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DECREE

HIDAYATULLAH NATIONAL LAW UNIVERSITY

CODE OF CIVIL PROCEDURE PROJECT

ON

DEFINE DECREE

SUBMITTED TO

M/s. NEHA SINHA

VIKASH GOEL

SEMESTER IX

ROLL NO. 172

SUBMITTED ON

16TH AUGUST, 2016

1

DECREE
Acknowledgement

I feel highly elated to work on this dynamic topic on “DEFINE DECREE”. Its ratio is significant in
today’s era when there is need to clearly distinguish between decree and judgement in order to facilitate
the execution of the same.

The practical realization of this project has obligated the guidance of many persons. I express my deepest
regard for our faculty M/s. Neha Sinha. Her consistent supervision, constant inspiration and invaluable
guidance and suggestions have been of immense help in carrying out the project work with success.

I extend my heartfelt thanks to my family and friends for their moral support and encouragement.

Vikash Goel

Semester IX TH

Roll no. 172

2

...............17 CONCLUSION.............................16 Difference between Order And Decree......................................................................................9 Contents of decree...........2 INTRODUCTION.................................................................................................................................................................................................................................................................. DECREE Table of Contents Acknowledgement..........................16 Decree and Judgment – Distinction..............................15 Deemed Decrees under Code...................5 DECISION WHICH ARE DECREE..............................................................................10 Final decrce..........................8 DECISION WHICH ARE NOT DECREE....................................................................................................10 Preliminary decree...........................................................18 BIBLIOGRAPHY................................9 CLASSES OF DECREES...................................................................................................................................................................................................................................................................................13 DEEMED DECREE....................................................................................3 ESSENTIAL ELEMENTS OF A DECREE.........................................................................18 INTRODUCTION 3 ...........12 Partly Preliminary and Partly Final Decree.....................................15 Meaning of Deemed Decree...........................................................................................

Explanation – A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. Likewise. it may be partly preliminary and partly final. which reads as follows: “Decree means the formal expression of an adjudication which. though it is 4 .” Decree is the conclusion reached by the judge after hearing both parties on merits and expressing the same in writing. DECREE The adjudications of a court of law may be divided into two clauses (1) decree & (2) order. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144. amongst other things and the decree is usually the last portion of the judgment and the decree independently is without reasoning. The date of the decree is the date of judgment for the purpose of execution though it can be signed anytime later even by a successor judge though it should be given within 15 days. or b) any order of dismissal for default. but shall not include- a) any adjudication from which an appeal lies as an appeal from an order. it is not necessary that there should be a formal expression of the order in the judgment. 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. The term decree is defined in section 2(2) of the C.C. Thus every judgment contains the decree. Even a set-off/ counter claim is in the same decree. The decree forms the last part of the judgment and is extracted from the entire judgment by the decree clerk who contains the basic details and the result of the case. Basically decree is the subset in the set of judgment. so far as regards the Court expressing it.P. It is final when such adjudication completely disposes of the suit. There is no need of a statement in a decree though it is necessary in a judgment. Judgments by way of an amendment in 1976 must contain the exact decree and words like “decree what is prayed for” cannot be used.

P. But in case. then section 152 of the C. In a case where the language of the decree is capable of two interpretations. Scope It matters not that the judgment is headed an order. some orders which otherwise do not constitute decree are also included and certain orders which constitute decree have been excluded from it. OBJECTIVE 5 . scenario arises where there appears to be a conflict between the judgment and the decree. one of which assists the decree-holder to obtain the fruits of the decree and the other prevents him from taking the benefits of the decree.C. if it in fact fulfils the conditions of the definition under s 2(2). enabling the decree-holder to reap the fruits of his decree.holder should be accepted. A decree or order becomes enforceable from its date. it is a decree and an appeal lies.C. Merely because there exists some order captioned as a decree drawn up even in the form of decree. DECREE desirable to do so. A judgment is a stage prior to the passing of a decree or an order. it would not make such an order decree unless the court satisfied the requirement of s 2(2) of the Code of Civil Procedure. the interpretation which assists the decree. for. and if there is any clerical mistakes in the decree. then the decree must be reasonably construed and if on such construction both of them able to remain together. way for the decree has to be left wide open.P. The policy of law is to give a fair and liberal. and not a technical construction. then adhere to that decree. the court passing the decree may prescribe the time wherefrom the decree becomes enforceable on a future date. In the definition. But if it gets difficult for the decree to stay together with the judgment. but in appropriate cases. and after the pronouncement of the judgment. will take out the decree safe from the clutch of being declared nullity. then it must be amended under section 151 of the C. Decree has to be in line with the judgment and it should present the correct interpretation of the judgment.

