The Code of Civil Procedure

1. The Code of Civil Procedure

Preliminary
 Preliminary - Types of Laws
• Types of Laws. Laws can be divided into two groups
• 1. Substantive Laws or Adjective Laws
• 2. Procedural Laws.
 Substantive Laws
• Substantive Laws. The Substantive Law is a Statutory law that
defines and determines the rights and obligations of the citizen to
be protected by law.
• According the Halsbury's Laws of England, the function of
Substantive Law is to define, create or confer substantive legal
rights or legal status or to impose and define the nature and
extent legal duties.
• Substantive laws are the statutory laws passed by the legislature.
• Exs. Indian Penal Code, Indian Contract Act. These laws determine
the rights and obligations of concerned persons
 Procedural Laws
• Procedural Laws. Procedural Law or Adjective Law deals with the
enforcement of Law that is guided and regulated by the practice,
procedure and machinery. Procedural laws comprise the rules and
processes which any court follows for hearing and determining the cases.
• According the Halsbury's Laws of England, the function of procedural law
is to provide the machinery or the manner in which the legal rights or
status and legal duties may be enforced or recognized by a court of law or
other recognized or properly constituted tribunal
• Procedural Laws prescribe procedure for the enforcement of rights and
liabilities. The efficacy of substantives, to a large extent, depends upon
the quality of procedural laws
 Structure of CPC
• The Code is divided into two parts: the first part contains 158 sections and the
second part contains the First Schedule, which has 51 Orders and Rules.
• The sections, which are substantial, provide provisions related to general principles
of jurisdiction whereas the Orders and Rules prescribe procedures and method that
govern civil proceedings in India.
• The Object of the Code is to consolidate all the laws relating to the procedure to be
adopted by the Civil Courts and amend the law relating to the procedure of Courts
of Civil Procedure
• The procedural laws are always retrospective in operation unless there are good
reasons to the contrary. The reason is that no one can have a vested right in the
form of procedure. However, the Code is not retrospective in operation
• The Code is not exhaustive.
 Preliminary
• Short title, commencement and extent.—This Act may be cited as
the Code of Civil Procedure, 1908.
• It came into force on the first day of January, 1909
• It extends to the whole of India except—
• (b) the State of Nagaland and the tribal areas:
• Provided that the State Government concerned may, by notification in
the Official Gazette, extend the provisions of this Code or any of them
to the whole or part of the State of Nagaland or such tribal areas, as
the case may be, with such supplemental, incidental or consequential
modifications as may be specified in the notification.
 Section 2. Definitions
• S.2(1) ) “Code” includes rules
• The chief feature of the Code is the distinction between what is termed as
the body of the Code and the Rules. The body of the code, which runs into
158 sections creates jurisdictions and is unalterable except by the legislature.
• But the Rules, which indicate the mode in which such jurisdiction is to be
exercised, can be altered or amended by a High Court, such alterations or
amendments having force or effect within the local limits of jurisdiction of
that High Court. The body of the Code, which is expressed in more general
terms , has to be read in conjunction with the more provisions of the Rules.
• Due to this deeming provision, the Rules are deemed to be enacted in the
body of the Code itself.
 Decree
• What is a Decree? In earlier times, Kings passed decrees. Later society evolved and presently in
democratic countries, the role of dispute resolution has been granted to the judiciary and the
adjudication of disputes is the exclusive prerogative of Courts of law. After adjudication of disputes,
Courts pass a final order or decree. Thus, we can fairly understand that Courts have the power to
pass decrees.
• Usually, the Civil Courts after adjudication of disputes before them are required to pass a final
judgment and decree. Whereas Criminal Courts render judgment and sentence if any, but not a
decree. Therefore, Civil Courts and Courts exercising original jurisdiction alone are empowered to
pass Decrees.
• All civil proceedings commence with filing of a plaint and conclude with passing of judgment and
decree. Judgment and decree are inter- connected. We cannot expect any Decree without there
being a judgment.
