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DJS > Code of Civil Procedure > Flashcards

Code of Civil Procedure Flashcards

1
Q

What is the Act Number?

A

Act 5 of 1908

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2
Q

What is the long title?

A

An act to consolidate and amend the laws relating to procedure of courts of civil judicature

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3
Q

When was this act enacted?

A

21st March, 1908

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4
Q

What is the short title

A

Code of civil procedure, 1908

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5
Q

When did this act come into force?

A

1st January, 1909

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6
Q

Which act provides that the landowner or landholder will not be barred under this act from recovery of rent of agricultural land?

A

Section 4 (savings clause)

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7
Q

Application of this code to revenue courts

A

section 5

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8
Q

Pecuniary Jurisdiction

A

section 6

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9
Q

Provincial small causes court

A

Section 7

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10
Q

Presidential small causes court

A

Section 8

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11
Q

Jurisdiction

A

Section 9

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12
Q

Adbul Waheed Khan v. Bhawani

A

Jurisdiction is the authority of the court to hear or determine any cause of matter

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13
Q

Jurisdiction is the authority of the court to hear the matters litigated before it, or to take cognizance of the matters presented before it in a formal way for its decision.

A

Official Trustee v. Sachindra Nath

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14
Q

coram non judice

A

Not before a judge

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15
Q

Any decision by a court not having jurisdiction is a nullity and this can be challenged at any stage

A

Kiran Singh v. Chaman Paswan

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16
Q

ex dolo malo non oritur actio

A

An action cannot arise from a fraud

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17
Q

Nature and scope of res judicata

A

lal chand v. radha krishnan

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18
Q

Res judicata

A

section 11

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19
Q

What are the 8 explanations to res judicata?

A

Explanation 1 - suit finally decided matters, not when it was instituted

Explanation 2 - Right of appeal is not a consideration when decided the competence of the court

Explanation 3 - The matter must be alleged by one party and denied by the other

Explanation 4 - any ground of defence or attack which should’ve been raised in the former suit will be deemed to be an issue directly and substantially in issue in the former suit.

Explanation 5 - Any relief claimed, which is not granted in the previous suit will be deemed to have been refused.

Explanation 6 - when there is a bona fide litigation for a public right or a private right claimed for a number of people, all of the people will be deemed to be litigating.

Explanation 7 - Explanation VII.-The provisions of this section shall apply to a pro- ceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such pro- ceeding and a former proceeding for the execution of that decree.

Explanation 8 - A decision of a court of limited jurisdiction will be res judicata to other suits, irrespective of the fact that this court was not competent to try this suit.

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20
Q

nemo debet bis vexari pro una et eadem causa

A

No man should be vexxed twice for the same cause

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21
Q

interest republicae ut sit finis litium

A

it is in the interest of the state that all litigation must come to an end

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22
Q

res judicata pro veritate occipitur

A

a judicial decision must be regarded as correct

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23
Q

Landmark judgement for res judicata

A

Duchess of kingstone case

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24
Q

Which case put the doctrine of res judicata within the concept of rule of law

A

Daryao v. State of UP

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25
Q

if there are several issues, decisions on each of them would be res judicata

A

ramesh chandra v. shiv charan das

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26
Q

section 10

A

stay of suit - res sub judice

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26
Q

section 12

A

bar to further suit - where a plaintiff is precluded by rules from instituting a further suit, he cannot institute a suit in any court to which this code applies.

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27
Q

section 13

A

foreign judgement not conclusive
no competent court
merits pe nhi diya
incorrect view of international law or indian law
natural justice oppose
fraud
breach of any law

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28
Q

section 14

A

presumption as to foreign judgement
presumption of foreign judgement upon production of certified copy unless contrary appears on record
presumption may be removed by proving want of jurisdictiob

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29
Q

section 15

A

court of instituting suit - it shall be instituted in a court of the lowest grade competent to try it

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30
Q

section 16

A

suits to be instituted where the subject matter is situated
limitation - pecuniary limitation

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31
Q

section 16 what all suits are included?

