors
propedy immcdidtely bfoE rhe lsecdings ro ransfer rhe dccrcu mcootrrp,crcu.
rhis iacilnates lho decce holdcr ro gd rho.iudsmc debrors prcpd) a ehed
rhmcdiarcl' bcfore fie hnster of docr. plocccdings arc compt.i.d and ir \yitl
hclp hin ro prcvcn( judsnefl d.hor riom disposing of hjs prupcny l hc
'he
arhchnctrt ofrhe jodsmenr dehor's pro!{dy by the hnsaeEc @un *i
be in
lotu for 2 nonlhs fbm lhe daG of dr.chfrdThc dccree hotd.r in rhc
msn*hilc should gcr rt'. ltmfer oa d.c.e pmceeli.gs paF6 .rc rccciv{rl by
$e hnslcrcc coun anil liL.x.coriotr p{lilion scckina satc of.r&hcd propcnt
beroe lhc cxpiryor,rdreeid 2 months. Otherri.e thc dccree hotdcr witl have ro
ippirorhccourlvhichhdspassedthcdecr..tocrrendrhepcriott lolnyfunnof
poriod befor. the cxpiry ol2 mon$s rnd rhc $id coun nar do ir. $ lhar rhe
-rrhm.1r'tuJe L ttror gd irle I \o\Lr B!rhnra\odrh;ormh.hs.r^
p@ccd ugtrinsr rhcjudgnentdcbrolr p.opdy lo r.cov$ hn docrcc amounl. tr is
in rhc dbovc.ircumslanc6dnly pEc0pt ne.is to be obrained.

Ihc rule Ekting to the CBrodim is R.4l^.cen.r.tty u/R2l or]


dtthnqil ol mov.blc prcFrty othcr fi{n 'ro2l
alrirulrulal produce in po$c$ion or
judshcnt doblor shall 6c h.dc by actull seizurc by $e alachins offic.r iM lE
nEll&uouit for rhc sane brhe coun tfftc Dropenyseized h $'bjcct !,sfccdy
dnd hnruiil dco0y.nd rhe expensc ofkc0pin! ir in cuslody is Lilcty ru lxcccd iE
v. u.,lho.laohing oificer ma] sell it at oncc rtrd r.ounr for rhe vrlue olir ro $e

llow.v.r, i. clsc ol etuin rroFni.s rNntioncd in R Jl A, yiz tivcsroct,


rgri.uhtrhl inplcnenb or orhcr adiclcs which cannor onvenicnrt! bc r.mov.d
and rh. auffhing ofi:ccr dcs nor ac( und.r |hd p.ovto (o R rl, h. mit .r rhc
in$nc. ofjudg'lenr debro.or rhe dcce lNldcr o. an! orhcr p.ry'n cttmine rD
bc interesed ln slqh propeny leuve it in rh. villagc or pl,ce where ir h$ been
a(.ched, in th. cunody of.n, rcspccloble pcBon who is EfqEd ro as.!5lodian.
lnc clstodiln will h.vc lo takc poss.ssion olthc said lra.hed popen * and
cx*u!.. bond in fivour of coun ondcnltins ro ke.p rhen inract in the san.
condition as.heyaft, protccl rhch and lodolivd rh. same |o any body rhe coud
nly di.ect or pNdu den b.iorc coun whcn ir is so ordcrd, He witt h. Daid lh.
Dainlenanc. ch.A6 ofrhol rop.ny inidalty by $. d.cfr hotdei ltich wilt be
add.d .o lh. ddN .mou finrlly. lL will rl5o b. paid c.n.in t ! for bkins crE
of rhc s.id prcFni*. Th. cus.odiu will b. howev{ b. cponsibt. for oy to$
o! d.mag. .rus.d to the p@Dc6i.s duc to his dcfsuft. H. witt b. tirbte to ihe
jtrdgmcfll dchoi deM holdd o. lny body ck as $. @un my diKt .o pry rhe
rodpenlation nr .h. popcrlr cirhcr ton. damag.d or dd..ionr.d ,n rh
condni.n dc. rf hc f.ih lo rrr rh. s.id @np.nerion s ith. w.c ! juFr' u/
s.l4J, lh. co{n tuy od.r th. deurion oath od.r ls.inn rh. coltodian ro
e@v. rh. comFcfiion ar rhc iNrln@ oalEh DGEon who tu entiltcd ro ir. tr it
also rtrEd rhil My ord6 demining such tiabr|ny !h! hc lpFrt.bte .s a
dc( Ecu4i.96- (D..m.d d..r&!

-Ya:3
4-':,i,:

a? i :
.1,12 _ i
."*sEs-.'
N'\'l'|r'\ \L LA\r s(:ll(X) lri_Dl (. \IVERS
":i$$:rr &uc^tots-u
OF
I
"gl.':.l.1\B
C.t{-: ll : KIIY r\NswllRs

lhcpnri\(nsoi lasappliclbkrorhcca$h Scc. n (.fC lvith crpjarufirn -i. rhe $udcnr


Nillh0!c () c\plain all rhc condirions ofscc [ ftlaring ro principt ot.Rer Judicda.
a\plm.rion j \ittat$iD bc c\phioed. uhi.h rmEs.hd;n! relier'.lai.L! lhc plainr
ryhich ii n.r c\pnsl} ra.r!! br !t!c d.Re rh,[ for lhc puqxEes ot rhir S.dion hj
deemRl'dhavc tEmEded. l\ applJ- lhc Pnncinlcsof Rcs.judita inchktitrgwhor is
ndedinFxfl.Mtioji.panicr..a to ltr t:[r\ oi rhe csc tnrhisc6e.fienrir\ros
liledb lI eekins relicls of d(tn{ln)n .r histi crorheiomo\abtcpn,pcnr.
'hedan
a)s$*\Dnrdnesne prclns lhcroun sarr judSmenronmedrsofih.cn_*dccLalin!rhe
h'novnhlc tn,pdny b.longs ro d. pl:ri itl and dnech.g rhe deferd.nr ro d.tiler
por$usyonolrhcptupenyorhephinrilr:'ttrccolrrdidnormemionrnyrhingretdingk)
n!$icfrolils h rhejudlnenl Thed.lrrifthsljcdalicshsun.""t;g,n.,nip,uriiun
rtu erouDJ thar in rheeani$us nothing tr $cDrioNd in rhejudsncnr aboul lho mc$c
t i8. lhc crFldrrnrn v savs rlrlt $har$er is ds\cd as rctiefit ir G n.r sivcr nr l[c
rudgmetrr.it's{te.medrohrveh.cncons urudandRlused T}erefom.anorhc.ruirforlhe
sn'cL-.liclisnorntnrainahlet'eru\(.ritrIrinciplcsotRsjudicluTh.ont).Enedy
Nhrh $?s nvrirablc ro hid i\ @ dt on rpp.rt ieonH rK( judsme.r.

'lhc
![intitI nr rhh ce has tilcd n sun 4dnN nr dc,endal for d-ramrion ot his tirte b
hall uc ofasrioltunl l..d on rh. growJ lhar hc is rhe osner .nd tbr Fm.nenr
'
nri$crion rorcrninrhe delend.nt toDr distrrhins his p.sssio.and enjoymcnr ot (h.
l0 l lh. diDdant i. hn sitensrarcncnr lvhitc denl,ing thar rhe plainrill ieorvncrol.
lh.I)|oDen, nnd linallyErtu.$ing turdismisrlolsuironlheeoun.l rhal he i!nor onrirtod
rol|r rcliclofp.rmanent injuncrior iBRinsr lhc dcEndanl. he has xko s[re.l rhot hc ]snr
osneroflhe lard and rhe plri'n'rl is iI wroigfit possession ofh and rcqu.stin! rhc coud
rodlc10rchrmnhrdelindaDr)asosNrolih.propcnyardbdncrrheptai ju todelivcr
po$csyon dl rhc we to him and ro DnJ- Dic$c prorirs. Ihc ptainrjlt contends thd as
Llulcn!&r hc cannor sk .eliets ofd*l.6rior ofrntc. poss$ion and mcsnc protirJ. thc
(rcs ipFlicablc b ftis ce &. o Vtlt R. 6^ b 6C $hich Et.n b ln. @unrer clnirn. thc
nudcN sill haE rDcrpl,i'r $.s tutes an,l cxptain r rhcondnions dhtnrg b c6unr.r
.hih.(bunkrclaimca.b.purdpl,)r|tdlrii&nrinc.esoanoneysuirsgenera yrnd
Jle in olhcr r$(s or.ls al$. Ihedibd_ r|t.onrcnrion ofde plaintilt rhd rr ,jclcndinr
rtr rhr n,il riltd b) ficplri.tlr:he cannor scck dcct0rarionoarirte. poscssion otm.sN
pnrns &cs not hold good $d rho sid contcnrnrn shoutd bc rcj.cred b) rh. urn.