• A civil court, after final adjudication of the dispute between the parties in a suit, delivers judgment,
either granting the reliefs sought for or dismissing the suit. Sometimes, it may partly allow or partly
dismiss the suit.
• The Decree is nothing but the operative portion of the judgment with additional information such as
names of the parties, place of the Court, name of the judge, designation of judge, suit number,
particulars and addresses of the parties, date of filing of suit, date of judgment, value of the suit,
court fees, reliefs granted or rejected and costs if any imposed.
 Section 2. Definitions
• S. 2(2) “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.
• A decree 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,
• The term decree does not include—
• (a) any adjudication from which an appeal lies as an appeal from an order, or
• (b) any order of dismissal for default.
• Explanation.—A decree is preliminary when further proceedings have to be taken
before the suit can be completely disposed of.
• It is final when such adjudication completely disposes of the suit.
• It may be partly preliminary and partly final;
 Decree & Order
• Generally, every Decree is an Order, but all Orders are not Decrees. An Order
can be passed as an interim measure or can be final. Orders can be passed in
original suits or in original petitions under various special acts. In civil suits, as an
interim measure, Courts are empowered to pass interim Orders. These Orders
may or may not be appealable. However, whenever an Order is appealable, a
decree will be drawn, for e.g., an application filed for interim injunction.
• A Decree has the characteristic of finality, subject to any appeal preferred by the
parties. But an Order may be final or interim, until the passing of a Decree,
either preliminary or final.
• The unique characteristic of a preliminary Decree is that after passing of the
preliminary Decree, though the rights of the parties are conclusively determined,
the suit is not disposed of until the final Decree is passed.
 Essential Elements of Decree
The essential features of a decree are as follows:
• There must be an adjudication.
• The adjudication must be done in a suit.
• The adjudication must be done in determining the rights of the
parties relating to all or any of the matter in dispute.
• Such determination must be conclusive in nature.
• There must be a formal expression of such adjudication.
 Essential Elements of Decree
• 1. Adjudication. The most essential feature of a decree is that there
must be an adjudication, i.e., a formal decision of the Judge on the
matter in dispute. If there is no judicial determination, there is no
decree. And such decision must be passed by the Court. Therefore, an
order passed by an officer who is not a court cannot be termed as a
decree.
• In Madan Naik v Hansubala Devi, AIR 1983, the Supreme Court held
that if the matter is not judicially determined, it is not a decree.
 Essential Elements of Decree
• 2. Suit. It may be defined as a civil proceeding which is instituted in the
Court of Law by the presentation of a plaint. Thus, if there is no civil
suit, there is no decree. However, there are certain applications which
are being treated as suit, such as, proceedings under, the Indian
Succession Act, the Hindu Marriage Act, the Land Acquisition Act, the
Arbitration Act, etc.

• Therefore, decisions given for these matters are considered as decrees

within the meaning of Section 2(2) of Civil Procedure Code. In addition
to this, decisions held by the tribunals are the decrees passed by the
tribunal and not the Court decree.
 Essential Elements of Decree
• 3. Rights of the parties. The adjudication must determine the rights of the
parties in all or any of the matters in dispute. If the Court passes an order on
procedural ground, such order cannot be termed as a decree, such as, an order
dismissing the suit for non-appearance of the parties, or an order refusing to
grant leave to sue as a pauper, etc.
• The term parties mean parties to the suit, i.e., the plaintiff (the person who has
instituted the suit) and the defendant (against whom the suit has been filed).
• In Kanji Hirjibhai Gondalia vs Jivaraj Dharamshi, AIR 1976, the Court held that
the term parties means the parties to the suit, i.e., the plaintiff and the
defendant. In case the Court passes an order upon an application of a stranger
or a third party in a suit, such order will not be considered as a decree.
 Essential Elements of Decree
• 4. Determination must be conclusive. The judicial determination held by the Court of Law
must be conclusive and final relating to the rights of the parties to the suit. The provisional
decisions or the interlocutory orders cannot be termed as a decree as they are not the
final decision of the Court.
