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UPHJS Exam, 2019 (Pre): CODE OF CIVIL PROCEDURE, 1908

August 17, 2019

UPHJS Exam, 2019 (Pre): CODE OF CIVIL PROCEDURE, 1908

 

THE CODE OF CIVIL PROCEDURE, 1908

(Act No.5 of 1908)

1 The first uniform CPC was enacted in the year 1859 followed by CPC, 1882.  Thereafter, CPC, 1908 was enacted.
2 Sir Earle Richards is considered to be the father of the CPC, 1908 for his contribution in draft CPC.
3 The CPC is an adjective/ procedural law. Being procedural law, the Code has the retrospective operation.
4 The term Code has been defined under Section 2(1) of the CPC. It lays down that the ‘Code’ includes rules. The term “Rules” has been defined under Section 2(18) as rules contained under the First Schedule.
5 In terms of the provisions of Article 13 of the Constitution of India, the Code, being pre-constitutional law, is subject matter of the Concurrent List (List-III) of the Indian Constitution. The Entry No.13 of the Concurrent List empowers the Legislatures (Union as well as the State) to enact on the matter relating to the Civil Procedure Code, limitation and arbitration.
6 The preamble/ purpose of the CPC, 1908 is to consolidate and amend the law relating to the procedure of the Courts of Civil Judicature.
7 The CPC, 1908 (Act No.5 of 1908) was enacted on 21-March-1908 receiving the assent of the Governor-General.  The Code came into force on 01-January-1909.
8 Section 1 deals with the extent  and applicability of the CPC. As per Section 1, the Code extend to the whole of India except—State of Jammu & Kashmir; State of Nagaland & tribal areas of Assam.
9 However, the concerned State Government of Nagaland and tribal areas, by notification, may extend the provisions of the Code to the whole State or any part thereof.  Explanation—In this section, “tribal areas” means the territories which immediately before the 21.01.1972 were included in the tribal areas of Assam, as referred to in paragraph 20 of the Sixth Schedule to the Constitution
10 Till now CPC, 1908 has been mainly amended in the year 1976 (Act No.104) (enforced on 1st February 1977), 1999 (Act No.46) and 2002 (Act No.22) (these came into force on 1st July 2002). The constitutional validity of Amendment, 2002 was challenged in Salem Bar Advocate Bar Association, T.N. vs. Union of India (2005) and the Hon’ble Supreme Court upheld the constitutional validity of the said amendment.
11 Further, the CPC was amended in 2015 (w.e.f. 23-10-2015) relating to the matter dealt with by the Commercial Courts in consonance with the Commercial Courts Act, 2015 [earlier known as the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015].
12 Although Section 151 of CPC confers inherent powers upon courts, primarily the Code is not exhaustive. However, it can be said that the Code is exhaustive on matters specifically dealt with by it. Thus, the Code is not exhaustive on the points not specifically dealt with therein.
13 The Code consists of two sets of provisions—Sections and Orders
14 Sections—The first set consists of total Sections 158 arranged into 11 Parts. This part contains provisions of a “substantive nature”. Amendment: These sections shall be amended by the Legislature i.e. the Parliament and the State Legislature only
15 Orders/Rules— The second set consists one Schedule (originally five schedules) that contains Rules arranged into 51 Orders. The term “Rules” has been defined under Section 2(18) as rules contained under the First Schedule. This part consists of provisions of a “procedural nature”.

Amendment: Unlike the sections, the rules can be amended by the Legislature and the concerned High Courts also as detailed under Part X (Sections 121 to 131).
16 Inconsistency: It is to be noted that if the rules are inconsistent with the Sections, the sections will prevail. The rule making power of the High Courts and procedure thereto are given in Part X (Sections 121 to 131) of the Code. The High  Courts can annul, alter or add to all or any of the rules that are inconsistent with the Sections.
17 DECREE: Section 2(2) of the Code defines the term ‘decree’. A decree is an operative part of a formal judgment. As per S.2(2), a decree is the ‘formal expression’ of an ‘adjudication’ which ‘conclusively determines’ the ‘rights of the parties’ with regard to “all or any of the matters” in controversy in the suit. Order 20 details rules regarding judgment and decree while Order 21 deals with the execution of decrees and order.
18 Essentials of decree—

(a)    There must an adjudication.

