NAME: NADEEM HUSSAIN SECTION: “D”

ROLL NO: BL-1332 DATE: 07/02/2022

SUBJECT: CIVIL PROCEDURE CODE-1
INSTRUCTER: SIR MOHAMMAD KAMIL
TOPIC: 1. LEGAL REPRESENTATIVE & LEGAL HEIRS
2. DIFF- B/W JUDGEMENT AND DECREE AND TYPES
LEGAL REPRESENTATIVE:
Legal representative means any person who in law represents the estate of a deceased person and
include any person who intermeddles with the estate of the deceased and where a party sues or is
sued in a representative character the person on whom the estate devolves on the death of the
party so suing or sued.
Legal representative is a principle of natural justice which demands that the other party should be
heard before any decision is given which will affect its rights (a). Consequently upon the death
of party to a suit its legal representatives must be impleaded as parties in the place of the
deceased as the rights of the deceased have devolved upon them consequent to the death of the
last owner. Obviously this only happens in case of heritable rights.(ab) Order 22 lays down the
procedure to be followed in impleading legal representatives of deceased parties. See also
Section 146.
The definition of the term 'legal representative' is meant only for the purposes of the Code (b). It
creates no liability(c). It is in three parts (d).
The first part generally covers all persons who under law represent the estate of a deceased (e).
In case of Muslims, the heirs and legatees of the deceased will be legal representatives. in case of
Christians and Paresis who leave wills, their executors, administrators and legatees will be the
legal representatives(f), and where there is no will, the heir or next of kind such persons shall be
the legal representative(s). He may even represent a part of the estate (h). Where the deceased
leaves no estate, the next of kin cannot be termed as legal representative (i). See Sections 50 and
52 post. Where it is a personal right, it can either be heritable or non-heritable and the legal
representatives need not necessarily be natural heirs.

Legal representative under section 50 of cpc:

Legal representative (1) Where a judgment-debtor dies before the decree has been fully satisfied,
the holder of the decree may apply to the Court which passed it to execute the same against the
legal representative of the deceased.
(2) Where the decree is executed against such legal representative, he shall be liable only to the
extent of the property of the deceased which has circumstances the son is deemed by a fiction of
law to be the legal representative on the deceased debtor in respect of the property which is in his
hands and has not been duly disposed of, and, for the purpose of ascertaining such liability, the
Court executing the decree 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.
Sections 50, 52 and 53 of the Code of Civil Procedure relate to the legal representatives of
judgment-debtor and their liabilities towards execution of decree passed against their
predecessor-in-interest. The term 'legal representative' is defined by Section 2(11) of the Code to
can not 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 is sued in a
representative character the person on whom the estate devolves on the death of the party so
suing or sued.
Section 50 deals with cases where the judgment-debtor dies after passing of decree against him
and before its full satisfaction. In such event the decree-holder is competent to proceed for
execution against the legal representatives of the judgment-debtor. However, the legal
representatives are liable to the decree-holder only up to the extent of the property of the
deceased which had come to their hands and which has not been utilized. If judgment-debtor dies
during pendency of execution, decree-holder can also proceed with his heirs and it will not abate

Enforcement of decree against legal representative under 52 of cpc

Where a decree is passed against a party as the legal representative of a deceased person, and the
decree is 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.
Where no such property remains in the possession of the judgment-debtor and he fails to satisfy
the Court that he has duly applied such property of the deceased as is proved to have come into
his possession, the decree may be executed against the judgment-debtor to the extent of the
property in respect of which he has failed so to satisfy the Court in the same manner as if the
deceased had been against him personally.

DIFFERENCE BETWEEN JUDGEMENT AND DECTREE AND ITS TYPES:

There are certain differences between Judgement, Decree and Order. The decisions given by the
court of law are either orders or decrees. A decree is followed by a judgement that is pronounced
by the court after hearing the case. It is important to note that decree and order are analogous to
each other. A judgment is passed by the court of law on the ground of decree or order.

Judgement
Under Section 2(9) of the Code of Civil Procedure, 1908 a “judgement” means the statement
given by the Judge on the grounds of a decree or order. Judgement refers to the reasoning given
by the court in order to support the decision. A judgement is said to be the final decision of the
court on the said matter in the form of suit towards parties. Order 20, Rule 4(2) states that a
judgement shall contain a concise statement of a case, point for determination, the decision
thereon and all the reasons for such decisions. Order 20, Rule 3 of CPC says that the judgement
must be signed and dated by the judge while declaring it in the court. Once it is signed by the
judge, the judgement is not allowed to be amended except in cases where there are arithmetical
errors due to accidental omission. The provision for the same is stated in Section 152 of the Code
of Civil Procedure.

