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Ans: A surety at any time may apply to be discharged. Prior to the discharge of
the surety, thedefendant should appear in the court and he should be directed to
furnish fresh surety and for this purpose he should be given time, if he fails he
can be committed to prison surety.
Note:
Surety for the performance of decree can not be discharged.
Appeal:
U/o 43 Rule 1 appeal lies.
Q No.133- (Order 38 Rule 4) Consequences where defendant fails to furnish fresh
surety?
Ans: When defendant fails to furnish security or fresh surety, defendant shall be
sent to prisonfor a longer period then six months, if the subject matter does not
exceed fifty (50) rupees heshall be prisoned for six weeks (Not More).
Q No. 134- (Order 38 Rule 5) What is attachment before judgment?
Ans: At any stage of the suit if the court satisfied by affidavit or otherwise that
the defendant,with intent to obstruct or delay the execution of any decree that may
be passed against him: 1. isabout to dispose of the whole or any part of his
property, 2. is about to remove the whole or any part of his property from the
local limits of his jurisdiction of the court.The court may direct the defendant
within the specified time to furnish security, the court mayalso in the order
direct the conditional attachment of the whole or any part of the property
sospecified.
Q No.135- When attachment is withdrawn?
Ans: Attachment before judgment can also be withdrawn when the defendant furnishes
thesecurity required together with cost of attachment or when the suit is
dismissed.When attachment before judgment is made it shall not be necessary for the
plaintiff to apply forreattachment in execution of decree.
Note:
Agricultural production is exempted from attachment before judgment, small causes
courtdo not attaches immovable property.
Q No.136- (Order 39 Rule 1) When temporary injunctions may be granted?
Ans: Where in any suit it is proved by the affidavit or otherwise: a. any property
in dispute in asuit is in danger of being vested, damaged or alienated by any party
to the suit or wrongfully soldin execution of decree, b. that the defendant
threatens or intents to remove or dispose of his property with the view to defraud
his creditors.The Court may by grant a temporary injunction restrain such act.
Ingredients for grant of temporary injunction:-
1. Pending suit, 2. Prima facie case, 3. Irreparable damage or injury, 4. Balance
of convenience.
Appeal:
(for plaintiff) Appeal lies against refusal of injunction under order 43 rule 1.
(for defendant) Appeal lies under section 96, a defendant may also apply against
the injunctionunder order 39 rule 4.1. Ad interim ex-parte injunction, 2. Against
awarding punishment under order 39 rule 2.
Q No.137- (Order 39 Rule 2) What are the remedies against the breach or violation
of aninjunction?

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Ans: Following are the remedies:
1
. Contempt of Court,
2
. Attachment of property for period not more than one year as a whole,
3
. If disobedience or breach continued, the property attached may be sold,
4
. Imprisonment for term not exceeding six months, unless in the mean time the court
directs hisrelease.
Appeal:
If any of above conditions or any one happens/order, appeal under section 96 shall
lie.Order of injunction made under order 39 rule 1 & 2:- After hearing the parties
or after notices tothe defendant shall cease to have effect on the expiration of
six months unless extended by thecourt after rehearing the parties.
Q No.138- (Order 39 Rule 3) General rule is that before granting an injunction
noticesmust be make to other /opposite side, what are the exceptions to this rule?
Ans: Before granting an injunction notices may be issued to the opposite party but
exception tothis is that: a. sales of Goods for default in payment at the
stipulated time, b. where an injunctionis to be granted against Government or
Government Servant as such or any statutory authority board of corporation
established by Government in any case not involving the ejectment of any person
from, or the demolition of any premises, the court may where it appears that the
object ofgranting injunction would be defeated by delay dispose with such
notices.Provided that period of notice in case of defendant as Government or
Government Servant or anystatutory body would not be less than two days or more
than seven days.
Q No.139- (Order 39 Rule 4) What is the remedy against granting and refusal of
aninjunction other than appeal?
Ans: Ordinarily, once a court has pass an order granting or refusing to grant an
injunction afterhearing both the parties, it will not subsequently interfere to
such order but Order 39 Rule 4 provide exceptions to this by providing alternative
to the filing of an appeal by approaching thesame court.An application under this
rule can only be made by an aggrieved party.This rule can not be used to permit a
party to obtain rehearing of the case or to reopen the matterafter a rejection of
his appeal.The fact that appeal has not been filed or has become time barred, will
not prevent a court fromexercising powers under this rule.
Note:-
Order 39 Rule 5 an injunction against corporation is not only on the corporation
itself butalso on all members and officers of the corporation whose personal action
it seeks to restrain.
Q No.140- (Order 39 Rule 6) What are interlocutory orders?
Ans: Interlocutory orders are those orders which are passed by the court during the
pendency ofthe suit and not to terminate the suit. Such orders generally relates to
the protection of the subjectmatters.
Appeal:-
All the interlocutory orders are not Appealable.
Q No.141- (Order 40 Rule 1) How a receiver is appointed and what are the powers
andduties of the receivers?

