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Simple Notes of CPC
Simple Notes of CPC
SEVEN PARTS
JUDGEMENT/
EXECUTION
DECREE
APPEALS, REFERENCE,
REVIEW, REVISION
1
Section 16 of The Code of Civil Procedure, 1908
2
Section 20 of The Code of Civil Procedure, 1908
Pecuniary jurisdiction means whether a court can try
cases and suits of the monetary value/amount of the case
or suit in question
Every state have their own act regarding the pecuniary
jurisdiction of the court.
b. Filing of the suit/plaint:
Sec. 15. Every suit shall be instituted in the court of the lowest grade
competent to try:
There is a hierarchy of the court. The suit must be filed in the lowest
court i.e., district court and then appeal lies in high court to Supreme
Court.
Plaint is a written complaint/allegations3.
Particulars of plaint4:
1. The name of the plaintiff,
2. The name, description and place of residence of the plaintiff,
3. The name, description and place of residence of the defendant,
4. Where the plaintiff or the defendant is a minor or a person of
unsound mind, a statement to that effect, Judicial Officers’
Examination Course Material
5. The facts constituting the cause of action and when it arose,
6. The facts showing that the Court has jurisdiction,
7. The relief which the plaintiff claims,
8. Where the plaintiff has allowed to set off or relinquished a
portion of his claim, the amount so allowed or relinquished, and
9. A statement of the value of the subject matter of the suit for the
purpose of jurisdiction and of Court fee.
10. Verification from plaintiff, that contents of plaint are true &
correct (Affidavit)
SUMMON:
A summon is a legal document that is issued by a Court to a person
involved in a legal proceeding. When a legal action took place against a
person or when any person is required to appear in the court as a witness
in a proceeding, to call upon such person and ensure his presence on the
given date of the proceeding, summons are served.
According to Section 26 summon be issued to defendant to appear before
the court within the 30 days from the date of the institution of the suit.
Procedure:
a. Summon issued as the manner prescribed in Order V of the Act,
1908 with the copy of plaint and other documents.
b. Court must authorised a person to issue summon.
c. Summon be made on plaintiff expense.
d. Every summon shall be signed by the Judge or the officer appointed
by the Judge and shall have the seal of the court.
3. Service by Post:
Rule 19B specifies that the court shall, in addition to, and
simultaneously with, the issue of summons for personal service,
also direct the summons for personal service, also direct the
summons to be serve, by registered post with acknowledgement
due addressed to the defendant or his agent at the place where
the defendant or his agent actually and voluntarily resides or
carriers or business.
4. Substituted Service:
The Provision for substituted service is provided for in Rule 20
or order 5 of the C P C. Rule 20 specifies that in two situations
the method of substituted service may be restore to:
When there is reason to believe that the defendant is
keeping out of the way for the purpose of avoiding
service, or
When for any other reason summons cannot be served in
the ordinary way.
the Court shall order the 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 defendant is known to have last
resided or carried on business or personally worked for
gain, or in such other manner as the Court thinks fit.
Orders service by an advertisement in a newspaper, the
newspaper shall be a daily newspaper circulating in the
locality in which the defendant is last known to have
actually and voluntarily resided, carried on business or
personally worked for gain.
5. When defendant reside in the foreign territory (Rule 26):
The summon shall be sent to the Political Agent in that
country through the Ministry of Foreign Affairs where
the defendant is residing or place of business by post or
otherwise, or if so directed by the Central Government
Those Political Agent must sent the summon to that
person and if those Political Agent return the summon
with an endorsement, then it will be seen as the summon
is duly served on the Defendant.
The endorsement shall deemed as evidence that summon
was duly served to him.
6. Summon to the Company (Order 29 Rule 2)
Summon duly be served to:
a. On the secretary or on any director or other principal officer
of the corporation.
b. By leaving or sending it by post addressed to Registered
office, if no Registered office then be served to the corporate
office.
In the case of Parasarampuriya Synthetic Ltd. vs. Shankar
Prasad6 it was held by Delhi High Court that a summon
must be sent to the Registered Office only.
Order 29 Rule 1 clearly states that Secretary, Director or a
Principal Officer of a company would be treated as duly
authorised to institute suits on behalf of company. Any
person mentioned who signed and verified on behalf of
corporation shall be answerable to the court who is able to
depose the facts of the case.
In the case of United Bank of India vs. Naresh Kumar7 held
that a company is a juristic person, some person must be
authorised by Boards of Directors to sign on their behalf the
legal documents.
When notice is issued, the defendant required to appear before the court on the date
mentioned in the notice. Before such date, the defendant have to file “written
statement” within 30 days from the issue of the notice or can be extended to 90 days
if court may thinks fir. The written statement should specifically denied all the
6
AIR 2003 Del 348
7
AIR 1997 SC 3
allegations or admit. It also contains the verification by the defendant, stating that,
the contents of written statement are true and correct.
REPLICATION BY PLAINTIFF:
8
Indian Bank v. Maharashtra State Cooperative Marketing Federation Limited AIR 1998 SC 1952
While passing the order the court will deal with each issue separately & pass
the judgement.