• Therefore, orders passed by the Court on certain issues and remitting other issues to the
trial court is not a decree as it does not determine the rights of the parties conclusively.
• An Interlocutory order which does not finally decide the rights of the parties is not a
decree. Eg. An order refusing adjournment or striking of defence of tenant under the Rent
Act are not decrees because they do not decide the rights of the parties conclusively.
• An Order dismissing an appeal summarily, under Order 41 or holding it be not
maintainable or dismissal of a suit for want of evidence or proof are decrees, because they
conclusively decide the rights of the parties to the suit
 Essential Elements of Decree
• 5. Formal Expression. There must be a formal expression of the
adjudication. The Court must express its decision formally in
accordance with the provisions of law.
 Absolute Decree and Decree Nisi
• When a decree is complete by itself and becomes of full effect at
once, is said to be absolute.
• On the other hand, a decree nisi is one which is not to take effect,
unless the person affected by it fails to show cause against it within a
specified time. In other words, a decree nisi requires the person
against whom it is issued to appear before the court and give some
reason why it should not take effect.
 Classification of Decree
• The decree may be classified into
• 1. Preliminary Decree
• 2. Final Decree
• 3. Partly Preliminary and Partly Final Decree
• 4. Deemed Decree
 Preliminary Decree
The preliminary decree is a decree where the Court decides the rights of the parties relating to all
or any of the matter in controversy but does not dispose of the suit finally.
• Civil Procedure Code 1908 provides that, in the following suits a preliminary decree may be
passed:
• Suit for possession and Mesne profit (Order 20 Rule 12)
• Administration Suits (Order 20 Rule 13)
• Suits of pre-emption (Order 20 Rule 14)
• Suit filed for dissolution of a partnership (Order 20 Rule 15)
• Suits related to accounts between the principal and agent (Order 20 Rule 16)
• Suit for partition and separate possession (Order 20 Rule 18)
• Suits related to the foreclosure of a mortgage (Order 34 Rule 2)
• Suits related to the sale of the mortgaged property (Order 34 Rule 4)
• Suits for the redemption of a mortgage (Order 34 Rule 7)
• However, in Narayanan Thampi vs Laxmi Narayan Iyer, AIR 1953, the Court held that the above-
mentioned list is not exhaustive, and the Court may pass preliminary decree in a suit not enlisted
by the Code.
 Final Decree
• When the Court decides all the matters in controversy and finally disposes of the suit it is
called the final decree.
• In, Shankar V. Chandrakant, AIR 1995 SC 1211, the Supreme Court stated: “A preliminary
decree is one which declares the rights and liabilities of the parties leaving the actual result to
be worked out in further proceedings. Then, as a result of the further inquiries, conducted
pursuant to the preliminary decree, the rights of the parties are fully determined and a decree
is passed in accordance with such determination which is final. Both the decrees are in the
same suit.
• A final decree may be said to be final in two ways: (I) when the time for appeal has expired
without appeal being filed against the preliminary decree or the matter has been decided by
the highest court;
• (II) When, as regards to the court passing the decree, the same stands completely disposed of.
• It is the latter sense that the word ‘decree’ is used in section 2(2) of the Code.”
 Partly Preliminary and Partly Final Decree
• Partly preliminary and partly final decree are those where a final
decision has been passed in respect of a part of the suit and other
part is left for future adjudication, for example, in a suit for possession
of immovable property with mesne profit, the decree of the Court
regarding the possession is a final decree, whereas the decree about
the mesne profit is preliminary in nature.
 Rejection of a Plaint
• Section 2(2) of CPC specifically provides that rejection of a plaint shall
be deemed to be a decree.
• Thought this does not preclude a plaintiff from presenting a fresh
plaint on the same cause of action.
