1. Define Decree. Discuss various modes for execution decree.

(Under Section 51) (DASTDA)

1. Delivery of any property which is specifically mentioned in the decree;
2. Attachment and sale of property;
3. Sale without an attachment of property;
4. The arrest of the judgment debtor;
5. Detention of the judgment debtor;
6. Appointment of a receiver.

(Section 47) (ETDT)

certain questions to be determined by the Court before executing the
decree. The Court has to determine all questions arising between the
parties to the suit, like:

1. Execution of decree;
2. The satisfaction of decree;
3. Discharge of the decree;
4. The Court can also determine whether the person is representative of a
party or not.

(Discretion of court)
(Section 38) of the Code of Civil Procedure provides that there are two courts
which are competent to execute the decree, they are:

1. The Court which has passed it;

2. The Court where it is sent for execution .

https://blog.ipleaders.in/mode-of-execution/#Choice_of_the_mode_of_execution

2. Explain aims and objectives of the Indian Limitation Act, 1963(AT LAST PAGE)

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3. What is written statement? Write a note on set-off and counter claim.
(pg.no.21)

Set-Off
Debts are a factor in set-off. The defendant has made a corresponding claim. Only

in a lawsuit to recover money may set-off be used. An illustration may help to clarify

this. Consider the following scenario: A sues B, alleging that he is owed ₹20,000 by

the latter. Now that A owes B ₹10,000, B has a counterclaim against A stating that A

owes B ₹10,000. In this case, both parties are jointly liable for the other’s debts and

must settle them. B submits a set-off claim along with the written statement in

response to the plaint submitted by A rather than starting a new lawsuit entirely.

Order VIII Rule 6 governs the handling of set-offs, and it states that because it also

involves a subject at hand that is in dispute, the court should take both the written

statement and the set-off into consideration. The defendant must, however, fulfill a

number of requirements in order to file a set-off. They are:

 The purpose of the lawsuit must be money recovery. So, only money suits
may file a set-off.
 Only the sum that has already been granted to the plaintiff may be
claimed by the defendant. The defendant is not entitled to any money that
he hasn’t already lent. It means the source of the funds should be
determined.
 The defendant should be able to legally recover the determined sum of
money from the plaintiff. There shouldn’t be any limitations on it.
 If there are multiple defendants, the money that the defendant is entitled
to recover should go to them, and if there are multiple plaintiffs, it should
go to them as well.
 Only the court with financial jurisdiction should receive the set-off.

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Counter-Claim
In accordance with the Code of Civil Procedure, 1908, Order VIII Rules 6-A to 6-G

govern counterclaims. It is an independent claim, distinct from the plaintiff’s.

Additionally, it is a cross-claim, though it need not necessarily stem from the exact

cause of action as the one in the complaint. The restoration of money is not

required for a counterclaim, unlike a set-off, which must be related. Any civil

disputes might be involved.

The following are the characteristics of a counterclaim

 Also included with a written statement should be a counterclaim. In most
cases, if the defendant wants to drag out the litigation, the court will not
permit him to file a counterclaim later on if it is not submitted with the
written statement. The counter-claim may, however, always be submitted
as a subsequent pleading in accordance with Rule 9 of the same Order.
 In order to avoid multiple proceedings and save the court a lot of valuable
time, the counterclaim was created.

As an illustration, suppose that after A sues B, B also intends to sue A, but on a

completely different issue. B asserts a counterclaim against A as opposed to

bringing a different lawsuit. Here, a significant amount of time is being saved

because the original lawsuit proceedings are also handling the counterclaim

proceedings.
 The counter-claim is given the same consideration as the plaintiff, and the
plaintiff must provide a written statement responding to the counter-
claim. Both the initial claim and the counterclaim may be given final
judgment by the court.
 The counter-claim against the plaintiff may be brought by the defendant
on their behalf. He may occasionally be able to make claims against co-
defendants in addition to the plaintiffs. However, the courts will not
consider a counterclaim that is limited to a claim from the co-defendants.
 When the subject matter is not exempt from the Limitation Act, the
counterclaim should only be submitted.

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Previously, only money lawsuits were permitted to file a set-off or counterclaim.

However, the CPC was amended in 1976 to cover the idea of a counterclaim under

Order VIII Rules 6-A to 6-G, as was previously discussed. This allows for the

inclusion of additional civil claims against the plaintiff and also helps to save time by

reducing the number of lawsuits between the same parties.

