Civil Judge Examination Civil Law-II Syllabus

What is the difference between rejection and return of a plaint?

Rejection (O.VII R.11) is on substantive defects (no cause of action, barred suit, court-fee/valuation defects). Return (O.VII R.10) is where the court lacks jurisdiction, directing the plaint be presented to the proper court. A rejected plaint may be refiled if defect is curable; a returned plaint is filed in the correct court.

What is a 'written statement' and the time limit for filing it under Order VIII CPC?

It is the defendant's pleading/defence answering the plaint. Order VIII Rule 1: the defendant must present it within thirty days from service of summons (extendable by the court for recorded reasons).

What is the effect of failure to specifically deny an allegation in the written statement (Order VIII Rule 5)?

Every allegation of fact in the plaint, if not denied specifically or by necessary implication, shall be taken to be admitted, except as against a person under disability.

Define 'set-off' under Order VIII Rule 6 CPC.

Set-off is a reciprocal claim by the defendant in a suit for recovery of money — the defendant claims to set off against the plaintiff's demand an ascertained sum of money legally recoverable, within the court's pecuniary jurisdiction, at the first hearing.

Distinguish legal set-off from equitable set-off.

Legal set-off (O.VIII R.6) is for an ascertained sum legally recoverable and must be within pecuniary jurisdiction. Equitable set-off arises out of the same transaction and may be allowed even for an unascertained sum, on equitable considerations.

What are 'issues' and how are they classified under Order XIV Rule 1 CPC?

Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. They are classified as issues of fact and issues of law. Each material proposition forms a distinct issue.

From what materials does the court frame issues under Order XIV CPC?

From allegations made on oath by the parties or their pleaders, allegations in the pleadings, contents of documents produced, and answers to interrogatories — to determine the material points in dispute.

What is the effect of a preliminary issue of law under Order XIV Rule 2 CPC?

Where issues of both law and fact arise and a case may be disposed of on an issue of law (e.g., jurisdiction or a bar by law), the court may try that issue of law first and may stay the trial of the other issues until it is decided.

How are witnesses summoned to attend court under Order XVI CPC?

Parties present a list of witnesses; the court issues summonses to those whose attendance is required to give evidence or produce documents. The summons may be for attendance only or for production of documents (duces tecum).

What is the order of examination of a witness, and what are the three stages called?

Examination-in-chief (by the party calling the witness), then cross-examination (by the adverse party), then re-examination (by the party who called, to clarify matters arising in cross-examination).

What consequences follow non-attendance of a summoned witness under Order XVI CPC?

The court may issue a proclamation, attach property, impose a fine, or issue a warrant (with or without bail) to compel attendance of a witness who, without lawful excuse, fails to appear after being duly served and tendered expenses.

Define 'judgment' under Section 2(9) CPC.

Judgment means the statement given by the judge of the grounds of a decree or order — i.e., the reasoning leading to the decision.

Define 'decree' under Section 2(2) CPC.

Decree is the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties on all or any matters in controversy. It may be preliminary or final and includes rejection of a plaint, but excludes appealable orders and orders dismissing for default.

Distinguish a preliminary decree from a final decree.

A preliminary decree declares the rights of the parties but leaves further proceedings before the suit is completely disposed of (e.g., partition, accounts). A final decree completely disposes of the suit and follows the working out of the preliminary decree.

Distinguish a 'decree' from an 'order' under the CPC.

A decree (S.2(2)) arises in a suit, conclusively determines rights, and may be preliminary or final. An order (S.2(14)) is the formal expression of any decision that is not a decree; it generally does not conclusively determine substantive rights and need not arise from a suit.

What is the essential content of a judgment under Order XX Rule 4 and 5 CPC?

A judgment of courts (other than small causes) must contain a concise statement of the case, the points for determination, the decision on each point, and the reasons for the decision.

Within what time and by whom must a decree be drawn up after judgment (Order XX CPC)?

The decree shall be drawn up and agree with the judgment; it must be drawn up expeditiously (within the time prescribed by the rules, generally fifteen days from the judgment), bear the date of judgment, and be signed by the judge.

Under Section 34 CPC, what three periods of interest may a court award on a money decree?