Thcfiitrrjtfin$kcasehr\]ilsdtr$ri !rddn ssrnrbreachoicont.d rhcdcr'cndrnr


h$ dlnicd rhe conrmct tbc ddr'cndrri s r.vocalc iI thc
I r n. rr. iJ.. ..,'R'eo .e .,. r r ( f r rir',n.t-ct.Ldt',, t l (!rt,1.ribi.r-
.Llhc(mrucr The plaintiffs c.ursc objc.rs lo ltrc $ncastulBlevrnr. ThcslrxlcDr
.isAlcdk'Jecide Therulcsapplehlcbr&lndsollhis.6dlreo.vtR trndO.Vltl
l{rr&IofCl,c. R solo vlexrcs rhar Ntrcft rhcNnr.d G rltced ii rncDlcadirr.
rr'c$t\1rL dcnial oa$u vne N rh. otT.rirc Nn] dklt t contkucd onrj rloiatotficl
or lhr c\tr.sr conrE.r allc!.'l or rs rhe mrocr.irhc tocr nom qhich r,Ne rRy tr
i'rrd M ird N $ ! dLn;l r rhc lJsJlir\ or $tliricnd in ts otn,ch c.nrn,d ( ) \ llt R\
I &{ \0.,t ut itshallnol bcsullicicrl lor! tllnd,nt in hissrittcn shlemc fu dent
gcncraLlyrh. -lrounds allesed by th! ploiJrlitl Bur.$def.ndar must de!lst)eciliclllt
qilh elchdll.garionof litd olwhich hudoc5nolud6n rhe tuthcxccfl dan ges l{ 4
rcuds rhar\here a derandlnl duri$ ullcrlllotrol litcl in ihc Pldinl. hc trrBl fol do so
evlsively. bur dn$ver de Nnrl ofsrbsldicc. l|r denial nuslbe spccill. l{ 5 dlso
rte0ksrharilrhe denialofl:[tinthe!ldnl is nol sp{ti1i. by necessr} implicurion. lr sM ll
betlkenbbeadmined. whenrheserules!!cJppli.dbrhel3csoflhecas( shcrlh.
deltndur h6 nor denied rhe lo!trlilyorontbrccibiliryof$econrFcr. but har dutric th.
conricronl! lnsrhacas.6cs.qu$riuns(lr nstole$lil!andcnturrc.bilirlbcco o
ird.vmt. ller should nol b! nllu*dl by rlr coun
.l In thises- rhe dcltndanl B has hono(td eniin suns of noncy lmD lhe pliinrill A on
trvo dinienr ocEions a-ur.cihs ro rcpdr_ irc i6c anh intrc$ and has eihibired r\o
Dronor*. Asain B 2.d (: ioidly havc hkcn loan tun drc qme pl hlif A on .nothcr
.cosion ar a diltitur plocc ahogethcr ind oxmurcd a Prcnole in favour ol pl.inl l:
l)crindrnrs lJ. C and D hNc togcrher hoiiosld lom plainli$A on anothcr occusb..
..orhcramount ar a dilferenl phce ud hove executcda pronssory nole. O. demu by
lheplainliiTlbrpalne ollhesanc.lh.dcfend.nhA.ClndDharelailedroI)!r' Now.
phintiliA w.nts ro file suirtuiri og{inst R. C md D to Boverlhe noneys duc uodcr
pn)nores. The quesrion is as b where !nd in whichcoun he could lilc sun / srils usnn'sl
Ll,C dd D enher individully orcoll.divsly islheq@nn,. Thdrulesapplicrblclothe
cxs. on hmd are Scc.20(a)or:0(b) or 20(c) olcPc. Sec.l0 (a)(b) and G)rlurl(lbc
cxplrincd clearl) by rhe st'dcnr.hd dtply rhc lme to the tu6 oirhe clse r!.nivc at n
dccision. lnolhft tulc*hich is.lso oppli$ble iso ll. R i cPc in rcapcct of lhc l$o
tr slions of B on l$o diirerchl o.casions. lalouapp\lhc aforcsid Rules. a suii mny
bu lilul b! .\ lg,insL R conbinins hrh rhe rr.nsrtios oI m.ney due und.r hyo piirores
npplrins O ll. R. i *bnh ers (har rlN nurhcr or'clNs oaetion .an be conbinsl und a
runcr.b.lilcJil allrhccau^-s of$tiur rbr*iiNr one a.d lbe sdrc dcltnda.r. I[c
li6t rNrion of Rs. 20-000r- nnd rhc rc.nd dnsaction ol Rs 35.0001 can bc
oonlbidcd. the roral anount being Rs. 55.0001- and int.rcsl. . sun c.n bc tjlcd lbr Rs.
55,000/-asainsr BbyAinfie.ounol ai!il.rrdge{Jr.)Dn in M-vsore- *hereth.d.lcndlnl
B is rcsidin-q applyine Scc.20(!). Insleld ol ti linS one sun a$inn R in connedtun wilh
Unh thehnsoctions.l*o diftrcnrsuilscould rl"'roy bc llled-ondl Mt$ro ro lling lo
secondhdsrctionofBrn rhe $Diccor as clusc ofadion h6 ako arGcn lhcrc und lhc
dcltndlntis.lsorcsidiig$crniclf so lirrN dc fisl tansacrion ofthe A isoohc.nNd.
lhc $uir un be iled in smrllcnusc (\nd or Batrsolore.it' where the caus ofdriotr h,s
{!s.itNrhet rn\acrionh6 raken tlrc rhc'! add rhis ..uld be undcr S.c. ?0(c) ( l'(
nothe.sunasainsr t] and c tu!.rhercould he fil.d for Rs.5t.000- and in|crti eilhcr nt
Myerc ehert fie Jerendill ll is Nsi'jins or rl Kolu where delendant C is csiding. In thrr
cre. thc le.rc ofthc coun should hc abhnNd ro lilc rhc snn i. one ol rhose placcs aldnsl
bulh ofben dousn on. olthcm isror rcsidnrg in rhal place hting lhe assislancc ol S.c.
20(b)orlltsuna,uainnl'iholrhemcinlt il.da!Kdl.r inrheCoun orcnillLtrlsc (.rr.)
l)iu.*hc.ecausolaciorhasrnscnbccruefi.hnscrionrookplaccrhLrciiltirr8thc
a*isttnccolSec.20(c) A scparilcsun agJini tl. Cond D b-!crh$cotrld bc rilcd otr thc
rhii t nqctn)n tur Rs l-00.000/ and inleEst rheEon eirher ar Mrsorc or Kohi.r
Nlingilorc,d rhe.oun ol Ci!iLlodrc (Jr ) l)n.. shqe one ollhe deFndans h rcs(lirg
using Sec. 20(b) in thd .ns. nl50 lcr\c ol ll!c coun should be ohlained br_ |lli]nilf lr)
prusrrule odrert$odcfcndars in r Dl,icc whcrcrhc! arc nor icridnrg in thc sNfe sui1.
lhei!idsuirallern.lndvrg.insl B.( rN l)conbcflednrCi!il.[Ldgcllr.) l)ri. (1)un (1
'lre
\''Mgilorc. lvh.rc.a$cof,crn,n hh ris$ nrrhct.iba.rn,d lh\ rrle. p r.c here rsir-!
licd.inrii in rhi\ hsc h6 sorshr ii)rdcctdmn,n ot hs nd. ro {.rtus or {n xM.
, .,... i.1 I tr!!1., f i... r.or,,1J Jrr'.1donr i n.n. b,..\.{ r. u, t ., sn
r - r r... .
rL trd lr'emrnr tu.. ,nr.r.Jr|tr !\ | ,.rnL!r.rnJ
mr i.. r tvr. (J J,r','nor ir Jtrou,trsh .hJr lrf, Inh., \hn
trx$(u, !,h. !\., *):
\smui\ nrnrd'lsr.nDradt! rii InJ(^LnJ$hxr .hc(r\u,,in!drrnl,l\..i,rn
tn
rr.C< r\r. i or-tr\c \\'it' _r pt,trilrD hr\rn p,o,u r1,rrh? $,.ttre\!\dr.d
r[ t,a
r \!\rJnd ' .alJ.'Jc,r:\, r 1. .JrnLJjri,iJn.
Inwrr1eir(ct..ri,.JJt,.r\.{t.ra,.LI,r \LJrtc..!..d
!Jr'r |J ( \ ' lon.dur'rnu' ,a' n.'..'i1'1j ,'nl
,l l::. l:1"'n1 '
j.:.rc'r.1..llr1.:r.!.l.rq,r\.rcrdrnr.rruInJ."...n1)vi\*rhh,.,v.rr,.!trin
,,\ar{n rFcprduIB,mrsb.,JnircnrJrsrne".b.,uEhcnrou,i Jsbt \,\t(1\rn!
o JuI{RInil,rr'hcsrd th."u{hJshccn,ntt in-r,rukd,Mrt,cqnr<n i.r nLnrii
$i rdru. ( ia nor'e h J,Lr tr,rt {.r_!. rcr He *,nh hi rd\ncJr., r.,.c,t !t rhc
rrncs.:,m'.,fJte)r.mri..Jmd1,r(\iJ.rci.,e.oro.r,)rhrar.ch, 1.tef!(qt.
r,\r\ i bt. d.J rhr tf,. 4, t n_, lJ(rr _hitr.o r pru.r.S rf. ur,t,,, t 1... rt..
Jffn!,hr. r,,r,)(\n \\' k t6 ,L{h'.h.rJr,r r qNrfJ.\. e.n a r.,
!lrh...,ro irr)Lnnid.c"r . .{urnro11. ....[c-rror
llt.oun- Nn! his c\id.ncc shoutd hc llkcn inmediat ry. lrc coon mtr! u|]on !h.
,'ppl.urnnutun,t{nroru hc,r{nc{irr. rrimcatF,rh. n<uru,.nor,.._.iut.,r,.
:'ll.ll:.y].,* \
l"^.... rhftr.E. rhc d,nrin hdr rih nnnr . ariol rdr,1! rhr
'.r\,{.rDd 1,rtm<{it,{b.r\.ihftel)rh.rncr.,.uir-..",,,,,,.,-g.,i,,..,1
.rnr-cr 1 r,r.uun( J\..,rIni.L,rur.rc nrri.r()j.,rl rn.4t s \..,(.
Inrnrr,Jrerj hcr( Irr tsJ\e\ jhe rtrr !tciiru!l rhc lorr

