MODEL NOTES FOR JUDICIAL EXAM - 102

 1. The Directive Principles of State policy are aimed at:

• Securing social and economic democracy through a welfare state
• Securing political democracy through a welfare state
• Executive democracy
• Judicial democracy

2. Which Fundamental Right is available to citizens only?

• Right to Equality
• Protection against arrest and detention
• Freedom of speech and expression
• Protection of life and personal liberty

3. Which of the following injunctions is always without any time limits?

• Temporary Injunction
• Mandatory Injunction
• Perpetual Injunction
• None of these

4. A sues B for the land of which B is in possession and which as A asserts was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Applying Section 102 of the Indian Evidence Act-

• the burden of proof is on A
• the burden of proof is on B
• the burden of proof is on C
• none of these

5. Causing disappearance of evidence of offence or, giving false information to screen offender, is an offence under

• Sec. 200 I.P.C.
• Sec. 201 I.P.C. 
• Sec. 202 I.P.C.
• Sec. 203. I.P.C. 

7. Which one of the following does not render a contract void after it has been made?

• Commercial impossibility
• Physical impossibility
• Legal Impossibility
• Practical impossibility

8. Out of the following which is the correct order of examination of witnesses?

• re-examination, examination in chief, cross-examination
• cross-examination, re-examination, examination-in-chief
• examination-in-chief, cross-examination, re-examination
• cross-examination, examination-in-chief, re-examination

9. Under the provision of the Civil Procedure Code plea of adverse possession is a defence available

• only to the plaintiff against the defendant
• only to the defendant against the plaintiff
• both plaintiff and defendant
• only to movable property

10. The doctrine of "lis pendens" is explained in the famous case of

• Musahur Sahu v. Hakim Lal
• Muhammad Shafi v. Muhammad Saved
• Tulk v. Moxhay
• Bellamy v. Sabine

      

JUDGMENT AND DECREE UNDER ORDER XX, THE CODE OF CIVIL PROCEDURE, 1908

 Decree: Under Section 2(2) CPC, "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties about all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include

a. any adjudication from which an appeal lies as an appeal from an order, or

b. any order of dismissal for default.

Explanation. 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. It may be partly preliminary and partly final.

Judgment: Under Section 2(9) CPC "judgment" means the statement given by the Judge of the grounds of a decree or order

ORDER XX 

RULE 1 Judgment when pronounced

• After the hearing has been completed, the court shall pronounce the judgment in open court, either at once or on some future day, after giving due notice to the parties or their pleaders.

• It is provided that if a judgment is not pronounced at once, it should ordinarily be delivered within thirty days from the conclusion of the hearing.

• Where it is not practicable so to do due to the exceptional and extraordinary circumstances of the case, the Court may pronounce the judgment within 60 days.

• Due notice of the day so fixed shall be given to the parties or their pleaders.

• It shall not be necessary for the Court to read out the whole judgment. 

• It would be sufficient if the final order is pronounced.

• The judgment must be dated and signed by the judge.

RULE 2 Power to pronounce judgment written by judge's predecessor

A Judge shall pronounce a judgment written, but not pronounced, by his predecessor.

RULE 3 Judgment to be signed

• The judgement must be dated and signed by the judge.

• A judgment once signed cannot afterwards be amended or altered except
  i. to correct clerical or arithmetical mistakes or errors due to accidental slips or omissions (Section 152)
  ii. on a review (Section 114).

RULE 4 Judgments of Small Cause Courts

• Judgments of a court of Small Causes need not contain more than the points for determination and the decision thereon

• Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.

RULE 5 Court to state its decision on each issue

In suits in which issues have been framed, the Court must record its finding on each separate issue with the reasons therefor.

RULE 5A Court to inform parties as to where an appeal lies in cases where parties are not represented by leaders

Where both the parties are represented by pleaders, the Court should inform the parties present in Court as to the Court to which an appeal lies against the judgment pronounced and the period of limitation for the filing of such appeal and place on record the information so given to the parties.

RULE 6 Contents of decree.

• The decree shall follow the judgment, agree with it and bear 
  i. the number of the suit
  ii. the names and descriptions of the parties
  iii. their registered addresses
  iv. particulars of the claim
  v. the relief granted
  vi. the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid
  
  

RULE 6A Preparation of decree.

• A decree should be drawn up within fifteen days from the date of the judgment.
• If the decree is not drawn up, an appeal can be preferred without filing a copy of the decree.
  
  

RULE 6B. Copies of judgments when to be made available

After the judgment is pronounced, copies of the judgment should be made available to the parties immediately on payment of charges.

RULE 7. Date of decree.

The decree shall bear the day on which the judgment was pronounced, and, when the judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree.

RULE 8 Procedure where Judge has vacated office before signing decree.

Where a Judge has vacated office after pronouncing judgment but without signing the decree, a decree drawn up in accordance with such judgment may be signed by his successor or, if the Court has ceased to exist, by the Judge of any Court to which such Court was subordinate.

RULE 9 Decree for recovery of immovable property. 

In a suit for recovery of immovable property, the decree shall contain a description of such property sufficient to identify the same, and where such property can be identified by boundaries or by numbers in a record of settlement or survey, the decree shall specify such boundaries or numbers.

RULE 10 Decree for delivery of movable property.                            A decree for delivery of movable property must state the amount of money to be paid as an alternative if delivery cannot be had.

RULE 11. Decree may direct payment by instalments.

In a decree for the payment of money, the Court may order that the payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable.

RULE 12. Decree for possession and mesne profits. 

