The Code of Civil Procedure 1908-Amish Shah 9924035128 (M)

THE CODE OF CIVIL PROCEDURE, 1908 (C.P.C.)

Decree, Order & Judgement

Decree

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.

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.

A decree must be drawn 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
categorised as a decree by the legislature. The rejection of a plaint and the
determination of questions of facts are deemed decrees.

Order

Defined u/s 2 (14) of the Civil Procedure Code. It means the formal
expression of any decision of the Civil Court which is not a decree.

The starting point for an order need not always be a plaint, it may be an
application or petition. Though being a formal expression, it follows that an
order need not conclusively determine the rights of parties on any matter in
dispute. However, it may relate to the matters in controversy.

Judgment

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 Tamilnadu V. S. Thangaval.
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Judgment is the statement of the Court on the grounds for having arrived at
a decision.

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.

Jurisdiction of courts and venue of suits

Jurisdiction means the authority by which a court has to decide matters that
are brought before it for adjudication. The limit of this authority is imposed
by charter, statute or commission. If no such limit is imposed or defined that
the jurisdiction is said to be unlimited.

Limitation of jurisdiction of civil court is basically four kinds:

1. Jurisdiction over the subject matter- to try certain matters by certain

court is limited by statute (Ex. Small cause court- suit for money due
under promissory note or a suit for price of work done)
2. Place of suing or territorial jurisdiction – A territorial limit of
jurisdiction for each court is fixed by Government.
3. Jurisdiction over persons – All person of whatever nationality are
subject to the jurisdiction of the country except foreign state.
4. Pecuniary jurisdiction depending on pecuniary value of suit –There is
no pecuniary jurisdiction of high court and district court.

Jurisdiction may be further classified:

 Original jurisdiction
 Appellate jurisdiction

Criminal and appellate jurisdiction- Supreme Court, High Courts and District
courts have both original and appellate jurisdiction in various matter.

Stay of suit –(Section 10)

No Court shall proceed with the trial of any suit in which the matter in issue
is also directly and substantially in issue in a previously instituted suit
between the same parties or between parties under whom they or any of them
claim litigating under the same title where such suit is pending in the same
or any other Court in India having jurisdiction to grant the relief claimed or
in any Court beyond the limits of India established or continued by the
Central Government and having like jurisdiction or before the Supreme
Court.

Essential conditions for stay of suit:

1. Two suits instituted at different times,

2. The matter in issue in the later suit should be directly and
substantially in issue in the earlier suit,
3. suit between the same parties,
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4. Such earlier suit is still pending either in the same court or in other
competent court, not before foreign court.

Case / Example: (Wings Pharmaceuticals (P) ltd and another V. M/s. Swan
pharmaceuticals and other)

A suit was instituted by the plaintiff company alleging infringement by the

defendant company by using trade name of medicine and selling the same in
wrapper and carton of identical design with the same colour combination etc.
as that of plaintiff company. A subsequent suit was instituted in different
court by the defendant company against the plaintiff company with same
allegation.

The court held that subsequent suit should stayed as a simultaneous trial of
the suits in different courts might result in conflicting the decision as issue
involved in two suit was totally identical.

Res judicata (Section 11)

No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former
suit between the same parties, or between parties under whom they or any
of them claim, litigating under the same title, in a Court competent to try
such subsequent suit or the suit in which such issue has been subsequently
raised and has been heard and finally decided by such Court.

The intention of this doctrine is the parties of the suit should not be harassed
to against the same issue or matter already decided between them and the
time of court should not wasted over the matters that ought to have been and
should have been decided in the former suit between the parties. This
doctrine known as Constructive res judicata

Essential condition for res judicata

1. The matter must be directly and substantially in issue in two suits

2. The prior suit should be between the same parties or person claiming
under them
3. The parties should have litigated under the same title
4. The court which determined the earlier suit must be competent to try
the latter suit
5. The same question is directly and substantially in issue in the latter
suit
6. The prior suit has been heard and finally decided.