.ll:.l1l,tl:,",,, '1" ,.1,r1.111,1.r ,h, dcr'.Mnr , rrrn,ns ..,rr{n r,,on b\ trr\ Ji


trt 1'c nhvnlc rJ r \nn6q, rh( JJddJ{ hr, ti,rJ rr Jntt,.,,,",, *;,..
ElxArnr lui nuJs Jikt rr t h. rr'itrxtr r, rln, f ,tn,larisut., rhc l -ee rirf .,,,,,,
c*.r
l ndriJn, !t cr,n j p{mir I,r dete ktinr h. c.o., r.d1,., I t rhd
srrnesfs.o'cdhd urc'hft.n onc ond rijcsamcaly wilhoul po{runins lhe cro$
l|i&c
.!ihmr'on,i Jr) rrc,,1 tq, r., j rrhscquflr or.rfl
r N thn4 !n ur r|.r d id!r.! .r( (rua hs pd\d,hr,lrc{i.rn ro,m d.r..1J,r{ \
rotrn< h! rhei,.b nu n,orn,on ,n rt{ (* n, dclcde L hi! nre tFris,nh
rttlirnbl ro rh. c$. on hdd is Sc tit CpC \rhich indicarcs^.quL{
rhar r. L,r,t Coun.j
DncEm rxNB,rr DorcMaited undemn! otrhe prcvisions otcp(.. n means rhe inlcr.dr
rr)r{s or rhe (rn day lr u$d ro acced. ro ltr r.q!e$ orfte d.r..ndafs counsst \ltrtr
.:".::1.:," .,:.,j, | _ .r.r..
Jir(nJJ i.,.qu-,..,u..,.:. I o, c..<11
rFJ-1"{11- (.q'llhJ\.rob.,,, 1. _..\-nrrcti,.,o, .,.l.Js.r.,..u,\ n.,J.rL req
rhiu rc rrlnr ."1!.ori'., d d ttnJ) rp.nofl t eUdcn.c, .! t hL.rrdpnr .h,,ur,t
f\prrn hne L Jr,. r\u $herc ion, rt,rn,rl h.NobrdtrrJ
rl.ndnd shi'erh.i"hcN, 'r,hLtunrrouc*ntdk.!ud
poN1. (rutd hc J$J and \yNc fie slrr( .n,.uu rcr b<
h\ rh.(oun | tukrO \V tR |l fi.rh.cnun,n{edurrrJmin,nJrt,,
usd
'r(J,nl.,.1..'.,. nnim.ol{
\ In(\\..sdnJ
c o\hr.Jon.,,r,. , i."!r ri.rt \ Lc.c.,r,) t^-
)qc4 uF trt.|.rl ,\t. . n . \. ,r.i(l Jr A.,h _ .,-n.trLt
Lvnnd$cs
fe,..rJnc
r! srs rinre oldc corfl is pcrrnrenddrnr 0l(,t)C in 2002
'n.rticr
\r'JIl k:rdLnc,r V\)uE \hte $,r rr-, rr 8r,ut,,8. .\ p r(+rtrpeufrt$,,1llJll
ftrd h'n md .F$.'trr.t ,D,l .,ufJ inir s L, hrn r\rrhc\,rNr,r( nLtrfru^(!l
b{'irroltr '\ h$MscJ daDa-r.b rhecir.t (,\hich *Jsprrlci trcrrh! 8 hrs ritrd
.i,ar \t.{r,arr.inrb, \ ..i I,t..r.L,c\ti{ r
' tr...jh. d,, rr , :c.. r,., , \..!.
l' .l ,i:1 , , ,,. 1. .. 1 , , .rt
10.,u, ' . , rtj,t 1trvr,. _ ., ,,u,,.
nL., i, ., ., . .i. rJ. .r I . .ii!J
ll,nslior. lhc dclind.nl whilc corclringborh rMsuns. in rhc $rirrcn narcnrnrircrch
calehasst cd lhd lhe souftat Mysrc hsno.jurisdirrbi b enlcnahrhe suit iNlholh lJ
and C losetbcr should hrvc tilcd on sui arainsi $e Derlndanl as borh rhe propl. uc
claiminsconpcnsrion inconn(rion $ithoNandrhesmeincid. $hich hafu k.n p!c.
in Btsalor. lh{ rudenr is 6kcd romsscr$ ro $nerher d. d.tindmas conrctrrion is
coii*r The provisn)nol laNapplic.blcro ftiscascirsec. l9CPC. li reads rlDr $hcrc
x \uir is lorcompenslrionto the rtunU donc ro lhe ptrlrn.r ro lhc norelble propun). il
ihe rrons qa\ done within lhc Loe'l limi$ of the jlisdictior of.ne cou( d'd lhc
d.nndanlrsidcsorsaniesonbnsnrc$orp.^onalltw.lksrbr!iinNnhinrhBtu.Llimits
ofrhejurisliclion olunorher coun.lhcsuit may be insituted { thc oprion ofdc phnrlill
in eitber of$c sdd uoun\ ln rhis cd*. lhc ircided Elaring to their clains for domar.\
hd ccur.d in B{nlalon. rhcreli}r thc sun c b liled br- C ir Bansalorc Cily ( iril
Coun foreusingd0rnrretohis6. Bh6chos ro filethsuit li'rinjunescaunidrohin
lnd lbr uFofabusnc hsuag ag,inr hin in M]$re wh(o dc detendanr h residi{
lheBlbre.bolhthc nrilslilcd. one in Rrngrlor. and onc rd Mj-$ro is in lccordrdcc ri!h
rhcscc l9 The <ici.ndanis contcnrion fid nr MysoB co0 hi! iojuidnlioi is Dol
coftd ed n should bc Ejcled. As lar as the dclcnd.nfs coorenrion rhar horh rh.
plnintitishollJ hrt. ildljoind:-onc suit agninsl h'n as nEy {rc Elared to one incidebt
cannor b acccprdl as lhc Rule I undLr O | *nich rlais ro.s to *ho mar bcjoincd as
llninrilri is nol compulery. h is onridn,l,cnhcrrhe) @tjoi. logcrher and tilc onc suit
or rhcthry {rlc 5cprrdresuirsa.d ilso indit)Lr.mcorfls Thcrcl.rc. his conlentron lhul
the suirsatunor nrinoiruble is also iol troccptablc rnd ir \lDuld h. rcjecrcd.

