CIVIL PROCEDURE CODE & LIMITATION ACT: 2-

MARKERS WITH ANSWERS

PREPARED BY:
NAINIKA AGRAWAL
GOVERNMENT LAW COLLEGE (MUMBAI), 3-YEAR COURSE, BATCH OF 2019

CODE OF CIVIL PROCEDURE, 1908

1. PRELIMINARY

1) What is an execution of decree?

A.: It means the enforcement of a decree by a judicial process which enables the decree-holder to
realise the fruits of the decree and judgment passed by the competent Court in his favour.
The execution is complete when the decree-holder gets money or other thing awarded to him by the
judgment, decree or order of the Court.
The term e ec ion has not been defined in the Code.

2) What is a preliminary decree?

A.: Where an adjudication decides the rights of the parties with regard to all or any of the matters in
controversy in the suit, but does not completely dispose of the suit, it is a preliminary decree.

3) What is an ex parte decree? / When will a court pass an ex parte decree?

A.: When a plaint is filed and the plaintiff appears in court, but the defendant does not, when the
suit is called out, if it is proved that the summons were duly served on the defendant, the court may
make an order that the suit shall be heard ex parte.
In such a case, the court may hear only the plaintiff, and pass a decree in the matter.
Such a decree is called an ex parte decree.

4) Who is a decree-holder?
A.: Decree-holder means any person in whose favour a decree has been passed, or an order capable
of execution has been made. [S. 2(3)]

5) What is a foreign judgement?

A.: Foreign judgement means the judgement of a foreign court, i.e., a court outside India. [S. 2(6)]

6) What is a judgement?
A.: Judgement means the statement given by the Judge on the grounds of a decree or order. [S.2(9)]

7) Who is a judgement-debtor?
A.: A judgement-debtor means any person against whom a decree has been passed or an order
capable of execution has been made. [S. 2(10)]
8) Who are legal representatives?
A.: Legal representative means a person who, in law, represents the estate of a deceased person, and
includes any person who intermeddles with the estate of the deceased.
In cases where a party sues or is sued in a representative character, the term legal representative
also covers the person on whom the estate devolves on the death of the party so suing or sued. [S.
2(11)]

9) What is meant by mesne profits?

A.: Mesne profits means the profits which the person in wrongful possession of such property
actually received, or might with ordinary diligence have received therefrom, together with interest
on such profits. This does not include profits due to improvements made by the person in wrongful
possession. [S. 2(12)]

10) What is an order?

A.: An order is a formal expression of any decision of a Civil Court which is not a decree. [S. 2
(14)]

11) Who is authorised to appear in a civil court on behalf of the parties?

A.: A pleade is any person entitled to appear and plead for another in Court; the term includes an
advocate, a vakil, and an attorney of a High Court (i.e., Solicitor). [S. 12(15)]

12) What is jurisdiction?

A.: It means the power or authority of a court of law to entertain, hear, and determine a suit or other
legal proceeding. It refers to the extent of authority of the court to administer justice with reference
to local limits, subject-matter of the litigation, and the pecuniary value.
This term is not defined in the Code.

13) How is a suit instituted?

A.: A suit is instituted in a court by way of a plaint, which is a plain iff statement of claim,
containing the grounds on which the assistance of the court is sought by him. It forms part of the
pleadings before the court.
Plain is not defined by the Code.

14) What are pleadings?

A.: Pleading refers to the plaint or written statement. Pleadings are to be signed and verified as
provided by the Code.
No pleading subsequent to written statement can be filed, except with the leave of the court. The
only exception to this rule is that the plaintiff can file a defence to the set-off or counterclaim filed
by the defendant.

15) What are evasive denials?

A.: When a defendant files a written statement, he must deal specifically with each allegation of the
plaintiff, i.e., he must admit or deny each and every allegation contained in the plaint.
Evasive denial is a reply which fails to clearly admit or deny allegations against the defendant.

16) What is a letter of request?

A.: A letter of request, aka rogatory letter, is a letter sent by a court in one country to a court in a
foreign country requesting some judicial assistance from that country.

17) What are issues?

A.: An issue is a point in question, and arises when a material proposition of fact or law is affirmed
by one party and denied by the other.
There are 3 kinds of issue: issues of act, issues of law, mixed issues.

18) Who is a garnishee? / What is a garnishee order?

A.: A garnishee is a debtor of a judgement-debtor. A garnishee is thus a person who is liable to pay
some money to the judgment-debtor.
By a garnishee order, a court can call upon the garnishee to not pay such money to the judgement-
debtor, but instead pay the same to the judgement-creditor or decree-holder (aka garnisher).

