Civil Judge Examination Civil Law-II Flashcards

24 sample cards from the Civil Law-II deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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)).

6. 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.

7. 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).

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

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