Mutation -- On the basis of Will - There is no bar for seeking mutation based on a Will - However, in a case of serious dispute regarding validity/genuineness of Will including competence of testator's capacity to execute it or where there are two rival Wills set up, it would be a dispute beyond the competence of Tahsildar to decide and in such a case appropriate course..........
Civil Procedure Code, 1908, Order 38, Rule 5 -- Furnishing security in lieu of attachment - Security/surety bond furnished stands as substitute for attachment - Purpose of such security is to ensure satisfaction of decree in the event suit is ultimately decreed - Merely because suit has been decreed does not render security bond otiose or unenforceable - What comes to an..........
Civil Procedure Code, 1908, Order 38, Rule 5 -- Furnishing security in lieu of attachment - Once suit is decreed security furnished pursuant to an order U.O.38.R.5 CPC survives and enures to the benefit of DH - At the stage of execution liability of surety arises in terms of bond furnished by him...........
Civil Procedure Code, 1908, Section 145 -- Surety - S.145 CPC specifically empowers Executing Court to execute decree against a person who has become liable as a surety for performance of decree - For this purpose, such surety is deemed to be a party to proceedings and execution can be levied against him to the extent of his liability under bond...........
Civil Procedure Code, 1908, Order 7, Rule 11 -- Rejection of plaint - Court at the stage of considering application U.O.7.R.11 CPC is not concerned with correctness of averments, except to state that plaintiff has to discharge the burden of proving his case...........
Civil Procedure Code, 1908, Order 7, Rule 11 -- Rejection of plaint - If statements in plaint are taken to be true, it cannot be said that it does not disclose a cause of action and plaint shall be rejected - This is a matter of trial, result of which would depend upon evidence adduced by plaintiff...........
Mutation -- Writ petition against order passed in mutation proceedings cannot be entertained in complete absence of any exceptional circumstance and availability of efficacious alternative remedy before competent civil Court...........
Civil Procedure Code, 1908, Order 22, Rule 4 -- Abatement of revision - Non-substitution of LRs of respondent No.2 - Merely because legal heirs of one of respondents was not impleaded within time after death of that respondent and revision stood abated qua him, revision cannot abate against other respondents - Revision petition restored...........
Civil Procedure Code, 1908, Order 7, Rule 11 -- Rejection of plaint - Contentious issues - Can only be ascertained after parties lead evidence - Application rejected...........
Civil Procedure Code, 1908, Order 7, Rule 11 -- Rejection of plaint - Law as to : (i) Court to consider averments made in plaint and documents filed in support of plaint; (ii) No part of defence or documents filed by defendant can be looked into; (iii) averments made in plaint has to be taken as truth and Court cannot proceed on the premise that averments are false; (iv)..........