As a final point, counterclaims can be utilized for any claims of a civil nature, and

set-offs can be utilized to recover money in lawsuits involving money. Both must be

filed in opposition to the plaintiff by the defendant, and both must be filed with a

written statement. The nature of these two ideas is so similar that bringing a new

lawsuit against the plaintiff to pursue their claims tends to become less onerous.

Difference between set off and counter claim

Particulars Set off Counter claim

The set off is provided under Order VIII Counter claim is provided under
Legal
Rule 6 of the Code of Civil Procedure, Order VIII Rule 6A to Rule 6G of
Provision
1908. the code of civil procedure, 1908.
The object of set off is to give an
The object of the counter claim is
opportunity to the defendant to set up his
Object to avoid multiplicity of
claim for recovery of money from the
proceedings.
plaintiff’s claim.
The counter claim can be claimed
The set off can be claimed in the recovery
Claim in all other suits such as title,
of money suits only.
possession, or in the injunction.

It has a narrow scope or is related to

Scope It has a wider scope.
money.

The counter claim is a part of set

Genesis The origin of the set off is from “equity”.
off and has a wider scope.
Rule’s Set off the rules relating to written In counter claim rules relating to
applicability statements will be followed. plaint will follow.

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 4. Define res subjudice. Differentiate between res subjudice and res judicata.
(pg.10)

Sr. No. Res Judicata Res Sub Judice

1. Section 11 deals with the Res Judicata, Section 10 deals with the Res Sub Judice,
Res judicata is applicable when the matter is In the case of Res Sub Judice, it relates to
already decided by the court of competent a matter, which is pending in the Court of
2. jurisdiction, competent jurisdiction,
Res Judicata prevents the trial of a suit or issue in It bars the trial of a suit in which the
which the matter in issue has already been decided matter is pending for decision in the
3. in a previous suit, previous suit,

Conditions:- Conditions:-
1. The former suit must have been decided by the 1. There must be two suits one
court of competent jurisdiction. previously instituted and the other
2. The matter in issue in the subsequent suit must subsequently instituted.
be the same matter which was directly and 2. The matter in issue in the subsequent
substantially in issue, either actually or suit must be directly and substantially
constructively, in the former suit. in issue in the previous suit,
3. Both the suits must be between the same 3. Both the suits must be between the
parties, same parties,
4. The court which decided the former suit must 4. The court in which the previous suit is
have been a court of competent jurisdiction, instituted must have jurisdiction to try
5. Both the parties must have litigated under the it,
same title in the former suit. “Same title” means 5. Both parties must be litigating under
in the same capacity. the same title in both the suits.

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5. Describe the procedure for institution of suit against state(pg.47)
(SROESSAWFUT)

1. Suit by or against Govt. or public officer (Sec.79-82) (Order-27)

2. Requirement of notice (Section 80(1) )
3. Object of notice
4. Essentials
5. Statutory notice whether empty formality
6. Statutory notice whether mandatory
7. Act purporting to be done in official capacity
8. Waiver of notice
9. Form of service
10. Urgent relief
11. Title of suit(sec79)

6. Discuss the circumstances for grant and refusal of temporary

injunction.(Pg.37)
CIRCUMSTANCES OF GRANT (PIBO)
1. Prohibitory Injunction
2. Mandatory Injunction
3. Permanent or Perpetual Injunctions
4. Temporary Injunction

Section 40 – 42
WHEN INJUNCTION REFUSED (PPRPBDCWPP)
1. PENDING JUDICIAL PROCEEEDING
2. PROCEEDINGS IN A COURT NOT SUBORDINATE
3. RESTRAINING ANY PERSON FROM APPLYING TO LEGISLATIVE BODY
4. PROCEEDINGS IN CRIMINAL MATTERS
5. BREACH OF CONTRACT (EXCEPTION SEC 42)
6. DOUBTFUL CASE OF NUISANCE
7. CONTINUING BREACH WHEN PLAINTIFF HAS ACQUIESCED
8. WHEN EQUALLY EFFICACIOUS REMEDIES IS OTHERWISE AVAILABLE
9. PLAINTIFF’S CONDUCT MAY DISENTITLE HIM TO INJUNCTION
10. PLAINTIFF HAS NO PERSONAL INTEREST IN MATTER

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 Discuss the circumstances for grant and refusal of temporary

1. Prohibitory Injunction: The Competent Court can grant the

Prohibitory Injunction to restrains or forbids a person from doing some
act i.e. the order is passed as not to do any act. Prohibitory Injunction
is also known as preventive or restrictive Injunction.

2. Mandatory Injunction: The Competent Court can grant the

Mandatory Injunction to do some positive act or compels, commands
or orders some person to do something in a particular manner. Section
39 of Specific Relief Act, 1963 does not define but categorically deals
with the grant of Mandatory Injunction.

