cpc notescpc notes

The ‘Civil Procedure Code’ is a procedure law, i.e., an adjective law. The Code neither creates nor takes away any right. It only helps in proving or implementing the ‘Substantive Law’. The Code contains 158 Sections and 51 Orders. 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 Civil Procedure Code. 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 forms of procedure. The Civil Procedure Code is not retrospective in operation. The Code is not exhaustive.

Definition:

Section-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 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 for dismissal for default

Explanation: A decree is preliminary where 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 [Section-2 (2)] and Order [Section-2 (14)

Essential Elements of a decree: The decision of a Court can be termed as a “decree” upon the satisfaction of the following elements:-

  1. There must be an adjudication

II. Such adjudication must have been given in a suit

III. It must have determined the rights of the parties with regard to all or any of the matter in controversy in the suit.

IV. Such determination must be of a conclusive nature and

V. There must be formal expression v of such adjudication.

a) An Adjudication: Adjudication means “the judicial determination of the matter in dispute”. If there is no judicial determination of any matter in dispute or such judicial determination is not by a Court, it is not a decree, e.g., an order of dismissal of a suit in default for non appearance of parties, or of dismissal of an appeal for want of prosecution are not decrees because they do not judicially deal with the matter in dispute.

b) In a Suit: Suit means a Civil proceeding instituted by the presentation of a Plaint. Thus, every suit is instituted by the presentation of Plaint. Where there is no Civil suit, there is no decree; e.g., Rejection of an application for leave to sue in forma pauper is not a decree, because there cannot be a plaint in such case until the application is granted.

Exception: But where in an enactment specific provisions have been made to treat the applications as suits, then they are statutory suits and the decision given thereunder are, therefore, decrees; e.g., proceeding under the Indian Succession Act, the Hindu Marriage Act, the Land Acquisition Act, the Arbitration Act, etc.

c) Rights of the parties: The adjudication must have determined the rights i.e., the substantive rights and not merely procedural rights of the parties with regard to all or any of the matter in controversy in the suit.

Rights of the parties” under section 2(2).

The rights of the parties inter se (between the parties) relating to status, limitation, jurisdictions, frame of suit. accounts, etc

Rights in matters in procedure” are not included in section 2(2); e.g, An order of dismissal for non-prosecution of an application for execution, or refusing leave to sue in forma pauperis, or a mere right to sue, are not decrees as they do not determine the rights of the parties.

d) Conclusive Determination: The determination must be final and conclusive as regards the Court, which passes it.

An interlocutory order which does not finally decide the rights of the parties is not a decree; e.g., An order refusing an adjournment, or of striking out defence of a tenant under the relevant Rent Act, or an order passed by the appellate Court under Order 41, rule 23 to decide some issues and remitting other issues to the trial Court for determination are not decrees because they do not decide the rights of the parties conclusively. But. An order dismissing an appeal summarily under Order-41, or holding it to 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.

e) Formal Expression: There must be a formal expression of such adjudication. The formal expression must be deliberate and given in the manner provided by law. Decree means “formal expression of an adjudication conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit”. It may be preliminary or final.

The term ‘suit is not defined in the code. However in “Hansraj vs Dehradun– Mussoorie Electric Tramways Co Ltd. Privy council defined ‘suit as a civil proceeding instituted by the presentation of a plaint”

Under certain enactments, specific provisions have been made to treat applications as suits.

Example: proceedings under Indian Succession Act, Hindu Marriage Act, Land Acquisition Act, Arbitration Act, etc.

Provisions in the Code for passing of the Preliminary Decrees:

a. Suits for possession and mesne profit; Order 20 Rule 12

b. Administrative Suits: Order 20 Rule 13

c. Suits for Pre-emption; Order 20 Rule 14

d. Suits for dissolution of Partnership; Order 20 Rule 15

e. Suits for accounts between principal and agent; Order 20 Rule 16

f. Suits for partition and separate possession; Order 20 Rule 18

g. Suits for foreclosure of a mortgage; Order 34 Rules 2-3 Besides above the Court has a power to pass a preliminary decree in cases not expressly provided in the Code.

Whether there can be more than one preliminary decree?