In a suit for recovery of possession of the immovable property, the court may pass a decree 

• for possession of the property
• for past rent or mesne profits
• direct an inquiry as to past rent or mesne profits
• direct an inquiry as to future rent or mesne profits
• final decree in respect of rent or mesne profits in accordance with the result of such inquiry 

                                                                  to be continued...

MODEL NOTES FOR JUDICIAL EXAM - 101

 1. A sues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby A was injured. Which of the following is correct?

     A. The fact that B's attention was drawn on other occasions to the defect of that particular carriage is relevant.

       B. The fact that B was habitually negligent about the carriages which he let to hire is relevant

       C. Both

2. Assertion (A)  An accused person cannot be compelled to give his thumb Impression.

    Reason (R) An accused person cannot be compelled to be a witness against himself.

In the question given above are two statements labelled as Assertion (A) and Reason [R]. In the context of two, which one of the following is correct?

    A. Both A and R are true and R is the correct explanation of A

    B. Both A and R are true, but R is not the correct explanation of A

3. Special damages will be awarded in case of a breach of contract :

    A. Only when the contracting parties express the same specifically as the terms of the contract.

    B. Always in the special circumstances leading to the formation of the contract.

    C. Only when the court of law thinks fit in the special circumstances of the case.

   D. Only when the special circumstances causing loss of profit resulting from the breach of contract were brought to the notice of the party committing breach at the time of formation of the contract.

4. In the context of exception of grave and sudden provocation, which of the following is correct?
    A. provocation should not be voluntarily provoked by the offender
    B. lawful exercise of the right of private defence does not give provocation
  C. lawful exercise of powers by a public servant in obedience to the law does not amount to provocation 
    D. All of the above 

5. The Chief Justice of India who passed away while in office was:

    A. Justice A.N. Ray
    B. Justice Sabayasachi Mukharji

6. Under Sec. 16 of the Indian Contract Act, a person is deemed to be in a position to dominate the will of another--

   A. where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other

  B. where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
   C. Both

7. Rahul, being in debt to Samrat, the money-lender of his village, contracts a fresh loan on terms which appear to be unconscionable. It lies on
    A. Samrat to prove that the contract was not induced by undue influence
    B. Rahul to prove that the contract was not induced by undue influence

8. In which case has it been held that presence of a lawyer at the time of interrogation cannot be demanded as a matter of right?
    A. Poolpandi and others Vs. Superintendent Central Excise & Ors. (1992)
    B. Senior Intelligence Officer vs Sri Jugal Kishore Samra 
    C. Both

9. Every agreement in restraint of the marriage of any person, other than a minor, is void under
    A. Sec. 26 Indian Contract Act
    B. Sec. 36 Indian Contract Act

10. In which case the Supreme Court observed that even a student may be treated as an expert under Sec. 45 of the Indian Evidence Act, 1872?
      A. Kanpur University vs. Samir Gupta (1983)
      B. Punjab Singh vs. State of Haryana (1984)

MODEL NOTES FOR JUDICIAL EXAM - 100

1. The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant under 
    Ans: Sec. 45, Indian Evidence Act

2. Z is sitting in a moored boat on a river. A unfastens the moorings, and thus intentionally causes the boat to drift down the stream. Here A intentionally causes motion to Z, and he does this by disposing substances in such a manner that the motion is produced without any other action on any person's part. A has therefore intentionally used force to Z; and if he has done so without Z's consent, in order to the committing of any offence, or intending or knowing it to be likely that this use of force will cause injury, fear or annoyance to Z, A has used criminal force to Z. 
    I. Sec. 351 IPC
    II. Sec. 350 IPC

3. A intentionally pushes against Z in the street. Here A has by his own bodily power moved his own person so as to bring it into contact with Z. He has therefore intentionally used force to Z; and if he has done so without Z's consent, intending or knowing it to be likely that he may thereby injure, frighten or annoy Z, he has used criminal force to Z
    I. Sec. 351 IPC
    II. Sec. 350 IPC

4. A incites a dog to spring upon Z, without Z's consent. Here, if A intends to cause injury, fear or annoyance to Z, he uses criminal force to Z.
     I. Sec. 351 IPC
     II. Sec. 350 IPC

5. Under ___, "Code" includes rules
    I. Sec. 2(1) CPC
    II. Sec. 2(2) CPC

6. Property of any kind may be transferred under the Transfer of Property Act, 1882 except
    I. The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature
    II. An easement apart from the dominant heritage
    III. An interest in property restricted in its enjoyment to the owner
    IV.  All of the above

7. A supplies B, a lunatic, with necessaries suitable to his condition in life. A is
    I. entitled to be reimbursed from B's property
    II. not entitled to be reimbursed from B's property

8. A and B jointly owe 100 rupees to C, A alone pays the amount to C, and B, not knowing this fact, pays 100 rupees over again to C. C is
    I. not bound to repay the amount to B
    II. bound to repay the amount to B

9. Property not liable to attachment under Sec. 60 of CPC
    I. a mere right to sue for damages
    II. any right of personal service
    II. the wages of labourers and domestic servants, whether payable in money or in kind
    IV. All of the above

10. A makes a false entry in the electronic record for the purpose of using it as corroborative evidence in the trial court. A has
      I. Fabricated false evidence
      II. Not fabricated false evidence
      III. Committed forgery
      IV. None of the above

MY GUIDE TO COMPETITIVE EXAMINATION

Some Important Solved Questions on Code of Civil Procedure,1908

1. What provision deal with the attachment of property in the execution of a decree?

     Ans: Sections 60 to 64 and Order 21 Rules 41 to 57 of CPC 

2. What is the effect of attachment of property in execution of decree?

     Ans:- As per sec 64 of C.P.C where an attachment has been made, any private transfer or delivery of the property attached or of any interest there in 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.