19) Who is a pauper/indigent person?

A.: An indigent person is one who is not possessed of sufficient amount (other than property exempt
from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the
fee prescribed by law for the plaint in such suit. (Explanation I to Rule 1 O. 33)

20) What is abatement of suit?

A.: If a plaintiff or defendant dies during the pendency of the suit, and if such a suit does not
survive, the suit is said to abate.

2. SUITS IN GENERAL

21) What is a stay of suit?

A.: A Court cannot proceed with the trial of any suit in which a matter in issue is also directly and
substantially in issue in a previously instituted suit:
between the same parties; or
between the parties under whom they (or any of them) claim, litigating under the same title
where such a suit is pending in the same or any other Court in India, having jurisdiction to grant
relief claimed, or in any Court outside India having jurisdiction, or before the Supreme Court of
India.

22) When is a foreign judgement not conclusive?

A.: i) When it is not pronounced by a court of competent jurisdiction.
ii) When it is not given on the merits of a case.
iii) When it is founded on an incorrect view of international law, or refusal to recognise Indian law.
iv) When the proceedings were opposed to natural justice.
v) When it was obtained by fraud.
vi) When it sustains a claim founded on a breach of Indian law.

23) How is summons to be served on a defendant who is confined in prison?

A.: The summons is to be delivered/sent by post or courier, or by fax, or by electronic mail service
(email), or by any other means as may be provided by rules made by the High Court, to the officer
in charge of the prison, for service on the defendant.

24) What is the procedure for serving summons on a defendant who resides out of India?
A.: If a person resides out of India and has no agent in India empowered to receive service, the
summons is to be addressed to the defendant at the place where he is residing, and is to be sent to
him by post, or by courier, or by fax, or by electronic mail service (email), or by any other means as
may be provided by the High Court.

25) What is meany by interrogatories?

A.: An interrogatory is a written question which is formally put to one party in a case by another
party and which must be answered.
Interrogatories must be delivered in writing, and can only be served with the leave of the court.
26) What is meant by costs in a suit?
A.: Co means a court order that the losing party in litigation must pay the successful pa
expenses plus an additional allowance, the latter as a contribution towards the inne legal fees.
Co thus include all the costs of and incidental to a suit that are to be paid by the losing party to
the successful party.

3. PARTIES TO SUITS

27) What is a misjoinder of parties?

A.: The joining of any party to a suit contrary to the provisions of the Code (specifically, Order I:
Rules 1 & 3) is called a misjoinder. A suit should not be dismissed on the grounds of a misjoinder.

28) What is a non-joinder of parties to a suit?

A.: When a person who is a necessary or proper party to a suit has not been joined as a party to the
suit, it is a case of non-joinder. A case can be dismissed on the ground of a non-joinder.

4. PLEADINGS

29) What are pleadings?

A.: Order VI Rule 1 defines a pleading as a plaint or written statement.
According to Mogha: Pleading are statements in writing drawn up and filed by each party to a
case, stating what his contention will be at the trial, and giving all such details as his opponent
needs to know in order to prepare his case in an e .

30) How is a suit instituted?

A.: See Q 13.

31) What is rejection of a plaint?

A.: Order VII Rule 11 of the Code lays down the cases in which a plaint is to be rejected by the
court, namely:
(a) Where it does not disclose cause of action;
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to
correct the valuation within a time to be fixed by the Court, fails to do so;
(c) Where the relief claimed is properly valued, but the plaint is written upon paper which is
insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite
stamp-paper within a time to be fixed by the the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law;
(e) Where it is not filed in duplicate; and
(f) Where the plaintiff has not complied with Rule 9 (which lays down the requirements of
admitting a plaint).

31) What is a written statement?

A.: Though the term i en a emen has not been defined in the Code, it is a term of specific
connotation ordinarily signifying a reply to the plaint filed by the plain iff. [Food Corporation of
India v. Yadav Engineer & Contractor (1982)]

32) What are evasive denials?

A.: See Q 15.
33) What is the effect of a set-off?
A.: When a defendant pleads set-off, he is put in the position of a plaintiff as regards the amount
claimed by him. There are two suits one by the plaintiff against the defendant, and the other by
the defendant against the plaintiff. Both suits are tried together. The original being dismissed or
withdrawn does not affect the claim for set-off, and a decree in favour of the defendant pleading set-
off may still be awarded.

5. APPEARANCE OF PARTIES AND SETTING ASIDE OF EX-PARTE

DECREES
34) When will a court pass an ex parte decree?
A.: See Q 3.