 Deemed Decree
• Decrees which does not fulfil the prerequisite of Section 2(2) cannot
be termed as a decree under this Code. However, there are certain
orders which are considered as deemed decrees under Civil
Procedure Code, such as, adjudication under order 21 Rule 58, Rule
98 and Rule 100 are deemed decrees. Similarly, rejection of plaint and
determination of question under Section 144 (Restitution) is a
deemed decree.
 Decree Holder
• Section 2(3) of the Civil Procedure Code provides that a decree holder
is the person in favour of whom the decree has been passed or an
order which is capable of execution has been made. A decree holder
can be any person.
• In Dhani Ram v. Lala Sri Ram, AIR 1980, the Court held that a person
who is not a party to the suit but in whose favour a decree has been
passed or an order capable of execution is made shall be the decree
holder.
 Foreign Court
• Section 2(5) “foreign Court” means a Court situate outside India and
not established or continued by the authority of the Central
Government The High Court of England or the Supreme Court of the
United States of America are examples of Foreign Courts.
• The House of Lords and the Privy Council, though earlier, prior to
independence were not foreign courts, but are now foreign courts
• Section 2(6) “foreign judgment” means the judgment of a foreign
Court
 Judgment
• 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 writes regarding all the
issues in the matter and the decision on each of the issues.
• A Judgment may be said to the final decision of the court on the
matter before the court in the form of the suit towards the parties
and to the world at large by formal pronouncing or delivering it in
open court.
 Essential of the Judgment
• 1. Judgment other than that of a Court of Small Causes
• A concise statement of the case;
• The points for the determination;
• The decision thereon;
• The reason for such a decision.
• 2. Judgment of a Court of Small Causes
• The points for determination;
• The decision thereon.
• Judgment to be signed and dated (Order 20 Rule 3). The judgment shall be signed and dated by
the Judge at the time of pronouncement in the open court.
• Copy of the judgment (Order 20 Rule 6B). Copies of the judgment shall be made available to the
parties immediately after the pronouncement of the judgment for the preferring an appeal on
payment of such fees or charges as may be specified in the rule made by the High Court.
• Alteration in Judgment Order 20 Rule 3. A judgment once signed and dated under Rule 3 cannot
afterward be amended or altered except-
• To correct clerical or arithmetical mistakes or errors due to accidental slips or omissions
(Section 152);
• On review (Section 114).
 Judgment-debtor
• Section 2(10). “judgment-debtor” means any person against whom a
decree has been passed or an order capable of execution has been
made
 Judgement and Decree Distinction
• Judgement means the statement given by a judge on the grounds of a
decree or order.
• It is not necessary for a judge to give a statement in a decree though
it is necessary in a judgement.
• It is not necessary that there should be a formal expression of the
order in the judgement, though it is desirable to do so.
• A judgement contemplates a stage prior to the passing of a decree or
an order, and after the pronouncement of the judgement, a decree
shall follow.
 Order
• Section 2(14) of the Civil Procedure Code 1908 defines Order as a
formal expression of the Court of Law of any decision which does not
constitute a decree.
• An order is an official declaration by the Judge after hearing both the
parties to a suit on a particular issue regarding the matter in dispute.
It may not necessarily be the final determination of the rights of the
parties, numerous orders can be passed in a suit or in a proceeding.
Orders may be passed both in case of suit instituted by a plaint or a
proceeding commenced by a petition or an application.
 Essential Elements of order
• There must be a formal expression
• The formal expression must not be a decree
• The decision must be pronounced by the civil court
 Types of Order
• There are two types of order:
• 1. Appealable orders. Appealable orders are those orders against
which an appeal lies. Orders mentioned under Section 104 and Order
43 Rule 1 of the Code are appealable orders, for example, an order
returning a plaint to be presented in proper Court, an order rejecting
an application to sue as an indigent person, etc.
• 2. Non-appealable orders. Non-appealable orders are those orders
against which the party cannot file an appeal, in other words, the
orders against which an appeal does not lie is a non-appealable order.
 Classification of Order
• Order can also be classified into:
• 1. Final order – Final order means the order which finally and
conclusively determines the rights of the parties to the suit.