3. If a 3rd party purchases attached properties in a private sale and pays the decree debt in respect of which attachment is effected, whether the private sale transaction in his favour confers valid title?
    Ans: Normally valid title is passed to the purchaser. But explanation to Sec 64 C.P.C contemplates that the claim for ratable distribution of assets attached includes as a claim enforceable against the attachment 

4. What are the attachable properties under section 60 CPC?
   Ans: The following properties are liable to attachment and sale in execution of a decree, namely:
(i) Lands, houses or other buildings,
(ii) Goods,
(iii) Money, Bank notes, Cheques, Bills of exchange, Hundis, Promissory notes,
(iv) Government securities, bonds or other securities for money, debts and shares in a corporation.
     It does not mean that the properties listed above are alone liable for attachment and sale and not other. What is not included in the above list is included under Sec. 60(1) by adding the words “all other saleable property movable or immovable, belonging to the judgement-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether, the same be held in the name of the judgement-debtor or by another person in trust for him or on his behalf".

5. What are the properties which cannot be attached under CPC, 1908?
    Ans: The properties which cannot be attached under Sec. 60(1) CPC, 1908 are as follows-
(a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgement-debtor, his wife and children and such personal ornaments as, in accordance with religion usage, cannot be parted with by any women;
(b) Tools of artisans, in the opinion of the Court, be necessary to enable him to earn his livelihood as such (e.g., tools of carpenters, blacksmith, tailors etc.);
(c) Houses, sites and other buildings belonging to an agriculturist or a labourer or a domestic servant and occupied by him;
(d) Books of account;
(e) a mere right to sue for damages;
(f) Any right of personal service;
(g) Stipends and gratuities allowed to pensioners of the Government;
(h) The wages of labourers and domestic servants, whether payable in money or in kind;
(i) Salary to the extent of the first four hundred rupees and 2/3 of the remainder in the execution of any decree other than a decree for maintenance;
(i-a) one third of the salary in execution of any decree for maintenance;
(j) pay and allowances of persons to whom the Air Force Act, 1950 or the Army Act, 1950 or the Navy Act, 1957 applies;
(k) All compulsory deposits and other sums covered by Provident Funds Act of 1925 and declared by ‘the said Act not to be liable to attachment;
(ka) any sum which is covered by the Public Provident Fund Act of 1968 and declared by the said Act not to be liable to attachment;
(kb) all money payable under a policy of insurance on the life of the judgement debtor;
(kc) the interest of lessee of residential building to which the provisions of law for the time being in force relating to control of rent and accommodation apply;
(l) Any allowance forming part of the emoluments of any Government servant or Railway company may be exempted from attachment by gazette notification;
(m) An expectancy of succession by survivorship or other merely contingent or possible right or interest;
(n) A right to future maintenance;
(o) Any allowance declared by an Indian law to be exempt from liability to attachment or sale in execution of decree;
(p) When a movable property is exempt from sale for recovery of land revenue, such property is not liable for attachment and sale under this section.

IMMOVABLE PROPERTY UNDER TRANSFER OF PROPERTY ACT,1882 (IMPORTANT POINTS)

• Under Section 3(26) of the General Clauses Act, 1897, “Immovable property” shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.
• Under Section 3 of the Transfer of Property Act, 1882, “immovable property” does not include standing timber, growing crops or grass.
• So far as the expression "attached to the earth" is concerned it occurs only in two sections of the Transfer of Property Act, namely, Sections 8 and 108 (h).
• But as a result of the above amalgamation, the meaning of the expression "attached to the earth" given in Section 3 of the Transfer of Property Act is attracted to all immovable property referred to in the said Act.
• Immovable property includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of the land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass. 
• The expression “attached to the earth” means—
  a.rooted in the earth, as in the case of trees and shrubs; 
  b.imbedded in the earth, as in the case of walls or buildings; or
  c.attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached;
                   within the meaning of Section 3 of the Transfer of Property Act but not otherwise.
• A hut is an immovable property, even if it is sold with the option to pull it down. A mortgage of the superstructure of a house though expressed to be exclusive of the land beneath creates an interest in immovable property, for it is permanently attached to the ground on which it is built.
• The question of whether trees are to be deemed as immovable property or not would depend on the way they have been dealt with by the parties in the particular transaction. If they are dealt with merely as standing trees, they would be immovable property under Section 3(26) of the General Clauses Act. On the other hand, if they are dealt with as "standing timber" they would be exempt from the definition of "immovable property" as contained in Section 3 of the Transfer of Property Act and Section 2(6) of the Registration Act.
• The Court in Mohammed Ibrahim v. Northern Circars Fibre Trading (AIR 1944 Mad 492) has held that what is really movable property may become immovable property if it is attached to the earth or permanently fastened to anything, which is attached to the earth. 

WITHDRAWAL AND COMPROMISE OF SUITS (Order 23 of the Code of Civil Procedure)

 Order 23 which deals with withdrawal and compromise of suits, provides for two types of withdrawals

• Absolute withdrawal, without the leave of the court

• Qualified withdrawal, with the leave of the court

Order 23 also provides for compromise of suits and effect thereof.

