Civil Procedure Code, 1908, Order 21, Rule 29 -- Stay of execution proceedings - Decree for possession - Once plea of collusion, fraud and fabricated settlement taken by defendant No.1 while objecting execution, has already been tested up to Supreme Court unsuccessfully, it was beyond powers of trial Court to have stayed the execution based on same plea - Impugned order of..........
Civil Procedure Code, 1908, Order 7, Rule 11 -- Rejection of plaint - Suit for declaration filed by defendant against plaintiff - Issues sought to be raised by defendant in her suit would be barred on principles of res judicata and issue of estoppel and accordingly defendant is estopped from raising them again - Trial Court committed error in dismissing application..........
Civil Procedure Code, 1908, Section 34 -- Interest - Penalty clause - Court allowed pendente lite interest @ 9% p.a. - However, in case principal amount is not paid from date of decree rate would be at 11% p.a. - Penalty clause cannot be allowed to sustain and is hereby set aside...........
Civil Procedure Code, 1908, Order 8, Rule 1 -- Written statement - Non filing within 120 days - Defence struck off - Strict and too technical view not to be taken especially when respondent is wife and delay is neither willful nor intentional but has been attributed to the slackness of her counsel in defending the case - Defendant allowed to file her written statement..........
Civil Procedure Code, 1908, Section 24 -- Transfer of petition for custody of child - Wife failed to adduce even a piece of evidence to substantiate her apprehension that she may not get justice in Court where subject application for custody of child is pending - Even, wife failed to mention a single instance where Learned Judge has disclosed her biased mind or partial..........
Civil Procedure Code, 1908, Order 22, Rule 5 -- Death of decree holder during pendency of execution proceedings - Substitution of L.R's - Appellant is sole claimant to estate of DH on basis of Will - He thus, as LR is entitled to execute decree and to take it to its logical end - Executing Court rightly allowed appellant to execute decree...........
Civil Procedure Code, 1908, Order 22, Rule 12 -- Abatement - Execution proceedings - Normal principle arising in a suit before decree is passed that LRs are to be brought on record within a particular period and if not, suit could abate is not applicable to cases of death of DH or JD in execution proceedings...........
Civil Procedure Code, 1908, Section 115 -- Revision - An order passed by a subordinate Court can be interfered with only if it exercised its jurisdiction, not vested in it by law or has failed to exercise its jurisdiction so vested or has acted in exercise of jurisdiction illegally or with material irregularity...........
Civil Procedure Code, 1908, Order 1, Rule 9 -- Non-joinder of necessary parties - Partition suit - No issue as to no, joinder of necessary parties - Suit dismissed suit on other grounds - However, first appellate Court framed the issue regarding no, joinder of necessary parties and decreed the suit - Both the Courts therefore, failed to appreciate issue of no, joinder of..........
Civil Procedure Code, 1908, Section 11 -- Res judicata - Plaintiff filed suit possession regarding `A' schedule property and for permanent injunction regarding `B' schedule property - Defendant filed suit for injunction with regard to `A' schedule property - Both the suits tried together and dismissed - Aggrieved by same plaintiff alone preferred an appeal and same was..........
