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E-Notes

CLASS & SECTION: BBALLB (A+B) V SEMESTER

SUBJECT NAME : CODE OF CIVIL PROCEDURE
SUBJECT CODE : LLB 307
FACULTY : Ms. Neha Maggo

Unit-1

Unit –I: Judgment and Decree

a. Judgement : Definition, Essentials, Pronouncement, Contents, and
Alteration
b. Decree : Definition, Essentials, Types, Drawing up of a decree, Contents,
and Decree in particular cases
c. Interest
d. Costs

A) Judgment
DEFINITION
Judgment is defined u/s 2 (9) of the Civil Procedure Code. It means the statement given
by the Judge on the grounds of a Decree or Order. Thus a judgment sets out the ground
and the reason for the Judge to have arrived at the decision.

Judgment is the decision of a court of justice upon the respective rights and claims of the
parties to an action in a suit submitted to it for determination –
State of Tamil Nadu V. S. Thangaval.
Judgment is the statement of the Court on the grounds for having arrived at a decision.

ESSENTIALS AND CONTENTS OF JUDGMENT:

A judgment must contain the following components:
1. A crisp statement of facts of the case;
2. The points or issues for determination;
3. The decision on such issues and finally;
4. The reasons for such a decision.
PROUNOUNCEMENT OF JUDGMENT:
Rule 1 of Order 20 deals with the pronouncement of judgment. It talks of specific time
frame for the declaration of the judgment in the open court. But there was no time limit
prescribed for the pronouncement of judgment prior to the amendment in 1976 which led
to a persistent demand all over India for the imposition of a reasonable time frame for the
declaration of judgment after the hearing of the case gets over. In this regard, observation
of the Supreme Court in R.C. Sharma v. Union of India is worth noting;

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The Civil Procedure Code does not provide a time limit for the period between the
hearing of arguments and the delivery of a judgment. Nevertheless, we think that an
unreasonable delay between hearing of arguments and delivery of a judgment, unless
explained by exceptional or extraordinary circumstances, is highly undesirable even
when written arguments are submitted. It is not unlikely that some points which the
litigant considers important may have escaped notice. But, what is more important is the
litigants must have complete confidence in the results of litigation. This confidence tends
to be shaken if there is excessive delay between hearing of arguments and delivery of
judgments. Justice, as we have often observed, must not only be done but must
manifestly appear to be done. Accordingly amendment was introduced providing a time
limit for the declaration of the judgment. If it is not possible to pronounce the judgment at
once, it should be declared within thirty days from the day of conclusion of the hearing
and in case some extreme situation arises then the provision is also there to extend this
declaration of pronouncement till the sixtieth day from the conclusion of hearing. Thus
judge have a discretionary power for the pronouncement of judgment for these sixty days
but after that declaration becomes mandatory on the part of judge. But what happens if
the judgment is not pronounced within sixty days also.
Supreme Court has strongly deprecated the action of the High Court in the case of Anil
Rai v. State of Bihar ,where the judgment was pronounced after two years. Remarks of
the honorable court in this case are just next to the truth and are worth noting down: The
Constitution did not provide anything when High Court judges do not pronounce
judgments after lapse of several months presumably because the architects of the
Constitution believed that no High Court judge would cause long and distressing delays.
Such expectation of the makers of the Constitution remained faultless during the early
period of the post Constitution years. But unfortunately, the later years have shown
slackness on the part of a few judges of the superior Courts in India with the result that
the records remain consigned to hibernation. Judges themselves normally forget the
details of the facts and necessities of of the legal points advanced. Sometimes the interval
is so long that the judges forget even the fact that such a case is pending with them
expecting judicial verdict.
This confidence tends to be shaken if there is excessive delay between hearing of
arguments and delivery of judgments. A long delay in delivering the judgment gives rise
to unnecessary speculation in the minds of parties to a case. Excessive delay is not only
against the provisions of law but in fact infringes the right of personal liberty guaranteed
by Article 21 of the Constitution of India. Any procedure or course of action which does
not ensure a reasonable quick adjudication has been termed to be unjust.
In a country like ours where people consider the judges only second to God, efforts be
made to strengthen that belief of the common man. Delay in disposal of the cases
facilitates the people to raise eye-brows, some time genuinely which, if not checked, may
shake the confidence of the people in the judicial system. Thus declaration of judgment
within reasonable time is highly inevitable. In order to raise the standard of the court in
this regard certain guidelines has also been given in the Anil Rai’s case.

