1. Define decree and order?

Ans: Decree: It’s a formal expression of an adjudication given by court which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. Decree can be either preliminary or final. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. A decree can be partly preliminary and partly final.

Following are also called as Decrees: i) It shall include the rejection of a plaint

ii) Determination of any question within S.144.

Following are not called as Decrees:

(a) any adjudication from which an appeal lies from an order or

 b) any order of dismissal for default.

S.2(14) of CPC says Order means the formal expression of any decision of a civil court which is not a decree. An order can be passed at any stage of the suit. Order is not appealable unless it is the one specified under S.104 CPC.

2. Who is party? Who can file suit? Write a note on different kind of parties?

Ans: Party to suit means it can be plaintiff or defendant. Any person who has a right to sue or cause of action can institute a suit and he is called as Plaintiff. Person against whom right is claimed and liability is sought to be enforced is called defendant. OI CPC talks about kind of parties.

Necessary Party: Parties whose presence is essential for the adjudication of the claim and in whose absence a decree can’t be passed. Thus presence of necessary party is indispensable for the disposal of the suit and as such non-joining of necessary party is fatal to the case.

Proper Party Parties in whose absence an effective decree can’t be passed. Thus his presence is necessary for complete and final adjudication of suit claim. Lack of proper party is not fatal to the suit.

Joinder of Parties (OI rule.1): It refers to an idea that all person who are proper and necessary parties to the suit must be made as parties to the suit. If either the proper or necessary parties are not made as parties to the suit such suit is called as non-joinder of parties. If persons other than necessary or proper parties are joined as parties such suit is called misjoinder of parties.  All objections relating to non-joinder and misjoinder of parties shall be raised at the earliest point of time or before settlement of issues. Otherwise, they are deemed to have been waived.

3. Whether court has power to strike out or add or substitute any person as plaintiff?

Ans: Yes, as per Rule.10. If the suit is instituted in the name of the wrong plaintiff the court at any stage of the suit and that it is necessary for the determination of the real matter in dispute adding or substituting any person as plaintiff is necessary, it can do so. However, court must be satisfied that the suit is instituted under a bona fide mistake.  Similarly, the court may at any stage of the proceedings strike out any party if party is improperly joined. Similarly, the Court may at any stage of the proceedings add any person as party to the suit if it opines that whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. The addition or striking out of parties can be either at the application of the party or on suo-moto by court. The person under disability shall not be added as a plaintiff suing without a next friend or as the next friend of a plaintiff without his consent. The proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.

4. Write a note on Cause of Action?

Ans: Cause of action: Bundle of facts which entitles plaintiff to a relief in the suit.  Every plaint must disclose a cause of action. If it doesn’t, it is the duty of the court to reject the plaint (O.7 r.11). O.II R.3 CPC says Plaintiff can unite all or any one of causes of action against one defendant or defendants in one suit. This is called joinder of cause of action. In such case the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject matters at the date of instituting the suit. However, court has discretion to direct the plaintiff to file a separate suit if opines that it would delay or embarrass the trial. Objection as to misjoinder of causes of action shall be taken before settlement of issues.

5. Write a note on rejection of plaint and return of plaint?

Ans: Rejection of plaint is dealt under O.7 Rule.11. It is a deemed decree as per s.2(2) of CPC and therefore it is appealable. Whereas O.7 rule 10 talks about return of plaint and it is only an order and it is appealable.

O7 rule 1- to 10B:- Where at any stage of the suit, the court finds that it has no jurisdiction, either territorial or pecuniary or with regard to the subject matter of the suit, it will return the plaint to be presented before proper court as per rule 10(1).As per rule 10(2), the judge while returning the plaint should make endorsements on it regarding:- 1) the date of presentation

2) the date of return

3) The name of the party presenting it and

4) reasons for returning it.

6. What is Jurisdiction & kinds of Jurisdiction & objection as to Jurisdiction?

Ans: Jurisdiction: may be defined to be the power or authority of a court to hear and determine a cause, to adjudicate & exercise any judicial power in relation to it.

Territorial: Areas within which court is permitted to adjudicate civil legal claims. These are fixed by the State Government.

Pecuniary: Monetary limits within which court is permitted to adjudicate civil legal claims. Limits are fixed by the State Government. Ex: Jr.C.Judge Court upto three lakh; Sub-Courts upto fifteen lakhs; District court unlimited pecuniary value.