3. Permanent or Perpetual Injunctions: Perpetual/Permanent

Injunctions is granted by the courts to restrain the party forever from
doing the act complained of. However, this perpetual or permanent
injunction can only be granted after final hearing and decree has been
passed by the court and this is completely decided on the merits of the
case. Permanent or Perpetual Injunctions are governed by section 38
to 42 of Specific Relief Act, 1963. It determines the rights and
liabilities of the parties finally.

4. Temporary Injunction: The temporary Injunction is been granted by

the Court when the Defendant is about to the make some injury to the
property of the Plaintiff or threatens the Plaintiff to dispossess the
property or creates a thirty party interest in the property, then in such
situation, the Court may grant a temporary injunction to restrain the
Defendant to do such an act or make other order to prevent the
dispossession of the plaintiff or prevent the causing of injury to the
plaintiff in relation to any property in dispute or creating any thirty
party rights in the property.

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7. Discuss various powers of appellate court under the code(pg.11)
(DRITMP)
POWERS
1. POWER TO DECIDE A CASE FINALLY
2. POWER TO REMAND
3. POWER TO ISSUES AND PASS ON THEM FOR TRIAL
4. POWER TO TAKE ADDITIONAL EVIDENCE
5. POWER TO MODIFY DECREE
6. OTHER POWERS

DUTIES
1. DUTY TO DECIDE APPEAL FINALLY

2. DUTY NOT INTERFERE WITH DECREE FOR TECHNICAL ERRORS

3. DUTY TO REAPPRECIATE EVIDENCE
4. DUTY TO RECORD REASONS

8. WHAT IS MEANT BY PLEADING? STATE THE FUNDAMENTAL RULES.

Fundamental/Basic rules of pleadings are given in Order 6 Rule 2 of the Civil Procedure
Code, 1908. They are as follows:

1. PLEADING SHOULD STATE THE FACTS.

2. THE FACT SHOULD BE MATERIAL FACTS.
3. PLEADING SHOULD NOT STATE THE EVIDENCE.
4. THE FACTS STATED IN THE PLEADING SHOULD BE IN A CONCISE FORM.

Other rules of pleadings have been given under Rule 4 to 18 of Order 6 of CPC

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powers of appellate court under the code
INTRODUCTION

An Appellate Court in which a first-instance appellate has this influential standing of

accepting such an appeal must have certain powers and duties following its position. An
appeal court’s power varies from powers such as the power to ultimately resolve a case that
might seem like an obvious power. Certain powers such as the power to remand, the power
to frame and refer issues for trial, the power to take additional evidence, and the power to
alter a decision are some of those rights that the court of appeal adheres to when hearing
an appeal.

Whenever power exists, responsibility comes with it. There are also some duties entrusted
to the Court of Appeal. This article explores the concept of powers of the appellate court
along with the corresponding duties conferred to the court.

 POWERS OF APPELLATE COURT

Under Civil Procedure Code, 1908, the provisions which enumerate the powers of an
appellate court while hearing first appeals. Sections 96-108 and Rules 23 to 33 of Order 41
of the Code conferred these powers. They may be giving a brief statement thus:

1. POWER TO DECIDE A CASE FINALLY

Section 107(1) (a) and Rule 24 of Order 41 facilitate the appellate court to set out of a case
finally. Where the proof on record is adequate to enable the appellate court to pronounce
judgment, it may finally conclude the case despite that the judgment of the trial court has
proceeded completely upon a ground other than with the intention of on which the
appellate court proceeds.

2. POWER TO REMAND

Section 107 (1) (b), Rules 23-23A of the Code concerns about the power to remand, here
remand means to send back. Rule 23 of Order 41 of the Code Confers that if the court of the
trial has a case on a preliminary point without documenting findings on other issues and the
court of appeal reverses the decision thus passed, it may refer the case back to the court of
the trial to decide on additional matters and to conclude the case. This is called a remand.

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There have to be precedent conditions to be followed to be able to allow such a remand.
Initially, the trial court must have disposed of the claim, which on a preliminary point means
a lower court. Furthermore, the decision under appeal must have been overturned and,
lastly, some other justification must have occurred which has broadened its scope under
Rule XXIII, which states that the appeal court may revoke a case even if the case has been
disposed of by the lower court other than on a preliminary point and where the
preservation is deemed of utmost importance in acting in the interests of the court.

