Delhi Judicial Services Exam Code of Civil Procedure & Civil Practice Flashcards

24 sample cards from the Code of Civil Procedure & Civil Practice deck

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

1. What are the three classic conditions for granting a temporary injunction under Order XXXIX Rules 1-2?

   (1) A prima facie case in favour of the applicant; (2) Balance of convenience in the applicant's favour; and (3) Irreparable injury/loss that cannot be compensated in money if the injunction is refused. All three must be satisfied.

2. What is the consequence of disobedience of a temporary injunction under Order XXXIX Rule 2A?

   The court may order attachment of the property of the disobeying party and/or detention in civil prison for up to three months. Attachment, if continuing for more than one year, may lead to sale of the attached property and compensation to the injured party.

3. When may an ex parte injunction be granted, and what safeguards apply under Order XXXIX Rule 3?

   An ex parte injunction may be granted where giving notice would defeat the object; the court must record reasons for its opinion. The applicant must immediately serve the order, plaint, and documents on the opposite party and file an affidavit of such service.

4. When can a defendant be arrested before judgment under Order XXXVIII Rule 1?

   Where the court is satisfied, by affidavit or otherwise, that the defendant, with intent to delay/obstruct execution, (a) has absconded or left the local limits, (b) is about to do so, or (c) has disposed of or removed his property - the court may issue a warrant for the defendant to furnish security or be arrested.

5. When may property be attached before judgment under Order XXXVIII Rule 5?

   Where the court is satisfied that the defendant, with intent to obstruct/delay execution of any decree, is about to dispose of or remove his property from the court's jurisdiction, it may direct the defendant to furnish security or show cause why he should not, failing which the property may be attached.

6. When may a court appoint a receiver under Order XL Rule 1, and what is a receiver's status?

   The court may appoint a receiver where it appears just and convenient, to preserve and manage property pending litigation. A receiver is an officer of the court (custodia legis), an impartial person who holds property for the benefit of whoever is ultimately entitled; he must furnish security and account for receipts.

7. What is the scope of the summary procedure under Order XXXVII CPC?

   Order XXXVII applies to suits on bills of exchange, hundis, promissory notes, and suits to recover a debt or liquidated demand in money arising on a written contract, enactment, or guarantee. The defendant cannot defend unless he obtains leave to defend; otherwise the plaintiff is entitled to judgment.

8. What is the procedure for the defendant to obtain leave to defend under Order XXXVII?

   The defendant must enter appearance within 10 days of service; the plaintiff then serves a summons for judgment. The defendant must apply for leave to defend within 10 days, disclosing facts showing a substantial defence or triable issue. Leave may be unconditional, conditional (e.g., on deposit), or refused if the defence is illusory.

9. Who is an indigent person under Order XXXIII, and what relief does the Order provide?

   A person is indigent if he does not possess sufficient means (other than exempt property and the subject-matter of the suit) to pay the prescribed court fee, or where no fee is prescribed, owns property worth less than Rs. 1,000. Order XXXIII allows such a person to institute a suit without paying court fees (in forma pauperis).

10. Distinguish 'decree' and 'order' for purposes of execution, and define execution.

    Execution is the process of enforcing or giving effect to a judgment/decree by compelling the judgment-debtor to obey it. A decree conclusively determines rights and is generally appealable; an order is a formal expression of a decision that is not a decree. Both decrees and certain orders are executable.

11. Which courts may execute a decree under Sections 37-38 CPC?

    A decree may be executed by the court which passed it or by the court to which it is sent for execution (transferee court). The 'court which passed the decree' includes the court of first instance and, where the decree was passed in appeal, the court of first instance.

12. What are the principal modes of executing a decree under Section 51 / Order XXI?

    (a) Delivery of property specifically decreed; (b) attachment and sale (or sale without attachment) of property; (c) arrest and detention in civil prison (subject to S.51 proviso and S.55-59); (d) appointing a receiver; and (e) such other manner as the nature of the relief requires.