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These guidelines are given below:
The Chief Justices of the High Courts may issue appropriate directions to the Registry
that in a case where the judgment is reserved and is pronounced later, the judgment and
date of pronouncing it be separately mentioned by the Court officer concerned. The Chief
Justices of the High Courts should direct the Court Officers/Readers of the various
Benches in the High Courts to furnish every month the list of cases in the matters where
the judgments reserved are not pronounced within the period of that month.
On noticing that after conclusion of the arguments the judgment is not pronounced within
a period of two months, the concerned Chief Justice shall draw the attention of the Bench
concerned to the pending matter. Where a judgment is not pronounced within three
months, from the date of reserving it, any of the parties in the case is permitted to file an
application in the High Court with prayer for early judgment. Such application, as and
when filed, shall be listed before the Bench concerned within two days excluding the
intervening holidays.
If the judgment, for any reason, is not pronounced within a period of six months, any of
the parties of the said list shall be entitled to move an application before the Chief Justice
of the High Court with a prayer to withdraw the said case and to make it over to any other
bench for fresh arguments. It is open to the Chief Justice to grant the said prayer or to
pass any other order as he deems fit in the circumstances.
ALTERATION IN JUDGMENT:
Before the pronouncement of judgment, every right is with the judge to change his mind
but the dilemma arises in the situation when judgment has been declared in the open
court and after that something strikes to the judge which prompts him to alter the
judgment; so the question arises will the changed mind frame should be given prevalence
over the old decision or old should be preserved from the new one? Rule 3 of Order 20 of
C.P.C. provides that a judgment once signed cannot be amended or altered afterwards
except to correct clerical or arithmetical mistakes or errors due to accidental slips or
omissions as mentioned in section 152 of the C.P.C. or on review.
According to Allahabad High Court in Sangam Lal v. Rent Control and Eviction
Officer, a judgment dictated in an open court can be changed, even completely, before it
is signed provided notice is given to all parties concerned and they are heard before the
change is made. Reasoning given for this judgment was that they do not want to construe
the rules too technically as they are indeed rules to further the ends of justice; so they
should not be viewed too narrowly. Basically judgment is the final decision of the court
intimated to the parties and to the world at the large in an open court. This declaration is
the intention of the mindset of the court after going through the tedious process of the
wholesome hearing. This intention of the court is the final operative decision of the court
which constitutes the decision. Regarding this, the Gujarat High Court in the case of
Ishwar bhai mentions some worthwhile remarks. It says that, as soon as the judgment is
delivered, that becomes the operative pronouncement of the Court. The law then provides
for the manner in which it is to be authenticated and made certain. The rules regarding
this differ but they do not form the essence of the matter and if there is any irregularity in
carrying them out it is curable. Thus, if a judgment happens not to be signed and is
inadvertently consequent on acted on and executed, the proceedings consequent on it

