1. A suit for partition of a premise was filed by one of the co-sharers of the premises.

Subsequently another suit for eviction of a tenant from the premises was filed by another co-sharer. Can the subsequent suit be stayed under the provision of Sec 10 CP Code? Discuss the provision for stay of suits. Answer For the application of this section it is essential to note that few conditions must be satisfied. 1. The matter in issue in the subsequent issue must be directly and substantially in issue in the previous suit. ( In this case, one of the suits is for partition while the other is for eviction of a tenant) (Different matters in question) 2. Both the suits must be between the same parties or their representative parties. (Here parties too are different) Thus, the subsequent suit cannot be stayed under Section of the CPC. Provision in question: Section 10 of the civil procedure code

Qn. 2 On what ground can a party to a suit seek to avoid the rule of res judicata? 1. 2. 3. 4. The matter was not directly and substantially in question. The former suit must have been a suit between the same parties. Such parties must have been litigating under the same title. (same capacity) The court which decided the former suit must have been a competent court to try the subsequent suit. (Decision of the court of limited jurisdiction should not be binding on a court of unlimited jurisdiction) 5. The matter must have been HEARD and finally DISPOSED off.( heard and disposed off on merits or else no res judicata) 6. The judgment in a former suit can be avoided only by taking recourse to section 44 of the Indian Evidence Act on the ground of fraud or collusion. 7. The rule of res judicata does not apply when applications are dismissed in limine. 8. Case Law: Daryao v State of Uttar Pradesh 9. A pure question of law or of jurisdiction does not operate as res judicata. 10. Res judicata operates in cases of ex-parte decree and interim orders. Does a compromise decree operate as res judicata? The doctrine of res judicata does not apply to a consent decree as in a consent decree a matter cannot be said to be heard and finally disposed/decided on merits. However, such a decree precludes a party from challenging it by a rule of estoppel.

Qn3 under what circumstances can a plaint be returned by the court to which it is presented? Under Order 7 Rule 10, the court can return the plaint when it finds out that it has no jurisdiction (either territorial or pecuniary) with regard to the subject matter in question, it will return the plaint to be presented to the proper court in which the suit ought to have been filed. Also important: Order 7 rule 11 of cpc 1908 deals with rejection of plaint, the plait shall be rejected on the following grounds 1, where it does not disclose a cause of action 2, where it is barred by law 3, where it is insufficiently stamped 4, where relief claimed by the claimant is under valued What do you understand by a representative suit? By whom and under what circumstances can such a suit be instituted? Answers: Order 1 Rule 8 deals with Representative Suits. When there are a number of persons similarly interested in a suit, one or more of them can, with the permission of the court or upon a direction from the court, sue or be sued on behalf of others. (ORDER 1 RULE 8) Objective is to save time and expense. Conditions: 1. The parties must be numerous. 2. The parties must have the same interest in the suit. 3. The permission must have been granted or direction must have been given by the court. 4. Notice must have been issued to the parties whom it is proposed to represent in the suit. A person who has no right to sue himself cannot proceed to sue on behalf of others invoking the aid of Order 1 Rule 8 of the code. Qn 4 What are the remedies open to the parties in the following cases? (i)Where neither party appears when the suit is called on for hearing and the suit is dismissed by the court. Answers: Under Order 9 Rule 3, where neither party appear when the suit is called for hearing, the Court may dismiss it. The dismissal of the suit under rule 3, however does not bar a fresh suit in respect of the same cause of action. The plaintiff may apply for an order