decree and judgement. Study the definition and concept of decree 2. ESSENTIAL ELEMENTS OF A DECREE 6 . dictionaries and articles have also been referred. Websites. Study the various essentials of a decree 3. Study the distinction between order. I have referred sources on the internet as well as a few books on Code of Civil Procedure available in the university library besides adding my personal views and knowledge of the topic. RESEARCH METHODOLOGY The method of research adopted is analytical in nature. DECREE The objective of the project is to. Study the various classes of decree 4. Books and other references as guided by the faculty of Code of Civil Procedure have been primarily helpful in giving this project a firm structure. 1.

Following are the element of the decree. There must be a formal expression of such adjudication. Such adjudication must have been done in suit. as there is no plaint till the application is granted. 1 Deep Chand v. But in Hansraj Gupta v.. an order passed by an officer who is not a court is not a decree. 3. and 5. a judicial determination of the matter in dispute. Adjudication– For a decision of a court to be a decree. a civil proceeding instituted by the presentation of a plaint. a decision on a matter of an administrative nature. rejection of an application for leave to sue in forma pauperis is not a decree. There must be an adjudication. 1. it is not a decree. there is no decree.1 Suit – The expression “suit” is not defined in the code. every suit is instituted by the presentation of a plaint.e. or an order dismissing a suit for default of appearance of parties or dismissing an appeal for want of prosecution cannot be termed as a decree inasmuch as it dose not judicially deal with the matter in dispute. 2. Land acquisition officer. It must have determined the rights of the parties with regards to all or any of the matters in controversy in the suit.” Thus. Such determination must be of a conclusive nature. Thus. If there is no judicial determination of any matter in dispute. such judicial decision determination be by a court. i. (1994) 4 SCC 99 7 . “The word 'suit' ordinary means and apart from some context must be taken to mean. Further. Official Liquidators of The Dehra Dun-Missoorie Electric Tramway Co. Thus. Ltd. there must be an adjudication. It means that when there is no civil suit. 4. DECREE Their 5 main element of decree if they are not present then decree is not their. Thus. Their Lordship of the Privy Council Have defined the term in the following words.

It would cover any question relating character and status of a party suing. limitation. Thus. e. Thus. Central Bank of India.e. decrees. is not a decree. In inter-pleader suits. They are statutory suits and the decision given thereunder are. The term “parties” means parties of the suit. At the same time . the plaintiff and the defendant. however be noted that under certain enactment specific provisions have been made to treat applications as suits. even though described as a decree under the act. an order for dismissal of a suit for default of appearance. the Land Acquisition Act. to the maintainability of a suit and to other preliminary matters which necessitate an adjudication before a suit is enquired into. Thus. a decision of a tribunal.g. or an order dismissing an application for execution for non-prosecution. rights of the parties inter se relating to status. cannot be said to be suit under the code also and the decision given therein cannot be said to be a “decree” under section 2(2) of the code. DECREE It may.2 Rights of parties in controversy – The adjudication must have determined the right of the parties with regards to all or any of the matters in controversy in the suit. or a mere right to sue are not decrees as they do not determine the rights of parties. therefore. or an order refusing leave to sue in forma pauperis. is a decree passed by a tribunal and not by a court covered by section2(2). who is a stranger to the suit. Interlocutory orders on matters of procedure which do not decide the substantive rights of the parties are not 2 Diwan bros. the contesting defendants will be deemed to be parties to the suit. are “rights of the parties” under this section. The word “right” means substantive rights of the parties and not merely procedural rights. however. The rights in matters of procedure are not included in it. etc. account. jurisdiction. an order on an application by a third party. (1976) 3 SCC 800 3 AIR 1976 Guj. to the jurisdiction of the court. it should not be understood as relating solely to the merits of the case. proceedings under the Indian Succession Act. The expression “matters in controversy” refers to the subject-matter of the suit with reference to which some relief is sought. Therefore a proceeding which dose not commence with a plaint and which is not treated as a suit under any act. etc. v. i. the Hindu Marriage Act. 152 8 . frame of suit. 3Thus.