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would be valid because the judgment, if it can be shown to have been validly delivered,
would stand good despite defects in the mode of this subsequent authentication.
The court can do some formal corrections but the core of it cannot be altered or changed
so as to modify the order or amend or even set at naught the same. That can be done only
by the Court in appeal or in revision. Even with the consent or agreement of the parties
also, a judgment cannot be altered or amended.
Reasoning for Decision
Before starting anything, it is very necessary to lay down the ground; before judging also
something, it is quite crucial to have full facts before it and then take out the relevant
portions to make a concise statement of the case. Thus, a judgment should inaugurate
with the facts of the case in brief. Rule 4(2) of Order 20 of C.P.C. states that apart from
the judgment of Small Cause Courts, judgments of all other Courts shall contain a
concise statement of the case; the points for determination; the decision thereon; and the
reasons for such decision.
Thus after laying down the facts, facts in issue should be settled by bringing out the
claims which are disputed between both the parties; thus issues should be framed.
Framing of issues should be done via Rule 1 of Order 14 of C.P.C. Now after issues are
framed, points for determination come into picture and for determining those points, need
for extra force is required. It is not possible to cruise through the disputed facts in the
absence of any peaceful land. In order to satisfactorily reach on a judicial determination
of a disputed claim where substantial questions of law or fact arise, it has to be supported
by the most cogent reasons; a mere order deciding the matter in dispute without any
reasoning is no judgment at all Power of reasoning is needed to back up the decision on
each issue given by the court under Rule 5 of Order 20 of this Code. Rule 2 of Order 14
ofC.P.C. provides judgment to be given on all the issues that has arisen in the given case.
Rule 1 of the same Order provides for framing of issues with the object of keeping the
various points arising for decision separate and distinct and to avoid the confusion later
on.
As per Rule 5 of Order 20 of C.P.C. court has to state its decision with reasons on each
issue separately unless the finding upon any one or more of the issues is sufficient for the
decision of the suit. But Rule 2 of Order 14 of C.P.C. requires that a court should decide
on all issues even if the case can be decided by settling few issues only except where a
pure question of law relating to jurisdiction or bar to suit is involved. Further with the
addition of an explanation to Rule 22 of Order 41 of C.P.C. which empowers a
respondent in appeal to file cross objection in respect of findings against him in a decree
notwithstanding that by reason of the decision of the court on any other finding which is
sufficient for the decision of the suit the decree is wholly or in part in favour of the
respondent, the intention of the legislature is clear that the court will now have to decide
and state its findings on all the issues even if it considers that finding for one or only few
issues is sufficient for the disposal of the case. Thus in order to have a harmonious
construction of all these rules, it would be judicial to amend the Rule 5 of Order 20 of
C.P.C. by omission of the words unless the finding upon any one or more of the issues is
sufficient for the decision of the suit at the end . Moreover, principle of res-judicata
operates after the determination of the case; so in case if judgment is not given by

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deciding all the issues then problem can erupt in future whether the rule of res-judicata
will operate or not for that particular issue.

b) DECREE:
DEFINITION:
Decree is defined u/s 2(2) of Civil Procedure Code, 1908. It means the formal expression
of an adjudication which conclusively determines the rights of the parties with regard to
all or any of the matter in controversy in the suit.
ESSENTIALS OF DECREE:
1. There must be adjudication.
2. It must have been done in a suit
3. It must determine the rights of the parties.
4. The determination must be of conclusive nature.
5. There must be formal expression of such adjudication.
TYPES:
A decree may be either preliminary or final.
A decree is preliminary when a further procedure has to be taken before the suit can be
completely disposed off. When adjudication completely disposes of the suit such decree
is final.
It may be noted that the term decree doesn’t include the following:
Any adjudication from which an appeal lies as an appeal from an order or Any order or
decision of the dismissal of the suit for default.
“Formal expression” means the recordation of the ruling of the Court on the matter
presented before it, so far as the Court expressing it alludes to the fact that the same issue
cannot be adjudicated by or before the Court again but only before a higher forum i.e. an
appellate forum.
DRAWING OF A DECREE:
A decree must be drawn within 15 days separately after a judgment. Deemed Decrees: A
deemed decree is one which, though not fulfilling the essential features of a decree as
required by the Code has been expressly categorized as a decree by the legislature. The
rejection of a plaint and the determination of questions of facts are deemed decrees.

CONTENTS OF DECREE
1. The no. of suit.
2. The names and description of parties and their registered address.
3. The particulars of the claim.
4. The relief granted.
5. The amount of the cost incurred in the suit.
6. The date on which judgment was pronounced.
7. The signature of the judge.