13. What is the scope and object of Section 47 CPC?

    All questions arising between the parties to the suit (or their representatives) and relating to the execution, discharge, or satisfaction of the decree must be determined by the executing court in execution proceedings, and not by a separate suit. Its object is to prevent multiplicity of litigation.

14. Can an executing court go behind the decree under Section 47?

    As a general rule, the executing court cannot go behind the decree and must take it as it stands; it cannot question its correctness or legality. EXCEPTION: it may refuse execution where the decree is a nullity, e.g., passed by a court wholly lacking inherent jurisdiction over the subject-matter.

15. What is the procedure for adjudication of claims and objections to attachment under Order XXI Rules 58-103?

    Where any claim or objection is preferred to attachment of property by a person claiming an interest, the executing court must adjudicate the claim (Rule 58) rather than relegate the claimant to a suit; its order has the force of a decree and is appealable. Disputes regarding possession after sale (Rules 97-103) are similarly adjudicated and determined as if a suit.

16. What are first appeals under Sections 96-99 and Order XLI, and what is the rule on remand?

    A first appeal lies from an original decree to the superior court on questions of both law and fact; no appeal lies from a consent decree (S.96(3)) or, generally, from petty small-cause decrees. Under S.99, a decree shall not be reversed merely for non-joinder/mis-joinder of parties or procedural defects not affecting the merits or jurisdiction.

17. What is a second appeal under Section 100 CPC, and what is a substantial question of law?

    A second appeal lies to the High Court from an appellate decree only if the case involves a substantial question of law, which the High Court must formulate. A substantial question of law is one of general public importance or one that directly and substantially affects the parties' rights and is not already settled.

18. From which orders does an appeal lie under Order XLIII Rule 1 CPC?

    Appeals from orders lie against specified orders such as: refusal to set aside ex parte decree, return of plaint, order under O.XXXIX (injunctions), order under O.XXXVIII (attachment before judgment), appointment/refusal of a receiver, and orders rejecting applications under O.IX. No second appeal lies from such appellate orders (S.104(2)).

19. Distinguish reference (Section 113), review (Section 114), and revision (Section 115).

    Reference (S.113): a subordinate court refers a question of law/validity of a statute to the High Court for opinion. Review (S.114, O.XLVII): the same court re-examines its own decree on grounds like new evidence, error apparent on the face of the record, or other sufficient reason. Revision (S.115): the High Court corrects jurisdictional errors of a subordinate court where no appeal lies.

20. What are the grounds for revision by the High Court under Section 115 CPC?

    The High Court may revise a 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 vested in it, or (c) acted in the exercise of its jurisdiction illegally or with material irregularity. It does not correct mere errors of fact or law within jurisdiction.

21. What are the grounds for review of a judgment under Order XLVII Rule 1 CPC?

    (1) Discovery of new and important matter or evidence which, after due diligence, was not within the applicant's knowledge or could not be produced; (2) mistake or error apparent on the face of the record; or (3) any other sufficient reason analogous to the first two grounds.

22. What is the scope of the inherent powers of the court under Section 151 CPC?

    Nothing in the CPC limits the inherent power of the court to make orders necessary for the ends of justice or to prevent abuse of the process of the court. It is residuary and supplemental, exercisable only where the Code is silent and not in conflict with any express provision.

23. What is a caveat under Section 148A CPC, and how long does it remain in force?

    A caveat is a notice filed by a person (caveator) apprehending an application in a suit/proceeding, requiring that he be served notice before any order is passed on such application, so he may be heard. The court/applicant must serve the caveator; a caveat remains in force for 90 days from the date it is lodged.

24. What power does Section 148 CPC give the court regarding enlargement of time?

    Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by the Code, the court may, in its discretion, from time to time, enlarge such period even if the originally fixed period has expired - subject to a maximum extension of 30 days in total.

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