A
  1. recovery of immoveable property
  2. partition of immoveable property
  3. forclosure, sale or redemption of immoveable property
  4. determination of right or interest
  5. compensation of wrong to immoveable property
  6. recovery of moveable property
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32
Q

what is the exception to section 16 (suit to be instituted where the subject matter is situated)

A

exception: in a suit for compensation of wrong to immoveable property where the property is held by the defendant and the relief can be sought entirely through his obediance there will be two courts having jurisdiction:

  1. where the property is situate
  2. when the defendant voluntary resides, carries on business or personally works for gain.
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33
Q

what is the meaning of property under section 16

A

property means property situated in india

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34
Q

section 17

A

jurisdiction of the courts when the property is situated within different jurisdictions
jurisdiction will be in either of the courts where any portion of the subject matter (property) is situated.
the court should also have the pecuniary jurisdiction

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35
Q

section 18

A

when there is uncertainty as to which court has jurisdiction, either of these courts can take the up the case.
provided that there is reasonable ground to believe that there exists an uncertainty and a statement is recorded to that effect.

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36
Q

what happens when the statement is not recorded under section 18?

A

if the statement is not recorded and there is any objection in the appellate or revision court, the court will take up this objection only if they think that there is no reasonable ground for an uncertainity to exist.

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37
Q

section 19

A

jurisdiction on wrong to person or moveable property
1. where wrong happened
2. where the defendant voluntarily works, resides or personally works for gain se

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38
Q

what type of jurisdiction is mentioned in section 16

A

territorial jurisdiction

39
Q

section 17 of cpc could be connected to which sections of crpc

A

section 177 to 189 (where the offence is carried out over different periods

40
Q

section 20

A

other suits to where the defendants reside
1. defendant or each of the defendant VW, R, PWFG
2. any of the defendant vw, r, pwfg - provided the rest of them acquiesce.
3. cause of action arises

41
Q

where shall a corporation be considered to carry on business?

A

both at principal office and at subordinate office

42
Q

when the agreement is for sale of moveable property, which section for jurisdiction would apply?

A

section 20 (other suits….)

43
Q

section 21

A

objection to place of suing
1. court of 1st instance
2. earliest possible opportunity
3. at or before settling of issues
4. consequential failure of justice
- appellate/revisional courts
- execution courts
- in terms of pecuniary jurisdiction

44
Q

section 21A

A

no challenging a decree passed in a suit objecting to the place of suing.

45
Q

which sections talk about tranfser

A

sec 22 to 25

46
Q

section 22

A

transfer when
1. at the earliest possible stage
2. at or before the settlement of issues
application by: defendant

47
Q

which order talks about settlement of issues

A

order 14

48
Q

section 23

A
  1. when different courts have jurisidctin under one appellate court - AP
  2. when different AP, but one HC - HC
  3. when different HC - court within the juris of which suit was first brought.
49
Q

section 24

A

general powers of the court to transfer or withdraw suits.
power to - HC/DC
1. how - on application by either of the parties + notice given to each of them or on its own motion without giving such notice
2. when - at any stage
3. powers
a. transfer - any suit, appeal or proceeding pending before it - to any court subordinate to it and competent to try it
b. withdraw from any court:
1. try itself
2. transfer
3. retransfer

  1. suit may be transferred from a suit not having jurisdiction
  2. any suit transferred from a small causes court - the new court will be called small causes court
  3. the new court may retry it or start at the point where it left off.
50
Q

section 25

A

power to sc to transfer
how - application by the parties = notice to each party - hearing
descretion - sc thinkls it expedient for the ends of justice
when - at any stage
powers - HC/CC of one state to other
frivolous - compensation paid by applicant to opposing prty
retry or start from old
application form - mootion + affidavit
old law to be applied on old case will apply on the new court

51
Q

section 26

A

institution of suits
in every case suit will be instituted by the presentation of the plaint - or as may be prescribed
in a plaint - facts will be proved by affidavit

52
Q

section 27

A

summons to defendant

53
Q

section 28

A

service of summons if defendant resides in other states

54
Q

section 29

A

service of foreign summons

55
Q

section 30

A

power of the court to order for discovery

56
Q

section 31

A

summons to witnesses

57
Q

section 32

A

penalty for default

58
Q

section 33

A

judgement and decree
after the case has been heard the court shall pronounce the judgement.
and on such judgement a decree shall follow.