4Thus. or an order passed by the appellate court deciding same issue and remitting other issues to the trial court for determination under order 41 rule 23 of the code are not decrees because they do not decide rights of parties conclusively. an order refusing an adjournment or an order striking out decree of a tenant under the relevant Rent Act. AIR 1991 Cal 53 5 AIR 1969 SC 575 9 . The decree follows the judgement and must be drawn up separately. an order dismissing the appeal summarily under order 41 of the code or holding it to be not maintainable or a decision dismissing a suit for want of evidence or proof are decrees in as much as they decide conclusively the rights of the parties to the suit. the proceedings preliminary to the institution of a suit also will not be included in the definition. All the requirement of form must be complied with. the determination must be final and conclusive as regards the court which passes it. a mis description of a decision as order which amounts to a decree dose not make it less than a decree. e. Thus. The formal expression must be deliberated and due in the manner provided by law. it is a decree. an interlocutory order which dose not decide the rights of the parties finally is not a decree. The crucial point which require to be decided in such a case is whether the decision is final and conclusive in essence and substance.5 Thus. no appeal lies from that judgement. if the decree not formally drawn up in form of judgement. If it is. if not. In other words. Similarly. it is not a decree. Conclusive determination – Such determination must be of a conclusive nature. 4 Narayan Chandra v. Pratirodh Sahini. Formal expression – There must be a formal expression of such adjudication. On the other hand an order may determine conclusive the rights of the parties although it may not dispose of the suit. Thus.g. DECREE decrees. But the decree need not be in a particular form.

Order of abatement of suit. 3. 1. 4. 10. Granting or refusing to grant costs or installment. 2. Order holding appeal not maintainable. 7. Rejection of plaint for non-payment of court fees. Order holding that the right to sue does not survive. 5. 9. 8. DECREE DECISION WHICH ARE DECREE. Modification of scheme under section 92 of the code. Dismissal of appeal as time barred. 6. Order holding that there is no cause of action. 10 . Dismissal of suit or appeal for want of evidence or proof. Order refusing one of several reliefs.

3. Contents of decree The decree shall agree with the judgement. Return of plaint for presentation to proper court. 9. 8. and particulars of the claim and shall specify clearly the relief granted or other determination of the suit. 4. Order granting or refusing interim relief. 10. it shall contain the number of the suit te name and description of the parties. DECREE DECISION WHICH ARE NOT DECREE. Order directing assessment of mesne profit. 11 . The decree shall also state that the amount of cost incurred in the suit. and by whom or out of what property and in what proposition such cost are to be paid. 1. 2. 6. there registered address. Order refusing to set a side sale. 7. Order holding an application to be maintainable. Dismissal of suit under order 23 rule 1. Dismissal of appeal for default. 5. Appointment of commissioner to take account. Order of remand. The court may direct that the cost payable to one party by the other shall be set of against any sum which is admitted or found to be due from the former to the latter. Rejection of application for condonation of delay.

In other words. iii) Partly preliminary and partly final. DECREE CLASSES OF DECREES The code recognizes the following classes of decrees: i) Preliminary decree ii) Final decree. the final decree automatically falls to the ground for there is no preliminary decree thereafter to support it. preliminary decree is one which declares rights and liabilities of parties leaving actual result to be worked out in further proceedings. Vithoba Shripali Savant. The question whether a decision amounts to a preliminary decree or not is one of great significance in view of the provisions of Section 97 of the Code which provides that : “Where any party aggrieved by a preliminary decree . a preliminary decree is only a stage in working out the rights of the parties which are to be finally adjudicated by a final decree. Whereas final decree completely disposes of the rights of the parties in respect of all or any of the matters in controversy. hut does not completely dispose of the suit is a preliminary' decree. Explaining the nature and scope of preliminary decree in Anubai v. 60 A preliminary decree is only a stage in working out the rights of the parties which are finally adjudicated by the final decree.. if an appeal preferred against a preliminary decree succeeds. he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. It is not necessary in such a case for the defendant to go to the court passing the final decree and ask it to set aside the final decree. Thus. The preliminary 12 . the Bombay High Court observed: A preliminary decree is passed in those cases in which the Court has first to adjudicate upon the rights of the parties and has then to stay its hands for the time being.. does not appeal from such decree. Preliminary decree An adjudication which finally decides the rights of parties." Since the passing of a preliminary decree is only a stage prior to the passing of a final decree. until it is in a position to pass a final decree in the suit.