Example 1: -A was a trustee of a trust, after A's death B wrongfully takes the
possession of the trust property. C the son of A file a suit for recovery of
possession of the property against B as the legal heir of A in his individual
capacity but C did not succeed. The C files another suit for recovery of trust
property against B in the capacity of trustee as he was appointed trustee after
the death of A. Whether second suit is barred?

First suite filed by C as individual capacity i.e. as legal heir where as second
suit as a capacity of trustee of the trust property- second suit is not barred
by the doctrine of res judicata.

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Example 2: Finding incidentally does not operate as res judicata (Madhvi

Amma Bhawani Amma V. Kunjikutty P. M. Pillai.

Place of suing (Territorial) Section 15 to 18 / Court in which suits to be

instituted? (Matter relating to immovable property)

Every suit shall be instituted in the Court of the lowest grade competent to
try it.

Subject to the pecuniary or other limitations prescribed by any law, the

following suit shall be institutes in the court with in the local limits of whose
jurisdiction the property is situated (Section 16):-

(a) For the recovery of immovable property with or without rent or profits,
(b) For the partition of immovable property,
(c) For foreclosure, sale or redemption in the case of a mortgage of or charge
upon immovable property,
(d) For the determination of any other right to or interest in immovable
property,
(e) For compensation for wrong to immovable property,
(f) For the recovery of movable property actually under distraint or
attachment,

A suit to obtain relief respecting or compensation for wrong to, immovable

property be instituted either in the Court within the local limits of whose
jurisdiction the property is situate or in the Court within the local limits of
for gain or where the either party actually and voluntarily resides or carries
on business or personally works.

Suits for immovable property situate within jurisdiction of different Courts?

(Section 17)
The suit may be instituted in any Court within the local limits of whose
jurisdiction the property is situate.
Provided that, in respect of the value of the subject matter of the suit, the
entire claim is cognizable by such Court.
Place of institution of suit where local limits of jurisdiction of Courts are
uncertain? (Section 18)

Any one of those Courts may, if satisfied that there is ground for the alleged
uncertainty, record a statement to that effect and thereupon proceed to
entertain and dispose of any suit relating to that property.

Provided that the suit is one with respect to which the Court is competent as
regards the nature and value of the suit to exercise jurisdiction.
Suits for compensation for wrongs to person or to movable? (Section
19)

Where a suit is for compensation for wrong done to the person or to movable
property, if the wrong was done within the local limits of the jurisdiction of
one Court and the defendant resides or carries on business or personally
works for gain, within the local limits of the jurisdiction of another Court, the
suit may be instituted at the option of the plaintiff in either of the said Courts.

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Illustrations
(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta
or in Delhi.
(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B
may sue A either in Calcutta or in Delhi.
Other suits to be instituted where defendants reside or cause of action
arises? (Section 20)
Every suit shall be instituted in Court within the local limits of whose
jurisdiction:
The defendant, or each of the defendants where there are more than one, at
the time of the commencement of the suit, actually and voluntarily resides,
or carries on business, or personally works for gain; or
The cause of action, wholly or in part, arises.
Provided that the suit is one with respect to which the Court is competent as
regards the nature and value of the suit to exercise jurisdiction.

Explanation: A corporation shall be deemed to carry on business at its sole

or principal office in India or, in respect of any cause of action arising at any
place where it has also a subordinate office, at such place.

Illustrations
(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his
agent in Calcutta, buys goods of A and requests A to deliver them to the East
Indian Railway Company. A delivers the goods accordingly in Calcutta. A may
sue B for the price of the goods either in Calcutta, where the cause of action
has arisen or in Delhi, where B carries on business.
(b) A resides at Simla, B at Calcutta and C at Delhi A, B and C being together
at Benaras, B and C make a joint promissory note payable on demand, and
deliver it to A. A may sue B and C at Benaras, where the cause of action
arose. He may also sue them at Calcutta, where B resides, or at Delhi, where
C resides; but in each of these cases, if the non-resident defendants object,
the suit cannot proceed without the leave of the Court.

Concept of set off, Equitable Set off and Counter Claim

Set Off

Order 8, Rule 6 deals with set off which is a reciprocal discharge of debts
between the plaintiff and he defendant. It has the effect of extinguishing the
plaintiff’s claim to the extent of the amount claimed by the defendant as a
counter claim.