3. POWER TO ISSUES AND PASS ON THEM FOR TRIAL

Section 107(1)(c), Rules 25-26 concerns about this power. This is considered very necessary
in cases where abstinence has been exercised by the lower court in performing its functions
of framing any issue or attempting any matter or deciding some question of fact that is
needed to be decided to dispose of the suit on merit. In all these circumstances, the court
of appeal has the authority to frame issues for the lower court and may also fix a certain
time limit whilst referring them for the trail. It is provided in section 107(1) (c) above.

4. POWER TO TAKE ADDITIONAL EVIDENCE

It is conferred under section 107(1)(d), Rules 27-29. It is an appellate court’s power to take
further evidence. Anything else, what we call it a general law is that such an appeal must be
decided by the appellate court on the testimony provided by the lower court parties.
Nevertheless, this exemption as provided for in Section 107(1) (d) has three requirements
to be met by the parties presenting such additional evidence in the court of appeal which is,
first, that the person demanding such admission of additional evidence should be able to
demonstrate the reason why he was unable to produce it at first. Another condition is that
the party concerned should have an opportunity to refute such additional evidence by
admitting additional evidence. Third, empirical information must be important to solving
the problem.

In this case,1 section 107 is an exemption to the general principle and empowers the court
to take additional evidence or require such evidence to be taken subject to the
circumstances laid down in Rule 27 of Order 41.

In Pramod Kumari v. Om Prakash, 2 where the lower court has refused to take certain
evidence on the ground of its late production, such rejection cannot be said to be
unjustified and the appellate court should not interfere with the discretion of the lower
court and admit such evidence.

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5. POWER TO MODIFY DECREE

Under the provision of the Code, Rule 33 of Order 41 entitles an appellate court to render
whatever order it thinks fit, not only as between the appellant and the respondent however
also as connecting one respondent and another respondent. An appellate court’s right to
change a decision is very relevant. This power is an authoritative but discretionary force.
This is very clear that if the verdict is overturned in an appellate, the appeal court passes the
order on the same overturned verdict. The same rules and procedures are dealt with in
compliance with Rule XXXIII. The jurisprudential strategy behind this law is to allow the
appeal court to take the whole issue into its own hands and to administer complete justice.

In Mahant Dhangir v. Madan Mohan, 3 the court should not refuse to exercise discretion on
mere technicalities.

LIMITATIONS

The rule does not confer unrestricted right to reopen decrees which have become final
merely because the appellate court does not agree with the opinion of the trial court. Nor
the appellate court will interfere with the finding of fact. The discretionary power cannot be
exercised to nullify the effect of the abatement of appeal.

6. OTHER POWERS

Under section 107(2) of the Code enacts that over and above the aforementioned powers,
an appellate court has identical powers as an original court. This proviso is based on the
general rule that an appeal is a persistence of a suit and therefore, an appellate court can
do, while the appeal is pending, what the original court could have done while the suit is in
the course of.

Thus, an appellate court is empowered to re-appreciate the evidence, to add, transpose or

substitute the parties, to permit to withdraw of proceedings, to return a plaint or
memorandum of appeal for presentation to the proper court.

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 DUTIES OF THE APPELLATE COURT

1. DUTY TO DECIDE APPEAL FINALLY

In dealing with the duty to eventually determine the appeal, it is very clear that because the
court has taken an appeal to be heard and determined, the court must give its decision
based on such an appeal and the important thing to make a judgment is to apply a judge’s
judicial mind.

2. DUTY NOT INTERFERE WITH DECREE FOR TECHNICAL ERRORS

The substance of section 99 provides that “a decision which is otherwise correct and based
on facts should not be disturbed for technical reasons, so it is the responsibility of the
appeal court not to intervene with a decision for technical mistakes, to avoid undermining
the ends of justice and acting as a way of litigation circuitry.”

3. DUTY TO REAPPRECIATE EVIDENCE

The appellate court ‘s obligation to re-appreciate facts ensures that when an appellate court
hears an appellate with almost the same powers as the original court, along with certain
extra powers, Upon due care and caution, the court may re-appreciate such evidence as it
held in a case where a finding of fact was reached by the court of The trial should not be
slightly disturbed, primarily by appreciating oral evidence, unless the approach of the trial
court to the assessment of evidence is significantly incorrect, contrary to well-established or
perverse principles.

Three essentials should normally be present before an appellate court reserves a finding
of fact recorded by the trial court:4

It applied its mind to reasons given by the trial court;

It had no advantage of seeing and hearing the witnesses; and

It records cogent and convincing reasons for disagreement with the trial court.