• 2. Interlocutory Order – Interlocutory orders are the provisional
orders or the temporary orders passed by the Court in the course of
litigation. It is also called interim orders.
 certain orders which are not held to be a decree

• Order of remand. • Dismissal of suit under order 23 rule 1.

• Order granting or refusing interim relief. • Rejection of application for condonation of
• Order holding an application to be delay.
maintainable. • An order rejecting an application for leave
• Order refusing to set a side sale. to sue as a pauper.
• Order directing assessment of mesne • An order rejecting a leave to institute a suit
profit. relating to accounts of a religious
endowment.
• Dismissal of appeal for default.
• Order dismissing an application for removal
• Appointment of commissioner to take of a trustee under the Indian Trusts Act,
account. 1882.
• Return of plaint for presentation to • Order rejecting an application to wind up a
proper court. company.
 Legal representative
• Section 2(11) “legal representative” means a person who in law
represents the estate of a deceased person, and includes any person
who intermeddles with the estate of the deceased and where a party
sues or is sued in a representative character the person on whom the
estate devolves on the death of the party so suing or sued
 Mesne profits
• Section 2(12) “mesne profits” of property means those profits which
the person in wrongful possession of such property actually received
or might with ordinary diligence have received therefrom, together
with interest on such profits, but shall not include profits due to
improvements made by the person in wrongful possession
• Every person has a right to possess his property. And when he is
deprived of such right by another person, he is not only entitled to
restoration of possession of his property, but also damages for
wrongful possession of his property, but also damages for wrongful
possession from that person. The mesne profits are thus a
compensation paid to the real owner
 pleader
• Section 2(15) “pleader” means any person entitled to appear and
plead for another in Court, and includes an advocate, a vakil and an
attorney of a High Court (i.e a Solicitor)
 Other Terms Explained
• Abatement of a Suit: Thus the termination of a suit by operation of the law caused by
the death of one of the parties during the pendency of the suit is called the abatement
of the suit.
• Adjournment of Hearing: An adjournment of hearing or adjournment of the suit is the
postponement of the hearing of the suit to a future date by the Court.
• An affidavit is declaration of facts, reduced to writing and affirmed or sworn before an
officer having authority to administer oaths. It should be drawn up in the first person
and contain statements and not inferences.
• Appeal. The expression appeal may be defined as “the judicial examination of the
decision by a higher court of the decision of an inferior court”. It is complaint made to
a higher court that the decree passed by a lower court is wrong. It is remedy provided
by law for getting the decree of a lower court set aside. The right of appeal is a
creature of a statue and unless it is granted clearly and expressly it cannot be
claimed as a matter of right by a person. Again it is a vested right and can be taken
away only by a statutory provision, either expressly or by necessary implication.
 Other Terms Explained
• Cause of Action may be described as a bundle of essential facts, which is necessary for the
plaintiff to prove before he can succeed.
• A cause of action is the foundation of a suit. It must be antecedent to the institution of a suit
and on the basis of it the suit must have been filed. If a plaint does not disclose a cause of
action, a court will reject such a plaint.
• Caveat is a caution in writing given by an interested party to the court, calling upon the court
not to give any relief to another party, without notice or intimation to the party filing the
caveat. The person filing a caveat is called a caveator.
• Counter-Claim is the cross-claim made by the defendant against the plaintiff and this claim is
treated as a plaint filed by the defendant against the plaintiff.
• Commission: As per the Civil Procedure Code a commission, refers to an authority which is
appointed to exercise a power or a direction issued by the Court.
• Evasive Denials: When a defendant files a written statement, he must deal with each
allegation specifically with each allegation of the plaintiff, that is, he must admit or deny each
and every allegation contained in the plaint. If he skips answer to some allegations made by
the plaintiff, then it is called evasive denial.
 Other Terms Explained
• Defendant: The litigant against whom the plaintiff has filed suit is called the defendant.