Debate was concluded by Supreme Court in Phoolchand -vs- Gopal Lal, A.I.R. 1967, S.C. 1470, the Apex Court has decided that “C.P.C. does not prohibits passing of more than one preliminary decree, if circumstances justify the same and it may be necessary to do so”. That nothing in this code prohibits passing more than one preliminary decree.

FINAL DECREE

Decree may be said to be final in two ways

(i) when within prescribed period no appeal is filed or matter has been decided by the decree of the highest Court.

(ii) when the decree, so far as regards the Court passing it, completely disposes of the suit.

If an appeal preferred against a preliminary decree succeeds, the final decree automatically falls to the ground for there is no preliminary decree thereafter in support of it. In such case it is not necessary for the defendant to go to the Court to set aside the final decree

Sital Parshad -vs- Kishori Lal

Partly Preliminary & Partly Final Decree:

Eg:- suit for possession of immovable property with mesne profit

(i) decree for possession of property (final)and

(ii) directs an enquiry in to the mesne profit (preliminary)

Deemed decree: eg. rejection of plaint & the determination of questions under section 144(Restitution): Adjudication under 021 R58, R98 or R100 are deemed decrees

Rejection of plaint-

Though does not preclude the plaintiff from the presenting a fresh plaint on the sa cause of action.

Section 2(2) of CPC specifically provides that rejection of plaint shall be deemed to be a decree.

Judgement: section 2(9)

“Statement given by a judge on the grounds of a decree or order”

Balraj Taheja -vs- Sunil Madan

Essential of judgement:

Other than small causes Court

(i) concise statement of the case

(ii) properties for determination

(iii) decision thereon

(iv) reasons for such decision

Orders 2(14):

“Formal expression of any decision of a civil Court which is not a decree or “Adjudication of a Court which is not a decree is an order”.

Similarities between order and decree are:-

  1. both relates to matters in controversy
  2. both are decisions given by Court
  3. both are adjudications of a Court of law
  4. both are a formal expressions of a decision.

Distinctions between order and decree:-

DecreeOrder
1. can be passed only in a suitmay originate from suit petition or application
2. Conclusively determine the right parties May/ not conclusively determine
3. may be preliminary, final partly preliminary or final.There can not be a order preliminary.
4. in every suit there can be one decree.A number of order may be passed.
5. every decree is appealable.Every order is not appealable only those orders specified in the code are appealable.
6. second appeal lies to the high court.No second appeal in the case of appealable orders.
distinction between decree and order

Definition: Decree Holder Sec 2 (3):

“Decree-Holder” means any person in whose favour a decree has been passed or an order capable of execution has been made.

Definition: Judgment Debtor Sec 2 (10):

“Judgment-Debtor” means any person against whom a decree has been passed or an order capable of execution has been made.

“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 issued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.

Definition:- Mesne Profit Sec 2 (12):

“means 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 but the person in wrongful possession.

Which means;

→ profit received by a person in wrongful possession together with interest

→shall not include profits, due to improvements made by him.

Test to ascertain mesne profits is not “what the plaintiff has lost but what the defendant gained.

Principles to be followed:

  1. No profit to be given to a person in wrongful possession
  2. Restoration of status before dispossession of decree holder.

In Lucy-vs-Mariappa,

It was held that Interest is an integral part of mesne profit. Interest is allowed in computation of mesne profit itself till the date of payment.

Mahant narayanan dasjee -vs- Tirupathi devasthanam.

→ Interest shall not exceed 6% per annum.

Terms not defined in the code:-

Affidavit:

“Declaration of facts (by party), reduced to writing, affirmed or sworn before an officer having authority to administer Oaths”.

Appeal:

“Judicial examination of the decision by a Court on the decision of an inferior Court”..

Cause of Action:

“a bundle of essential facts which is necessary for the plaintiff to prove before he can succeed”.

Caveat:

“official request that one should not take a particular action without issuing notice to the party lodging the caveat & without affording an opportunity of hearing him

Execution:

“a process of enforce or giving effect to the judgement, decree or order of a Court”

Summons:

“a document issued from an office of a Court of justice, calling upon a person to attend before the judge/office to give evidence / produce documents”.


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