2. CALLING UPON THE WITNESSES:
Both the parties file the list of witness within 15 days from the date on which
issues were framed. Witness can be called upon on their own or through
summon. Party calling the witness shall deposit money for their expenses
known as DIET MONEY.
3. FILING DOCUMENTS AND LEADING EVIDENCES:
A party, by the means of discovery, is enabled to obtain from his opponent
material facts or information in the form of documents or admissions which will
support his own case or damage his opponent’s case. Though the nature of each
party’s case is set out in the plaint and the written statement, they may not
sufficiently disclose their respective cases.
Under Order 11, with the leave of court, one can present the additional
documents to make their case strong. Although every document is already
annexed with the plaint or written, but sometimes there was need to add more
document.
4. ARGUMENTS FROM BOTH SIDES:
The right to begin or the privilege of opening the case is determined by the
rules of evidence. The general rule is that the party on whom the burden of
proof lies should begin first. In every case who instituted the suit (plaintiff)
have to proof his case.
Arguments by both sides are intended to brief the judge with a summary of
the evidences produced by each side. At this stage there are examinations and
submissions by the parties in order to prove their point or substantiate their
argument.
9
Order XX Rule 1, Code of Civil Procedure, 1908
10
Section 33 of Code of Civil Procedure, 1908
11
Order XX Rule 6-A, Code of Civil Procedure, 1908
12
Order XX, Rule 6-B
In the case of R.C. Sharma v. Union of India13, “ it should be declared
within thirty days from the day of conclusion of the hearing and in case
some extreme situation arises then the provision is also there to extend
this declaration of pronouncement till the sixtieth day from the conclusion
of hearing. Thus judges have a discretionary power for the
pronouncement of judgment for these sixty days but after that declaration
becomes mandatory on the part of the judge.”
Contents of judgment:
Judgments of courts other than a court of small causes shall contain: (a) a concise
statement of the case; (b) the points for determination; (c) the decision thereon; and
(d) the reasons for such decision. Judgements of a court of small causes need not
contain more than (b) and (c), i.e., the points for determination and the decision. 14
Alteration of judgment:
The judgment once when pronounced and signed by the judge in the open court
shall not afterwards be altered or added except in cases like:
(l)(a) clerical or arithmetical mistake; or (b) errors arising from any accidental slip or
omission (section 152); or
There is no inherent jurisdiction in the court to rehear a case and alter or add to a
judgment which has been duly pronounced and deliberately signed and sealed in
accordance with law even with the consent of the parties.
Decree:
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 of dismissal for default.
13
1976 AIR 2037
14
(Order XX, Rule 4).
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.
Contents of Decree:
(1) The decree shall agree with the judgment, it shall contain the number of the suit,
the names and descriptions of the parties, their registered addresses, and particulars
of the claim, and shall specify clearly the relief granted or other determination of the
suit.
(2) The decree shall also state the amount of costs incurred in the suit, and by whom
or out of what property and in what proportions such costs are to be paid.
(3) The Court may direct that the costs payable to one party by the other shall be set
off against any sum which is admitted or found to be due from the former to the
latter.15
Preparation of decree:
(1) Every endeavour shall be made to ensure that the decree is drawn up as
expeditiously as possible and, in any case, within fifteen days from the date on
which the judgment is pronounced.
(2) An appeal may be preferred against the decree without filing a copy of the decree
and in such a case the copy made available to the party by the Court shall for the
purposes of Rule 1 of Order XLI be treated as the decree. But as soon as the decree is
drawn, the judgment shall cease to have the effect of a decree for the purposes of
execution or for any other purpose. 16
Date of decree:
The decree shall bear date the day on which the judgment was pronounced, and,
when the Judge has satisfied himself that the decree has been drawn up in
accordance with the judgment, he shall sign the decree. 17
An appeal maybe preferred against the decree without filing a copy of the decree. To
that effect a copy of the judgment would be treated as the decree.
15
(Order XX, Rule 6)
16
(Order XX, Rule 6-A).
17
(Order XX, Rule 7).
VI. EXECUTION (Section 36, Order 21)
Execution means enforcing or giving effect to the judgement of the court.
Execution is the medium by which a decree-holder compels the
judgement-debtor to carry out the obligations of the decree. The execution
is complete when the judgement-creditor or decree-holder gets money or
other thing awarded to him by judgement, decree or order.
If the judgement-debtor fails to honour the decree passed against him, the
decree holder can seek execution of the decree by filing an execution
petition in the court. The court which passes the decree may execute it.
Procedure in Execution:
Section 51 to 54 talks about procedure in execution or mode for
execution.
Application for execution of decree under this section may be either
oral (order 21 rule 10) or written (order 21, rule 11).
Application must be given within 2 years from the date of the decree.
Party has to choose the mode of implementation of decree. Court may
execute decree as per the choice prayed by the decree-holder or as
court may thinks fit.
Objections will be heard by the court by judgement-debtor or parties
having interest in property by way of application.
If the objection will be accepted by the court then suit of execution of
decree will be set aside or otherwise will pass a decree for execution
against the judgement-debtor.