(1) Interest accrued before the suit (pre-suit, per contract/statute); (2) interest pendente lite (from institution to date of decree) at a rate the court deems reasonable; (3) future/post-decree interest from the date of decree to date of payment.

What is the general rule on 'costs' under Section 35 CPC?

Costs of and incidental to a suit are in the discretion of the court, which determines by and to whom they are paid. The general principle is that costs follow the event (the losing party normally pays), but the court may order otherwise for reasons recorded.

What is the purpose of 'compensatory costs for false or vexatious claims' under Section 35-A CPC?

Where a claim or defence is false or vexatious to the knowledge of the party, the court may, on objection, order that party to pay compensatory costs to the other (subject to a statutory ceiling), to deter frivolous litigation.

What is meant by 'execution' of a decree under the CPC?

Execution is the process of enforcing or giving effect to a decree/judgment by the court, compelling the judgment-debtor to satisfy the decree obtained by the decree-holder. It is governed mainly by Sections 36–74 and Order XXI.

Which court can execute a decree under Section 38 CPC?

A decree may be executed either by the court which passed it or by the court to which it is sent for execution (transferee court, under Sections 39–42).

List the principal modes of executing a decree under Section 51 CPC.

By delivery of any property specifically decreed; by attachment and sale (or sale without attachment) of property; by arrest and detention of the judgment-debtor in civil prison; by appointing a receiver; and by any other manner the nature of the relief requires.

What is the general limitation period for executing a decree, and which provision deals with questions arising in execution?

The limitation for execution of a decree is generally twelve years (under the Limitation Act). Section 47 CPC provides that all questions arising between the parties relating to execution, discharge, or satisfaction of the decree shall be determined by the executing court, not by separate suit.

What is the rule about an executing court going behind the decree?

An executing court cannot go behind the decree — it must take the decree as it stands and execute it as passed. The sole exception is where the decree is a nullity (e.g., passed by a court without inherent jurisdiction), which it may treat as void.

Under Order XXI, what is meant by 'rateable distribution' (Section 73 CPC)?

Where assets are held by a court and more than one decree-holder has applied for execution against the same judgment-debtor before receipt of those assets, the assets are distributed rateably (proportionally) among the qualifying decree-holders.

What is the distinction between a 'first appeal' and a 'second appeal' under the CPC?

A first appeal (Section 96, from an original decree) lies on questions of both fact and law. A second appeal (Section 100, from an appellate decree) lies only on a substantial question of law, not on findings of fact.

Under Section 96 CPC, what is the right of appeal from an original decree, and is appeal allowed from a consent decree?

Section 96 grants a right of appeal from every decree passed by a court exercising original jurisdiction to the authorized appellate court. However, no appeal lies from a decree passed with the consent of the parties (Section 96(3)).

On what grounds does a second appeal lie under Section 100 CPC?

A second appeal to the High Court lies only where the case involves a substantial question of law (in some versions: decision contrary to law, failure to determine a material issue of law, or a substantial error/defect in procedure). It does not lie on questions of fact.

What is an 'appeal from order' under Section 104 and Order XLIII CPC?

Only orders specifically made appealable (listed in Section 104 and Order XLIII Rule 1) may be appealed — e.g., orders rejecting an application to set aside an ex parte decree, refusing/granting injunctions, appointing a receiver. No appeal lies from other orders (Section 105 allows challenge in appeal against the decree).

Distinguish 'reference' under Section 113 CPC from 'review' and 'revision'.

Reference (S.113): a subordinate court refers a question of law or doubt to the High Court for opinion before deciding. Review (S.114/O.XLVII): the same court reconsiders its own decree/order. Revision (S.115): the High Court examines a subordinate court's order for jurisdictional error.

State the grounds for 'review' under Section 114 and Order XLVII Rule 1 CPC.

(1) Discovery of new and important matter/evidence not within the applicant's knowledge or producible earlier despite due diligence; (2) some mistake or error apparent on the face of the record; (3) any other sufficient reason. The application is made to the court that passed the decree/order.

State the scope of 'revision' under Section 115 CPC.