DIFFERENCE BETWEEN JUDGMENT AND DECREE:

Judgment is defined in section 2(9) of the C.P.C. which says judgment is the statement
given by the Judge on the grounds of a decree or order. Judgment refers to what the judge

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writes regarding all the issues in the matter and the decision on each of the issues. Hence
every judgment consists of facts, evidence, findings etc. and the conclusion of the court.
The term decree is defined in section 2(2) of the C.P.C. which reads as follows:
“decree means the formal expression of an adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of the parties with regard to all or any of
the matters in controversy in the suit and may be either preliminary or final. It shall be
deemed to include the rejection of a plaint and the determination of any question within
section 144, but shall not include
a) any adjudication from which an appeal lies as an appeal from an order, or
b) any order of dismissal for default”
Decree is the conclusion reached by the judge after hearing both parties on merits and
expressing the same in writing. Basically decree is the subset in the set of judgment.
The decree forms the last part of the judgment and is extracted from the entire judgment
by the decree clerk who contains the basic details and the result of the case. The date of
the decree is the date of judgment for the purpose of execution though it can be signed
anytime later even by a successor judge though it should be given within 15 days. Even a
set-off/ counter claim is in the same decree.
Judgments by way of an amendment in 1976 must contain the exact decree and words
like “decree what is prayed for” cannot be used. Thus every judgment contains the
decree, amongst other things and the decree is usually the last portion of the judgment
and the decree independently is without reasoning. There is no need of a statement in a
decree though it is necessary in a judgment.
Likewise, it is not necessary that there should be a formal expression of the order in the
judgment, though it is desirable to do so. A judgment is a stage prior to the passing of a
decree or an order, and after the pronouncement of the judgment, way for the decree has
to be left wide open . Decree has to be in line with the judgment and it should present the
correct interpretation of the judgment. But in case, scenario arises where there appears to
be a conflict between the judgment and the decree, then the decree must be reasonably
construed and if on such construction both of them able to remain together, then adhere to
that decree. But if it gets difficult for the decree to stay together with the judgment, then
it must be amendedunder section 151 of the C.P.C. and if there is any clerical mistakes in
the decree, then section 152 of the C.P.C. will take out the decree safe from the clutch of
being declared nullity.

c) INTEREST

Section 34 of CPC deals with the Interest. It reads as follows:

(1) Where and in so far as a decree is for the payment of money, the Court may, in the
decree, order interest at such rate as the Court deems reasonable to be paid on the
principal sum adjudged, from the date of the suit to the date of the decree, in addition to
any interest adjudged on such principal sum for any period prior to the institution of the
suit, with further interest at such rate not exceeding six per cent per annum as the Court
deems reasonable on such principal sum, from the date of the decree to the date of
payment, or to such earlier date as the Court thinks fit:

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Provided that where the liability in relation to the sum so adjudged had arisen out of a
commercial transaction, the rate of such further interest may exceed six per cent per
annum, but shall not exceed the contractual rate of interest or where there is no
contractual rate, the rate at which moneys are lent or advanced by nationalized banks in
relation to commercial transactions.
(2) Where such a decree is silent with respect to the payment of further interest on such
principal sum from the date of the decree to the date of the payment or other earlier date,
the court shall be deemed to have refused such interest, and a separate suit there for shall
not lie.
Scope of Section 34
Section 34 has no application to interest prior to the institution of the suit, which is a
matter of substantive law. It is concerned only with interest during the pendency of the
suit and after the decree, which is in the discretion of the Court. The proviso added to
section 34 by the Amendment Act, 1976, increases the post decreetal interest in relation
to a liability arising out of the commercial transaction.
A commercial transaction means a transaction connected with the industry, trade or
business of the party incurring the liability.
As regards the interest accrued due prior to the institution of the suit or the principal sum
adjudged, which is outside the scope of the present section, the law is that if there is a
stipulation for the payment of interest at a fixed rate, the court must allow it up to the date
of the suit, unless the rate is penal or excessive on account of the transaction being unfair,
when the court may allow reasonable rate of interest.
If there is no express stipulation for payment of interest, the plaintiff is not entitled to it
except in the case of
(a) mercantile usage,
(b) statutory right to interest, as under section 80 of the Negotiable Instruments Act when
no rate of interest is specified in a promissory
note or bill of exchange, the court shall award interest at 6 per cent per annum from the
date of the amount due and
(c) implied agreement.