but does not completely dispose of the suit. These observations are made by the Apex Court specifically dealing with the partition suit. If the limitation period is over. The preliminary decree is only a stage prior to the passing of a final decree. The Code provides for passing of preliminary decrees in the following suits: Suits Order Rule/Rules Suits relating to possession and mesne profits 20 12 Suits relating to administration 20 13 Suits relating to pre-emption 20 14 Suits relating to dissolution of partnership 20 15 Suits relating to accounts between principal and agent 20 16 Suits relating to partition and separate possession 20 18 Suits relating to foreclosure of mortgage 34 2-3 Suits relating to sale of mortgaged property 34 4-5 Suits relating to redemption of mortgage 34 7-8 The above list is.7 A preliminary decree can be taken in appeal only within the period of limitation. 6 AIR 1967 SC 1470 7 AIR 1953 TC 220 13 . DECREE decree adjudicates the rights of the parlies with regard to ail or any of the matters in controversy in the suit. not exhaustive and the court may pass a preliminary decree in cases not expressly provided in the Code. then the party cannot dispute the correctness of the preliminary decree in the appeal from the final degree.6 the Apex Court observed that there is nothing in Code which prohibits passing of more than one preliminary decree. A partition suit in which a preliminary decree has been passed is still a pending suit and the rights of parties who are added after the preliminary decree have to he adjusted at the time of final decree. Gopal Lai. however. such decree is called a preliminary decree. in Phoolchanil v. Order 20. As regards the partition suit. if circumstances justify the same and it may be necessary to do so. The Code provides for passing of preliminary decrees in the suit for partition and separate possession under Rule 18.

2. cannot be disputed in appeal.34 Table: Distinction between Preliminary and Final Decree Preliminary Decree Final Decree 1. If the final decree lapses after limitation period. The final decree is subordinate to preliminary 3. preliminary decree is also automatically set aside. the suit. then the final decree is also auto 3. while other High Courts have held that there can be more than one preliminary decree Final decrce A decree may be said to be final in two ways: i) when within the prescribed period no appeal is filed against the decree or the matter has been decided by the decree of the highest court. DECREE There is a conflict of opinion as to whether there can be more than one preliminary decree in the same suit. A final decree is one which completely disposes of a suit and finally settles all questions in controversy between parties and nothing further remains to be decided thereafter. Similarly. a decree passed for a sum representing past mesne profits and future mesne profits at a particular rate. 5. Pinal decree states the results achieved by the are to be done. even though described as a preliminary decree. the decree is a final decree. Preliminary decree is granted even before 1. Appeal against preliminary decree must 4. 2. in substance was a final decree. the decree. so far as regards the court passing it. and ii) when the decree. without directing any further enquiry. is a final decree. Preliminary decree is superior. where a decree passed by a special court did not contemplate any further proceedings. Ordinarily. then the matically set aside. 14 . completely disposes of the suit. there will be one preliminary decree and one final decree in one suit. it be filed within the limitation period. If the preliminary decree is set aside in decree. Thus. If the final dccrcc is set aside in appeal. appeal. Preliminary decree ascertains what things 5. Thus. means of the preliminary decree. 4. Pinal decree is granted after the final disposal of the final disposal of the suit. if the amount found due to the decree-holder is declared and the manner in which the amount is to be paid has also been laid down. in a suit for recovery of money. Some High Courts have taken the view that there can be only one preliminary decree in a suit.