Important points to remember

Order 23 Rules 1 & 2

• At any time after the institution of a suit, the plaintiff may abandon his suit or abandon a part of his claim against all or any of the defendants without the leave of the court-  Rule 1(1)
• This right is absolute and unqualified, the permission of which the court cannot refuse.
• The Court can't compel the plaintiff to proceed with the suit unless any vested right comes into existence before such prayer is made.
• In case of abandonment or withdrawal of a suit or part of a claim without the leave of the court, the plaintiff will be precluded from instituting a fresh suit in respect of the same cause of action.
• It is in the discretion of the court to grant such permission and it can be granted by the court either on an application of the plaintiff or even suo motu. Such permission may be granted on such terms as to costs, etc as the Court thinks fit. The granting of permission removes the bar of Res judicata, restoring the plaintiff to the position which he would have occupied had he brought no suit at all.
• The maxim "invito beneficium non datur" means that the law confers, upon a man no rights or benefits which he does not desire, which forms the basis for Rule 1 .
• By the Amendment Act of 1976, a specific provision has been made that where the plaintiff is a minor, neither the suit nor any part of the claim can be abandoned without the leave of the court- Proviso to Rule 1(1). 
• An application for leave under the proviso to Rule 1(1) must be accompanied by an affidavit of the next friend and also, if the minor of such person is represented by a pleader, by a certificate of the pleader to the effect that the proposed abandonment is, in his opinion, for the minor's benefit- Rule 1(2).
• Where the court is satisfied that a suit must fail by reason of some formal defect, or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may (not shall) grant permission to withdraw such suit or such part of the claim with the liberty to file a fresh suit in respect of the subject-matter of such suit or such part of the claim on such terms as it thinks fit - Rule 1(3)
• The expression "formal defect" connotes some defect of form or procedure not affecting the merits of the case; such as notice under Section 80 of CPC, misjoinder of parties or of causes of action, non-payment of proper court fee or stamp fee, failure to disclose cause of action, mistake in not seeking proper relief, improper or erroneous valuation of the subject matter of the suit, absence of territorial jurisdiction of the court, defect in prayer clause, or where the plaintiff felt that the defendant was absent and even if the decree was passed, etc.  
• Defects that affect the merits of the case, or a defect which goes to the root of the plaintiff's case cannot be said to be a formal defect; e.g. non-joinder of a necessary party, omission to substitute heirs, omission to include all the causes of action in the plaint, non-registration of a partnership firm, bar of limitation, deliberate undervaluation of the subject-matter of the suit, addition of a new factual plea, failure to bring legal representatives on record, non - examination of material witnesses, insufficiency of evidence, filling of a representative suit without following the procedure prescribed by Order 1 Rule 8 etc.
• The expression " sufficient grounds" need not generally be construed ejusdem generis ( of the same kind or nature) with a formal defect. For instance, where the suit was premature, or it had become infructuous etc, it was held to be a sufficient ground. Wide and liberal should be given to the expression " sufficient grounds" by exercising power in the interest of justice ( ex debit justitiae)
• However, the power cannot be exercised where the plaintiff was not ready to conduct the suit or where no notice was served to the defendant due to death, etc.
• The plaintiff also becomes liable for such costs as the court may award to the defendant- Rule 1(4) 
• Rule 1A of Order 23 as added by the Amendment Actor of 1976 provides for the circumstances under which the defendant may be allowed to be transposed as a plaintiff where the suit is withdrawn by the plaintiff. 
• Where there are two or more plaintiff's in a suit, the suit or part of the claim cannot be abandoned or withdrawn without the consent of all the plaintiff's. The plaintiff who wants to abandon or withdraw from the suit is at the liberty to do so to the extent of his own interest in it.

Limitation: Rule 2

A plaintiff withdrawing a suit with liberty to file a fresh suit is bound by the law of limitation in the same manner as if the first suit has not been filed at all.

Applicability to other proceedings

• The provisions of this Order, apply to the withdrawal of appeals. The appellant has a right to withdraw his appeal unconditionally and if he makes such an application, the court must grant it, subject to costs, and he has no power to say that it will not permit the withdrawal and will go on with the hearing of the appeal.

• An appellate court can grant permission to withdraw a suit to file a fresh suit.

• When the plaintiff sues in a representative character, he cannot abandon or withdraw the suit or a part of the claim. He may however get out of the suit, but that does not end the litigation where other persons are interested in it and have a right to come in and continue the litigation.

• The general principles for withdrawal of suits also apply to petitions under Article 226 or Article 32 of the Constitution. But once a High Court or the Supreme Court allows the prayer of a petitioner or his advocate to withdraw the petition (provided the withdrawal is unconditional), he cannot thereafter institute a fresh petition on the same cause of action.

• If a writ petition is withdrawn on some technical defect or logistic problem or availability of alternative remedy or such formal objection, the fresh petition will not be barred.

• Order 23 does not apply to execution proceedings - Rule 4

• An order granting or refusing permission to withdraw the suit with permission to file a fresh suit on the same cause of action is neither a "decree" nor an appellate order. Hence, no appeal lies against such an order.

• An order granting or refusing permission to withdraw the suit with the permission to file a fresh suit on the same cause of action can be said to be "a case decided" under Section 115 of the Code, which is revisable.

Compromise of suit

• After the institution of the suit, it is open to the parties to compromise, adjust or settle it by an agreement or compromise.
• Rule 3 of Order23 lays down that
  1. where the court is satisfied that a suit has been adjusted wholly or in part by any lawful agreement in writing and signed by the parties
  2.where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit,
           the court shall record such agreement compromise or satisfaction and pass a compromise decree accordingly.

• The court must be satisfied by taking evidence or  on affidavits or otherwise that the agreement is lawful and it can pass a decree in accordance with it

• A court passing a compromise decree performs a judicial act and not a ministerial act.