8 3)D.oeanorol{ ritDcs - The rulesiDpliulblerodc cdse !rc (J. Xvlll R llolCtC


$hjcb sbr* rhdl thc coun ($ej'dge) mry rNord rhe&Dcanor(,fr silnessdurnrs rh.
o,ue ofhis e$nin i6 ed Ecoding his eviddce and UhdNr O xvrll R {] ) slich
shtcs thar thc Co'nnissi0ner appoinr!! by thc coun b ex.minc ftc r irncss and b Ecord
lheevrdencealsoc{n.ccordrhedcmc0iorol d rnne$. Thesludcrnsshouldexplain$har
thcdcmeanorofawnresis. 11 n ! peculiar or smree behlvbur ofa qirnes lhcD ho is
bcnuexamineddDdhisevidenceisheingNco ed. Ua wihcss who knows ibur lho a&
o|thepanies. is supposcd ro srare dc sm. beaorccoun \h.n hc is asked to d.posc {nd
hiscvidenceisrcco.d.tl.hasnorco'retorhecounbn'ppononcDflhepaniesnlad,
cosr. Inlhebchzviouofsuch*ih.qsc$.thur.*illnorbe.nJ-rhin8shngcorF.uliarahd
it *ill be nonnal ELhiljoul Bur i. rlEc.scoar $i|nes $ho does not kno$,nythin8
cldtine ro rhr crcc. bd who hds been tuMed a.d btuushr befoic coun !o speat in sutpon
or apanicularlant al ary cosr. iis behdviourwillnor b. a nomrl. C;cneEliyhe rnkcs k'r
dr t"nc rousw4er.ry qu$xon so (hd hc nujr 3rz rs ro whlr$ould be rh. rc$rlr ol his
rnsv$. shclhcr il would suppon dc plrly rhar rhe $ihcss has comc ro rutpoa of
orhe^r$ tlc nry gn rhc ans*lr ro!quesrion and lnncdnLl.lr rhereahcf prob0bty
(onmg to kno$ rlut i mry 3o agrinsr rhc plny for rnon hc hds corhc t. the @un. nb)
Ar rjnus the *irNss n.y loe bis rnpcr il.0sc some ircon\oicnr
quesl'osm po$d lo hin. He har ch 80 ro rhc *rdr of quc{bnins rhc tas}.cr qno
iscDsexahininghi as tos! aldniculdrqlcsrion isasted {nd $h! lhean$lcrb that
lNnnh isfrqtrned{h.n he rhinks drlhc nirr" nol bc trbtc lo.nsweril rn |arouoi lhr
!l'ny. rhese.rc$meofrhc.rpecrsolbchr!iourofrherilne$whichwe.3 d.rlodnor
ol a$rmas l hc ptrrtx,F ofr$oiling thu rrmJrks oldch.anof ut\irne$ in hn N iJcN.
n*lr'isto.tublc ( iudse r*ho rynt.r rlrc iud-emefl h rh( cr!.u! co.sidcrrocnh.f
3c6..pt such \ irn$scs .ridence or reier dlp$ding uFn orlrcr cirudndnces ofe\ idc.cc
oao$c. nomal \ ihc$6 in lhe exrn. I hc purBrse $ill src c\!n in appeats iEfordlE
/\ppullak coun dlR,

b) cnr.nt lhc pnniriun ol la* apDllc0blc ru Lh.( rvear isscc. llN-A ct,c The nr denr
Itr\r.r\pido lh. triuxnidsolft!.d.rd rho cn|n procedurc h|L lullNvcd by (h. corn
|," 1.- .,, " .,uot:.nion i JJ o\ J.,r\ .,u,,n5. *h.rn r,! .ft..., - p. .\,
.rr nNc+rr.L rJ_:nq .r1. ,., .. !.,,1 ,tj.!n,, ,rit! n
fnNr'r, (r1irn...'o-J-r.rar1Ar1111..\f.nl.dr.t!x..iJrct
' -n .'i.h ,tfrir." t(tunyrt..,,..n.r..Jr1\.,i.., rnJ._tt .r_ntutrtiurF.
( r' | (,p.t \ i: {,. h f, j,tArt(1 r....,t.(J ..r..r \t.rJ te!,,.,,..\.r.,..re
<et. I c, . | _u.
opxssane\p{r.ont.rlgiiNtrim.btrrse.v!trDoliuuon1i iincdin@t)
rnJ he jsrcad),
h oppL& beroc Nm u or'tq his lrgunjarrs lt is k)
frcrcnl crprnc orJer otr such
r j" r- 1Er cdoR.'.!i--.rc.n rhri.Ld rc,r,._j.nr. rr. 1, r. ro f^.
l.lur.-.
I.i i. , 11 .'.1 li(r l!r
h.. ,rs Nr, hc tlrc., ur. , rr.. rrr o..pr\ cJ . r.o,n
dlrrnrax'snregnrq!.lcd-Rcaistsol.clveus.trh(c EcNtdh lilc;
byrhe prnjesare
reginlr.d lnsrdrriNos $herc\qrnysuitoriD}, h
tfocccding utsd asainnrhr pany
n*ni, i rpi t.n) rt.( ., dd ert. .itJ. rh. (.FnrLr .t.",c,r. .,"J ,r -,,.,r ,,
rrDd. l!r 'tJ!r1q.L(h )- r..{f,(ccr.Dj.. rf .\ rit. turc.t r. Ld Nn.(nuri-(
" o t(
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reEFrlsrh!ishrs,ndinkN$olnrcponi.srcluulltbelorcn Proridedthlt'orhinglnlh's
Ruleshallappl!tonon.joindqof!neccssryPd v A neccssnry Plnv 's a pd] In wnose
*io,,rv t rrre oir. rtrc coln L{nnol dccidc the sam' as thal necesary pant s
"t**"
inrerci in lhe subiccl rh rsolllE sui hus lo bc hc tl did dccided bvlhe coun and in
*h,xprhok rh; ernc dnior bc doEund rhcNlbrc rhc suir hasrobedismnsed ln such
er.s. Bul.iidplrlywhoisnoldfccessuryna v.bllNlvbcsonElrmesaproperpan!'n
*hoserb$f.erpresencclho$rilntdyb.prucccdcdsilh Hilhcr inhkdbsnceorpEsence
theie will nol be dnv ddvoac cttccl lo fie $ril. l& coun rnay decide $e sase more
juJ.J In r | | caror. rl'e qu(rion nor' trhelrer
' rQr \e \ il rl J prvp rJn) s rr
M&n,n.h JnJ VrmdldJi(ssrn rinie"t! hi trrrorninftun Ih(sJIln'ddnrr1'
isonlybeNveentheshaeFofficprcFerly lhalmcdns$cvhsreaqhareorrnlerenmlhe
propcny . onccmcd . ThisPopeny is given lo lh. plaintift tnddelenddt bvnetnsol a
wiit. rie h"' nor lluon itro vecnakshi. *ho ishis *idow. rhrclb'e she hNnoidreren in
the proDeny and oannor bc a necesslrv pdrv rnd not cvcn a proper
ptdv Vidl isonr! a
lenlntinoccuDalhn.flhcpnDcrtl and hc is not lralingahv Inlc or inl4sl rhc Prclen,
'n
exccpt ren;ncy rishls dd rhcdlos. hc is nol o ndsarv pdrv
hi ro the suit Al bes he

mv a pn,pcr pmi merotru' ncirhc! Mcenakshi nor Vimal nd bejoired $ pdies


*
to Gn sir.
I he sln is mr bdd nor joiiin-!
llt $o
as panies aid lhciefoE the suit
's
mainrainrhlc.s is bn'ughl.

