Civil Procedure Code, 1908, Order 21, Rule 64 -- Execution - Whole property put to sale without examining whether a part of the property can be sold for realization of the decretal amount - Sale confirmed against mandatory provision of O.21.R.64 CPC - Impugned order set aside...........
Criminal Procedure Code, 1973, Section 319 -- Summoning of additional accused - Prima facie evidence available on record was ignored by trial Court while allowing application for summoning of additional accused - Sufficient evidence was collected by I.O which does not suggest involvement of proposed accused in the crime - Order allowing application u/s 319 Cr.P.C. set..........
Civil Procedure Code, 1908, Order 14, Rule 5 -- Additional issue - Issue on basis of alternative plea of ouster - Parties can plead inconsistent or alternative plea, but not to the extent of mutual destructive to each other - Trial Court committed error in not allowing framing of an issue on basis of alternative plea of ouster - Impugned order set aside - Matter remitted..........
Civil Procedure Code, 1908, Order 39, Rule 1, 2 -- Temporary injunction - Restraining defendant from raising construction on entire suit land - Plaintiff has no claim on entire suit land - By way of resumption proceedings, plaintiff is claiming only a share therein - Plaintiff thus, can resume part of suit land - He cannot be said to have a prima facie case for injuncting..........
Criminal Procedure Code, 1973, Section 319, Indian Penal Code, 1860, Section 304, 323, 504, 506, 34 -- Summoning of additional accused - Offence u/ss 304, 323, 504, 506, 34 IPC - Complainant who received injuries in the incident naming petitioner and attributing role of taking participation in the incident - Testimony of injured witness is of highest value and cannot be..........
Clean hands -- Application to set aside appeal dismissed in default - False story set up by appellant - Court should not come in aid to such a party to allow him to reap the fruits of false and frivolous explanation to get the order of dismissal of appeal in default set aside. (Civil Procedure Code, 1908, O.41.Rr.17 & 19)..........
Civil Procedure Code, 1908, Section 115, Order 26, Rule 9 -- Refusal to appoint local commissioner - Revision - Maintainability - Revision against an order refusing to appoint a local commissioner would not be maintainable, as discretion to appoint a local commission solely rests with Court...........
Criminal Procedure Code, 1973, Section 82(1) -- Proclamation u/s 82(1) Cr.P.C - Proclamation was marked to SHO concerned requiring petitioner to appear before Court - However, neither proclamation was publicly read in some conspicuous place of Amargarh nor 30 days period was given to petitioner to appear in Court - Order whereby petitioner was declared absconder, is..........
Criminal Procedure Code, 1973, Section 82(1) -- Proclamation u/s 82(1) Cr.P.C - Direction issued i.e : (i) Courts of Judicial Magistrates are required to take provisions of S.82 Cr.P.C. in its true letter and spirit; (ii) It is advised that whenever a proclamation is issued, then two dates be given in the order i.e. first date should be within 15-20 days giving the..........
Civil Procedure Code, 1908, Section 25, Hindu Marriage Act, 1955, Section 9, 26 -- Petition u/s 9 Hindu Marriage Act - Ex parte decree passed - Husband also granted visitation rights, which includes temporary custody of child - Wife filed petition to set aside ex parte decree - Transfer of petition - Order passed giving visitation rights, which includes temporary custody..........