• Issue: The term “issue” means a point of the question in the legal proceedings or issues are
material propositions of facts affirmed by one party and denied by the other.
• Jurisdiction in law, is the authority of a court to entertain, hear and determine cases (suits or
other proceedings). This authority is based on the Constitution.
• Jurisdictional Fact: The existence of a fact which gives authority to a court to try and dispose of a
particular legal proceeding is called jurisdictional fact.
• Petitioner: In the case where a petition is filed for example say writ petition, then the person
filing it is called the petitioner.
• Letter of Request or Rogatory Letter: A letter of request is a letter issued by a court in one
country to a court in a foreign country requesting some judicial assistance from the judiciary of
that country.
• Plaint: A plaint is a statement of claim. It is the document by which a suit is instituted in a court. It
contains the grounds on which the assistance of the Court is sought by the plaintiff. It forms part
of pleadings before the Court.
• Plaintiff: The litigant who approaches a court of law by filing a suit or other legal proceedings is
called the plaintiff.
 Other Terms Explained
• A precept is an order or direction given by the court which passes a decree to any other court
competent to execute the decree.
• Reference: When the subordinate court in order to take assistance refers the case to the High
Court, it is called the reference. The opinion of the High Court can also be sought when the
subordinate court has some doubts about the question of law. Reference is always made to the
High Court.
• Respondent: The party against whom a petition is filed is called the respondent.
• Restitution: The literal meaning of restitution is an act of restoring a thing to its proper owner.
• Review: “review” is the process of judicial re-examination of a case by the same court and by
the same judge who has passed the judgment or order earlier.
• Revision: A revision is said to take place when the High Court calls for the record of any case
decided by a subordinate court and passes an appropriate order if the subordinate court has
exercised a jurisdiction not vested in it or has failed to exercise a jurisdiction so vested or has
acted in the exercise of its jurisdiction illegally or material irregularity.
 Other Terms Explained
• Pleadings: The term “Pleadings” as used in the Code refers to the plaint or written
statement. They are to be signed and verified as provided in the Code.
• Suit. A civil proceedings instituted by the presentation of a plaint. In broader sense it is
understood to apply to any proceedings in a court of justice by which an individual
pursues that remedy which the law permits.
• Summary Suit or Summary Procedure: A summary suit is a suit where the defendant
cannot defend the suit as a matter of right and requires the leave of the court to do so. It
is to prevent unreasonable obstruction by the defendant who has no defence.
• Summons: A summons is a document issued by an officer of a court, calling upon the
person to whom it is directed to appear before the court or an officer of the court for a
particular purpose on a stated date at a stated time.
• Written Statement: A written statement is the reply or defence of the defendant in
answer to the plaint or the plaintiff. It constitutes the pleading filed by the defendant.
 Other Terms Explained
• Garnishee: Garnishee is a person who is a debtor of the judgment debtor.
• Garnishee Order: A garnishee order is an order by which a court can call upon the
garnishee not to pay the amount due to the judgment debtor from the garnishee
but instead to pay the judgment creditor.
• Indigent Person or Pauper: An indigent person is one who does not have
sufficient means to pay the court fees in respect of the plaint being filed by him.
• Injunction: An injunction is an order of a court calling upon a party to do or to
refrain from doing a particular act.
• Interpleader suit: An interpleader suit is one where the real dispute is between
the defendants only, and therefore, the defendants “interplead”, that is, they
plead against each other, instead of pleading against the plaintiff as in an ordinary
suit.
 Other Terms Explained
• Execution: The term ‘execution’ refers to the process of enforcing or
giving effect to judgment, decree, or order of a court.
• Execution of Decree: Execution of Decree is the enforcement of
Decree and Orders of the Court enabling the Decree holder to realize
the fruits of decree.
• Ex-parte: An order or a decree is said to be passed ex parte when it is
passed after hearing only one side, and not the other.
• Ex Parte Decree: Ex parte decree is a decree passed by a Court on a
defendant being absent when the suit is called out for the hearing.