nris quenbn rclnlcs lo $ar rlt delnne ol Esjudicot! is applicable ti' all rhe panres
reDRtrdcJ uJer o I R.8 t PC inJ:un ftuulh rlr,r,( not nciudlr dcscribd ht rhen
nm6intusur. Ihr s J rrir RldM! ru rqrsntrtire surl lhc {udmF 'houl'l
ciplainrhe odnnc of6jldioaa 5klcd in Slt l l CPC rnd cxpledion vI E\plana[on
vinars rh.r ddtiic or;s ju.licalaisapFlicdbl.bdl ttu Pmi.s ina replesE re suir
al$ nr iudents should sErc all lhe uo.'dnions stakd in Scc. I I and !ppl, splanarion
vl ro lhc lirrs ol rh. cs to aftivc ar lhc conclusn,n lhal rhc sun rib<t bv D and E tgainsl
C is nor mainknubb ,t fic cotrn will nor tr,v lhc suit 6 it is hn bv rhc Principls of Rd
NATIONAL LAW SCHOOL OF INDIA UNIVERSITY
BAN GALORE

III YEAR VIII TRIMESTER END- TERM EXAMINATION (JAN.) 2009


C.P.C. - II
Marks: 33
Time: 3 1/4 hrs
Instructions:
1. Students are expected to rely on the question paper as it is and respond to it. No
clarifications can be sought.
2. Mobilephones are strictlyprohibited inside the Examination HalL Anyone found in
possession of a mobile phone will be subject to disciplinaryproceedings.
3. Students are required to give reasons in support of their answers and mention the
provisions and case law wherever necessary.
4. Bare Acts arepermitted.

1. A intends to file a suit against B for declaration of his title to the suit schedule 2 acres of
agricultural land out of the land bearing Survey No. 22 measuring 4 acres situated at
Bommasandra village of Nelamangala Taluk of Bangalore Rural District and for
permanent injunction to restrain B from disturbing A's possession of the land and to
prevent him from dispossessing A from the land on the ground that B was attempting to
dispossess A from the land and to usurp possession on the pretext falsely claiming that
he is the owner and is in possession of it.
The annual land revenue payable for the entire 4 acres of land by A is Rs. 50/- and is
permanently settled. The suit should be filed in the Court of Civil Judge (Jr. Dn.) ',t
Nelamangala. Wh:.Itis the court fee payable on the plaint by A? Explain and calcul&'le
the same as per rules .. ) marks)

2. A has been executing a decree for recovering a sum ofRs. 5,00,000/- from B in City
Civil Judge's Court, Bangalore city. A got a debt ofRs. 2lakhs due by C to B attached
during th~ course of execution proceeding by getting the necessary prohibitory notice
through court served on him. Later, in due course, at the instance of A, the executing
Crlurt seryed another notice on C (the debtor of B) directing him to deposit the said sum
ofRs. 2lakhs into the executing court for payment to A the decree holder towards part
satisfactif':ll of the decree. C did not respond to the court's direction. The executing
court at the instance of A, ordered execution of that order against C to recover the said
sum of Rs. 2 lakhs for payment to the Decree Holder.
C has requested you to challenge the order of the Court directing to execute the decree
against him. What is the course of action you should take? Explain. (3 marks)

3. A, in thecourse of executing a money decree against B for Rs. 20 lakhs sought for
attachment and sale of a house and an "Innova" Car both belonging to B. The house's
estimated value is Rs. 25 lakhs and the Car is estimated to cost Rs. 8 lakhs. The
properties were attached as per rules and subsequently sold in court auction sale on
-x-tt:200&-:-e;=:a:::dtstant~TIfQecree oolIler p~-hQ.uSe-f~s.m-alffi&-=~--=-~-
D, a friend of A purchased the car for Rs. 5 lakhs. C paid Rs. 3,75,000/- to the sale
officer on the date of sale towards sale price of house. D paid Rs. 1,25,000/- towards sale

1
price ofthe car on the date of sale. D deposited into court the balance of sale price ofRs.
3,75,000/- into court on 15.11.2008. C made an application to the court on 20.11.2008
requesting for extension of time by 7 days to deposit the balance of sale price and the
court after hearing both the parties rejected the objections of B and passed an Order
extending the time by 7 days from 20.11.2008 to deposit the balance of sale amount by
C. C deposited Rs. 11,25,000/- being the balance of sale amount on 27.11.2008. The
court has posted the case to 25.1.2009 for confirmation of sale ofthe house. On the order
of the court, the Car is already delivered to D on 15.11.2008 itself on payment of the
balance of sale price as stated above. B, the judgment debtor has approached you
complaining of fraud, collusion, illegalities and material irregularities committed in the
course of conduct of sales resulting in causing huge loss to him and seeks to get the
sales set aside. What is the course of action you take to get the reliefs to the judgment
debtor B? Also identify the illegalities / material irregularities committed in the course
of conduct of sales. (4 marks)

4. In an execution petition filed by A against B to recover the decree amount of Rs.50,000/-,


B has produced a receipt allegedly issued to him by A stating that the entire decree
amount of Rs.50,000/- relating to that decree is satisfied having received that amount
from the Judgment debtor immediately on service of show cause notice of the court on
the Judgment debtor on 4.1.2009 in the execution proceedings. He has also contended
that the decree holder assured him that he would report it to the court and get the full
satisfaction entered. He also contended that he was told by a relative who had gone to
the court on the very day that he paid the amount to the decree holder, that the decree
holder has not reported to the court to enter full satisfaction of the decree, but had sought
for attachment of judgment debtor's house and the court has ordered attachment. The
very subsequent day the judgment debtor has filed application and ha~ produced the
receipt before the court requesting to enter full satisfaction of the decree. The decree
holder states before the court that no amount is paid outside court >lS contended by the
judgment debtor and that the said receipt is a forged document and he has not issued it.
The court adjudicated upon it on merits and has passed an order accepting the receipt as
genuine and directing entering full satisfaction of the decree. What is the course of
action availabl~ to the decree holder to challenge that order? Explain with reasons and
the law applicable to it. (4 marks)
..
.;

5. X filed a suit against Y on the basis of a promissory note and obtained a decree for Rs.
2lakhs in the City Civil Court, Bangalore on 5.12.1993. On 10.12.~ 993, X died leaving
his wife "W" aged 40 years and son Z, aged 3 years as his legal representatives. On
1.12.2008 Z became 18 years old and attained majority. On 15.12.2008, Wand Z filed
execution petition against Y to execute the decree. Y has filed objections contending that
the execution petition is barred by limitation and is not maintainable. Decide, (4 marks)

6. Decree for reliefs of declaration oftitle, mandatory injunction and possession is obtained
by A against Bon 5.12.2005. A, who was suffering from serious heart ailment went to
U.S.A. for treatment and stayed with his doctor son and returned to India on 10.1.2009.
On 12.1.2009, A filed execution petition to execute the aforesaid decree.
- --- ~ ------
- ~e-deeree-f()lmandatorv-initm-ction-and=vossession-againstthe-~dW1nds::!n_~ __~ ~ __
remove an unauthorised construction, a thatched shed put up by the Judgment debtor in
the site belonging to the Decree Holder of which the judgment debtor has been in