The High Court may call for the record of any case decided by a subordinate court where no appeal lies, if the subordinate court (a) exercised jurisdiction not vested in it, (b) failed to exercise jurisdiction so vested, or (c) acted illegally or with material irregularity in the exercise of its jurisdiction. It corrects jurisdictional errors, not mere errors of fact or law.

Distinguish appeal from revision under the CPC.

An appeal is a statutory right rehearing on facts and law; revision is a discretionary supervisory power confined to jurisdictional errors. An appeal lies only where provided; revision lies only where no appeal lies. Appeal can re-appreciate evidence; revision generally cannot.

What are the 'inherent powers' of a civil court under Section 151 CPC?

Nothing in the CPC limits or affects the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. It supplements, and cannot override, express provisions of the Code.

Can Section 151 CPC be invoked where a specific provision of the Code already applies?

No. Inherent powers under Section 151 are residuary — they cannot be exercised in conflict with, or to circumvent, an express provision. They apply only where the Code is silent and the ends of justice or prevention of abuse of process so require.

Give three common situations where courts exercise inherent powers under Section 151 CPC.

Examples: setting aside an order obtained by fraud; recalling/altering an order to prevent abuse of process; staying or consolidating proceedings; restoring a wrongly dismissed proceeding where no specific rule applies; correcting its own procedural mistakes to do justice.

Under Order XXXIX Rule 1 CPC, in what circumstances may a temporary injunction be granted?

Where it is proved that (a) property in dispute is in danger of being wasted, damaged, alienated, or wrongfully sold in execution; or (b) the defendant threatens to remove/dispose of property to defraud creditors; or (c) the defendant threatens to dispossess the plaintiff or otherwise injure him in relation to the disputed property.

What is the duration and nature of a 'temporary injunction' versus a 'perpetual injunction'?

A temporary injunction (O.XXXIX, CPC) is interlocutory — it continues for a specified time or until further order, to preserve the status quo during the suit. A perpetual/permanent injunction (under the Specific Relief Act) is granted by the final decree and permanently restrains the defendant.

What are the three classic conditions (the 'trinity') a plaintiff must satisfy to obtain a temporary injunction?

(1) A prima facie case (an arguable case to be tried); (2) the balance of convenience in the applicant's favour; and (3) irreparable injury/loss not compensable in damages if the injunction is refused.

What is the consequence of disobedience of an injunction under Order XXXIX Rule 2(3) CPC?

The court may order the property of the person in breach to be attached and may also detain him in civil prison for a term (the breach being a contempt-like disobedience). Attached property may be sold to compensate the injured party.

What is an 'ex parte' temporary injunction and the safeguard attached to it (Order XXXIX Rule 3 CPC)?

It is an injunction granted without notice to the opposite party in cases of urgency. The court must record reasons for proceeding ex parte and ordinarily require notice to be given to the other side, who may then apply to have it varied or set aside.

What is the object of appointing a 'receiver' under Order XL Rule 1 CPC?

To protect, preserve, and manage property that is the subject of litigation pending the suit, where it is just and convenient, so that the property and its income are safeguarded for whoever is ultimately found entitled.

What powers may a court confer on a receiver under Order XL Rule 1(d) CPC?

The court may confer powers to bring and defend suits; to take and manage, protect, preserve, and improve the property; to collect, apply, and dispose of rents and profits; to execute documents; and such other powers as the court thinks fit.

What are the duties and liabilities of a receiver under Order XL Rule 3 and 4 CPC?

A receiver must furnish security, submit and verify accounts, pay the balance due, and be responsible for any loss to the property caused by his wilful default or gross negligence. On default, the court may direct his property to be attached and sold to make good the loss.

What is the legal status of a court-appointed receiver?

A receiver is an officer of the court (not an agent of either party). Possession of a receiver is the possession of the court, and any interference with him without the court's leave amounts to contempt of court.

What is the significance of an 'ex parte decree' and the remedy to set it aside (Order IX Rule 13 CPC)?

An ex parte decree is passed where the defendant fails to appear though duly served. Under Order IX Rule 13, the defendant may apply to set it aside by showing that summons was not duly served or that he was prevented by sufficient cause from appearing; the court may then set aside the decree on such terms as to costs.