Post suit—Interest
As regards interest due from the date of the suit to the date of the decree and that due
from the date of the decree to the date of payment, that is governed by section 34
mentioned above. The section applies where the decree is for a definite sum of money.
It embraces also a claim to un-liquidated damages. In money suits, therefore, the question
of interest after the institution of the suit passes from the domain of contract into that of
judgment and the court has discretion as to the rate of interest. That discretion, however,
is a judicial discretion to be exercised on proper judicial grounds and not arbitrarily.
Interest in the Decree:
The jurisdiction to provide interest in the decree notwithstanding the fact that there is no
reference to it in the judgment is one which is peculiar to money decree and the Courts
are vested with such jurisdiction under section 34, C.PC. In the decree in a suit for the
payment of money, the Court can, at its discretion, provide for the payment of reasonable
interest on the principal amount adjudged :

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(a) from the date of suit to the date of decree;
(b) in addition direct the payment of any interest adjudged on such principal sum for any
period prior to the institution of the suit; and
(c) may also direct the payment of further interest at such rate not exceeding 6 per cent as
the Court deems reasonable on such principal sum from the date of the decree to the date
of payment or such earlier date as the Court thinks fit. In case of recovery of loan order
levying future interest on principal sum adjudged is valid.

Interest pendente lite be awarded at reasonable rate. Interest at the rate of 12% p.a. was
claimed by the appellant. It was held that reasonable rate of interest for the pendente lite
interest was 12% p.a. Interest rate at 6% p.a. is prescribed for the period after passing
decree and is not for period, suit was pending in court.
Arbitrator under Section 13 of Arbitration Act (1940) has power to award preference in
interest in references made after coming into force of Interest Act (1978).
There was settlement between parties as regards dues and the court passed consent decree
fixing rate of interest at 30% considering the conduct of paying party and facts of the case
were not routine. The Supreme Court reduced the rate of interest to 15% considering the
prevailing rate of interest on bank loans, etc.
Rate of future interest as awarded on money decree was reduced from 18% to 12%. The
reason for this was that the relationship between parties was not only that of lender and
borrower but there was agreement similar to cash credit arrangement with bank and Bank
rate of interest at relevant time was 12%.Deposit Court without notice to Decree holder—
Interest allowed: Compensation amount was deposited in court but no information was
given to claimants about such deposit either by judgment-debtor or by court. Interest on
decretal amount was allowed from date of deposit till decree holder got information of
deposit in view of Order XXI, Rule 1, C.P.C. The awardee was deprived of opportunity
of gainfully utilising the amount of award in absence of notice about the deposit made by
judgment-debtor.
Where deposit of decretal amount is made in court without notice of deposit to decree
holder, it cannot be deemed towards the principal.
Interest in mortgage suits:
In a decree passed in a suit for foreclosure, sale or redemption where interest is legally
recoverable, the court may order payment of interest to the mortgagee as follows:
(a) Interest up to the date of the payment of the amount found due under the
preliminary decree to be made by the mortgagor
(i) on the principal amount found
or declared due on the mortgage, at the rate payable on the principal or, where no
such rate is fixed, at such rate as the court deems reasonable; and
(ii) on the amount adjudged due to the mortgagee for costs, charges and expenses
properly incurred by the mortgagee in respect of the mortgage security up to the date of
the preliminary decree and added to mortgage money, at the rate agreed between the
parties, or, failing such rate, at such rate not exceeding six per cent per annum as the
court deems reasonable;

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(b) Subsequent interest up to the date of realisation or actual payment on the aggregate of
the principal sums specified in clause (a) as calculated in accordance with that clause at
such rate as the court deems reasonable. (Order XXXIV, Rule 11).
In case of mortgage suits special provisions in Order XXXIV, Rule 11 alone are
applicable and section 34 is not applicable.

Grant of interest in suit for recovery of electricity and water consumption:

Where suit for recovery of electricity and water consumption from lessee was made.
Held, that liability did not arise out of commercial transaction. Therefore, interest
awarded at the rate of 18% was reduced to 6% per annum.Claim for enhanced rate of
interest allowed on suit for recovery of loan by bank:
Where in a suit for recovery of loan by bank enhanced rate of interest was claimed as per
agreement between the parties. Observations by Trial Court that there was no record to
show that defendants had agreed to pay higher rate of interest was contrary to terms of
agreement.
Subsequent acknowledgement made by defendants also indicated that they had
acknowledged their liability of amount due which was calculated on the basis of
enhanced rate of interest.
Charging of additional interest for period of default in terms of contract:
Where for enforcement of contract of guarantee, additional interest was charged for
period of default in terms of contract, held that it did not amount to charge of penal
interest.