59
Q

section 34

A

interest (refer to book)
when - decree is for the payment of money
court - interest on the principal sum
time period:
1. date of suit to date of decree
2. prior to date of instituiton of suit
3. date of decree to date of payment: 6+ roi

if court has given no interest in decree
- court has refused interest
- no further suit shall lie (bar to further suit section 12)

60
Q

section 35

A

costs
costs are the descretion of teh courts
kisse lena hai
kitna
kis property pe
kya procedure hoga

if court has not imposed costs - has to record reasons in writing

61
Q

section 35A

A

compensatory costs
apply to - any suits including execution proceedings
not apply to - appeal/revision
grounds - false and vexatious claims
max - 3000 or pecuniary jurisdiction which is lesser
no exemption from criminal proceedings

62
Q

section 35B

A

costs for causing delay
when any of the parties does the following:
1. fails to take any step he was supposed to
2. gets an adjournement
he will be made to pay costs
and the case will not go aage for both the defendant (his defence) and the plaintiff (his plaint)

these costs to be included in tghe final decree if not paid.

63
Q

Section 36

A

provision of execution of decree to execution of order

64
Q

section 37

A

definition of court which passed the decree
court of 1st instance: if court of apellate juris will
court which would have the jurisidiction if courtof 1st instance ceases to exist or ceases to have jurisidiction.

65
Q

section 38

A

court by which decree may be executed
1. court that passed it
2. court to which it is sent for execution

66
Q

section 39

A

tranfser of decrees
how - on application by decree holder or on its own motion
in the following grounds:
1. JD VR/COB/PWG
2. has property sufficient to satisify the decree in that jurisidiction
3. transfer of immoveable property there, but immoveable property is located in other juris
4. any other reason the court should record their reasons
competent court - which would have the jurisdiction to take up the case at the time of the transfer.

67
Q

under which act do we file an application for the execution of the decree

A

section 136 of the limitation act - which talks of the procedure to file an application under this section.
limitation period to file an execution decree - 12 years

68
Q

section 40

A

transfer of the decree to another state will be governed by the rules and regulations of that state

69
Q

section 41

A

result of the execution proceedings to be certified:
1. fact of the execution
2. circumstances surrounding the failure

70
Q
A
71
Q

section 45

A

execution of decree outside india
transferred court to be established by central govt
state govt must declare that this section applies to that court

72
Q

section 46

A

precepts
application by - decree holder
court - issue precept to another court to attach property belonging to the judgement debtor
duration
not more that two months unless:
1. order by court
2. decree is transferred to that court and DH asks for sale of property

73
Q

section 47

A

questions to be determined by courts

74
Q

section 60

A

general provision for the attachment and sale in execution of property

75
Q

section 61

A

partial exemption to agricultural land

76
Q

section 62

A

execution of proceedings in a dwelling house

77
Q

section 63

A

attachment in different courts

78
Q

section 64

A

any transfer of property post attachment is void

79
Q

section 65

A

purchases title - which is vested in him when the property is sold not when the sale becomes absolute

80
Q

section 67

A

state govt’s power to make rules regarding the execution of sale

81
Q

section 73

A

proceeds in an execution sale will be distributed rateably among the decree holders

82
Q

section 74

A

punishment on resistance to execution of decree - max 30 days + direction to give the possession to the DH

83
Q

section 75

A

power of the court to issue commissions

84
Q

section 76

A

commission to another court

85
Q

secion 77

A

letter of request

86
Q

section 78

A

commission issued by foreign courts

87
Q
A
88
Q

mis joinder and non joinder

A

misjoinder: contravention of rule 1 and rule 3 of order 1
nonjoinder: not joining proper or necessary party

89
Q

order 1 rule 1

A

joinder of plaintiff
rules

90
Q

order 6

A

pleadings

91
Q

rule 1 order 6

A

defines pleadings

92
Q

order 6 rule 2

A

fundamental principles of pleadings

93
Q

order 6 rule 3 to 13

A

requires the parties to supply pleadings

94
Q

order 6 rule 14 and 15

A

signing and verification fo pleadings

95
Q

order 6 rule 16

A

empowers teh court to strike out unecessary pleadings

96
Q
A

DJS (3 decks)

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