Inherent or Subject matter(S.9): It means a civil court has power to adjudicate all suits of civil nature unless barred either expressly or impliedly. The expression suit of a civil nature will cover private rights and obligations of a citizen.

Objections:  The objections relating to territorial or pecuniary need not be considered unless Objection is taken before settlement of Issues and as a result there occasioned a failure of justice. Whereas inherent jurisdiction, it is an incurable defect and can be raised at any stage including before Supreme Court for first time.

7. Write a note on Right to sue?

Ans: Right to sue means the right to initiate a civil action before court of law. A person can acquire a right to sue if a civil right is violated or threatened to be violated. O.I R (1) of CPC says any person who has right to sue or civil action against any person can institute a suit. It must be noted that there is a difference between having right and right to sue. Right to sue is arises when there is violation of right or threat to invasion of right. Thus mere having doesn’t entitle a person to file a suit and he must have right to sue as well.  If the right to sue continues even death doesn’t abate the suit.  The person who instituted the suit has right to withdraw the suit either in respect of whole or part of the claim either against all or any of the defendants. If such withdrawal is with the permission of court one can file fresh suit basing on the same cause of action but it doesn’t save time limitation.  The can grant leave to withdraw only two conditions:  a) Formal defect b) Sufficient cause.  If there is more than one plaintiff, court can’t allow the plaintiff to withdraw the suit without the consent of other plaintiffs. O23R1A: If suit is withdrawn by plaintiff, the defendant can make a request to transpose him as a plaintiff. The court while granting leave shall have due regard to the question whether the applicant has a substantial question to be decided against the other defendants.

8. What is representative Suit?

Representative Suit: O.I Rule.8: A suit filed by or against one or more persons on behalf of themselves and others having the same interest in the suit with the permission of the court is called a Representative Suit. The object of filing such a suit is to facilitate the decision of questions in which large body of persons are interested without recourse to the ordinary procedure.  The Essential Conditions:-

1) Numerous parties.

2) Numerous parties must have the same interest in the suit.

3) Permission of the court and.

4) Notice must have been issued to the parties whose interested is to be represented in the suit. Any compromise or withdrawal in this kind of suit must be with the leave of the court, otherwise it is void.

Suit by or against Minor O.32 says Every suit by or against a minor should be instituted in his name by a next friend. The next friend should be a person who is of sound mind, who has attained majority, who is not a defendant in the suit, and whose interest is not adverse to that of the minor. If the defendant is a minor, the court should appoint a guardian for the suit (guardian adlitem). The guardian adlitem should be person of sound mind who has attained majority, who is not a plaintiff in the suit, and whose interest is not adverse to that of the minor. A decree passed against a minor in a suit which he is not represented by a guardian adlitem is a nullity. No next friend or guardian, without the leave of the court expressly recorded in the proceedings can enter into any compromise, on behalf of a minor with reference to the suit. Any withdrawal or compromise entered into without such leave is voidable at the option of the minor. Apart from that it must also satisfy following conditions:

(a) An affidavit of the next friend of minor or person of unsound mind and

(b) By a certificate of pleader, if any represents such case, to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. The above rules apply also to persons of unsound mind. S: 147 CPC also talks about the same.

10. Write a note about Suit against state or its officers: (S.80):

Ans: To institute suit against state or its officers, Sixty days prior notice is mandatory. It must be in writing and it should state the cause of action, the name, description and place of residence of the plaintiff and the relief claimed by him. No suit shall be maintainable without such notice. Such notice has to be served upon a secretary in case of central government, a general manager in case of railway and a secretary or collector of the district in case of state govt. However, the court has the power to dispense with the requirement of the service of such notice if it is satisfied that the suit is filed to obtain urgent or immediate relief. For this purpose separate application leave of the court shall be obtained.  But even in such cases, the court has no power to grant any interim relief exparty without notice to the govt.

 Interpleader Suit S.88 & O.35: It is a request by a third person asking the court to decide who is the owner of the property and to whom property must be delivered. Thus, in interplead suit the real dispute will be between defendants only and plaintiff claims no interest in the suit except costs or charges for filing the suit. This suit shall not be filed, if there is any other suit pending in which this question can be decided. In every suit of interpleader, the plaint shall contain following facts:

(a) That the plaintiff claims no interest in the subject-matter in dispute other than for charge or costs.

 (b) The claims made by the defendants severally; and

(c) The there is no collusion between the plaintiff and any of the defendants.

