CPC Flashcards
Order 39
Temporary injunction
Required to do or refrain from doing
Injunction is a relief
Temporary or interim
Until the disposal of the suit
Both plaintiff and defendant may apply
Cannot be applied against the court or judicial officers
Property in dispute, danger, wasted, damaged, alienated, wrongfully sold in execution of decree
Commit breach of contract
Interest is justice
To grant there must be prima face case
Balance of convenience
Bona fide
Burden on who prays
Grounds: maintain status quo, against transfer of property, disposal of goods, making construction, recovery of dues, appointing receiver, against prosecution.
Even exparte injunction.
Order 21 Rule 90
Application to set aside sale on ground of fraud or irregularity
Immovable property
Sold in execution of decree
Judgement debtor, purchaser, person entitled, whose interests affected
Material irreguakirty, fraud in publishing or conducting sale
Only when substantial injury
On or before the proclamation of sale
Persons entitled to rateable distribution can
Where there is fraud only this order and rule to be used and not section 47
Order 18 Rule 4
Recording of evidence
Examination in chief shall be on affidavit and copies given
Evidence of cross by affidavit shall be taken by court or commissioner appointed
Court or commissioner shall record evidence in writing or mechanically in the presence of the judge or the commissioner and signed and the evidence taken will form part of the suit
Commissioner may record demeanor of witness
Objections raised will be noted and brought to the stage of arguments
Report of the commissioner to be given within 60 days of date of commission
The HC or DJ shall prepare a panel of commissioners
Rule 5 How evidence is taken in appealable cases
Language of the court
In writing
In presence of judge
Dictation of judge
Mechanically in presence
Order 32 A, Rule 2
Suits relating to matters concerning family
Matrimonial relief
Validity of marriage
Legitimacy of any person
Guardianship
Maintenance
Adoption
Wills, succession, intestacy
Personal law
May be held in camera
Duty of court to make settlement
Assistance of welfare expert
Order 23 Rule 3
Compromise of suit
Lawful agreement or compromise
In writing, signed by parties
Court directs to record
Shall pass a decree in accordance
Subject matter of the agreement same as that of the court
An agreement or compromise which is void under indian contract act will not be lawful
To avoid multiple suits
Compromise decree if not vitiated is res judicata
Signature, in writing
Oral would be void
Order 30
Suits by or against firms
Carrying out business in names other than their own
R1 suing of partners in name of firm
Any two or more persons claiming or liable as partners and carrying on business may sue or be sued in the name of the firm
Partners at the time of accruing of cause of action
Liability of partners both joint and several
Mode of suing firms
Firm is not a juristic person under the law
Provisions do not apply to joint Hindu family firms
Disclosure of partners name must
Summons served either to any of the partners or to the place of business
When one partner dies no need for a legal representative to be brought on board
Sec 91 CPC
Public nuisance.
Wrongful act affecting or likely to affect public
A suit for declaration and injunction
By Advocate General
With leave of court by two or more persons, even though no special damage to them
Nothing in this section will prohibit a separate suit
Right of action
Act or illegal omission
Causes any common injury
To those who dwell or occupy property nearby
Public nuisance or private
Sec 91 does not apply to private nuisance
Liable for prosecution under IPC
Liable for damages
Even representative suit
Need not have any special interest
That is no need for cause of action in them
Irreparable or continuous injury
Encroachment of public street
There is provision for summary proceeding by a magistrate
Sec 88 CPC
Order 35
Interpleader suit
When two or more persons claim adversely to one another
For the same debts, sum or other property, movable or immovable for another person who claims no interest therein other than cost or charges, such person may institute
To ascertain to whom the property is sum is to be given
But if there be another suit which will decide rights of parties then no interpleader suit
Order 35 deals with interpleader suit
Agents and tenants may not institute this suit
Sec 148 A CPC
Right to lodge a caveat
When an application is expected to be made, or has been made in a suit or proceeding instituted or about to be, any person having a right to appear before the court on the hearing may lodge a caveat
Notice to person expected to bring the suit by the caveator, by registered post, acknowledgement due
Then when it happens the court will give notice to the caveator
Caveat remains in force for 90 days
Includes all proceedings other than original proceedings
To avoid multiplicity of proceedings
Only when entitled
Co-owner seeking injunction against co-owner
Cannot claim injunction against another as property jointly owned and possession is for all.
An interest in the whole property and also every parcel of it
Eye of the law possession for all
Only when one co-owner asserts his title and denies the owner
A remedy is partition or actual joint possession but not for enactment
Order II
Frame of suit
R 1 every suit shall be framed for a complete final decision and to prevent further litigation
Everything should be disposed within the same suit
Plaintiff duty bound to claim entire relief
R 2 Suit to include entire claim
In respect of the cause of action
Also plaintiff can relinquish part of claim to bring jurisdiction
He cannot claim that which he relinquished
R 3 joinder of causes of action
A plaintiff may unite in the same suit several causes of action
When joined the jurisdiction of the court changes according to the aggregate of the amount involved
Order 1 Rule 1 joinder of plaintiffs
Order 1 Rule 3 joinder of defendants
HC of Madras, calcutta, Bombay have held that subsequent suit for mesne profits not a bar in suits for possession accrued prior to suit
Conversely suit for mesne profits not a bar to subsequent suit for possession
Generally no bar
Order 43 R 1A
Right to challenge non-appealable orders in appeal against decrees
Contend that the decree should not have been pronounced
Compromise decree either with or without the consent of the appellant can contest that the compromise should not have been recorded
Order 22
Death, marriage and insolvency of parties
Order 22 R 12
After filing of the execution petition in time the decree holder dies and his legal representatives are not brought on record, ditto with judgement debtor, there is no abatement of the execution petition, it remains pending, and if no time limit is specified then it is open to the legal reps to come on record at any time.
In any case the legal reps can file exe petition afresh.
Sec 47 CPC
Questions to be determined by the executing court.
All questions arising between parties relating to execution, discharge or satisfaction will be determined by the executing court and not by a separate suit