Where the defendant’s claims to set off against the plaintiff’s demand, in a
suit for the recovery of money, any ascertained sum of money legally
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recoverable by him from the plaintiff, the defendant may present a written
statement containing the particulars of the debt sought to be set off.

Example: [ R and S sale rice for Rs 25000 to A and M. A sell cloth worth Rs.
28000 to S. A file a suit against S for recovery of price of cloth. S claims set
off of the cost of rice in this suit.
 S will not allow set off – in dealing parties are not jointly same.

Equitable Set Off

Where the defendant claims set off in respect of an unascertained sum of

money, where the claim arises of the same transaction and then such set off
is known as equitable set off. Generally, the suits emerge from cross demands
in the same transaction and this doctrine is intended to save the defendant
from having to take recourse to a separate cross suit.

Counter Claim

Order 8, Rule 6A of Civil Procedure Code deals with the Rule of Counter
claim. This Rule permits the defendant to set up the claim as a counter to
the claim of the plaintiff, which arose between the parties. This rule is
applicable in the interest of public policy so as to minimize litigation between
the parties which could have been filed by the defendant separately.

A defendant in suit may in addition to his right of pleading a set off under
rule 6, set up by way of counter claim against the claim of the plaintiff, any
right or claim in respect of a cause of action accruing to the defendant against
the plaintiff either before or after the filing of the suit but before the defendant
has delivered his defense or before the time limited for delivering his defense
has expired whether such counter claim is in the nature of claim for damage
or not. Such counter claim must be with in the limit of the court.

Temporary injunction and interlocutory order

The court may grant temporary injunction to restrain any such act or make
such other order for the purpose of staying and preventing the:

Wasting, damaging, alienation or sale or removal or disposition of the

property or disposition of plaintiff or otherwise injury to the plaintiff in
relation to any property in dispute in the suit, where it is provided by affidavit
or otherwise:-

✓ that property in dispute in a suite is in danger or being wasted,

damaged or alienated by any party to the suit or wrongfully sold on
execution of decree or;
✓ that the defendant threatens or intend to remove or dispose of his
property with a view to defrauding his creditor or;
✓ that the defendant threatens to disposes the plaintiff or otherwise
cause injury to the plaintiff in relation to any property in dispute in
suit.
It would be necessary for the plaintiff to satisfy the court that substantial and
irreparable harm or injury would be suffered by him if such temporary
injunction is not granted and such loss or damage or harm can not be
compensated by damages.

Interlocutory order (Power to order Interim sale)

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If the immovable property which is subject to speedy and natural decay or

which for any other sufficient cause it may be desirable to be sold at once.
The court may on the application of the applicant of any party to a suit order
the sale of such detained goods.

Detention, preservation, inspection etc. of subject matter of suit

The court may on application of any party to a suit and on such terms as it
think fit:

✓ Make an order for detention, preservation or inspection of any

property which is in the subject matter of suit;
✓ May authorise any person to enter upon the premises.
✓ Authorise any person to take samples, for observation and for
obtain desired information’s etc.
Party would made application for aforesaid purposes at any time after
institution of suit or at any time during the proceeding of the suit.

Court shall identify the intention of party for the order and it think fit than
issue the any of aforesaid order.

Court may order deposit of money or other thing etc. in court

Misjoinder of Parties

When more than one persons joined in one suite as plaintiff or defendants in
whom or against whom any right to relief does not arise or against whom
separate suit are bought, no common question of law or fact would airs.

To avoid such misjoinder two factors are essentially considered by

adjudication:

1. the right to relief must arises out of same act or transactions brought
by plaintiffs or against the defendant,
2. There is common question of law or facts.

Delivery of Summons by court- Rule 9

Summons delivered to defendant either personally or his agent or any adult

male or female member of the family, against signature obtained in
acknowledgement of the service.
Summons may be delivered by
 An proper officer of court or
 Thru registered acknowledgement post or acknowledged speed post or
couriered services approved by high court or appropriate court.