Mode of execution:
The code lays down various mode of execution. After the decree-
holder files an application for execution of decree, the executing court
can enforce execution.
A decree may be enforced by delivery of any property specified in the
decree, by attachment and sale or by sale without attachment of the
property, or by arrest and detention, or by appointing a receiver, or by
effecting partition, or any such manner which the nature of relief
requires.
1. Arrest And Detention:
One of the modes of executing a decree is arrest and detention of
the judgement-debtor in civil imprisonment.
Where the decree is for payment of money, it can be executed by
arrest and detention of the judgement-debtor.
A judgement-debtor may be arrested at any time on any day in
execution of a decree. After this arrest, he must be brought before
the court as soon as practicable.
For the purpose of making arrest, no dwelling house may be
entered after sunset or before sunrise. Further, no outer door of a
dwelling house may be broken open unless such dwelling house is
in the occupancy of the judgement-debtor and he refuses or prevent
access thereto.
No order of detention of the judgement-debtor shall be made where
the decretal amount does not exceed Rs.2000.
Where the judgement-debtor pays the decretal amount and costs of
arrest to the officer, he will be released.
A women, judicial officers, the parties, their pleaders, member of
legislative bodies, a judgement-debtor where the decretal amount
does not exceed Rs 2,000, these person cannot be arrested and
detained in civil imprisionment.
2. Attachment Of Property:
A decree may also be executed on the application of the decree-
holder by attachment and sale of the property of judgement-debtor.
Sections 60 to 64 and rules 41 to 57 of Order 21 deals with the
attachment of property.
The code enumerates properties which are liable to be attached and
sold in execution of a decree. It specifies which properties are liable
to be attached and sold and which are not liable to be attached or
sold. It also prescribes the procedure where the same.
Section 60(1) declares what properties are liable to attachment and
sale in execution of a decree, and what properties are exempted. All
saleable property( movable or immovable) belonging to the
judgement-debtor or over which or the portion of which he has a
disposing power which he may exercise for his own benefit may be
attached and sold in execution of a decree against him.
Section 61 deals where the judgement-debtor is agriculturalist. Any
agriculturalist produce is subject matter of agriculturalist. The
quantum of attachment of agricultural product depends upon the
quantum of decretal amount.
3. Percept:
Section 46- “precept” means a command, an order, a writ or a
warrant. A percept is an order or direction given by court which
passed the decree to a court which has the power to attach any
property belonging to the judgement-debtor.
Section 46 provides that court which passed a decree may, upon an
application by the decree-holder, issue a percept to that court
within whose jurisdiction the property of the judgement-debtor is
lying to attach any property specified in the percept.
The interim order for attachment is valid for the period of only 2
months.
Contents of proclamation:-
Essentials of an Appeal:
A decision (usually a decree of a court or the ruling of an
administrative authority);
A person aggrieved, who is often, though not necessarily, a
party to the original proceeding; and
An appellate body ready and willing to entertain an appeal.
Who May Appeal:
a. The subject-matter of the appeal must be a “decree”, i.e. “the rights
of the parties with regard to all or any of the matters in controversy in the
suit
b. The party appealing must have been adversely affected by such
determination.
Under the general principles of Section 92 of the CPC, the following
persons are entitled to appeal:
A party to the suit who is aggrieved or adversely affected by
the decree or, if such party is dead, his legal representative;
A person claiming under a party to the suit or a transferee of
the interests of such a party, who, so far as such interest is
concerned, is bound by the decree, provided his name is
entered on the record of the suit;
A guardian ad litem appointed by the court in a suit by or
against a minor;
Any other person, with the leave of the court, if he is
adversely affected by the decree.
1. First Appeal (Section 96)
An appeal lies against a decree passed by a court in exercise of
its original jurisdiction.
Appeal maintainable :
Against a decree
Against preliminary decree
Against final decree
Rejection of plaint under Order 7 Rule 11 C.P.C.
Determination of any question within Section 144
(restitution)
Original decree passed ex-parte.
No appeal lies which passed with the consent of the
parties.
No appeal lies in the matter less than Rs. 10,000/-/.
Limitation:
Procedure:
It is a consultative power of the High Court and therefore after looking into to
matter may answer or may refuse to answer or even quash the question so referred
by the subordinate court. The effect of answering it will amount disposal of the case.
19
Public Prosecutor v. B. Krishnasami AIR 1957 AP 567
If the High Court answers the question in favour of the plaintiff, the decree will be
confirmed but if it is answered against him the suit will be dismissed. But the High
Court has no power of making any orders or suggestions regarding the case so
referred. 20
20
Municipal Corporation of City v. Shivshanker Gaurishanker AIR 1999 SC 2874
favour of the party applying for
revision, would have finally
disposed of the suit or other
proceedings.
7. LIMITATIO 30 DAYS from the date 90 days from the date of the
N of order or decree under decree or order of sentence
Section 124 of the sought to be revised. under
Limitation Act, 1963.
21
section 131 of Limitation Act,
1963
22
S.P. Gupta v. Union of India AIR 1982 SC 149