Sunday 23 August 2020

Questions and answers on law part 11

Q When bail is rejected by Magistrate,under which provision,it can be challenged before session court?
Ans:- If bail application is rejected by Magistrate,accused can seek bail from session court as per S 439 of CRPC.
439. Special powers of High Court or Court of Session regarding bail.—(1) A High Court or Court of Session may direct—
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Q. 2. Whether plaintiff can seek specific performance of contract of property which was under attachment by order of court?

Ans:-After 2018 Amendment to the Specific Relief Act, 1963, relief of specific performance can be refused only on the grounds mentioned in Sections 11(2), 14 and 16 of the Act and none of them provide that property attached by Court cannot be sold by contract. In fact, Supreme Court in the case of Thomson Press (India) Ltd. vs Nanak Builders & Investrs.P.Ltd & ... on 21 February, 2013 held that contract for sale of property which is the subject-matter of a suit is not void but is subject to the decision of the Court; thereby implying that such sales are allowed.

Therefore, Court can order specific performance of the contract mentioned above subject to the decision of the Court which has attached the property. In case the defendant gets the right to be able to sell the property, the Plaintiff can ensure its performance by virtue of Section 13 of Specific Relief Act, 1963.
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