Court satisfied or believe that the person summoned is keeping out of way
for purpose of avoiding service or that any of reason the summons can not
be served in the ordinary way in that case court order the service of summons
to be served by affixing a copy thereof in some conspicuous place in the
court house and also upon some conspicuous part of the house in which
the person summoned is known to have last resided or carried on
business of personally worked for gain or any such other manners as
court thinks fit.

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If defendant is public servant / officer → Summons will be delivered Office in

which he/she is employed.
If defendant is company → summons will be delivered to Company Secretary
/ Director / principal officer.

Appeal

Appeal is a process for requesting a formal change to a decision of

subordinate adjudication. Right of appeal is not a natural right or inherent
right attached to litigation. Such right is given by statute or by rules having
the force of statute.

Four kinds of appeals:

1. Appeal from original Decree (Section 96-99)
2. Second Appeals (Section 100- 103)
3. Appeal from Order (104 -106)
4. Appeal to the supreme court (Section 104-106)

Reference, Review & Revision

Reference
Subject to such conditions as may be prescribed, at any time before
judgement a court in which a suit has been instituted may state case and
refer the same for opinion of the high court, and high court may make such
order as it think fit.

Review

Conferred by, Section 114 and order 47 rule 1 of code.

Any person considering himself aggrieved by a decree or order may apply for
review of judgement to the court which passed the decree or made the order
on any of the grounds as mentioned ion order 41 Rule 1, namely:

1. Discovery by the applicant of new and important matter or evidence

which after the exercise of due diligence was not with in his knowledge
or could not be produced by him at the time when the decree was
passed or order made or
2. On account of some mistake or error apparent on the face of the record,
or
3. for any other sufficient reason;
The court may make such order thereon as it think fit.

Revision (Section 15)

High court may call for record of any case which has been decided by any
court subordinate to such high court and in which no appeal lies thereto and
if such subordinate court appears:
✓ To have exercised a jurisdiction not vested in it by law; or
✓ To have failed to exercise a jurisdiction so vested or;
✓ To have acted in the exercise of its jurisdiction illegally or with
material irregularity.
The high court may make such order as it thinks fit.
The high court shall not vary of reverse any order made or any order deciding
an issue in the course of suit or proceeding except where the order if ht had
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been made in favour of the party applying for revision would have been finally
disposed of the suit or other proceedings.
The H.C. shall not vary or reversed any decree or order against which an
appeal lies either to the H.C. or any court subordinate thereto.
A revision shall not operate as a stay of suit or other proceeding before the
court except where such suit or proceeding is stayed by H.C.

Suit by or against a corporation / minor

(Company)Pleading may be signed and verified by → Secretary, Director or

principal officer of Company

(Minor) → Next friend of the minor- on satisfaction court may appoint a proper
person to be a guardian for the suit.
When minor attend majority – minor will join the suit.

Summary Procedure

A procedure by way of summary suit applies to suits upon:

Bills of exchange or, Promissory notes
The summary procedures are applicable in the following courts:
High court, City civil court & Small courts.

The debt or liquidated demand in money payable by the defendant should

arise on written contract or an enactment or on guarantee.

Defendant is not entitled to define the suit unless he enters an appearance

with in 10 days from the service of summons.

The summary suit must be brought with in one year from the date on which
the debt becomes due and payable, whereas the period of limitation for suit
for ordinary case under negotiable instrument is three year.

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Decree, Order & Judgement

Decree Order Judgement

Section 2(2) Section (14) Section 2(9)
Formal expression of an adjudication Formal expression of any decision of civil Statement given by judge on the ground of
which conclusively determine the right of court, which in not decree. decree or order.
parties with regarding to the matter in
controversy in suit.
Decree Judgement set out in the ground and the
 Preliminary reason for the judge to have arrived at the
 Final decision.
Decree & Order
Adjudicate and conclusively determine the Order does not do so.
right of the parties.
Always appealable, unless prohibited by Order not appealable unless permitted by
law. law.
Second appeal permissible. No second appeal permissible.
Decree Always final
 Preliminary
 Final

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