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4. DUTY TO RECORD REASONS

One of the appellate court’s essential responsibilities is the obligation to record reasons. All
other courts of appeal other than a High Court have the obligation to document reasons for
their decision, even if it is appreciable to do so. Although Rule XXXI specifies that there must
be explanations for an appeal court’s decision and such decision, endorsed by reasons, the
court’s conclusions must be eventually decided and concluded.

Where the High Court (as Appellate Court) finds trial court judgment to be unsatisfactory
and sets aside the judgment, it ought to carefully examine facts and law and give cogent
reasons for setting aside such judgment.

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9. Explain aims and objectives of the Indian Limitation Act, 1963

The major purpose of the statutory of the Limitation Act, 1963 is not to
destroy or infringe the rights of an aggrieved person but to serve public in a
better way and to save time.

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WHAT IS MEANT BY PLEADING? STATE THE FUNDAMENTAL RULES.

Fundamental/Basic rules of pleadings are given in Order 6 Rule 2 of the Civil

Procedure Code, 1908. They are as follows:(pg.11)
1. Pleading should state the facts.
2. The fact should be material facts.
3. Pleading should not state the evidence.
4. The facts stated in the pleading should be in a concise form.

1. Pleading should state the facts.

The first rule of pleading states that the pleading should state the facts and only facts and not the law.
Question of fact must be pleaded, i.e. the existence of any custom or usage, intention, waiver or
negligence must be pleaded.

2. The fact should be material facts.

The second rule of pleading is that the facts stated should be material facts only and not the particulars.
Material facts are the basic facts.

In ‘Virendra Nath vs Satpal Singh‘, the Supreme Court stated, “the phrase ‘material’ fact may be said to
be those facts upon which a party relies for his claim or defence. In other words, ‘material facts’ are
facts upon which the plaintiff’s cause of action or the defendant’s defence defends.” Whether a fact is a
material fact or not differs from case to case and depends on the circumstances of the case.

3. Pleading should not state the evidence

The third rule of pleading is that the pleading should not state the evidence with which the material
facts are to be proved. Facts are of two types:

(i) Facta probanda: the facts which need to be proved.

(ii) Facta probantia: the fact through which material facts are proved.

Facta probanda should be pleaded in the pleadings and not the facta probantia.

4. The facts stated in the pleading should be in a concise form.

The last fundamental rule of pleading is that the pleading should be in a concise form. Unnecessary and
irrelevant details should not be added to the pleading. Instead, pleading should be precise, clear and
specific.

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Other rules of pleadings have been given under Rule 4 to 18 of Order 6 of CPC

1. Particulars with dates and items should be stated wherever fraud,

misrepresentation, breach of trust, undue influence or wilful default are
pleaded in the pleadings.

2. Generally departure from pleading is not permissible, and except by way of

amendment, no party can raise any ground of claim or contain any allegation
of fact inconsistent with his previous pleadings.

3. Non-performance of a condition precedent should be specifically mentioned

in the pleadings. Performance of the same shall not form a part of the
pleadings since it is already implied.

4. If the opposite party denies a contract, it will be held as denial of the facts of
the contract and not its validity, enforceability and legality.

5. Wherever malice, fraudulent intention, knowledge or other condition of the

mind of a person is material, it may be alleged in the pleading only as a fact
without setting out the circumstances from which it is to be inferred.

6. Unless the facts are material, there is no need for the facts to be stated in
verbatim.

7. Pleadings should only state the giving of a notice, when it is required to give
a notice or condition precedent, without disclosing the form or manner of
such notice or giving details of any circumstances from which the form of
notice can be determined, unless the same is material.

8. Implied relations between persons or contracts can be alleged as facts and

the series of conversations, letters and the circumstances from which they
are to be inferred should be pleaded generally.

9. The facts which deals with onus of proof or which favours a party shall not be
pleaded.

10. Every pleading should be signed by the party or one of the parties or by
his pleader.

11. A party to the suit shall provide with his and the opposite party’s address.

12. Each and every pleading need to be approved by making an affidavit by

the party or a person who is acquainted by the facts stated in the pleading.

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13. A pleading may be ordered to be strike out by a court of law, if it feels the
same is scandalous, frivolous, unnecessary or intended towards
embarrassing, prejudicing or delaying a fair trial in the court.

14. Amendment of pleadings shall be allowed by the court

15. The pleadings shall be divided in proper paragraphs whenever required,

consecutively numbered and structured properly. Every argument or
allegations must be in separate paragraphs. Dates, sums and any totals shall
be expressed in figures as well as in words so as to maintain clarity for the
judge as well as the parties concerned in the trial.

16. Forms in Appendix A of the Code should be used wherever they are
applicable. Where they are not applicable, forms of like nature should be
used.

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