35) What happens if the plaintiff is absent on the date his suit is placed for hearing?
A.: The Court must order the suit to be dismissed, unless the defendant admits the claim, or a part
thereof, in which case the Court can pass a decree even in the absence of the plaintiff.

36) What happens if the defendant defaults in attending court after service of summons?
A.: If it is proved that the summons was duly served, the court may make an order that the suit
should be heard ex parte.

37) What are the remedies available against an ex parte decree?

A.: The 5 remedies available against an ex parte decree are:
(a) He may apply to the Court for an order to have the decree set aside, which would work if he can
prove to the Court either that summons was not duly served, or that he was prevented by any
sufficient cause from appearing when the suit was called for hearing.
(b) He may appeal from the ex parte decree under S. 96 of the Code.
(c) He may apply for a review of the judgement under O. 47, Rule 1.
(d) Where an ex parte decree is alleged to have been obtained fraudulently, the defendant may
institute a regular suit to set aside the decree on the ground of fraud.
(e) If an application under (a) is rejected, an appeal lies from such an order of dismissal.

6. EXAMINATION OF PARTIES

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7. ADMISSIONS

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8. PRODUCTION, IMPOUNDING, AND RETURN OF DOCUMENTS

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9. SETTLEMENT OF ISSUES AND DISPOSAL OF SUITS

38) What are issues?

A.: According the Concise Oxford Dictionary, an issue means a point in question, an important
subject of debate or li iga ion. Issues are of three types: (i) issues of fact, (ii) issues of law, and (iii)
mixed issues of fact and law.
Issues arise when a material proposition of fact or law is affirmed by one party and denied by the
other.

39) What are the materials on which issues are framed?

A.: Issues arise when a material proposition of fact or law is affirmed by one party and denied by
the other.

10. ADJOURNMENTS

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11. HEARING OF THE SUIT AND EXAMINATION OF WITNESSES

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11. HEARING OF SUIT AND EXAMINATION OF WITNESSES

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12. AFFIDAVITS

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13. COMMISSIONS
40) What is a commission?
A.: A commission is a body of one or more persons (usually lawyer/s) to whom certain functions
are entrusted by a court.
Some functions for which a court may issue a commission include (as per S.75 of the Code):
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts;
(d) to make partitions;
(e) to hold a scientific, technical, or expert investigation;
(f) to conduct the sale of property which is subject to speedy and natural decay, and which is in the
custody of the Court pending the determination of the suit;
(g) to perform any ministerial act.
14. JUDGEMENT AND DECREE

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15. EXECUTION
41) What is execution of a decree?
A.: Execution is the enforcement of a decree/order by the process of the Court, so as to enable the
judgement-creditor to recover the fruits of the judgement passed in his favour.

42) What is a precept?

A.: A precept means a command, order, writ, or warrant. It is an order or direction given by the
court which passed the decree, to a court which would be competent to execute the decree, to attach
any property belonging to the judgement-debtor.

43) Who is a garnishee? / What is meant by a garnishee notice?

A.: See Q 18

16. ARREST AND ATTACHMENT BEFORE JUDGEMENT

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17. APPOINTMENT OF RECEIVER

44) When is a Receiver appointed by the court?
A.: A receiver, who is basically a person who receives money of another and renders accounts for it
to the court, can be appointed wherever it appears to the court to be just and convenient. Indian
courts have a very wide jurisdiction to appoint and remove a receiver in the exercise of their
jurisdiction.

18. TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

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19. DEATH, MARRIAGE, AND INSOLVENCY OF PARTIES

45) What happens when a plaintiff dies when his suit is pending?
A.: If a plaintiff dies but the right to sue survives, the suit does not abate. The general rule is that all
rights of action against a person survive to or against his legal representatives. Exceptions to this
rule are mentioned in S. 37 of the Indian Contract Act, 1872, and Indian Succession Act, 1925.

46) When does a suit abate?

A.: Where one of several plaintiffs/defendants dies, and the right to sue does not survive to the
surviving plaintiff(s)/defendant(s), or where the sole plaintiff/sole defendant dies and the right to
sue survives, the court on an application by the legal representative of the deceased
plaintiff/defendant will make him a party and proceed with the suit.
When no such application is made within the period of limitation (i.e., 90 days), the suit shall abate
as far as the deceased plaintiff/defendant is concerned.

47) What are the consequences of the death of the defendant during the pendency of the suit?
A.: If a defendant dies but the right to sue survives, the suit does not abate. The general rule is that
all rights of action against a person survive to or against his legal representatives. Exceptions to this
rule are mentioned in S. 37 of the Indian Contract Act, 1872, and Indian Succession Act, 1925.