[Adjudication means ‘judicial determination’ of a matter involved in the suit. Thus, a decision on an “administrative matter” is not an adjudication.]

(b)   Such adjudication must be by a Court of law.

[According to Section 3 of the Indian Evidence Act, the Court includes all, judges, Magistrates and persons (except arbitrators). ]

(c)    The adjudication must be formally expressed.

(d)   Adjudication must have been given in a suit.

[The word suit is not defined in the CPC. However, the mode of filing suit has been prescribed under Section 26 of the Code. Section 26 provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.  In Hansraj v. Dehradun-Mussorie Electric Tramway Co., the Privy Council defined suit as civil proceeding instituted by presentation of plaint. The said definition has been re-iterated by the Supreme Court in Pandurang v. Shantibai].

[Special Acts/ Statutory Suits/ Courts: Under certain special enactments/ Acts specific provisions have been made to treat the applications as suits. Such applications are known as statutory suits. (such as , proceedings under the Indian Succession Act, the Hindu Marriage Act, SARFAESI Act, 2002; Recovery of Debts and Bankruptcy Act, 1993; the Land Acquisition Act, the Arbitration Act etc.). The decisions given under the statutory suits are also decrees. The suit must contain (i) opposite parties, (ii) subject-matter of disputes, (iii) cause of action, (iv) some prayer or demand for relief etc. The courts/ Tribunals that decide statutory suits are called statutory courts].

(e)    It must have been determined the rights of the parties with regard to all or any of the matter in controversy in the suit.

(f)    Such adjudication must be conclusive and final.

[The interlocutory orders are not final, therefore, they are not decree]

 
19 Deemed Decree: Decree includes—

–          Rejection of plaint (O.7 R.11)

–          Determination of any question regarding restitution of plaint (Section 144).

The (a) Rejection of plaint and (b) Restitution of plaint under Section 144 are also known as deemed decrees.
20 Decree excludes: However, decree does not include—

–          Appeal from an order (S.104, Order 43)

–          Order for dismissal of default.
21 Decisions which are Decrees

·         Order dismissing the appeal for non-payment of additional court fee demanded.

·         Discharge of some of the defendants on the ground of want of cause of action.

·         An order of abatement.

·         Holding a defendant as wrongly impleaded and dismissing the suit against him.

·         Order for modification of a scheme under Section 92.

·         Dismissal of an application for final decree.

·         Dismissal of an application by a party to be brought on record as legal representative of a deceased party.

·         An order setting aside an auction sale as nullity on the ground that deposit was not made on the date of sale.

·         Rejection of a plaint or a Memorandum of Appeal.

·         Order as to costs form part of the decree.
22 Decisions which are not Decrees

·         An order refusing stay.

·         An order for remand for fresh trial passed by the Appellate Court under Section 151.

·         An order rejecting an application to sue in forma-pauperis.

·         An order refusing leave to institute a fresh suits for accounts of a religious endowment.

·         An order of setting aside the rejection of a plaint.

·         An order overruling a plea against the maintainability of a suit.

·         Decision in plaintiff’s favour as to his title to use.

·         An order appointing Commissioner to take accounts.

·         Decision in favour of the plaintiff on question of limitation, jurisdiction and res-judicata.

·         An order of Appellate Court returning a Memorandum of Appeal to be presented to the proper Court.

·         An order passed in execution proceedings.

·         An order on the application of a third party to be added as a party.
23 Appealabilty of Decree: A decree is appealable unless appeal is barred. Sometimes, second appeal also lies. From the appeal point of view, a decree may be (i) original decree (ii) appellate decree. Order 41 deals with the detail procedure as to an appeal from original decree while Order 42 enshrines provision as to appeal from appellate decree (also known as second appeal).
24 Classes of Decree—A Decree may be—

(i)                 (a) ‘preliminary decree’ or

(ii)               (b) ‘final decree’ or

(iii)             (c) ‘partly preliminary decree’ and ‘partly final decree’.

