KEY TO ANSWERS

Question 2. — A subordinate Court may refer a case for the opinion of the High Court, which may make such order thereon as it
thinks fit. What are the conditions and limitations prescribed for Reference to the High Court?

Answer lies in Section 113 Order XLVI Rule 1-7

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Question 3. — What main steps are required to be taken in the summary procedure on negotiable instruments under Order 37
of the Code of Civil Procedure? Whether the decree or execution order passed by the Court may be set aside? If so when?

Answer lies in Order XXXVII Rule 1-7

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Question 4. —Describe in the context Order 38, powers of the Court in situation where the defendant is likely to dispose of or
remove his property from the local limits of the jurisdiction of the Court.

Answer lies in Order XXXVIII Rule 1 & 5

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Question 5. — What are the Courts by which decree may be executed? Explain. What does mean by the expression ‘Court
which passed a decree’? What are the powers of the Court executing the decree?

Court by which decree may be executed?

Ans. Section 38 says “A decree may be executed either
(a) By the Court which passed it, or
(b) By the Court to which it is sent for execution

The First mentioned Court “Court which passed a decree” is further ’defined in section 37, whereas the second Court is that to
which the Execution case is transferred within meaning of section 39.

What does mean by the expression ‘Court which passed a decree’? the definition is provided in section 37 of CPC.
The expression "Court which passed a decree," or words to that effect, shall, in relation to the execution of decrees, unless there
is anything repugnant in the subject or context, be deemed to include,__ (a) Where the decree to be executed has been passed
in the exercise of appellate jurisdiction, the Court of first instance, and (b) Where the Court of first instance has ceased to exist
or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of
making the application for the execution of the decree, would have Jurisdiction to try such suit.

Section. 39 of CPC is reproduced as below:

Transfer of decree.__ (1) The Court which passed a decree may, on the application of the decree holder, send it for
execution to another Court, __
(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or
personally works for gain, within the local limits of the jurisdiction of such other Court, or
(b) if such person has not property within the local limits of the jurisdiction of the Court which passed the decree
sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or
(c) if the decree directs the sale or delivery of immoveable property situate outside the local limits of the Jurisdiction of
the Court which passed it, or (d) if the Court which passed the decree considers for any other reason, which it shall
record in writing, that the decree should be executed by such other Court. (2) The Court which passed a decree may of
its own motion send it for execution to any subordinate Court of competent jurisdiction.

What are the powers of the Court executing the decree? Although powers of the Courts are mentioned in different provisions
relating execution. But particularly mentioned in section 51 of the CPC.
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Question 6. Give short answer (max. 2-3 line) of the following questions in the light of relevant provisions of
the Limitation Act and its First Schedule:

1. What was prescribed time for present application for review of judgment of the High Court?
Ans. Answer: Article 162 of the Limitation Act, First Schedule is applicable. The Article 162 First Columns reads:
“For a review of judgment by a High Court] in the exercise of its original jurisdiction” .
The time for present Review application, prescribed in Second Column of Article 162, is Twenty Days.

1. From which date the time period begins to run?

Ans. The Third Column of Article 162 explain it: The date from which the time period begins to run would be
“The date of the decree or order”.

2. What was the last date for moving review application/petition? Ans. 9 October 2018

3. Whether the review application is time-barred? If so far how many days it is delayed?

Yes it is time barred and the reason of delay would have to be explained.
Computation and exclusion of time:

 The judgment pronounced and decree issued on 31 August, 2018. In computing the period of limitation prescribed
for review application, this date was excluded within meaning of section 12(2).
 The next day September 1, 2018 was also exclude section 12(1).
 September 1, 2018 was the day on which application for copy of judgment/ decree was made. This day shall be excluded
in computing within meaning of section 12(5).
 Office of Registrar wrote on receipt “copies of the judgment and the decree would be ready for delivery on
September 15, 2018”. This is the time requisite for obtaining a copy of the judgment was until 15 September 2018.
However copy of decree was later told to be ready for delivery on 18 September 2018 which was ‘actually intimated day on
which copy was ready for delivery” and would be excluded within meaning of section 12 (5).
 Now time should be reckoned from 19 September 2018. This day will also be excluded within meaning of section 12(1)
which reads “the day from which such period is to be reckoned shall be excluded”.
 Now time starts from second day i.e. 20 September 2018 and ends with addition of 20 days on
9 October, 2018. This was the last date for moving review application/petition.
 Moved review application on 17 October, 2018 (with delay of 8 days). For this delay applicant would have to
move application for condonation of delay under section 5 of Limitation Act and if establish the plea of misled by
ambiguity found in the judgment of high court.