Judgment when Pronounced

The Court, after hearing the case shall deliver the judgment in the open court, soon after the
completion of the hearing or on another day fixed by the court for that purpose, of which due
notice will be given to the parties and their pleaders. In cases, where the judgment is not
delivered on the same day, every attempt shall be made by the Court to pronounce the judgment
within 30 days from the date on which the hearing was concluded. There is an exception to this
rule where, under extraordinary circumstances, the judgment might be extended to 60 days.

Essentials of a Judgment
A judgment should possess all the essentials of the case, reasoning and the basic contention on
which the judgment is delivered.
1. Essentials of the judgment other than that of the Small Causes Court
 concise statement of the case
 Point for determination\
 Decision thereon
 Reason for such decision
 Relief Granted
2. Judgment of Small Causes Court
 Point for determination
 Decision thereon

Review under Code of Civil Procedure

The provisions of review of a judgment are mentioned in Section 114 of the Code. The main
objective is to examine the facts and judgments of the case again. Even though this section does
not contain the limitations and conditions for the review, the same is laid down in Order 47 of
the Code which contains 9 rules imposing the various conditions. The following are the 9 rules:
 Application for the review of Judgment
 To whom the application for review may be made
 Form of the application
 Application when rejected
 Application for review in Court consisting of two or more Judges
 Application when rejected under Rule 5
 Order of rejection not appealable. Objection to order granting application
 Registry of granted application
 Bar of certain application

Decree
Under Section 2(2) of the Code of Civil Procedure, 1908, “decree” means 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 and may be either preliminary or final. A decree
must include:
 Rejection of a plaint
 Determination of any question under Section 144 of the Code.

A decree shall not include:

  Any adjudication from which an appeal lies as an appeal from an order
 Any order of dismissal for default

A decree shall not include:

 Any adjudication from which an appeal lies as an appeal from an order
 Any order of dismissal for default.

Essential Elements of a Decree

There should be an adjudication: It is the most essential feature of a decree. A former decision of
the Judge on the dispute should be there. In the absence of such judicial determination, there can
be no decree.
Suit: This proceeding is instituted in the Court of Law by filing a plaint in the civil court. Similar
to adjudication, there is no decree without a civil suit. There are specific provisions that treat
certain applications as suits like proceedings under Hindu Marriage Act, Indian Succession Act.
Determining the rights of the parties: The adjudication should determine the rights of the parties
in a dispute. The term parties refer to the plaintiff (person instituting the suit) and the defendant
(person against whom the suit has been filed).
Determination must be conclusive in nature: The determination held by the Court should be
conclusive relating to the rights of the parties. The provisional decisions are not considered
decree.
There must be a formal expression: To be a decree, there must be a formal expression of
adjudication. In other words, the court must formally express its decision in the manner laid
down by law.

Types of Decree
There are three types of decree as recognized by the Civil Procedure. They are:

Preliminary Decree
It is passed in cased in which the court has to first adjudicate upon the right of the parties and
further proceedings need to take place before the suit is in a position to be completely disposed
of.

Final Decree
A final decree is where a suit is completely disposed and all the questions in controversy
between the parties are finally settled and there is nothing remaining to be decided on. A decree
may be final in two ways:
 Where no appeal is filed against the decree within the prescribed time
  Where the matter has been decided by the decree of the highest court.
 Where the decree completely disposed of the suit.

Partially preliminary and partially final decree

A decree can be said to be partially preliminary or partially final when it only determines the
rights of the parties, while the rest is left to be worked out in the further proceedings.
The difference between judgement and decree are discussed in the points given below:

JUDGEMENT
Judgement is the statement which
particularizes the grounds and reasons for
the decision by the Court, concerning the
respective rights and liabilities of the parties
to suit. On the contrary,
Judgement is defined in Section 2(9) of the
Code of Civil Procedure, 1908. Conversely,
Judgement is always final, whereas decree
can be preliminary when further proceedings
are required before the conclusion of the suit
or it can be final
Judgement is the concluding part of a civil
suit, which is followed by a decree which is
its operating part, stating the rights and
duties of the parties involved in the case
Judgement is not executed.
Judgement is passed in both civil and
criminal cases,
Once the case is heard the judgement is
pronounced by the court and on that
judgement, the decree is followed.
The formal expression of judgement is not
necessary but it is desirable
Judgement states preciously the relief
granted
DECREE
Decree refers to the legal expression of
adjudication, wherein the Court expressing it
beyond any doubt states the rights and
claims of the parties, concerning the matters
of dispute in the lawsuit
Decree is defined in Section 2(2) of the
Code of Civil Procedure, 1908.
A decree can also be partly preliminary and
partly final
Execution means the enforcement of the
decrees. A decree can be executed in two
ways, i.e. either by the court which passed
the judgement or by the court to which the
decree is sent for the purpose of execution.
On the other hand
Whereas Decree is given in civil cases only.
Judgement represents the stage occurring
before decree or order is passed and once the
judgement is pronounced, decree follows
The decree is appealable, whereas
judgement is not appealable.
However, formal expression of the decree is
mandatory.
Decree must determines the rights of parties