[A ‘partly preliminary’ and a ‘partly final decrees are jointly called “Composite Decree”. According to Section 2(2), a decree may be partly preliminary and partly final. Illustration: In a suit for possession of an immovable property and mesne profit, a decree may be passed granting possession and ordering further enquiry for mesne profit. Its first part is final decree while the latter part is preliminary decree.]
25 Preliminary Decree (PD)—A PD is a decree which does not adjudicate the right of the party finally and further proceedings have to be taken before final disposal of the suit. The Code provides for the passing of the PD in the following classes of suits—

·         Suit for recovery of possession of immovable property and for rent or mesne profit (Order 20. R.12).

·         Administration suit (O.20, R.13).

·         Suit for pre-emption (O.20, R.14).

·         Suit for dissolution of partnership (O.20, R.15).

·         Suit for account b/w principal and agent (O.20, R.16).

·         Suit for partition of property (O.20, R.18).

·         Suit for foreclosure of mortgage (O.34, R.2-3).

·         Suit for sale of mortgaged property (O.34, R.4-5).

·         Suit for redemption of a mortgage (O.34, R.7-8).

Apart from the above, a PD may be passed in other suits also in the interest of justice.
26 More than one PD—Whether more than one PD can be passed in a suit? The answer is affirmative. A PD may be more than one in a suit (viz., in the partition suit) if it is necessary in the interest of justice.
27 Appeal from PD—Section 97 provides that where a party aggrieved by the PD does not appeal from such decree he shall be precluded from disputing its correctness in appeal against final decree.
28 When does PD become FD?—In the following two conditions a PD becomes a FD—

–          When an appeal has not been filed against the PD and time for appeal has expired.

–          The matter has been decided by the highest court in appeal.
29 Final Decree (FD): A final decree is a decree wherein no further proceedings have to be taken for final disposition of the suit. Illustration: A and B apply for cancellation of a document and a decree is passed in the suit. This is a final decree as the suit is completely disposed of.
30 Conditional Decree—A conditional decree does not necessarily means a preliminary decree. In other words, a decree in which a condition is attached, does not because of that become a preliminary decree, it is nevertheless a final decree. Illustration: A files a suit for possession against B. A decree is passed in A’s favour with the condition that unless the purchase money is deposited within two months of the decree, the suit shall stand dismissed. Here, the decree is final one, as nothing remains for the court to determine.
31 More than one FD—Ordinarily, there is only one final decree in a suit. But, in certain circumstances more than one final decree in the same suit may be passed. Illustration: A obtains a preliminary decree against B with respect to properties ‘X’ and ‘Y’. In an appeal, B obtains an order for stay of further proceedings in the lower court in respect of property ‘X’. Meanwhile, the trial court passes a final decree in respect of the property ‘Y’. Subsequently, B’s appeal is dismissed. Here, A can apply for a “supplementary or second final decree” in respect of property “X” about which no final decree was passed.
32 PD vs. FD— A PD is different from FD in the following senses— (1) When rights in controversy are not finally decided that is called a PD while when an adjudication completely disposes of the suit, such decree is called a FD.  (2) A PD is not dependent upon FD while FD is dependent upon PD.
33 Distinction b/w ‘decree’ and ‘order’—Both decree and order are formal expression of an adjudication of a court but still there are following differences between these twins—