4. If the prescribed time had been expired, whether the Review application could be admitted by the
Court if applicant attempted to satisfy the Court that he had sufficient cause on ground that ambiguity
in the judgment misled him to ascertain correct period of limitation.
In present case time was expired and application for Condonation of delay was maintainable under Section 5
of Limitation Act which for the purpose of present review application says that
“Any application for a review of judgment …. may be admitted after the period of limitation prescribed
therefor, when the applicant satisfies the Court that he had sufficient cause for not making the application
within such period.” The ground applicant is sufficient cause’ within the meaning of Explanation to
Section 5, which says that “ The fact that the appellant or applicant was misled by any order, practice or
judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient
cause within meaning of this section.”
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 LAW OF CIVIL PROCEDURE-II
Course Code: LLB 702 (L)
Final Semesters of LL.B and BA.LLB
2019.
Time allowed: 2 and ½ hours + 30 minutes (for Q.1.) Max. Marks: 100

Instructions:

1) The Section-I (Question No.1) compulsory.

2) From Section-II attempt any THREE questions including Question No. 5 (compulsory).
3) Q.6 is aimed at to examine application of law in the given situation, so text material is allowed to be consulted.
4) All questions carry equal marks.

SECTION-II
(Code of Civil Procedure)

Question 2. — A subordinate Court may refer a case for the opinion of the High Court, which may make such order
thereon as it thinks fit. What are the conditions and limitations prescribed for Reference to the High Court?

Question 3. — What main steps are required to be taken in the summary procedure on negotiable instruments under
Order 37 of the Code of Civil Procedure? Whether the decree or execution order passed by the Court may be set
aside? If so when?

Question 4. —Describe in the context Order 38, powers of the Court in situation where the defendant is likely to
dispose of or remove his property from the local limits of the jurisdiction of the Court.

Question 5. — What are the Courts by which decree may be executed? Explain. What does mean by the expression
‘Court which passed a decree’? What are the powers of the Court executing the decree?

Limitation Act, 1908

Question 6. — Question.6. Read carefully the following simulation and answer the question given below.
Your answer needs to be supported by the legal reasoning and citing relevant provisions.

A civil case of Mr. Sahil was being heard by the Sindh High Court in exercise of its original jurisdiction. The Court
pronounced judgment on 31 August, 2018. On the same day decree was issued. Considering aggrieved by the
judgment, Mr. Sahil approached his lawyer for advice as wished to prefer appeal against the judgment. However his
lawyer told him that in his case appeal was not allowed under the law and instead he would have to move petition in
the same Court for review of the judgment. Mr. Sahil made mind to move review application before the Sindh High
Court. He applied for certified copies of the judgment and decree on September 1, 2018. The office of the Registrar
after registering his application for obtaining certified copies, issued him receipt wherein it was mentioned that the
copies of the judgment and the decree would be ready for delivery on September 15, 2018. However when he
approached the Registrar office for obtaining copies of the judgment and decree, he was delivered the copy of the
judgment and was told that the copy of the decree would be ready for delivery on September 18, 2018. He collected
the copy of the decree on the given date. In judgment there was ambiguity which misled him to correctly ascertaining
the axact prescribed period of limitation and he moved review application on 17 October, 2018.
Questions: Give short answer (max. 2-3 line) of the following questions in the light of relevant provisions of
the Limitation Act and its First Schedule:

5. What was prescribed time for present application for review of judgment of the High Court?
6. From which date the time period begins to run?
7. What was the last date for moving review application/petition?
8. Whether the review application is time-barred? If so far how many days it is delayed?
9. If the prescribed time had been expired, whether the Review application could be admitted by the Court if
applicant attempted to satisfy the Court that he had sufficient cause on ground that ambiguity in the judgment
misled him to ascertain correct period of limitation.