The Code of Civil

Procedure, 1908

Prateek Seth
The code of civil Procedure, 1908 was passed in 1908 and signed by the
Governor – General on 21st March 1908. The first uniform code of civil
procedure was enacted in 1859 which proved to be incomplete & ineffective,
therefore, a new code was enacted in 1877. This code has also not proved to be
effective, therefore, again, a new code was enacted in 1882. This code was also
not effective, therefore, this code has been passed in 1908.
Object of this code – The object of this code is to consolidate and amend the
laws relating to the procedure of the codes of civil judicature. The expression to
consolidate means to collect all the laws relating to civil matters.
Code is not exhaustive – The code is exhaustive on matters specifically dealt
with by it but not exhaustive on the matters not specifically provided by it.
Procedural Law – The code of civil procedure is a procedural or adjective law.
The function of procedural law is to facilitate justice and further its end. In the
case of – Ram Manohar Lal v. N.B.M. Supply
The S.C. said that the procedural law should be construed liberally (लचीलेपन से)
and, in such manner, as to render the enforcement of substantive right effective.
Provisions of sec. 1 - Sec. 1 provides about three things i.e. –
(i) Short – title of the code.
(ii) Commencement of this code.
(iii) Extent of this code.
These three things are as following –
1. This Act may be called as the code of civil Procedure, 1908.
2. It shall came into force on 1st day of January, 1909.
3. It shall extent to whole of India except the following states & areas.
(i) The state of Nagaland
(ii) Tribal areas.
It is noticeable point that if the state government of such tribal areas notifies that
the provisions of this code applies to such tribal areas then it will applicable.
Subordination of Courts – Sec. 3 provides the subordination of courts for the
purposes of this code–
1. The District court is subordinate to the High court.
2. Every civil court inferior to a district court shall be subordinate to the High
Court & District Court.
3. Every court of small causes is subordinate to the High Court & District court.
Sec. 4 – Savings – Sec. 4 of this code provides that the rules or provisions of this
code shall not be deemed to limit or otherwise affect any special or local law or
any special jurisdiction or power conferred by any other law or any special
procedure prescribed by any other law unless any specific provision contrary to
this is prevent.
Sec. 5 – Application of the code to the Revenue Courts – Sec. 5 of this code
empowers the State Government to declare that any portion of such provisions
which become applicable to the revenue court because any special law governing
the procedure of revenue court is silent, can declare that it shall not apply to such
court or it will apply only in modified form.
The provisions of this section shall apply where those provisions are not
expressly made applicable by this code.
Meaning of same certain words – In sec. 2 some certain terms have been
defined, as following –
Sec. 2(1) code – Code includes Rules
Sec. 2(2) Decree – The term ‘decree’ is defined in sec. 2(2) of this code. The
adjudication of a court may be either as a decree or as an order.
According to this clause, decree means the formal expression of an adjudication
which conclusively determines the right of the parties with regard to all or any of
the matter in controversy in the suit and it includes the rejection of plaint & the
determination of any question within sec. 144, but shall not includes the
following –
(a) any adjudication from which an appeal lies as an appeal from an order; or
(b) any order of dismissal for default.
Essential Conditions – In order to constitute the decision as a decree, following
conditions are required.
(i) There must be an adjudication.
(ii) There must be a formal expression of adjudication.
(iii) Such adjudication must have been given in a suit.
(iv) It must have determined the rights of the parties with regard to all or any of the
matters in controversy in the suit.
(v) Such determination must be conclusive.
(i) Adjudication – In order to constitute a decision of a court to be a decree,
there must be an adjudication. This term means a judicial determination of the
matters in dispute.
Thus, a decision on an administration nature or an order dismissing a suit for
default of appearance of the parties is not a decree.
(ii) Formal expression – It is an essential condition for a decree that such
adjudication must have been formally expressed by the court.
Thus, all the requirement of form must be complied with. In the case of –
Case – Shakuntala Devi v. Kuntal Kumari
The S.C. held that the decree follows the judgement & must have been drawn
separately.
(iii) In a suit – In is well established that a decree can be passed only in a suit, not
in other proceeding. The word ‘suit’ is not defined in this code, it was defined by
the privy council in the case of –
Case - Hans Raj v. Dehradhun Masuri Electric Tramuay Co. Ltd.
The Privy Council said that the term suit means a civil proceeding instituted by
the presentation of a plaint.
(iv) Determination of the rights – It is very essential condition for a decree that
the rights of the parties in regard to all or any of the matters in dispute in a suit
must been determined by the court in the adjudication.
The term ‘rights’ means, here, the substantive right, not the procedural.
(v) Conclusive determination – A decision of a court is a decree only if the rights
of the parties have been determined by the court conclusively. Such rights may be
with regard to all or any of the matters in controversy in a suit.