It is also the duty of the plaintiff if the thing is capable of being paid into court or placed in the custody of the court, he shall deposit in the court.

S.35 R.5 puts a bar for agent or tenant to sue his principal or landlord respectively for the purpose of compelling him interplead with any person, other than the person making claim through the land lord.  S.116 of the IEA lays down that an agent cannot deny the title of his principle and the tenant cannot deny the title of his landlord.

Res Subjudice: In a court of competent jurisdiction if a Suit is pending between same parties with respect to subject matter or issue, the subsequent or 2^nd suit, if any, instituted between the same parties with respect to same subject matter, the 2^nd suit shall be stayed. The bar is against subsequently instituted suit. Suit under this section doesn’t include foreign suit.

13. Write a note on Resjudicata?

Ans: S.11: If a suit is heard and finally decided by a competent court and the subject matter or issue directly and substantially the same, court is barred from entertaining the second suit on the same subject matter provided it is between the same parties. Bar is against suit which is not disposed off. Suit under this section include foreign suit unless hit by S.13.

S.11 explanations list out circumstances which shall also called as resjudicata.

1. The term former suit refers to suit which is disposed of first but not suit which is instituted first
2. Once court of competent jurisdiction is disposed the matter whether matter is appealed or pending is irrelevant.
3. In the former suit one party must have either alleged and other must have admitted or denied.
4. Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
5. Any relief which is prayed but not granted is deemed to have been refused.
6. This rules applies to representative suit i.e, right claimed is private or public provided it is filed with boanifide intention.
7. The above rules equally applicable to execution proceedings.
8. Even if the matter is decided by court of limited jurisdiction the above rules provided it is a competent court though earlier court which decided the suit jurisdiction is ousted subsequently.

14. What is the difference between Resjudicata and Res Subjudice?

15. What is the difference between Explanation IV Resjudicata and OII Rule 2?

16. What is meant by Foreign Judgment? Whether it is binding on Indian Courts?

Ans: Foreign judgment (S.2 (6)): means the judgment of a foreign court

Presumption as to foreign judgements: As per S:14 the court upon the production of any document purporting to be a certified copy of a FJ, that judgment is pronounced by a court of competent jurisdiction, unless the contrary appears on the record or is proved.

A foreign judgement (FJ) is conclusive and will operate as resjudicata between the parties. However, to operate as resjudicata any of following circumstances shall not exist: They are: 1. FJ not by a competent court. 2.FJ not on merits  3.FJ agaisnt international law or Indian law 4.FJ opposed to natural justice. 5.FJ obtained by fraud.  6.FJ founded on a breach of Indian law.

17. How to enforce a foreign Judgment in India?

Ans: A FJwhich is conclusive u/s 13 can be enforced in india in the folllowing ways:

1. By instituting a suit on such FJ.
2. By instituting execution proceedings.
3. By instituting a suit on such FJ it may be enforced in india. If such foreign judgment is embodied in a decree of Indian court, the Indian court cannot go into the merits of the origianl claim. Such a suit must be filed within three years from the date of judgeemnt.
4. A foreign judgemnt can be enforced in execution u/s 44 & 44A of the CPC. U/S 44A, a certified copy of a decree of a superior court in a reciprocating territory can be enforced in the District court, as if the decree is passed by the District court in which the execution proceedings are filed. The judgement debtor may raise all such objectios which are open to him u/s 13 as if a suit had been filed.

18. Explain about interest under Section 34 of C.P.C, 1908?

Ans: S.34 talks about rate of interest to be awarded.  It is obligatory on part of court to grant interest and court shall give reasons for not awarding interest. If for any reason decree doesnot provide for interest, it will be deemed to have been refused. The rates of interest are different at different stages.

Prior to Suit: It is governed Substantive law or agreement between the parties or mercantile usage etc

During Pendency: It is the discretion of the court. As a general rule, the  court awards  contractual rate of interest unless  it is inequitable.

Date of decree till the payment: It is at the discretion of the court. However, it shall not exceed six percent per annum provided if contractual rate of interest is less than the 6%, the court shall award contractual rate of interest. If the liability arises out of a commercial transaction the rate of interest shall be the interest that is charged by nationalised banks in relation to commercial transactions.

19. Write a note on Settlement of disputes outside the court?

Ans: It is dealt u/S.89 CPC. The court upon receipt of pleadings on either side examine the parties and there if it appears to the court there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receving the observations of the parties, the court may reformulate the terms possible settlement and refer the same for : a)Arbiration; b) Concilation; (c) Judicial settlement including settlement through Lok Adalat (d) Mediation. Thereafter the court shall affect a compromise between the parties and shall follow such procedure as may be prescribed.  The award passed by this forum is equal to civil court decree and as such it can enforced under O.21 CPC.

