CPC - II End Term 2018 Model Answer Key
CPC - II End Term 2018 Model Answer Key
CPC - II End Term 2018 Model Answer Key
Q.1 A decree was passed by a Court of first instance by deciding two issues against X & Y in
exercise of its original jurisdiction. X being aggrieved, preferred an appeal against the decree
so passed. For that purpose, a memorandum of appeal (containing specific arguments with
relevant judicial decisions) was filed in the Appellate Court. It was signed and presented by
X’s pleader in the Appellate Court accompanied by a copy of decree passed against X & Y.
Appellate court returned the memorandum so filed with a direction to amend the same and to
be presented again within 7 days as it was not in conformity with the provisions related to
presentation of Appeal under Code of Civil Procedure, 1908. The memorandum was
presented again after amending it and the same was accepted by Appellate Court ‘as it was
presented’ and directed to be filed as a part of record. After careful examination of the matter
in detail, Appellate Court set aside the decree passed by Court of first instance regarding one
issue only and did not interfere in the decision of court of first instance regarding the second
issue.
Whether appeal can be filed by X alone where a decree has been passed against X & Y
jointly? Why the memorandum of Appeal was returned by the Appellate Court? Don’t you
think that Appellate court is bound to reject the memorandum if it is not valid? ‘Acceptance
of amended memorandum and direction to be filed as it was presented’ was valid? How the
decrees passed by Court of first instance and Appellate Court will be enforced where an
Appellate Court has reversed the decree passed by Court of first instance only regarding one
of the issues?
Support your answer with relevant statutory provisions and decided cases in this regard.
O.41R.4 (One of several plaintiffs or defendants may obtain reversal of whole decree
where it proceeds on ground common to all) + O.41 R. 1(1)&(2) (Form of appeal + what
to accompany memorandum) + O. 41 R.3(1)&(3) (Rejection or amendment of
memorandums) + Doctrine of Merger (Dilip V. Mohd. Azizul Haq)
Q.2 Discuss the nature and scope of ‘Right to Appeal’. Who may file an appeal and what
may be appealed against? What grounds may be taken in an appeal? Support your answer
with relevant statutory provisions and decided cases.
Meaning and Three essentials of Appeal (Nagendra Nath Dey V. Suresh Chandra Dey)
+ Right of Appeal (Ganga Bai V. Vijay Kumar + Substantive Right+ What if no appeal
in a statute)+ Origin and Law applicable (Deep Chand V. LAO) + Who may Appeal
(Adi Pherozshah Gandhi V. H.M. Seervai + Jatan Kumar V. Golcha Properties) + What
may be appealed (Sec.96-97+ Bhagabat Sit V. Balaram Sit+ O.20R.6A) + O.41R.2
(Grounds).
Q.3 “An objection based upon the facts alone cannot be entertained in Second Appeal”
Discuss the concept of Second Appeal as enumerated in various provisions of Code of Civil
Procedure, 1908. Also support your answer with decided cases.
Section 100, 102, 103 & O.42 R.1 + Substantial question of Law (Chunnilal V Mehta
Sons Vs. Century Spg. Mfg. Co. + Mahant Har Kishan V. Satgur Prasad) + Duty of
Court (Sonubhai Yeshwant V. Bala Govinda) + Restrictions (Gurdev Kaur Vs. Kaki) +
Finding of fact may be reversed + Bar of new plea + Mixed question of law.
Q.4 “Revision against the order of subordinate court is different from the remedy of appeal as
the same may be entertained only in case of jurisdictional errors and it cannot be treated as
the alternate of appeal” Discuss with the help of decided cases. Also explain the scope of
Revision under Code of Civil Procedure with the help of statutory provisions and decided
cases in this regard.
Sec. 115 (Case decided + Subordinate Court + First Proviso) + Examples + Cases (Maj.
SS Khanna V. Brig. FJ Dillon + Pandurang Ramchandra Mandlik V. Maruti
Ramchandra Ghatge + DLF Housing Construction Co. V. Sarup Singh + Swastik Oil
Mills Ltd. V. CST) + Nature & Scope (Alternate remedy exhausted+ Not a right +
Appreciation of evidence + Dismissal in limine) + Difference from appeal (Five +
Associated Cement Co. Ltd. V. Keshavananda)
Q. 5 When a decree may be transferred to another court for execution? What are the powers
of transferee court in such cases? Also discuss the provisions relating to ‘Questions to be
determined by the Court executing decree’. Support your answer with decided cases in this
regard.
O. 41R.27 (Examples + Evidence for something not in issue + Negligence of party + For
judgment in a particular way + What if discovered after decision of Appeal ) + Cases
( JDA V. Kailashwati Devi + Shivajirao Nilangekar V. Mahesh Madhav + Pramod
Kumari V. Om Prakash + Arjan Singh V. Kartar Singh + K. Venkatramaiah V. A.
Seetharama Reddy) + O.41 R. 28
Q.7 (A) When does an appeal lie to the Supreme Court? What are the powers of High Court
during pendency of such an appeal? What is the procedure to enforce orders of the Supreme
Court?
Section 109 (Final Order – Ramesh V. Gendalal Motilal Patni + Substantial question of
law of general importance- SBI V. N. Sundara Money) + O 45 R. 13 & 15.
(B) Discuss the concept of Cross-Objections under Code of Civil Procedure, 1908.
O.41R.22 (Rules applicable + Who may file + When may be filed + What if Appeal
withdrawn or dismissed + Difference from Cross-Appeal + Coversion) + Cases (Mahant
Dhangir V. Madan Mohan + Ram Rakhi V. Smt. Atti)