The expression conclusive determination means the determination in which
there is no need of considering that right again by the court and against which an
appeal can be made.
Case – Jetha Nand & Sons v. State of U.P.
The S.C. said that if the decision is final & conclusive in essence & substance,
it is a decree and if not, it is not a decree.
Kinds of Decree – The analysis of clause (2) of sec. 2 & its explanation reveals
the following kinds of decrees.
1. Preliminary Decree – Clause (2) & Explanation to this clause provides about
preliminary decree. According to the explanation, a decree is preliminary when
further proceedings have to be taken before, the suit can be completely disposed
off.
Thus, if the court have decided either all or some certain rights of the parties
conclusively & finally but it has not completely disposed off the suit, it is known
as preliminary decree. In the case of –
Case – Mool Chand v. Director Consolidation
The S.C. has held that a preliminary decree is only a state in working out of
the rights of the parties which are to be finally adjudicated by a final decree. In
the case of –
Case – Phool Chand v. Gopal Lal
The S.C. has held that in a suit, more than one preliminary decree can be passed.
This code contemplates passing of preliminary decree in the following cases –
(a) Suit for possession of immovable property, rent, meane profit. [Order 20
Rule 12]
(b) Administration suit. [Order 20 Rule 13]
(c) Suit for pre-emption. [Order 20 Rule 14]
(d) Suit for dissolution of partnership. [Order 20 Rule 15]
(e) Suit for accounts between principle & agent. [Order 20 rule 16]
(f) Suit for partition of property or separate possession therein. [Order 20
rule 18]
(g) Suit for foreclosure of a mortgage. [Order 34 Rules 2 & 3]
(h) Suit for sale of mortgaged property. [Order 34, Rule, 4 & 5]
(i) Suit for redemption of a mortgage. [Order 34, Rules 7 & 8]
2. Final Decree – the explanation to clause (2) provides that a decree is final when
such adjudication completely disposes off the suit.
Thus, if in a suit, a decree is passed and the suit is completely disposed off
without leaving anything to be decided further, the decree is a final decree. In the
case of –
Case – Gorika Patti v. Subbial Chaudhary
The S.C. said that the decree in appeal is a decree in a suit since appeal is
continuation of a suit.
3. Partly Preliminary & Partly Final Decree – Explanation to clause (2)
provides that a decree may also be partly preliminary & partly final, but this
expression is not made clear or defined by this explanation.
Thus, a decree which is neither fully final nor fully preliminary, may be called as
partly preliminary & partly final decree.
It can be made more clear by this example – In a suit, a party claims for
possession of his house & mesne profit. The court has decided that the possession
of the house should be given to plaintiff & also declared him entitled for the
mesne profit. But the mesne profit can be given when the amount is ascertained,
therefore, the court does not give order what amount should be given as a mesne
profit. The first decree is final decree & the second is the preliminary decree.
Thus, it is neither purely final, nor purely preliminary.
4. Deemed Decree – The term ‘deemed decree’ means the decree not fulfilling
the conditions required by clause (2) of sec. 2 of this code but which is regarded
by the law as a decree. It is a decree by fiction of law. The rejection of plaint, the
determination of question under sec. 144 & the adjudication under order – 21,
Rules 58, 98, 100 are the deemed decree. It is also known as presumed decree.
Decisions which are regarded as Decree – The following decisions are
regarded decree –
(i) Order of abetment of suit.
(ii) rejection of plaint for non – payment of court fees.
(iii) Order that the appeal is not maintainable.
(iv) Dismissal of appeal or suit for want of evidence.
(v) Dismissal of appeal on the ground of time – barred.
(vi) Granting or refusing to grant instalments or costs.
(vii) Modification of scheme under sec. 92 of C.P.C.
(viii) An order holding that the right to sue does not survive.
(ix) An order holding that there is no cause of action.
(x) An order refusing one of several reliefs.
(xi) An order dissolving partnership.
(xii) An order directing surety to pay debt of judgment debtor.
(xiii) An order rejecting plaint in pre-emption suit.
(xiv) An order under sec. 25 of Hindu Marriage Act.
(xv) compromise or consent decree.
Decisions which are not decree – The following decisions are not regarded as
decree –
(i) Order of granting or refusing interim relief.
(ii) Return of plaint for presentation to the proper court.
(iii) Order of remand.
(iv) Dismissal of appeal for default.
(v) Dismissal of suit under order 23 Rule 1.
(vi) Appointment of commissioner to take account.
(vii) refusing to wind up a company.
(viii) An order by an authority or officer who is not a court.
(ix) A decision on a matter of administrative nature.
(x) An order dismissing a suit for default of appearance of the parties.
(xi) An refusing leave to sue in forma – popuris.
(xii) rejection of application for condonation of delay.
(xiii) An order holding an application to be maintainable.
(xiv) An order refusing to set – aside.
(xv) An order directing assessments of mesne profit.