ASSIGNMENT- CIVIL PROCEDURE CODE-I

Date- 5th September 2020

Do any two questions

Q1- Mr. Z has filed a plaint against Mr. Y in Dehradun Civil court. Mr. Z had not disclosed cause of action
in the plaint. Explain in brief the consequence of non-mentioning of cause of action. Advice, Mr. Z
regarding the various recourse available to him in this situation.

Q2- Explain the concept of Decree. Differentiate between Decree, judgment and order with the help of
illustrations.

Q3- Explain in brief the various elements of a Civil Suit.

ANSWERS

Q2- Explain the concept of Decree. Differentiate between Decree, judgment and order with the help
of illustrations.

ANS- The decree is a conventional articulation of adjudication by which the court decides the privileges
of parties with respect to the issue in contention. As defined under sec 2(2) a decree is a formal
expression that provides the determination of interests of the parties to the suit in a conclusive manner
with regards to any disputed matter of the civil suit.

Essentials of the decree-

1. Adjudication should be done in suit. A suit can be raised by filing a plaint.

2. Determines the right of parties. The rights determined under this circumstance are substantial
rights and not procedural rights. The parties to the rights in controversy should be the plaintiffs
and defendants and, if an order is passed upon the application made by a third party who is a
stranger to suit then it is not a decree.
3. Rights should be conclusive in nature and not open for future speculation. The primary concern
to be remembered is that whether the choice made is conclusive and convincing basically just as
substance. In the event that it is in this way, at that point the choice will be considered as a
decree, else not. It should be absolute and complete.
4. Formal expression of adjudication is required. If decree is not formed then there will be no
scope for appeal from judgment.

The decisions that held to be a decree are-

• Order of abetment of suit

• Dismissal of appeal as time-barred

• Dismissal of suit or appeal due to the requirement of evidence or proof

• Rejection of plant due to non-payment of court fees

• Order denying the survival of right to sue

• Order stating that there is no cause of action

• An order refusing to grant one or several reliefs

• Order granting costs and installments

• An order refusing costs or installments

• An order refusing maintainability of appeal

Decisions which cannot be considered as decree-

• Dismissal of appeal for default

• Appointment of Commissioner in order to take accounts

• Order for remand

• Order granting interim relief

• Application rejected for condonation of delay

• Order holding an application to be maintainable

• Order of refusal to set aside the sale.

Types of decree

1. Preliminary decree

A decree is expressed as a preliminary decree when the privileges of parties with respect to all or any of
the issue in debate are resolved in the adjudication however it doesn't discard the suit totally. A
preliminary decree is passed by the courts fundamentally when the court needs to settle upon the
privileges of the parties and at that point, it has required the issue to be postponed except if the last
decree of that suit is passed. it means when the court decides all on all the matters concerning the
parties to a suit but, nonetheless, dispose of the suit.

for example:

1.suit for dissolution of partnership firm.

2.suits for partition and separate possession.

2. Final decree

The final decree is a decree which discards a suit totally and settles all the issue in debate between the
parties. The final decree doesn't leave any make a difference to be chosen further. It is considered as
final decree when, at the point when no intrigue is recorded against the decree inside a recommended
timeframe or if the matter in the decree has been chosen by the most elevated court or at the point
when the decree passed by the court discards the suit totally.

3. Partly final and partly preliminary

If there is a suit of ownership of an ardent property alongside the issue of mesne profit, and the court is
obliged, passes a decree choosing the ownership of the property.

The initial segment choosing the ownership of the property is final while the part with respect to the
mesne profit is preliminary.

4. Deemed decree

An adjudication which doesn't officially fall under the meaning of decree expressed under segment 2(2)
of the Code of Civil Procedure yet because of a legitimate fiction, they are deemed to be decrees are
considered as deemed decrees. Dismissal of plaint and assurance of the issue of compensation of decree
are deemed decree.

Difference between decree and order

1. A decree can just start from a suit initiated by introducing a plaint. but an order may start from
any suit, it for the most part emerges from a procedure initiated on an application.

2. A decree is an adjudication which convincingly decides the privileges of the parties with respect
to any or all issues in debate. Then again, an order could conceivably finally decide the privileges of the
parties.

3. A decree might be preliminary or final however there is no such qualification in order.

Difference between a judgment and decree

1. Judgment implies articulation given by a Judge of the grounds of decree or order.

2. It isn't essential that there ought to be a formal expression of order in the judgement but It is
vital that there must be formal articulation of the decree.

3. Judgment contains the grounds of decree but decree follows the judgment.

4. Decree is capable of execution but judement is not.

Q3- Briefly explain the different elements of a civil lawsuit.

ANS- Elements of a civil lawsuit –

1. Parties - There must be at least two parties to a lawsuit, the plaintiff and the defendant. And
without which no effective order can be approved, also without which any effective order can
be approved if the party outfit will be easily removed.
2. Subject: there must be a subject, that is, with what respect or aspect is the civil dispute.
For example: A lawsuit in which the right to property or office is challenged is a civil suit, without
prejudice to the fact that said right may depend entirely on the decision of questions relating to
religious rites or ceremonies.
3. matter in issue - Issue means any material proposition which is alleged by one party and denied
by the other.
4. Cause of action: it is a set of facts or circumstances that the plaintiff must prove. A person is
part of a lawsuit if there is a cause of action against him. It also means all the essential facts
that constitute the right and its infringement. In addition, a set of facts is the existence of rights
in the facts that the defendant has violated the right and when the claim is accepted it
becomes a claim.
5. Title: the legal capacity in which the party brings a claim which is the legal relationship of the
party to the subject of the claim, for example: A is a landlord and B is a tenant and C is a
strange relationship between A and B It is the type of contractual relationship and the title of
the dispute between A and B is owner and tenant.
6. Relief - Does Relief mean what you want?
for example: A brought a house but B is not complying with the contractual obligation. An award
can receive damages or ask the court to enforce a contract.