No Decree Order
1 Definition: The term ‘Decree’ is defined under Section 2(2) of the Code. The term ‘Order’ is defined under Section 2(14) of the Code.
2 Civil Suit: A decree can only be passed in a suit which commenced by presenting a plaint. While an order may or may not originate from a suit. An order generally arises from a proceeding commenced on an application.
3 Conclusiveness: A decree is an adjudication that conclusively determines all or any of the rights of the parties to the suit. While an order may or may not finally determine the rights of the party.
4 PD/FD: A decree may be preliminary or final or partly preliminary and partly final. While there is no such distinction in order.
5 Appelability: Generally, the decrees are appealable. While every order is not appealable. Only those orders are appealable which are specified in Section 104 and Order 43, Rule 1.
6 Second Appeal: A second appeal lies to the High Court on the grounds mentioned in Section 100 in cases of decrees. While there is no second appeal in case of an order passed by the court.
7 Singularity: In every suit there is one decree except in suit for possession and mesne profit etc. as enumerated under Order 20 and Order 34. While in a suit numbers of orders may be passed.
34 Distinction b/w ‘judgment’ and ‘decree’—

No Decree Judgment
1 A decree is species. Judgment is genus.
2 The term ‘Decree’ is defined under Section 2(2) of the Code. Decree is the formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. The term ‘Judgment’ is defined under Section 2(9) of the Code. It provides that judgment means the statement given by the Judge on the grounds of a decree or order.
3 A decree may be preliminary  or final or partly preliminary and partly final. A judgment can not be preliminary or final.
4 A decree is the crystallization of the rights in controversy of the parties.

 

 Judgment constitute the opinion of the Court and justification for passing the decree wherein it  encompasses the pleadings of the parties.
5 A decree is simply ratio decidendi Judgment includes obiter dicta and ratio decidendi.
35 Decree Holder (DH)—Section 2(3) defines decree holder. DH means any person in whose favour a decree has been passed or an order capable of execution has been made.

A DH need not necessarily be plaintiff viz., a decree for specific performance is capable of execution both by the plaintiff and defendant. Further, a person who is not a party to the suit but in whose favour an order has been passed is also a decree-holder. Even, in certain cases the defendant may be a decree-holder.
36 Judgment Debtor (JD)—JD is defined under Section 2(10). JD is any person against whom a decree has been passed or an order capable of execution has been made.
37 Foreign Court—Section 2(5) provides that foreign court means a court—

–          (a) situate outside India, and

–          (b) not established or continued by the authority of the Central Government.
38 Foreign Judgment—Section 2(6) provides that foreign judgment means judgment of a foreign court.
39 Government Pleader—Section 2(7) lays down that GP includes any officer appointed by the State Government to perform functions expressly imposed by this Code on the GP. GP also includes any pleader acting under the direction of the GP.
40 High Court—Section 2(7A) provides that in relation to the Andaman & Nicobar Islands, means the High Court in Calcutta.
41 Judge—Section 2(8) provides that Judge means the Presiding Officer of a Civil Court.
42 Judgment—Section 2(9) lays down that judgment means the statement given by the Judge on the grounds of a decree or order. Order 20 details rules regarding judgment and decree.

Essentials of judgment—Every judgment (other than that of a CSC i.e. Courts of Small Cause) must contain—[Order 20, Rule 4(2)]

(a)    a concise statement of the case;

(b)   the points for determination of issues;

(c)    the decision on such points; and

(d)   the reasons for such decisions.

CSC judgment should contain—[Order 20, Rule 4(1)]

(a)    The points for determination;

(b)   The decision on such points.
43 Legal Representative (LR)—Relevant provisions: Sections 2(11)/ 50/ 52/ 53. Section 2(11) defines LR. LR means—

–          (a) a person who in law represents the estate of a deceased person, i.e. an executor appointed under will or an administrator who obtains letter of administration.

–          (b) a person who intermeddles with the estate of the deceased, i.e. a person having no legal title in himself begins to interfere with the estate of the deceased.