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Ans: Appointment of receivers (Order 40 Rule 1):- Where it appears to the court to
be just andconvenient the court may by order: a. appoint a receiver of any property
whether before or afterdecree, b. remove any person from custody of any property
and commit the same into the possession and custody of the receiver.
Appeal:-
Appointment or refusal to appointment may be appealed under order 43 rule 1.
Powers of the receivers (Order 40 Rule 2):-
Confer upon such receiver all powers as to bringing and defending the suit,
management, protection, preservation and improvement of the property. The
collection of rent and profits, the application and disposal of such rents and
profitsand the execution of documents and those powers as the court thinks fit.
Duties of the receivers (Order 40 Rule 3):-
 1. Submit his accounts as such period in such formas the court directs, 2. Pay the
amount due from him as the court directs, 3. Be responsible anyloss occurred to the
property by his negligent or willful default.
Duration of Office:-
Receivers may be appointed either before the judgment or after decree butnot after
the satisfaction of the decree.
Object of appointing receiver:-
The object behind the appointment of a receiver is to preservethe status quo
during the pendency of the litigation and terms of the section 94 to prevent
theends of justice being defeated (2004 MLD 1624).
Enforcement of receivers duties:-
Duties of receivers shall be enforced by the court, if he isfound guilty of any
gross negligence or willful default his property shall be attached and sold.
Q No.142- What is setoff?
Ans: Setoff means counter claim by defendants. It is plea in defence pure and
simple which by
adjustment would wipe of or reduce plaintiff’s
claim.
Type:- There are two types:1. Legal:-
In Legal Setoff the amount claim must be an ascertained sum of money.
2. Equitable Setoff:-
However it is obligatory on the court to adjudicate upon it and defendantcan not
claim it as a matter of right.And legal setoff it is not necessary that the cross
demands arise out of the same transaction.
Cause of action:-
The term cause of action is no where defined in the CPC. Apparently it
meaninfringement of right which furnishes occasion for the action.
Q No.143- What is mortgage?
Ans: According to Section 58 of Transfer of property act, mean Transfer of an
interest in specificimmovable property for the purpose of security payment of money
advanced, the transferer iscalled morgager and the transferee is called mortgagee.
Q No.144- What is meant by right of redumption?
Ans: Mortgage right of redumption means the right of the mortgager to get back his
property freeof all conditions and liens on the payment of his debit at any time
after the principal money become payable before his equity of redumption actually
forclosed not withstanding anystipulation to the contrary.

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Q No.145- What is meant by foreclosure?

Ans: According to Section 58 of Transfer of Property foreclosure is a right
available to amortgagee to obtain an order passed by the court that the mortgager
shall be absolutely debarredfrom high right of redemption.
Q No.146- What are the necessary parties to a suit for foreclosure sale and
redumption?
Ans: According with Order 34 Rule 1 all the persons having an interest either in
the mortgagesecurity or in the right of redemption shall be joined as parties to
any suit relating to mortgage.
Note:-
a puinse mortgage may sue for foreclosure or for sale without making the prior
mortgageea party to the suit and a prior mortgagee need not be joined in a suit to
redeem a subsequentmortgage.