to set aside such dismissal. And if the court is satisfied that there was sufficient cause for his non-appearance, it shall pass an order setting aside the dismissal of the suit and shall fix a day for proceeding with suit. (ii)Where the plaintiff appears and the defendant does not appear and an exparte decree is passed in favour of the plaintiff. If the service of summons on the defendant is proved, the Court may proceed ex-parte against the defendant and may pass a decree ex parte in favour of the plaintiff, if the plaintiff proves his case. (Order 9 Rule 6, 10) The defendant has the following remedies in the case of ex-parte decree 1. To apply to the court by which such decree is passed to set it aside. (by showing sufficient grounds- like bona fide mistake as to the date of hearing, late arrival of train, sickness of counsel, fraud of the opposite party, death of relative of the part etc. ) 2. To prefer an appeal against such decree. 3. To apply for review. 4. To file a suit on the ground of fraud. (iii)Where the defendant appears and the plaintiff does not appear and the suit is dismissed by the court. If sufficient cause is shown by the plaintiff for his non-appearance, re-opening is mandatory, but when sufficient cause is not shown, it is directory. The plaintiff may apply for an order to set aside the order of dismissal. And if the court is satisfied that there was sufficient cause for his non-appearance the court may set aside the order of dismissal. (b) Against an ex-parte decree the defendant preferred an appeal and also filed a petition for setting it aside before the court which passed the decree. What will be the effect of disposal of the appeal on the petition during its pendency and vice versa? If we consider the petition for setting aside the decree as a review petition, then if review is granted before disposal of the appeal, the decree or order ceases to exist and the appeal will not remain. Conversely, if the appeal is decided on merits before an application of review is heard, such petition becomes infructuous and is liable to be set aside. (Page 574 of Takwani) Qn. 5 Are the following matters determinable in an execution proceeding or by a separate suit? Give reasons. (a) An objection by the judgment debtor that the decree is a nullity When the decree is a nullity, its invalidity could be set up wherever and whenever it is sought to be enforced, whether in execution or in collateral proceedings. Determinable in the same execution suit (I think so, no need for a separate suit)

(b) An objection to execution by the judgment debtor alleging that the decree holder had before the decree agreed not to execute the decree, (c) An allegation by the judgment debtor that the decree holder has taken possession of the property not included in the decree, (d) An allegation of the judgment debtor that he made some payments against the decretal dues out of court. No idea about the rest of the questions. Qn 6 (a) (i) State the principles underlying the grant of temporary injunction. The power to grant a temporary injunction is at the discretion of the court since it is an equitable right and cannot be claimed as matter of right or course. The grounds for granting temporary injunction (Order 39 Rule 1-5) 1. Where any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree. 2. Where a defendant threatens to remove or dispose of his property with a view to defrauding his creditors. 3. Where the court thinks it is in the needs of justice. 4. Where the defendant is about to commit a breach of contract or other injury of any kind. Both plaintiff/defendant can apply for the grant of TI. Can be applied at any stage of the suit The first rule is that the applicant must make out a prima facie case in support of the right claimed by him. The second rule is that the applicant must show the court that he will suffer irreparable injury if the injunction as prayer is not granted. (Irreparable injury is the key word) The balance of inconvenience must be in favour of the applicant. (ii) A Municipal Board issues a notice to B, a house owner, for removing certain encroachments from Municipal land and B files a suit for declaration and injunction to restrain the Municipality from doing so on the ground that the constructions are not on Municipal land. Can temporary injunction be issued in this case on the prayer of B? (b) Can revision lie against an order of temporary injunction? 4+4+2=10 An order granting or refusing an injunction is a case decided within the meaning of Section 115 of the code and hence, a revision lies against such an order.

6.(a) State the difference between revision and second appeal. A second appeal lies to the High Court on the ground of substantial question of law, while a revision lies on a jurisdictional error. Revisional powers can be in invoked only when no appeal lies. A high court cannot decide a question of fact in revision, but it can decide an issue of fact in a second appeal in rare cases. Revisional jurisdiction- only concerned with jurisdiction. (b) What is the effect of a private alienation of property Any alienation of property after attachment is void. Section 64 of the Civil Procedure Code 64. Private alienation of property after attachment to be void. Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment. Nothing in this section shall apply to any private transfer or delivery of the property attached or of any interest therein, made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment. (i)after the issue of temporary injuction restraining its alienation? Effect of private alienation after the issue of temporary injunction: The effect of a temporary injunction is not to make a subsequent alienation of the property void. Any mortgage or sale of property by a party in contravention of an injunction is not illegal and void. The only penalty that the person disobeying the order of injunction incurs is that prescribed by Rule 2-A of Order 39, namely, that the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached and sold for awarding out of the sale proceeds compensation to the party on whose application the injunction was granted and he may also be detained in the civil prison for a term not exceeding three months. (ii) After attachment of the property by an order of a court? Answer already given by Section 64