• An agreement or compromise which is void or voidable under the Indian Contract Act, 1872, shall not be deemed to be lawful within the meaning of Rule 3

Compromise on behalf of a minor

No next friend or guardian of a minor shall, without the leave of the court, enter into any agreement or compromise on behalf of the minor with reference to the suit, unless such leave is expressly recorded in the proceedings

Compromise by pleader

An advocate appearing for a party always has an implied authority to enter into a compromise on behalf of his client.

Bar to suit: Rule 3-A

No suit can be filed to set aside a compromise decree on the ground that it is not lawful. 

Representative Suit: Rule 3-B

• No agreement or compromise in a representative suit can be entered into without the leave of the court. 

• Before granting such leave, notice to the persons interested should be given by the court

Compromise decree and res judicata

A compromise decree is not a decision of the court. Hence, a compromise decree cannot operate as res judicata.

Compromise decree and estoppel 

A compromise decree is not a decision on merits as it cannot be said that the case was heard and finally decided.  It is based on consent or compromise of parties and therefore will operate as an estoppel.

Execution of compromise decree

• A consent decree is executable in the same manner as an ordinary decree.
• If the decree gives effect to an unlawful compromise or is passed by the court having no jurisdiction to pass it, it is a nullity, which cannot be cured even by the consent of the parties.
• Prior to the Amendment Act of 1976, a compromise decree could be passed only so far as it related to the suit. Following this Amendment Act, whether or not the subject-matter of the agreement, compromise or satisfaction is identical with the subject-matter of the suit, it is between the parties and the compromise is a lawful one, the court can pass such a decree.

Appeal

• No appeal lies against a decree passed by the court with the consent of parties, nor a suit can be instituted to set aside a compromise decree on the ground that such compromise is not lawful, though such order was appealable before the Amendment Act, 1976. 
• Rule 1-A(2) of Order 43, CPC, however, lays down that in an appeal against a decree passed after recording or refusing to record a compromise, the order recording or refusing to record a compromise can also be questioned.
• A party challenging the compromise can file an appeal under Section 96(1), CPC and Section 96(3), CPC shall not bar such an appeal.
• Such a decree can be challenged by filing a suit on the ground of fraud, undue influence or coercion.

Revision

An order recording or refusing to record compromise is a case decide within the meaning of Section 115 of CPC where a High Court can revise such order provided the conditions laid down in this section are satisfied.
                                                               

COERCION UNDER INDIAN CONTRACT ACT

Introduction

One of the essentials of a valid contract mentioned in Section 10 of the Indian Contract Act is that parties should enter into the contract with their free consent. According to Section 14 of the Indian Contract Act, consent is said to be free when it is not caused by

• coercion, as defined in Section 15, or
• undue influence, as defined in Section 16, or
• fraud, as defined in Section 17, or
• misrepresentation, as defined in Section 18, or
• mistake, subject to the provisions of Sections 20, 21 and 22

When consent to an agreement is caused by coercion, undue influence, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.

Coercion

According to Section 15, coercion is the committing or threatening to commit, any act forbidden by the Indian Penal code, or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever with the intention of causing any person to enter into an agreement.

1. Act forbidden by the Indian Penal Code

    It has been noted above that if a person commits or threatens to commit an act forbidden by the Indian Penal Code with a view to obtaining the consent of the other person to an agreement, the consent in such a case is deemed to have been obtained by coercion. For instance, A threatens to shoot B if B does not agree to sell his property to A at a stated price, B's consent, in this case, has been obtained by coercion.
     
   For coercion, it is not necessary that the Indian Penal Code should be applicable at the place where the consent has been so caused. Explanation to Section 15 makes it clear that to constitute coercion, "it is immaterial whether the Indian Penal Code is or is not in force in the place where the coercion is employed." 

In Ranganayakamma v. Alwar Setti, I.L.R.(1889) 13 Mad. 214., the question before the Madras High Court was regarding the validity of the adoption of a boy by a widow, aged 13 years. On the death of her husband, the husband's dead body was not allowed to be removed from her house for cremation, by the relatives of the adopted boy until she adopted the boy. It was held that the adoption was not binding on the widow as her consent had been obtained by coercion. 

  In Chikkan Ammiraju v. Chikkam Seshama, I.L.R.(1918) 41 Mad. 33., the question before the Madras High Court was whether coercion could be caused by a threat to commit suicide. In this case, A, a Hindu, by a threat of suicide, induced his wife and son to execute a release deed in favour of A's brother in respect of certain properties claimed as their own by the wife and the son. 

     
The question before the court was whether a threat to commit suicide could be considered to be an act forbidden by the Indian Penal Code. It was held by Wallis, CJ and Seshagiri Ayyar, J. that a threat to commit suicide amounted to coercion within the meaning of Section 15 of the Indian Contract Act and therefore the release deed was voidable.

However, Oldfield, J., who dissented was of the view that suicide is not an act forbidden by the Indian Penal Code (only an attempt to commit suicide is punishable under Section 309, Indian Penal code) and a threat to do that could not be considered to be a threat to do a forbidden act within the meaning of Section 15 of the Contract Act.

2. Unlawful detaining of property

According to Section 15, coercion could also be caused by the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. If the detention of the property is not unlawful there is no coercion. For example, if a mortgagee refuses to convey the equity of redemption except on the terms dictated to him, there is nothing unlawful in it and therefore, no coercion is caused in this case.

3. To the prejudice of a person

Section 15 requires that there should be committing or threatening to commit, any act forbidden by the Indian Penal code, or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever with the intention of causing any person to enter into an agreement.