2
wrongful possession and deliver vacant possession of the site. Also explain as to what
are the mandatory conditions that the court should comply with before ordering execution
of the decree in this case. (3 marks)

7. X obtained a decree for Rs. 60,000/- against Y and filed execution petition to recover the
decree amount by attachment and sale of sheep belonging to Y. The court officer who
was entrusted with the warrant of attachment attached 75 sheep belonging to Y and in
turn gave them to the possession of Z, a r~spectable farmer and resident of the same
village where Y is also residing for safe custody and to look after the same until further
orders of the court. Z agreed and took the sheep to his possession and executed a bond
in favour of the court undertaking to look after them until further orders of the court
against payment of expenses and charges. However, due to failure of servants ofZ, who
have been in charge oflooking after the sheep, to provide adequate shelter and proper
medical care, the sheep fell ill and as a result 25 sheep died. When the court ordered sale
of the sheep, 50 sheep only were produced by Z. They were sold and a sum of Rs.
50,000/- only was realised and the same was paid to the decree holder. Y does not
possess any immovable property or any other movable properties worth the name. As
advocate of X what is the course of action you would take to recover the balance of
decree amount due to X. Explain with reasons and the law applicable. (4 marks)

8. A obtained a decree against D for Rs. 5 lakhs and filed execution petition on 5.8.2008
requesting the City Civil court in Bangalore for attachment and sale of the site situated
near Kengeri Satellite Town, the only property belonging to D for recovering his decree
amount. B who has also obtained a decree against D for Rs. 4 lakhs also filed an
execution petition in the same court on 2.10.2008 to execute the decree seeking arrest of
D as also to attach and sell his movable and immovable properties. C who also holds a
decree for Rs. llakh against D has filed an execution petition on 10.1.2008 seeking for
attachment and sale of the same site ofD. Warrant of attachment is issued by the court.
The Karnataka State Government who has obtained a decree against D for Rs. 2lakhs
has filed execution petition on 16.11.2008 and a notice under O. 21 R 22 CPC is just
served on D in that case. All the executi.r-npetitions filed by. several decree holders
referred to above are not barred by limitation and are pending. In the execution case of
A, the site ofD which was attached has beer. ~old in court auction sale held on 4.10.2008
and a sum ofRs. 5,01,000/- only is realised and the sale is confirmed on 20.12.2008. A
has incurred Rs. 1000/- towards expenses to get the property attached and sold.
If you are the Presiding Officer of the court, how do you decide the claims ofthe decree
holders in the above case. Explain the law applicable to the case. (4 marks)

9. The plaintiff is a building contractor. He constructed buildings for X, a Govt. hospital


in AB District on the basis of a contract entered into between the building contractor and
the commissioner of AB District. Disputes having arisen in settlement of bills, the
contractor filed a suit impleading the State Government as defendant No.1 and the
Commissioner of AB District, who also happens to be the administrator of the hospital
as defendant no. 2. The case of the plaintiff is that the Commissioner of AB District
executed the contract as the representative of the State Government. The trial court
.1 . - .. ~1 _n~L -- -- ..I - out only against defendant No. I, acceptmg the case oftli-e-----

plaintiff and dismissed the suit against defendant No.2. Defendant No. 1 files an appeal
impleading the plaintiff as respondent No."l and defendant No.2 as respondent No.2.

3
During the course of arguments, the appellate court expresses its view stating that the
case of the plaintiff as against defendant No. 1 was not made out. At the stage of
hearing, respondent No. 1 (the plaintiff) orally pleads that the suit may be decreed
against respondent No.2 (defendant No.2), even if the suit be dismissed against the
defendant No.1. The appellate court rejects this submission as well, on the ground that
respondent No. 1 had not filed cross objections against the dismissal of suit against the
2nd defendant by the trial court. The appellate court allows the appeal of 1sl defendant,
the State Government and dismisses the suit.

Comment on the correctness ofthis conclusion of the appellate court, on the submission
of respondent No.1 made at the hearing stage, in the context ofthe powers of the Court
of appeal. (4 marks)
**********

,:

4
\,\TtoNALtArv s(ltoot {)F INDIA ltNllERSny
It^ICt!QLrU
t t't,.rR I t tRf\tEsTfR ENt)-TER\t 0{N.r 20q9
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fqE: herr rnswcr nroutd consin ofrhu hjrnirls n
icatdl rnd prcfd0btyslont be cxlldinod
ni th. n'.dtro siited hcftin Tnc sNdcdr sl\Dld bd.[y skrethclicrs of d]o casenr $o
qn$lion. lher thould rhen nqtion rlc proyisions ot. tav aDDtiqblc to lhc csei.ho
!rc..i.c of the pmvisioN or Lw snoulll bc cxplainud. They should rhco uply drc
I'nivsloDs or hrv to rhc fuurr oftho.6ca\lNiye.r conclusions.

1 l.qrs in bndl

rrm!rstursol lnw dpplioable de: S 7(2)(0) onl s.24{b)ofK;ntriik0 conrl ticcs,nd


Sui Lt Vrluti{n A.t.

Thcsuni! lordeclnibnoiritlcto2acres of tlndouror,racrcsof suReyNo :2 of u


vr hse r[! $lrlc hid of4 acEs drlhesurvoy nrffboris usscsrcd to dnud
lunn r6ouo
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rornue iir cdlctrlrtion 6 eardt jn S. 7. l is pcmln dly *dtdt gci, 25 tirrcs ot rtr
rlnurl lu{l rovonuc i! thon{kd vrtud tar DUrroscs ofFMnenr ofcourl fa.

Su. 2a(b) ol rh. sls thit ror derhrlnn of .jllc lo inn$vdblc proDd_! md
^cr L ol lhu hftr.{ vduc or tu lO00/ which.jver is tlstNr vilt
coNrqu.ntial nlnDctioi. be
hkcn I lhc nrnrk{ vduoin rhis {sc.

Then,rtcl raluc Mft'R, N.uld tc : 50 r ?5 - Rs. l2i0r. t[Ifofn is Rs 625i.


'lhorcfor..,lis l00o/,hcinshiehcrrhan Rs.6251 R\.
1000/-*ouldb.drcuarkul vatL,!nr
llissse hlhc Scladllclof r A.! nis slurcn upro lls. ls,000lvaluc@un lic is al
2 119i, oa dt Y.lue Da tne sun Coun ae payrble on Rs I ,00{r- is Rs 251,. (tonn tcc
Frnble on the plaint in dln cao is R'

Flcrshhridr:

ItovisioN .f la*. applicole in thu c6c dc O 2t Rul$ 46..16A,468 and 4aH CpC. To
rtsovs monry under { dontu, onc ot rhe nDrt$.tcxccutior is ro ect thc dclu (not dtre
uhder\golinblc l6rondls) drrc hy a thnd pnnyta rh. trdgnenl Dcbror drchdL &i ca
lnrparr.d lfdeb nrlo credti.g coun.d pl $e $nc b lhe D.lGnotdLJ. h lhis c6c.
rhc cxsu!tra coun hns.n.ched rh. debtol C duc ro B (Jrdsncnr Debror)u/R 46 ofo 2r
( |C. Imr!\liatclr.i dilchmnt otdcu tlD dcbrof C Ins besm...1@irhcu..
as {alcd
id rlr nlc!. I hc oun hd sssj ltronibnury mrie Dn..C, nor |o pa' thc tchr h B, ritl
tnnhd ordtrs ofthe coun md B nor b r@vd tl dgr (.trry Ony rlnl dcbt nno oDn and
8cl tull dischrrs. N shlcd in RLrlc46(:l) I rc conn r&h has nsued rnortrcr norice to C
diitcrinshnn ro pav drar deh hto crddling c.urt uDdcr t(ute{6- . c_enh$nrnavtlic
J..h'nb,"undodrcrd,stu'"dlqrn0pp.1'h.ror<rh?6,udrtuttutunnhtr\ri,.n.,,irry.
Irtroo'Nd0rdiona (lNisioibylhccourr. ahasno!resp(nded ThLrturq t|tr..unhus