–          (c) a person who sues or is sued in a representative capacity.
44 Following persons are held to be LR—Executors, administrators, reversioners, Hindu coparcener, residuary legatee, and persons in de facto possession of the entire estate of the deceased.
45 LR & Forma-Pauperis—The right to sue in forma-pauperis is a personal right. Therefore, in case of death of a pauper applicant such right does not survive to his legal representative. Thus, the LR may present a fresh application for leave to sue in forma-pauperis.
46 Liability of LR towards JDs—Section 50—

(a)    Where a judgment-debtor dies before the decree has been fully satisfied, the decree-holder may apply to the Court which passed it to execute the same against the legal representative of the deceased judgment-debtor

(b)   Where the decree is executed against such legal representative, his liability shall be only to the extent of the property of the deceased received by him and has not been duly disposed of. Further, for the purpose of ascertaining such liability, the executing court may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.
47 Enforcement of Decree against LR—Section 52 provides that where a decree is passed against legal representative for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.
48 Liability of Ancestral Property—Section 53 provides that where judgment-debtor is a legal representative of the deceased, the property of the deceased shall be subject to the liability fixed in a decree.
49 Mesne Profits—(MPs)

Section 2(12) defines MPs. MPs of property means those profits by which the person in wrongful possession of such property—

(a)    actually received or

(b)   might with ordinary diligence have received therefrom, together with interest on such profits.

MPs can be claimed for movable and immovable properties both.
50 Object of MP—MPs are a compensation of common nature. The object of awarding decree of MPs is to compensate the person who has been kept out of possession and deprived of enjoyment of his property.
51 Interest: In computation of MPs maximum rate of interest to be allowed is 6% per annum. However, MPs does not include profits due to improvement made by person in wrongful possession.
52 Movable Property—Section 2(13) provides that movable property includes growing crops.
53 Order—Section 2(14) of the Code defines an “order” as the formal expression of any decision of the Civil Court which is not a decree.
54 Pleader—Section 2(15) provides that pleader means any person entitled to appear and plead for another in Court. Pleader includes an advocate, a vakil and an attorney of a High Court.
55 Public officer—Section 2(17) defines public officer. As per Section 2(17) public officer means a person falling under any of the following descriptions, namely:-

–          every Judge and every officer of a Court of Justice whose duty is to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the court, and every person especially authorized by a Court of Justice to perform any of such duties.

–          every member of an All-India Service.

–          every commissioned or gazetted officer in the military, naval or air forces of the Union while serving under the Government.

–          every person who holds and office by virtue of which he is empowered to place or keep any person in confinement.

–          every officer of the Government whose duty is to prevent offences to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience.

–          every officer whose duty is to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report on, any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government.

–          every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty.
56 Share in a corporation—Section 2(19) says that share in corporation shall include stock, debenture stock, debentures or bonds.
57 Signed—Section 2(20) provides that, save in the case of a judgment or decree, signed includes stamped.
58 Subordination of Courts—Section 3 deals with the subordination of courts. Accordingly, the District Court is subordinate to the High Court. Every civil court inferior to District Court shall be subordinate to District Court. CSC: Court of Small Causes is subordinate to the High Court.
59 Savings—Section 4 provides that the Code shall not affect any special or local law for the time being in force. It further provides that the Code shall not affect any remedy which a landholder or landlord may have under any law for the recovery of rent of agricultural land from the produce of such land.
60 Applicability of the Code to Revenue Court—Section 5

(A)  Section 5(2) defines Revenue Court. Accordingly, Revenue Court means a court having jurisdiction under any local law to entertain suit relating to rent, revenue or profits of land used for agricultural purposes. However, Revenue Court does not include a Civil Court having original jurisdiction to try such suit as  being suit/ proceeding of a civil nature.

(B)  Section 5 (1) provides that the provisions of the CPC is also applicable to procedures in Revenue Courts.
61 Section 6—Pecuniary Jurisdiction— Section 6 of the Code provides that a Court will have jurisdiction only over those suits, the amount or the value of the subject-matter of which does not exceed the pecuniary limits of its jurisdiction. The pecuniary jurisdiction is determined by the valuation of subject-matter in plaint.
62 Section 7 (r/w Order L)—Provincial Small Cause Court: The Provincial Small cause Courts Act, 1887.
63 Section 8 (r/w Order LI)—Presidency Small Cause Court: The Presidency Small cause Courts Act, 1882.
Prepared by team LegalMines. Typographical error, if any, is inadvertent.

 

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