20. 20. When does a suit abate and what is effect of the abatement? What difference dose it make if any of the parties dies after the hearing? Does a partition suit abate on the death of a sole plaintiff? What are options open to the defendat in such a case when the legal representatives of the deceased plaintiff do not take any steps?

Ans: The relevant law is dealt under O.22 CPC. Death of a party abates the suit unless right to sue survives.  The right to sue survive either in favour parties who are already on record or if legal representative (LR) are brought on record within 90 days. It is the duty of the counsel to communicate the death to the court. If there is no LR court can appoint any person as LR provided he has no adverse interest to that of the deceased person.  If the death of the party is between the conclusion of the hearing and the pronouncing of the judgment, the court can pronounce the judgment and it shall have the same force and effect as if it had been pronounced before the death took place.

In a partation suit every party to the suit is a plaintiff and defendant. Hence upon the death of the  sole plaintiff suit does not abate. Legal representatives of the deceased plaintiff  by making an application to the court, they shall be made as a parties and court shall proceed with the suit. If the legal representatives of the deceased plaintiff do not take any steps the court upon the application of defendant, transpose defandant as plaintiff according to O.1 Rule.10 of C.P.C as plaintiffs and deceased  legal representative of the plaintiff as defendant. Because any person refused to join as plaintiff, shall be joined as defendant and no person can be added as plaintiff with out his consent .

21.  Explain briefly the sailent features introduced CPC, 2002 amendments regarding recording of evidence.

O.18 R.9:Recording of evidence: The examination-in-chief by way of affidavit and whereas cross-examination and re-examination can be by court or by the commissioner appointed by it. The Commissioner has power to record demeanour of any witness while under examination. Any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments. The commissioner shall submit his report within 60 days.

22. Estoppel and various kinds of Estoppels?

S.115 defines Estoppel: If a Peron by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. The estoppel can be in any of the following ways:

Estoppel by Record or Estoppel by judgment: It stops a party to a judgment from re-agitating the same issue which has been finally determined by a court. This doctrine is also is incorporated U/S 11 of the C.P.C. S.40 of the IEA also dealing with the doctrine of resjudicata. It says previous judgement ,order or decree would be relevant in order to prevent the court from taking cognizance of any suit in respect of the matters which have been already been finally resolved by such previous judgement.  Thus, stopping a party, by showing a judgement copy, from relitigating the same issue.

Estoppel by deed: This estoppel is based on the principle that when a person has entered into a transaction by deed under his hand he shall not be permitted to deny the matter which he has asserted by a party to the deed is an admission. U/S 31 of the IEA statements of admissions are not conclusive proof unless they operate as estoppel, but however where it is shown that the other party has relied on it and suffered  a detriment, the deed may operate as estoppels. Stopping a party by showing a document or deed in which he entered into a transaction.

Estoppel by Conduct or Pais: When a party by his conduct allows another to believe a certain things to be true and induces action upon it, later he cannot deny his conduct. If he denies estoppel by conduct applies against him.

23. Difference between Resjudicata and Order 2 Rule 2:

Ans: The former refers to the plaintiff’s duty to bring forward all the grounds of attack in support of his claim, while the later only requires the plaintiff to claim all reliefs flowing from the same cause of action. Secondly, while the former rule refers to the parties, plaintiff as well as defendant, and precludes a suit as well as a defence, the later refers only to the plaintiff and bars further suit.

     24.    Difference between Resjudicata and Estoppel:

Ans: The doctrine of resjudicata is often treated as a branch of law of estoppel. Resjudicata is really estoppel by judgement. The rule of constructive resjudicata is nothing else but a rule of estoppel. Even then, the doctrine of resjudicata differs in essential particulars from the doctrine of estoppel.

1. Whereas resjudicata results from a decision of the court, estoppel from the acts of the parties.
2. The rule of resjudicata is based on public policy viz., that there should be end to litigation. Estoppel, on the other hand, proceeds upon the doctrine of equity that he who, by his conduct, has induced another to alter his position to his disadvantage, cannot turn around and take advantage of such alteration of other’s position. In other words, while resjudicata bars multiplicity of suits, estoppel prevents multiplicity of representations.
3. Resjudicata ousts the jurisdiction of the courts to try the case and precludes an inquiry in liminie; estoppel is only a rule of evidence and shuts the mouth of a party.
4. Resjudicata prohibits a man averring the same thing twice in successive litigations, while estoppel prevents him from saying one time and the opposite at another.