NATIONAL IAW SCHOOL OF


INOIA UNIVERSIIY
llaGARB|tAVr, POS] 34C NO.72Or
\ 3IJ{GALORE. s6o 07:
dirercd C to comply $nh dr ords 6 stalql in rhc qrliq nolico, i t.notj crccurion is onleBj
rgainsl C to reovq rhe @ouil. 'ttis ordcr is rrR 46-8 C wanIs to chaltsgc
rhis Order

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de(Rtrr rmcc-\nf0pput. C.rhe c,iR. lrvfFtdre&La1mr dgJtr\rdr\ortr.,s.
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.c(itrdF, rhc Foperti6 of rud;mdr debb, noy be


JnJchc'l rnd blJ dnrl rhe !l.
tmeds N
ro d{Rc hot{rq. TX^ s de nr rhe mod;
execurion lo eovs money undcr ddctuo s sralcd in o 21 R 30 cpc.Altasln.nf of "r
novc,bloe by Nlual siare nrry be nadc dR 4l by lhc eun authorili6. Atracl,nent
of
is !s sded in R. j4 CpC. ln ltus6c,,rachm.nro0u.lgh6t Det
'nno\lblclmpent toas
dr (movuftle pspcrl') is hrd uR 4l
.\dachnoi ofiobovlble Dropeny Goue) of
J trdgncnl Debior is Dlde u/R t4, Tlcy
d0 prcctaircd to he sotd dRs 66 & li7
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6 ru|!d,nRute /zdJ lh.
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u r'kr0{ r Ruh 34 Iior I ir
bp,.j,tJ. a,hrfrheql.,fico .pJrJ. .thebJtilc(
w,ll trav. ro be detosircd in oln N sralc,l ir Rute u5 w hin 15,i, dly fton
rtu daleolsi;
hda'.e the cod clos6. tn dis carq l[c @,l nas eft..dot T dari lioc
on appli@rio. br- lhe
purchdq lnd it is dc''Nnal ? dals lars. rnis is maloiai iftsutdiry and
coun nos N ulhorny r, exlcnd rhe rh li,r paymenr.
i c8nliry. TIe

ltu ssle olghl io have bern encclled on &is scorc it$lt thsefor, ilt.garitis
moldd iftSuldilics !.e mnmilred in thc condrr ot s.tc6 sr.rc,l aborc. od

Ho$ {( rh{ Iudgdarr.Dct or nlv n te u appt,uon u/R ao of (.p. tr (clrioA


6idc rhc
ek or houy, pDqd.rl hc ha $0ifed \ubnu al tosrmr@si
cuk otth.\ateJJ
a"sd' ft&rrr'$onrmc,t lhoush.DJldiJIrnrglthucsdr.,teR.rhcydenutnrc
ouse u m'!. M ror MJ to:, llthe r tr$ rhJn csnn.lred rrlu(
its. (nnor oe e,d ro
9r lcasclo'
ros he pGho\( hNne Llose RhrioGhrp or rncnds
r
orrke notd.r
thJ lb@ F @ uqq nr faud. unl6" eDn.rhins mon ir
fll..:\) {1!,! !""f,k..1 ldntrrrd,bruf nMymr ben-rLb.L.(rcd,.fhcrirc,
rofonu(qoor{)2tctc s,, rr 6.1..!t da cunffied. iaLw er bc viuxad duc
rrrmdormrmrl'rcS airi6,Dtheatcall.1ledmR7& ThcagSirlednrnydudsncnl
'l6br) nay filc a sun ogdns thc Durcrrascr or any otfiq pesn @ ,eco,er lhe cd itselror
l,j)11 Ir*F(. rdJ\rc rocJrrsm{rd6ru, ( rire u .,pr,r:urioo! R
,ooruzr:,i:.::1. i"r._.^
(r( wi,!n60ddrsfr^mdEdar.orqtc$rsdntc
.fl $roe hr sr. ot ho6e mJ t{ Dz"lLi;klionAdto
fitc a suil reust rhcDKher to,<nv!r lhe ca, ur
compos otr s rhe ce ma, lnj
4 !4!!Lb!!c1:
Prolisions 0l h* {plnabll b r|isscr( O:l R l(b], R 2{l),.z,A(b) ctc.
llic nNre hontcr is erstrlils Llrc monoy cocc md htr\ s)ushL hr !l| hmdnr olLl'o
propcrrid of$e lul-qmdl d.btoi (JD) lD ir scFed wiih norie. JD l4s llrq allcgcd rhlt
hc n.sp d fie srir mod duc undd fi. dccc ro th decre h.ld6 {Dl l) in pcEon ou
oloun l bB oblai.ed a rcu.ipt from thc Dl l h lhd llet. llavinacdnclot ow iirr
rlrcDlihasnorreorted loll0eou{forccnificotionofrhcpr)md lEco c(orfu coui
wlthin lhe limilulnnpcriod oll0 nlys,s stntcd in An.125 ol l-inirrli.. cl lnd has ritcd
lhc .pplidtun scoti'E lnr.un ilicdLion oltnc l){Fenl dd q,ty of applq srd or
l)ll. All this l'nrqlN js h ncorddcc wnh O 2lR I d 2 6 larrndt'nis is mde and
ctidenc!olilisoblainedbynrursoareipl Th aDlidn'n is mde Nit[in lhc linilalior
ncrndrequ$lnrg forcenilic nrn Dll hrs dcnicd prtn'mt drd stat6 $t thefteipr is

Thc odn harirA {qu {i'rto hs dcid.rl rhd n n a Eoninc deumenl. 'fhc oun hls
ordei.d ccni[odn,n oalh. i'noum DH v N lo chaldsc ]is oRlcr Thir nrdtr is p.sscd
br rhe coun s 47 cPC N thls rs r.ldliru to discha.gc or'l[. dccrc. in$unr md tutl

lii.lier to I 0?6 arEdm.nr ro ( 1,c. th. ordcr pNsql t! lhe.r,url ds .l? $as lppcahble. u,!.
(ri ( PC as dcur(l d(rcc. rqT6aDddmdr deldeil dd6 nom tlrodcfinirin of
"/t.4?
?(:)cPc 1h.!cioE.tharnonly&ordesnroulh.nandaprNnlut 96cP(:
'lecrdlionS

h is not a. atle rble ordur b $c do nor fi rd n enhrin O.B R I CPC or S. t(ll Ct C.


Rcis u'.s. ll,1 ir dor po* ililc ns il is no ctr.r on rht fu ol rnc aail or io addirinal
cvnlence is rvrilable s ndcn ir o 47 cP(:. h is not juinlictunal emn a r.lisionus,
lls cPc isdllo dot posiblc lrcDce,Iconoluil0lhattlisorddcMnorh.drllcnsc!uds
lry poljsio.s of CPC. lheDll will hrvuluobc) lbeod$.
5 r!q!!db!iel:

Provisions ol hw lpplicablc b this d6c arc An. l 16 Dd s. e of Limil tunALt. S 6and


? of LiniurioD Aci also mry be discuscd x, thc DH di.d 5 ,Lls all6 tho wasdcc
par$d. x dd ndr nl)pl! Iu cxciution or rhc dccre. Limnltrod pdiod li'
cxaurine llc
nFne_y de@ is 1.2 tds lbnr thc drlc of cnf.reab nyof tl1cdm. l1R ddi: har
h*one mlirrec$le f6fr 6,12.1991 in this osc. X wN .ot sultdine from my legal
disd6ilily. whon hc dicn on 10.12.1991,lis lcs.l reprdonldlivcs have conc ihtr)tict!trc
'l'Iough hissn ls r ninoi hiN qifc is rol srlliihg lnm lcgaldis$rhv.