       It means that the act causing coercion should not necessarily be directed against the contracting party, it is enough that the act is to the prejudice of any person whatever, and with the intention of causing any person to enter into an agreement. If, for example, A unlawfully detains B's son, C, in order to coerce B to enter into the agreement, the case would be covered within this section. Apart from that, it is also not necessary that the wrongful act causing coercion should proceed from the party to the contract such as the case of Ranganayakamma v. Alwar Setti. 

A threat to strike is no coercion. Statutory compulsion is no coercion. In case of coercion not only the contract is voidable under Section 19 but if some money has been paid or goods delivered by a party to the contract under coercion, the same is recoverable under Section 72.

It was held by their Lordships of the Privy Council in the case of Seth Kanhaya Lal v. National Bank of India, Limited (1913) I.R. 40 I.A. 56, s. c. 15 Bom. L.R. 472 that the word "coercion" in Section 72 of the Indian Contract Act is used in its general and ordinary sense, its meaning not being controlled by the definition of "coercion" in Section 15 of the Act. 

Difference between Coercion and Duress

Coercion under Indian law is also synonymous with duress under Common law. However, there are some differences which are as follows:

• Coercion in India means committing or threatening to commit an act forbidden by the Indian Penal Code. Duress, under Common Law, consists of actual violence or threat of violence to a person. It includes doing an illegal act against a person, whether it be a crime or a tort. Thus, unlike coercion, duress is not confined to unlawful acts forbidden by any specific penal law, as the Indian Penal Code in India.
• In India, coercion can also be there by detaining or threatening to detain any person or property. In England, duress is constituted by acts or threats against the person of a man and not against his property.
• In India, coercion may proceed from a person who is not a party to the contract, and it may also be directed against a person who, again, maybe a stranger to the contract. In England, duress should proceed from a party to the contract and is also directed against the party to the contract himself, or his wife, parent, child, or other near relatives.  

MODEL NOTES FOR JUDICIAL EXAM - 99

1. A is accused of cheating B at a given time and place. The charge
    I. must set out the manner in which A cheated B
    II. need not set out the manner in which A cheated B

2. A is accused of disobeying a direction of the law with intent to save B from punishment. The charge
    I. must set out the disobedience charged and the law infringed
    II. need not set out the disobedience charged and the law infringed

3. Under Sec. 45 IPC, the word "life" denotes the
     I. life of a human being
     II. life of human and animal both

4. Which section of the Evidence Act deals with rule of res gestae?
     I. Sec. 7
     II. Sec. 6 

5. A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are
    I. relevant facts, though they do not contain the libel itself
    II. not relevant fact

6. When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact under 
    I. Sec. 16 Indian Evidence Act
    II. Sec. 17 Indian Evidence Act

7. Power of Court to convert summons-cases into warrant-cases
     I. Sec. 259 CrPC
     II. Sec. 260 CrPC

8. A causes Z to go within a walled space, and locks Z in Z is thus prevented from proceeding in any direction beyond the circumscribing line of the wall. A wrongfully confines Z
    I. under Section 340 IPC
    II. under Section 341 IPC

9. The person making the proposal is called the "promisor", and the person accepting the proposal is called the "promisee under 
    I. Sec. 2(c) of the Indian Contract Act
    II. Sec. 2(d) of the Indian Contract Act

10. An agreement enforceable by law is a contract under
      I. Sec. 2(h) of the Indian Contract Act
      II.  Sec. 2(i) of the Indian Contract Act

MODEL NOTES FOR JUDICIAL EXAM - 98

1. In criminal proceedings, the fact that the accused person has a bad character, is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant
    A. Sec. 54 of Indian Evidence Act
    B. Sec. 64 of Indian Evidence Act

2. Whoever kidnaps any minor or, not being the lawful guardian of a minor, obtains the custody of the minor, in order that such minor may be employed or used for the purposes of begging shall be punishable with
   A. imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine
  B. imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine

3. Under Sec. 363 A IPC, "begging" means—
  A. soliciting or receiving alms in a public place, whether under the pretence of singing, dancing, fortunetelling, performing tricks or selling articles or otherwise
  B. entering on any private premises for the purpose of soliciting or receiving alms
  C. using a minor as an exhibit for the purpose of soliciting or receiving alms
  D. All of the above

4. Before the commencement of the Transfer of Property Act, 1882, the transfer of immovable properties in India were governed by the:
     A. Principles of English law and equity
     B. Indian Registration Act, 1908

5. Enforcement of decree against legal representative
    A. Sec. 52 CPC
    B. Sec. 53 CPC

6. Where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is
     a. void
     b. voidable

7. A agrees to sell to B a specific cargo of goods supposed to be on its way from England to Bombay. It turns out that, before the day of the bargain, the ship conveying the cargo had been cast away and the goods lost. Neither party was aware of the these facts. The agreement is
    a. void
    b. voidable

8. A deed contains blanks. Evidence
    A. cannot be given of facts which would show how they were meant to be filled
    B. can be given of facts which would show how they were meant to be filled

 9.Secondary evidence means and includes
    A. Copies made from or compared with the original
    B. Counterparts of documents as against the parties who did not execute them
    C. Oral accounts of the contents of a document given by some person who has himself seen it
    D. All of the above

10. The seller is bound--
      a. to disclose to the buyer any material defect in the property or in the seller's title title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover
       b. on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place
     c. between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession, as an owner of ordinary prudence would take of such property and documents
    d. to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits
      e. all of the  above

MODEL NOTES FOR JUDICIAL EXAM - 97

 1. A sells, by auction, to B, a horse which A knows to be unsound. A says nothing to B about the horses unsoundness. This is
     A. not fraud in A
     B. fraud in A

2. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents
     A. Sec. 81 Indian Evidence Act
     B. Sec. 91 Indian Evidence Act

3. A owes money to B under a contract. It is agreed between A, B and C, that B shall thenceforth accept C as his debtor, instead of A. The old debt of A to B is at an end, and a new debt from C to B has been contracted. Illustration belongs 
    A. Sec. 61 of Indian Contract Act
    B. Sec. 62 of Indian Contract Act

4. Sec. 91 of the Indian Evidence Act applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document and to cases in which they are contained in more documents than one
     A. Explanation 1
     B. Explanation 2 

5. If a contract be contained in several letters, all the letters in which it is contained must be proved. True/False
    Ans: True (Illustration a Sec 91 Indian Evidence Act)

6. A gives B a receipt for money paid by B. Oral evidence is offered of the payment. The evidence
    A. is admissible
    B. is not admissible

7. Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other. True/False
    Ans: True

8. A, being in debt to B, the money-lender of his village, contracts a fresh loan on terms which appear to be unconscionable. It lies on B to prove that the contract was
   A. not induced by undue influence
   B. induced by undue influence

9. The maximum possible compensation awardable under section 357 of the Code of Criminal Procedure, 1973-
     A. Depends on the Court in which the case is being tried
     B. Depends on the discretion of the judge

10. Admissions and confessions are exceptions to the hearsay rule. True/False
     Ans: True

MODEL NOTES FOR JUDICIAL EXAM - 96

 1. Right of Gender equality and guarantee against sexual harassment has been recognised by the Supreme Court of India in the case

     A. Vishakha and others v State of Rajasthan

     B. Apparel Promotion Council Case

     C. Both

2. Necessity rule as to the admissibility of evidence is contained in 
    A. Sec.32 of the Indian Evidence Act
    B. Sec. 33 of the Indian Evidence Act

3. All persons shall be competent to testify unless the Court considers that they are prevented from _____ the questions put to them.
    A. understanding
    B. properly understanding

4. Propositions under Evidence Act are 
     I. In civil cases character evidence is inadmissible unless the character of a party is a fact in issue
     II. In criminal cases the evidence of good character is admissible generally
     III. In criminal proceedings evidence of bad character is inadmissible unless the same is fact in issue
     IV. In criminal proceedings evidence of bad character is admissible when evidence of good character is given .

     A. I,II correct

     B. I, III, IV correct
     C. All are correct

5. The death of the surety operates, in the absence of any contract to the contrary, as a revocation of a continuing guarantee, so far as regards future transactions
    A. Sec. 131 Indian Contract Act
    B. Sec. 121 Indian Contract Act

6. C, advances to B, his tenant, 2,000 rupees on the guarantee of A. C has also a further security for the 2,000 rupees by a mortgage of B's furniture. C cancels the mortgage. B becomes insolvent and C sues A on his guarantee. A is
    A. not discharged from liability to the amount of the value of the furniture
    B. discharged from liability to the amount of the value of the furniture

7. Ratification of an act
    A. may be expressed or may be implied
    B. has to be implied
    C. has to be express only

8. A person may apply for review of judgment if he is aggrieved by a decree or order from which no appeal is allowed
    A. under Sec. 114 CPC
    B. under Sec. 116 CPC

9. Sec. 41 of the Indian Evidence Act deals with
    A. Judgment in Rem
    B. Res Judicata

10. When police may arrest without warrant
      A. Who commits in the presence of police officer a cognizable offence
      B. Who has been proclaimed as an offender by State government 
      C. Both

MODEL NOTES FOR JUDICIAL EXAM - 95

 1. Which of the following acts cannot be ratified?

      A. lawful or unlawful acts capable of being done by the agent

      B. where knowledge of facts to the ratifying person is defective

2. What is the punishment for "Voluntarily causing hurt by dangerous weapons or means" under Sec. 324 IPC?
    Ans: Imprisonment of either description for a term which may extend to three years, or with fine, or with both

3. Consider the following statements:

    I. The President nominates twelve members of the Rajya Sabha on the advice of the Council of Ministers.

    II. The President has absolute power to appoint and remove the Chairman and members of statutory bodies at his discretion.

   Which of the statements given above is/are correct?

   A. Only I
   B. Only II

4. What is the punishment for "Voluntarily causing hurt on grave and sudden provocation" under Sec. 334 IPC?
   Ans: Imprisonment of either description for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both

5. When one person signifies to another his willingness to do or to abstain from doing any thing with a view to obtaining the assent of that other person to such act or abstinence he is said to make a
    A. Proposal
    B. Promise

6. Appropriate legislature is empowered to frame service rules under _ of Constitution of India
    A. Art. 309
    B. Art. 307

 7. A is accused of fraudulently delivering to another person a counterfeit coin which, at the time when he delivered it, he knew to be counterfeit. Which of the following is correct?
    A. The fact that, at the time of its delivery, A was possessed of a number of other pieces of counterfeit coin is relevant.

    B. The fact that A had been previously convicted of delivering to another person as genuine a counterfeit coin knowing it to be counterfeit is not relevant

8. A is accused of defaming B by publishing an imputation intended to harm the reputation of B. Which of the following is correct?

   A. The fact of previous publications by A respecting B, showing ill-will on the part of A towards B, is relevant, as proving A's intention to harm B's reputation by the particular publication in question.