25. What is restitution? (S.144)

If a person has received any kind of benefit under a decree or order of the court and if such decree or order has been reversed or setaside, the person who has received the benefit is under a legal obligation to return the same to the person from whom it has been received. S.144 bars filing a separate suit for the relief. It can be claimed by way of an application u/s 144(2) CPC. Under this section 144 of CPC the court may make any orders including orders for the refund of costs, and for the payment of interests, damages, and compensation and mesne profits. An application for restitution is treated as an application for execution for the purpose of limitation and it is governed by the Article 136 of that Act. It’s a decree. It can be enforced within 12 years.

26.What is Caveat? (S.148A)?

Ans: It’s a caution or giving notice to the court not to issue grant or to take any step without notice given to the party lodging the caveat. Hence, no ex-parte order shall be passed against the caveator. The life time of caveat is 90 days from the date on which it was lodged.

27. Write a note on Set-off?                                                                                                                                                                                                                                                                                                                                                Ans: A plea of set-off is a reciprocal discharge of debts between two persons. The rights of the defendant to claim set-off have been recognized u/r 6 of O.8 CPC. It obviates the necessity of filing a fresh suit by defendant. Ex: A sued B on a Pro-note for an amount of Rs.500/-. B holds judgement against A for Rs.100/- The two claims being both definite, pecuniary demands may be set-off. Conditions to maintain set-off by the defendant:

1) The suit of the plaintiff must be legally for recovery of money.

2) Such sum must not exceed pecuniary limits of jurisdiction of the court

3) The claim of the defendant against the plaintiff must be for ascertained sum of money and such sum must be legally recoverable. The court has discretion to set-off unascertained sum on condition that such claim arises out of the same transaction out of which the suit claim has arisen. Ex: A Bank can transfer amount deposited in current a/c to its loan a/c for set off. .

28. Write a note on Counter claim?

Ans:It is dealt under O.8,R.6A to 6G CPC. It’s claim made by the defendant in a suit against the plaintiff. It is a claim independent and separable from the plaintiff’s claim. It is a cause of action in favour of the defendant against the plaintiff. Ex: In a suit for injunction, a counter-claim for possession can be allowed.  It can be filed either before or after the filing of the suit but before the defendant has delivered his defence. Such counter-claim, however, should not exceed the pecuniary limits of the jurisdiction of the court. In other words, by laying down counter claim, pecuniary jurisdiction of the court cannot be ousted and power to try the suit already entertained cannot be taken away by accepting the counterclaim beyond its pecuniary jurisdiction. The counter-claim shall be treated as plaint and will be governed by the rule applicable to plaint. Similarly, a reply filed in answer to counter claims shall be treated as a written statement and governed by rules applicable to written statement.

29. Write a note on Differences between Counter-claim and set-off.

30. Write a short on Issue? How many kinds of Issues are there?

Ans: Issue: Material Proposition of fact or law affirmed by one party and denied by other. Issues are of two kinds: Factual and legal. The object of framing issues is to ascertain with precision the propositions of law or fact on which the parties are at variance and on such questions issues are required to be framed. Issues must be framed in such manner that they should indicate burden of proof. Issues must be specific and clear and not vague or evasive. The day on which court applies its mind to the case either for framing issues or taking evidence can be said to be the first day of hearing of the suit.

31.What is the meaning of material proposition of fact or law?

Ans: Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence (R.1 (2)). There shall be a distinct issue for each material proposition.

32. Whether a document, compulsorily registrable, but not registered can be admitted in evidence, and if so, for what purpose?

Ans: According to S.49 of the Registration Act, an unregistered document required to be registered under law can’t be received in evidence except in case of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument.  Thus under the proviso to Sec. 49 of the Registration Act, an unregistered document, though inadmissible to prove the main or principal transaction, can be received as evidence of any collateral transaction or matter or purpose, not required to be effected by a registered document. Thus there is no remedy for non-registration of instrument required by law to be registered except registration itself.

33.Whether unduly stamped document can be marked in evidence?  Whether court can direct the plaintiff to pay deficit stamp duty with ten times penalty on an unduly stamped instrument at the stage of filing the plaint? What are the consequences of non-payment of deficit stamp duty?  