'l hc limc for erecuting rh. ducac hns h{.guD to run fiom 6.12.1991 ,s p.r 5. 9 oI rhc
Liniitarion or TIF tine shioli lrs bcgnn lo tun vill nor stopduelo Jisnbilntofx\ so!
rvho conesin on l0 l?.lrr3 bcin8subscquoni b lne lin'c which hasbc.gu lo nn, $ill not
{ot is (atc! i" s 9. Hctrcc. rhc linilarirh !.iod of12 ycrfs crds or 5.12 2008 Th
c(cuulionD.lilion filedon l5.l2.2003iibuc! bylinihinlr. t.6.eldirrs (, disdbititr- docs
Dor.pplthrlrirc$.E!erdhd\vi*.arslard S ?ofl-inrihln{AcLthr*iluofxoruld
lilD ex$urnD p.rition on tehrl lofnc*lf ukl on bchrlf.f hf minor $n n, g vc dndDrs!
r' l' n sl'i.cen 'urv"n..r.f! orrub.r,', ru.'
liTil'i':l* :i::i:ti'illi,'*iiI* ff x;1;;;i*." hN,o bc up,k'd
"'-",.rbh
6. Facb nr bricu

I;i:"'fi"J;:'yl:'lJ, : i; ;"-:"#S f ,li'_"S,1i: ill},il :ti,iltl


Inddb'r Dju(ron,q r yt,s nno llred,Lrfdsre^
9ed.e.tor u.u..i. * rioi
,.,DhnonA\r nrdrcnfJo.*,.,.D.)0.< m,r- ir.i * ,.u. r.i,iuo.
rwLUJn
iff ';'i;S*:il'ii:' \ ir'J' u i rl s n''o /rv'l'u n n"''
": "
. *-*...r

+.: l''# ltlltT :illlli::' t:trfl;iT;:, #:H:f,Jt:


T:TLT

;ll l'{lri;+n*r$it'#1il:l5:*li'fi'"';*;r rn'll


;l..';ill* -d _;;;i;;:, ;:;ff il"":iffi i:ff;i::$Tf ,:y,HH
" "l*
ln-6e dy lo_ t d orhe p6on is inl)os*ion.
@ dhounc@ent wru be m.le,r rlb
rrcpdt JnLt .'tti \ing 1 coty.r$qdr on thc noFny rnii sFhoLc.r p,**".,
*",ral"
s'rn ro th. DH r.q(J ir ti.ln or o.2t Ct. A nrnturhat eneJwi bcmade,o.h;

MJndrh4 rlnn .ns h, hc arnpt'Ld qrh h, $e cld (ra irol


rlprd whrrx{d is,ppli4htu ru rh! c.* on mO. 2t R t CpC.

F.cts in brici

t@s,a." rppt,rMh itrdn 6c r(o. 2 t R..l $d 4J_4 of O 2t ( pC dnds t45


il*iI:JniT"If.tii,:i:;Hi;':.3l:::t..''.q.v.rRjoo.ooo/.
so/ueb,h,.dnR or e"*,,.t,n n *,Jti;;:"s11 j,l:l.i;T::gffll;l
"rl,. *pLce"r,u',\hm,,1e
::fi'"f"r.l}i XffiilJ;T ;T,fli;1i;"3;,*'
'opo'.rr.
pcon or o.-.co',..
-j.l;;;"'" :i;11'Jlfl'li,i,fljS1l
il.{:s"riq' TT,"js r *.":iJrHtr j";rPJ$jlilnSx
r,:::t: iflT1:J};:,i*,,ffi; ;il:1sf; ;:..::.J"H,';;;.;;i;.-#-il:

Fi:iu:f iilr',F jr" ;":i i#: ti :::r5 rf **


q'(r.J\<'i'ed tlr jl,*rf;l
n! 25 d'tr"t,.. .""-," i,.
;.:i:[]"'" " Lruc,o r, ..
"l."li
Tlf, Rure rds rhr' ,hc cuctoJiu $.iI h. hrbtr to tbc DH (

r*t;l,-:,';r",irililiilJs:li;trTtilili::i$iltj;i1i:
'Ilrbrltuccollts I0-004 our ofde.re @un nru duc. ThE, Z n tiabtc ro cotr,pcnrrrc
rhc DH lu rhu cxrenr ol$e ralue 's
of2t sl!*p Dt I ir uitnlsd lo rreed ro crftur! rtr sutrc
dcsu i!.'in5t Z ed rmler lhe loopwfin' !s stded dlnlve

rJ lrorsinbicl
S ?l CPC is amli..bleln this case, whichstldrs 6tothcdislribunon oftho p$ceds of
!!looflhopflrpdyofrheJD monss hedsrec holdets thc slxden$ slroutd cxpldn the
co ilions mcnlioncd in dDS.ction.

llippli6lomomydedeea y. sdcrildsrhddswhotarcobtrincdmolcyd&rce{
,sai'bt thc em lD md \no*d@s @frn s isfialnuth&!ftlcdcx@rio(p. iotr{
ilr @!n / courls md lhey mBl bc poding m rhe d$. b.foe lhc s!* .aJD h4r @mc ft,
possNonof@un. lnoedclru lDld6oly rc.nincd lo r.tbte dishbutioD r\scr{
ofjl) iro strpposed lo bn\e 6m ro possion ot coun M lhc day xhc. rnc JD.s propunis
dr. itd, i.c. (ilnrc of sale and ror darc ofoitmlion oaele, qs in casc of imnDv.oblc
popcn'6). olh.r dcre hol.lers re ror utirlod to rd*blc dishbution.

lf thc goveritoctrt hs obtain.d d.crc again$l jD, rhe flle rhat dcfte holder sholtd hnvc
liled execulion petition for *ccDring rhc dercc ud it must be pe.ding, is rptlic$tcto n
al$ lnil il is mmdtor_v. Howeler, *ho thc govcnhcnl hd omdien wi(h rhis rule, thc
olhlr condn ns lre nolr$rlicable ro ii. Atfiisr,thccxpc.sesorrhesalcstDudbct dn)
tldr posoD sho hs gor tnc propeny srld. Then.lhcsoredcrcnnosshoutdbctiid. Oul
Df lhc bddro of sale prceds, thc luvcIMor du& should be satisficd in full l.hc
.cn'nnnrg s c prucois should b. diluibulql pro{ala ld o&d dsee hotd.6 who h.v!
tullillcd lhc critsi. slal.d in $c Sccrion mdso on.

Exdlin in r$o is mrnhn 0nd vhi b mr cnr


lne care on hand led ro r.rcablc di,lribu(n)n
sil urlctrldin! as ro Los much dcli ol ihn grts
Ijacis in hricl
F,xl,lainrhcpowe6ofliappellarcounfttcdinscrcmlrut*inclu,lingR.jloto.4tCpC

lirDl'ni o. 4l vlich nay bc filcd 6y E$ondcnO h u npNol


R. 22 CPC (C.oss objcltiotrr
by thc opposirc poriy. wnh all rhc pdqh lhl'l tlE I { appltlale coufl [N dd cu exercjs.
whil dispsins ofappe.l, it fi6 rro pow6 !o lhfi rclicfto de respnndent, if$c r6ADdenr
har nor filql mss obidioN in rvnting d lh. nmpd il|s ofrhc appul $ Id o oy rlicf
tul sranlql to bim by tlE dirl oun nd *h@ $un ti* hs to be paid or thc v{hc ofrhal
eLicl by thc r6poDdor ifhe slc for sat ol lhar eliet:

Inrhis c.$,lhc bi,l cod h$ not sant.rl Eli.f (decrcc) as.i6t dcfd drNo.2. tfrhe
plni.tifwintd.dre.srin,tdcf.ndo No.2{l$hcoushrrohrk6tcda!dpput ord
lc*tby rvdy of doss objrlions in rhe +Fal of I rdelendmi lnd paline coun loo in uithu
u\o on lhnl rcliet Hcnasnordoneso,Ilirordr.iucstlortnar.eliefshenrhcdBunoft
dc hcffd and lhc dppcal is h.ins (lisDoscd ofc@bl bo consideed by rhe rpp.thrcco0rr k)
grur sloh rolicf not clrimed adi$ io icdlalitro. wirh rulcs

Ilclrue. lhe rcje.tio ofsuch re{tuest ofihc stoodc no. I is lhis casu is conccr.