20. SUPPLEMENTAL PROCEEDINGS

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21. SUITS IN PARTICULAR CASES

48) What are the pre-prerequisites for filing a suit against the government? / What is the
requirement under S.80 of the CPC for filing a suit against the government? / Can a suit be
instituted against the Government without notice under S.80 of the CPC?
A.: S.80 of the Code lays down that no suit against the Government can be instituted until after the
expiry of two mon h notice in writing delivered to/left at the office of:

Whom the written notice has to be delivered

Sr. In case of a suit against:
to/left at the office of

(a) Central Government (except where it A Secretary to that Government

relates to a railway)

(b) Central Government, where it relates to General Manager of that railway

a railway

(c) Government of State of Jammu & Chief Secretary to that Government, or any
Kashmir other officer authorised by that
Government in this behalf

(d) Any other State Government A Secretary to that Government, or the

Collector of the district

(e) A public officer To the public officer / left at his office

49) Who is a next friend of a minor?

A.: A ne f iend (of a minor) is a person who represents the minor who does not have a legal
guardian, and can institute a suit on his behalf.

50) Who can file a suit on behalf of a minor?

A.: (i) A natural guardian
(ii) A court-appointed guardian (guardian ad litem)
(iii) next friend

51) What is the effect of retirement of the next friend a minor on a suit?
A.: On retirement, removal, or death of a next friend or guardian, further proceedings in the suit
shall remain stayed until another next friend or guardian is appointed.

21A. COMMERCIAL SUITS & COMMERCIAL COURTS

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22. SUMMARY PROCEDURE

52) What is a summons for judgement in a summary suit?
A.:

23. SPECIAL PROCEEDINGS: ARBITRATION & SPECIAL CASE

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24. PUBLIC NUISANCES & PUBLIC CHARITIES

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25. APPEALS
53) Which orders are appealable?
A.: Under S.104 of the Code, an appeal lies only against the following 5 orders:
(i) an order for payment of compensatory costs under S.35A;
(ii) an order under S.91 (public nuisance) or S.92 (public charities) refusing leave to institute a suit
of any nature referred to in S.91 or S.92, as the case may be;
(iii) an order under S.95 (which deals with compensation for arrest/attachment/injunction obtained
on insufficient grounds);
(iv) an order under any of the provisions of the Court, imposing a fine or directing the
arrest/detention in the civil prison of any person, except where such an arrest/detention is in
execution of a decree;
(v) any order made under the rules from which an appeal is expressly allowed by the rules.

26. REFERENCE, REVIEW, AND REVISION

54) What is reference?
A.: Subject to such conditions and limitations as may be prescribed, any Court may state a case and
refer the same for the opinion of the High Court, and the High Court may make such order thereon
as it thinks fit. (S.113)
55) What is review?
A.: Any person considering himself aggrieved
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal
has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes,
may apply for a review of the judgement to the Court which passed the decree/made the order, and
the Court may make such order thereon as it thinks fit.
(S.114)

27. SPECIAL PROVISIONS RELATING TO SOME HIGH COURTS

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28. CHARTERED HIGH COURTS

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29. RULES

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30. MISCELLANEOUS

56) What is the effect of filing a caveat?

A.: When a party to a suit lodges a caveat (making him the caveator), the Court becomes obliged to
serve the caveator a notice/intimation when any application is filed in any suit/proceeding.

57) What are the inherent powers of Court?

A.: The inherent power of a Court is not conferred upon the Court, rather it is those powers that are
inherent in the Court by virtue if its duty to do justice between the parties before it. (Observed by
Supreme Court in Manoharlal v. Seth Hiralal, AIR 1962 SC 527)

58) What is a letter of request?

A.: See Q 16.

30. LETTERS PATENT

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THE LIMITATION ACT, 1963

PREAMBLE

1) What is limitation?
A.: A law of limitation prescribes a time after which a suit or other proceedings cannot be instituted
in a Court of law. The Limitation Act, 1963 was passed in order to ie long po e ion and o
extinguish stale demand .

PART I — PRELIMINARY

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PART II — LIMITATION OF SUITS, APPEALS, AND APPLICATIONS

2) What is the effect of limitation on minority?

A.: Due to the effect of S.6 of the Limitation Act, a person under disability (minority being the
disability, in this case) may sue after the cessation of the disability, within the same period as we
would otherwise have been allowed under the Schedule. The present section adds a proviso that in
no case can the period be extended to anything beyond 3 years from cessation of the disability.
(Vasudeva v. Maguni)

PART III — COMPUTATION OF PERIOD OF LIMITATION

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PART IV — ACQUISITION OF OWNERSHIP BY POSSESSION

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PART V — MISCELLANEOUS

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