Ans: a) No, the Court cannot direct the plaintiff to pay stamp duty or deficit stamp duty with penalty on the documents liable for stamp duty and penalty at the time of registration of the suit. Section 33 of the Indian Stamp Act deals with examination and impounding of instruments and Section 35 of the Indian Stamp Act deals with the instruments not duly stamped inadmissible in evidence and proviso (a) to Section 35 contemplates that the instrument which is unstamped or insufficiently stamped  shall be admitted in evidence on payment of duty and penalty.  On a combined reading of the above Sections, it is manifest that unless deficit stamp duty is paid, the said document shall not be admitted in evidence, which means deficit stamp duty shall be collected only when the document is tendered in evidence. The same was also held by the Hon’ble High Court of A.P. In K. Santhakumari v. K. Suseela Devi 1961 (1) An.W.R 425.

Consequences are two-fold: I) As per S.35 unduly stamped instrument shall not be: a) Received in evidence b) Acted upon c) Registered d) Authenticated e) shall not be used for any purpose. But the same principle is not applicable to any instrument tendered to receive in evidence in any criminal Court other than the proceedings under Chapter IX or X(D) of the Code of Criminal Procedure.

II) Penal consequences: Taking proceeding or payment of penalty shall not bar to prosecute for offence under this law. However, sanction of collector is necessary and collector should opine it was done with an intention to evade payment.

34. Write a note on Arrest before judgment?

Ans: O38 R 1-4 talks about arrest before judgement.

R: 1 says: If at any stage of a suit the court is satisfied by affidavit or otherwise:-

a)That the defendant with intent to delay the plaintiff or to avoid any process of the court, or to obstruct or delay the execution of any decree that may be passed against him,

a) has absconded or left the local limits of the jurisdiction of the court, or is about to abscond or leave the local limits of the jurisdiction of the court, or

b) has disposed of or removed from the local limits of the jurisdiction of the court his property or any part thereof, or

c) If the defendant is about to leave India under circumstances affording reasonable probability that the plaintiff will or thereby be obstructed or delayed in execution of any decree that may be passed against the defendant in the suit, the court may issue a warrant that may be passed against the defendant in the suit, the court may issue a warrant to arrest the defendant and bring him before the court to show cause why he should not furnish security for his appearance. The defendant shall not, however, be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff’s claim.

35. Whether Surety holder can give security under O38 R.1

Ans: Yes, the whole purpose is to ensure satisfaction of decree that may be passed against defendant and presence of defendant is only an incidental affair. Hence, any person can given security and in such S.145 would apply. However, if the surety holder wants discharge either he shall pay money or make an application. The court before disposing such application shall give notice to the defendant and direct him to furnish security. If he fails to furnish he may be committed to civil prison for a period of six months. If the suit claim is less than Rs.50/- detention in civil prison shall not be more than three months. If payment is made or security is shown, detention gets setaside.

36. Write a note on Attachment before judgment?

Ans: O: 38: R: 5: R:5 says: If at any stage of a suit, the court is satisfied, by affidavit or otherwise:-  (a)that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,

(i) is about to dispose of the whole or any part of his property or

(ii) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, or

The court may direct the defendant, within a time to be fixed by it, either to furnish security as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. If the defendant fails to furnish security, which is sufficient to satisfy decree within time fixed, it can pass an order of attachment of any specified property or such portion thereof as may be sufficient to satisfy the decree.   If an order of attachment is made without complying with the provisions of Rule 5(1), such attachment shall be void.

37.What is the difference between O.38 R.1 & R.5?

Ans: Normally and naturally in the absence of defendant there is no purpose in having a decree without person. Similarly, there is hardly any purpose having a decree without property. To meet this end only these two rules are designed. The object of these two rules is to ensure satisfaction of decree that may be passed in future. This is achieved by demanding security. However, the method and purpose of obtaining security in two cases is slightly different.O38R.1 talks about arrest of the defendant who is about to leave the local limits of the court and whereas O38 R.5 talks about the defendant who about to dispose his property. In O38 R.1 the purpose is to ensure presence of defendant during the course of suit and whereas R.5 it is to prevent the disposal of defendant property.  The grounds for exercising power R5 are very limited and whereas under R.1 are very wide. U/R.1 security can be demanded on variety of reasons like not only removing property but also leaving the limits of court and whereas under R.5 it can be only for the purpose of removing or disposing of the property.