In Sri Bhasker Saikia v. Order 20 must be either final or preliminary. becomes a 15 . the Patna High Court held that the mere Tact that a decree is labelled as preliminary is in no way conclusive. Mahendra NarainChand . a decree is preliminary—when further proceedings have to he taken before the suit can be completely disposed of and decree is final—when the adjudication completely disposes of the suit and that a decree may be partly preliminary and partly final. therefore. Preliminary decree may be generally 6. Therefore. This Explanation did not appear in the definition of decree in the Code of 1882. Talari Devi. Explanation to Section 2(2) of the Code reads thus: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. and that a decree or the part of a decree in the form provided for by Rule 18(2). preliminary decree. Partly Preliminary and Partly Final Decree The Code of Civil Procedure itself contemplates the possibility of a decree partly preliminary and partly final. Anani DajiT the Bombay High Court held that a decree can be partly final and partly preliminary only when it deals with different matters in different ways. follows that even though in a partition suit where the decree may be named as preliminary it may nevertheless have the attributes of finality as well in certain aspects. In Ramabai Govind v. According to the Explanation to Section 2(2) of the Code. it might well be final. It may be partly preliminary and partly final. the crucial words it may be partly preliminary and partly final’ needs explanation. In Han Mohan Thakur v. It is final when such adjudication completely disposes of the suit. It is true that it cannot be executed forthwith as such but so far as the adjudicatory and determinatory process of the rights and interest of the parties is concerned. it becomes clear that when there is formal expression of an adjudication by a Civil Court conclusively determining the right or rights of the parties with regard to all matters in controversy in the suit and nothing remains for adjudication. Pinal decree is generally present with or without present or absent. the Gauhati High Court observed that from a bare reading of the definition of “decree”. DECREE 6. Suit. The law visualises a synthesis in this context and envisages a hybrid. It.

a final decree is one. Recognising the fact that a decree may be either preliminary or final and may be partly preliminary and partly final the Madras High Court in Sivalinga Pathar v. Narayani Animal. It covers all items in Schedule A except the third item which being in the hands of an alienee. Now question arises if a decree is partly preliminary and partly final whether that part of the decree which is final is executable? In Bhargavi Pillai v. so far as the conceding to the plaintiff of a half share in the divisible properties went. It will therefore be right to call this a decree partly preliminary and partly final because so far as it affects the particular items in question. whereas. a decree may be partly preliminary and partly final. In a given case. Vijayamma. One of the three items given to the first defendant consisted of the family house being item I and the decree provided that the second defendant's widow was entitled to reside in the portion thereof which was marked out by the commissioner. Therefore the argument that the decree in question does not amount to he a decree because of the existence of this reservation therein has no force. however. was not dealt with. it is in the nature of a final decree subject only to its being varied if necessary by way of re-allotment of the items by consent of the parties. is a decree. Inasmuch as a preliminary decree. to start with. Any reallotment that could possibly be made thereafter at the final decree stage could only be with reference to those nine items. the Kerala High Court held that in a case where a decree is partly preliminary and partly final it cannot he said that that part of the decree which in the beginning itself was final would cease to be an executable decree on the passing of the final decree resulting in the erasure of that part of the decree which was. Out of the remaining nine items. There could be no further variation of this decree either by consent of parties or by order of Court. six were allotted to the plaintiff and three to the first defendant. when further proceedings have to be taken before suit can be completely disposed of. as the Explanation to Section 2(2) of the Code shows. where adjudication has been made and the suit has been completely disposed of. a preliminary decree. the decree does not refer to either Schedule B or Schedule C. DECREE final decree. held that in the present case. 16 .

and taken conclusively to he”. however. the Court is required to ascertain for what purpose and between what persons statutory fiction was intended to be resorted to. arises as to the effect of such legal fiction. Thus. Sometimes it means “generally regarded”. exercised its judgment in conferring that status or attribute to a person or thing. this expression is used to introduce artificial conceptions—which arc intended to go beyond legal principles and to give an artificial construction to a word or a phrase. The deeming provision is generally made to include what is obvious or what is uncertain or to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail. Arneya Presence Marketing v. the meaning to be attached to the word “deemed" must depend upon the context in what it is used. It may also mean. When a statute enacts that something should be deemed to be done. Mangalore City Corporation. Whenever the word “deemed” is used in a statute in relation to a person or thing. certain order and determinations are “deemed” to be “decree” within the meaning of Section 2(2). at other times. Sometimes it means “generally regarded. When used in a statute it means some matter or thing has happened. In M/s. The effect of such legal fiction is that a position which otherwise would 17 . By a legal fiction. the way in which it has to be attached. The term “deemed” is used in several statues in different senses. DECREE DEEMED DECREE Meaning of Deemed Decree An adjudication not fulfilling the requisites of Section 2(2) of the Code cannot be said to be “decree”. the Karnataka High Court observed: “The term ‘deemed* is used in the statute in various senses. 85 A question may. which in fact and truth was not done. “taken conclusively to be”. it implies that the legislature. therefore. In the modern statute. Now a deeming provision creates a legal fiction.” A deeming provision may also be made to include what is obvious or uncertain or to impose an artificial extension of a word or phrase that would not otherwise be possible. taken prima fade to be. after due consideration. it signifies “taken prima facie to be”.