  B. The facts that there was no previous quarrel between A and B, and that A repeated the matter complained of as he heard it, are relevant, as showing that A did not intend to harm the reputation of B.
   C. Both

9. A is charged with shooting at B with intent to kill him. In order to show A's intent the fact of A's having previously shot at B may be proved. True/False
    Ans: True

10. The question is whether A's death was caused by poison. Statements made by A during his illness as to his symptoms are relevant facts. True/False
       Ans: True

    

MODEL NOTES FOR JUDICIAL EXAM - 94

1. No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice, under 
    A. Sec. 21 CPC
    B. Sec. 22 CPC

2. Which provision of the Indian Evidence Act states, "In civil cases character to prove conduct imputed, irrelevant"?
     Ans: Section 52 

3. Bribery in the case of elections provided under which Section of IPC?
    Ans: Sec. 171B

4. A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A's keeping. A places the food on Z's table or delivers it to Z's servants to place it on Z's table. A has committed the offence defined in
      A. Section 307, IPC
      B. Section 300, IPC

5. Whoever, being entrusted with property as a carrier, wharfinger or warehouse-keeper, commits criminal breach of trust in respect of such property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
     A. Sec. 407 IPC
     B. Sec. 417 IPC

6. Fact means and includes—
    A. any thing, state of things, or relation of things, capable of being perceived by the senses
    B. any mental condition of which any person is conscious
    C. Both 

7. A fact is said to be proved when,
    A. after considering the matters before it, the Court either believes it to exist
   B. the Court considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists
    C. All of the above

8. A and B separately sue C for a libel which reflects upon each of them. C in each case says that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither. A obtains a decree against C for damages on the ground that C failed to make out his justification.
   A. The fact is irrelevant as between B and C
   B. The fact is relevant as between B and C

9. A is charged with theft and with having been previously convicted of theft. The previous conviction 
    A. is relevant as a fact in issue
    B. is irrelevant as a fact in issue

10. In the case of a sub-agent lawfully appointed which of the following is correct?
      A. As regards third parties the sub agent can bind only the original agent
      B. As regards third parties the sub agent binds the principal as an original agent can bind

MODEL NOTES FOR JUDICIAL EXAM - 93

1. During the recess of the Parliament, the President can promulgate Ordinances

    A.With the prior approval of Parliament

    B. With the consent of the Council of Ministers

    C. With the prior approval of Supreme Court of India

  D. On his own if he is satisfied that circumstances exist which render it necessary to take immediate action

2. A cuts down a tree on Z’s ground, with the intention of dis­honestly taking the tree out of Z’s possession without Z’s con­sent. What offence did A commit?
    Ans: Here, as soon as A has severed the tree in order to such taking, he has committed theft.(Illustration a, Sec. 378 IPC)

3. Assertion(A): Nothing is an offence which is done in the exercise of the right of private defence.
    Reason(R): Where the aid of the society cannot be obtained, individual may do everything necessary to protect himself. 
    Codes:
    a. Both A and R are true and R is the correct explanation of A 
    b. Both A and R are true but R is not the correct explanation of A

 4. The case law of Mobarik Ali v. The State of Bombay comes under which provision of IPC?
      Ans: Sec. 2

5. In relation to the expression defined in Sec. 3 of the Indian Evidence Act, 1872 which of the following statements is not correct?
    A. 'Fact' includes not only physical facts but also psychological facts

    B. Court includes arbitrators

6. The Law Commission of India in its 262nd Report has recommended that the death penalty may be abolished for all crimes other than
     A. Terrorism related offences
     B. Waging war against India
     C.  Both

7. A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes ___ when the act becomes impossible or unlawful.
    A. void
    B. voidable

8. Which one of the legal propositions is correct?
     A. It is necessary for a contract to be valid that the consideration should be adequate
     B. Inadequacy of consideration does not affect the validity of the agreement.

9. Parliament added Article 31a to the Indian Constitution by the
    A. 1st Constitutional Amendment of 1951
    B. 1st Constitutional Amendment of 1952

10. No order for detention of the judgment debtor in civil prison in execution of a decree for the payment of money shall be made, where the total amount of the decree does not exceed 
      A. two thousand rupees
      B. five thousand rupees

MODEL NOTES FOR JUDICIAL EXAM - 92

 1. Minimum number of persons required to commit an affray is –
     A. Five
     B. Two

2. Art. 371 B of the Indian Constitution provides for special provision with respect to
    A. Assam
    B. Arunachal Pradesh

3. The maxim "ubi jus ibi remedium" is related to the case/cases 
     A. Ashby vs White
     B. D.K. Basu v. State of West Bengal
     C. Both

4. In which case the Court of Exchequer explained the principle of res ipsa loquitur?
     A. Scott v. London & St. Katherine Docks. Co
     B. Derry v. Peak

5. An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.
     A. Section 2(h) of Indian Contract Act, 1872
     B. Section 2(i) of Indian Contract Act, 1872

6. Under Indian Contract Act, 1872, which one of the following does not fall in the meaning of "Fraud"?
     A. the active concealment of a fact 
     B. the suggestion, as a fact, of that which is not true, by one who does not believe it to be true
     C. a promise made without any intention of performing it
     D. positive assertion of unwarranted statements

7. Non cognizable offence has been defined under 
    A. Sec. 2(l) of CrPC
    B. Sec. 2(c) of CrPC

 8. Under Article ___ of the Constitution of India, "There shall be a President of India"?
     Ans: Art. 52

9. The judgment in every trial in any Criminal Court or original jurisdiction shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders,---
    A. by delivering the whole of the judgment
    B. by reading out the whole of the judgment
  C. by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader
    D. All of the above

10. Sec. 91 of CrPC does not apply to
      A. the complainant
      B. the accused