d) COST
Section 35 of CPC deals with the provisions of Costs
(1) Subject to such conditions and limitations as may be prescribed, and to the provisions
of any law for the time being in force, the costs of and incident to all suits shall be in the
discretion of the Court, and the Court shall have full power to determine by whom or out
of what property and to what extent such costs are to be paid, and to give all necessary
directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the
suit shall be no bar to the exercise of such powers.
(2) Where the Court directs that any costs shall not follow the event, the Court shall state
its reasons in writing. Going by the above provision, Cost as per section 35 is a matter of
discretion of the Court.
It is manifest that this section confers wide discretion on the Courts in the matter of
awarding costs. Such discretion must be a judicial discretion to be exercised on legal
principles and not by caprice. It is also well settled that in the exercise of this discretion,
the Court is not confined to the consideration of the conduct of the parties in the actual
litigation itself, but may also take into consideration matters, which led up to and were
the occasion for that litigation. The Courts can award costs even against the persons who
are not parties to the suit, it is also established that a Defendant who remains ex parte is
as much hound by the decree as the Defendant who contests the suit. The Court has
ample discretion to award costs even against the persons who were not parties to the suit
if the Court considers that their conduct warrants it. It is also plain that if some of the
parties interested in the litigation choose to be impleaded as the Defendants, but set up

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one having a right similar to theirs' as a Plaintiff in the hope that the litigation proves
successful they shall have the benefit of the decree, such a Defendants can also be made
liable for costs. The Court, in making an Order as to costs, can consider the conduct of
that party both antecedents to the suit as well as in the suit itself.
However, the discretion is to be exercised with special reference to all the circumstances
of the case, including the conduct of the parties.
Section 35A on the other hand reads as under:
Section 35A - Compensatory costs in respect of false or vexatious claims or defence
(1) If in any suit or other proceedings, including an execution proceeding but excluding
an appeal or a revision any party objects to the claim or defence on the ground that the
claim or defence or any part of it is, as against the objector, false or vexatious to the
knowledge of the party by whom it has been put forward, and if, thereafter, as against the
objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in
part, the Court, if it so thinks fit may, after recording its reasons for holding" such claim
or defence to be false or vexatious, make an Order for the payment to the objector by the
party by whom such claim or defence has been put forward, of cost by way of
compensation.
(2) No Court shall make any such order for the payment of an amount exceeding
Rs.3,000 or exceeding the limits of its pecuniary jurisdiction, whichever amount is less
Provided that where the pecuniary limits of the jurisdiction of any Court exercising the
jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act,
1887 (9 of1887) or under a corresponding law in force in any part of India to which the
said Act does not extend and not being a Court constituted under such Act or law, are less
than Rs. 250, the High Court may empower such Court to award as costs under this
section any amount not exceeding Rs.250 and not exceeding those limits by more than
Rs. 100.Provided further, the High Court may limit the amount which any Court or class
of the Courts is empowered to award as costs under this section.
(3) No person against whom an Order has been made under this section shall, by reason
thereof, be exempted from any criminal liability in respect of any claim or defence made
by him.
(4) The amount of any compensation awarded under this section in respect of a false or
vexatious claim or defence shall be taken into account in any subsequent suit for damages
or compensation is respect of such claim or defence. The purpose and objective of the
above provisions is that the Trial Court should take a deterrent action if it is satisfied that
the litigation was inspired by vexatious motives and altogether groundless. The cost
awarded under Section 35A is to discourage false and frivolous claims or pleas being
taken. However, the Court before passing any Order must satisfy that the claim sought is
false to the knowledge of the Plaintiff, and the opponent party at the earliest opportunity
took objection against it.
The present Order speaks about all the relevant and necessary elements pertaining to both
the sections. It further goes on to explain that the High Court Legal Services Committee
is a statutory authority and not a "State" that spends money on providing judicial
infrastructure. The Courts, now, are expected to be and should be clear as to where the
costs have to be deposited

Sd/-
Ms. Neha Maggo

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