It is not necessary that there should be a formal expression of the order in the judgment. Deemed Decrees under Code Section 2(2) of the Code defines “decree”. the adjudication of claims to or objection to attachment of property.89 Decree and Judgment – Distinction 1. a decree shall follow. A judgment contemplates a stage prior to the passing of a decree or an order. after the pronouncement of the judgment. therefore. under the Code a decree is deemed to include: 1. Thus. and. certain orders passed or made in execution proceedings are deemed to be “decrees” under the Code. though it is desirable to do so where as in decree there is formal expression of court is necessary. be given to such legal fiction. is deemed to be present under certain circumstances.” Likewise.8 whereas it is not necessary for the judge to give a statement in a decree though it is necessary in a judgment. The rejection of a plaint. and 3. 2. An effect must.k takwani 18 .9 3. 2.10 8 CPC bare act 9 Civil procedure code by c. S 2(9) defines “Judgment” as the statement given by the judge on the grounds of a decree or order. But it also states that “the rejection of a plaint" as well as “the determination of a question underSection 144” would he deemed to be a "decree. The determination of any question concerning an application for restitution. DECREE not be there.

Or. but in the case of a suit or proceeding. A decree is an adjudication conclusively determining the rights of the parties with regard to all of the matters in controversy. 19 . in every suit there can be only one decree. 4. Except in certain suits. An order may originate from a suit by presentment of a plaint or may arise from a proceeding commenced by a petition or an application. 33 11 S.1. 5. DECREE Difference between Order And Decree In spite of the common elements.96 12 S.12 10 S. A decree may be preliminary or final. one preliminary and the other final are passed. on the other hand. but there cannot be preliminary order. or partly preliminary and partly final. may or may not finally determine such rights. 2. A decree can only be passed in a suit which commenced by presentment of a plaint.43 R. Every decree is appealable. where two decrees.11 but every order is not appealable. unless otherwise expressly provided. Only those orders are appealable as specified in the code. a number of orders may be passed.104. 3. there are fundamental distinctions between the two expressions: 1.

13 Thus. T. 2nd edition 2008. Allahabad Law Agency 13 S.14 CONCLUSION As for decree is concerned. it is the final stage of the stage of suit. there may be two appeals. There is difference between order. BIBLIOGRAPHY BOOKS 1) Tripathi.100 14 S. Decree and order are analogous to each other. This make project very clear about the topic and what decree and clears all the doubts from the mind of general people. A Second Appeal lies to the High Court on certain grounds from the decree passed in the first Appeal. and 14). But in practical day to day life it this procedure not be fulfilled but still judgment is valid and this is the lacuna of this Act which required to be amended and need to some change. The importance of decree lies in fact that they are appealable and conclusively determine the rights of the parties. DECREE 6. I have also taken one decree for the reference in this project. while no second Appeal lies in case of appealable orders. Code of Civil Procedure.P.104(2) 20 . decree and Judgment. They are defined under section 2(2. 9. In the conclusion I can say that decision given by the judge is called judgment which contains the grounds of the decree and order.

K.vakilno1.manupatra. Lucknow 3) Singh Avtar. the Transfer of Property Act.com 3) www. Eastern Book Company.ebc-india. the Transfer of Property Act. DECREE 2) Thakkar. 5th edition..C.K. 2003. 4) Sinha R. WEBSITES 1) www.com 2) www. Universal Law Publishing Co. Code of Civil Procedure.com 21 . Central Law Agency.