CODE OF CIVIL PROCEDURE (1908)

The CPC consists of Sections 1-158, Schedule-1 containing Order 1- 51, divided into
Rules-- Illustration: Sec. 26, 0.39, R.1 (Procedure to be followed in a civil case)
STAGES OR STEPS IN A CIVIL CASE
I OUT SIDE COURT: -
• Notice – If dispute is between individuals, notice is not mandatory; but if the opposite
party is government or government servants in their official capacity, Section 80
requires prior notice. The reason being, public money shall not be wasted. 1976
Amendment Act diluted the provision and today the notice is not mandatory, subject
to the following conditions:
(1) Urgent relief is sought against the Government; and
(2) Consent of the Court has been obtained.
• Reply Notice

II. INSIDE COURT

(a) Plaint: Material facts relied on by the plaintiff
(b) Summons: Intimation sent by a court to a particular person
There are three methods of serving summons:
MODES OF SERVING SUMMONS
1. Direct service or personal service of summons – Directly given to the person,
agent etc.
2. Substituted service – Person cannot be found out or person refuses to receive the
summons- Issuing officer can paste a copy of the notice on the conspicuous part of the
House or outside the court hall or public notice that is published in the local news
paper.
3. By registered post
(c) Written Statement – Reply given by the defendant
(d) Framing of the issues – After reading the pleadings, the judge frames issues (point of
controversy)
(e) Trial – Collection of evidence (Evidence Act 1872 is applicable here)
(f) Judgment – Statement given by the Judge containing the reason for the decision –
judgment states issues, decision thereof and its reasons
(g) Decree:
(h) Execution – example: Attachment of property except wedding ring, pension, wearing
apparels etc.
OTHER MAJOR PROVISIONS

1. Appeal (Sec. 96): From any lower court to higher court. Eg. District court to High
court; High court to Supreme Court
Grounds: 1. Question of law 2. Question of fact
2. Second Appeal (Sec. 100) : Only before the High Court
Ground: Only on substantial question of law
3. Reference (Sec. 113) : When a subordinate court is having a doubt regarding law, it
can refer the matter to the High Court for its opinion
4. Review (Sec. 114) : Re-consideration by the same Court

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5. Revision (Sec. 115) : Only before the High Court
Grounds: Jurisdictional errors: Eg. Lack of jurisdiction, excess of jurisdiction etc:
6. Inherent powers (Sec. 151): By virtue of its position as a court, the court has to do
something, though not specified under the Code. This power is called Inherent Power-
Grounds: 1. In the interest of justice
2. To prevent the abuse of the process of the court (Sec. 482 of the Cr. PC also
confers a similar power on the High Court Eg. High Court can quash F.I.R)
IMPORTANT DEFINITIONS
1. DECREE HOLDER – Any person in whose favor a decree or an order capable of
execution has been made is called Decree Holder.
2. JUDGMENT DEBTOR – Any person against whom, a decree or an order capable of
execution has been made is called Judgment Debtor
3. LEGAL REPRESENTATIVE – The term includes :-
(a) Any person who in law represent the estate of a deceased
(b) A person who intermeddlers with the estate of the deceased
(c) In a representative suit, the person on whom the properly devolves on the
death of such person suing as a representative. An intermeddler is considered
as a legal representative only for continuing the suit. His rights will be
adjudicated later on.
4. JURISDICTION –The extent of the authority of the Court to administer justice
prescribed with reference to subject matter, pecuniary limit and local limits.
Therefore jurisdiction can be :

1. Subject matter jurisdiction:- Eg. Family Court is having jurisdiction over

matrimonial causes
2. Pecuniary Jurisdiction: - Based on the amount. In Kerala up to ten lakh
Munsiff and above ten lakh Sub Court
3. Local or Territorial Jurisdiction: - Eg. Place where the property is situated
where defendant resides or where defendant works for gain or where cause
of action arises.
Jurisdiction can also be:
a. Original - for the first time.
b. Appellate Jurisdiction – to hear and entertain appeals
c. Exclusive Jurisdiction-Only one court is having jurisdiction to entertain a particular
case or class of cases. Eg. Second appeal only by the High Court
d. Concurrent Jurisdiction – More than one court is having jurisdiction to entertain a
particular case or class of cases.
e. Inherent (s.151)

5. MESNE PROFIT
Illustration: ‘B’ is in wrongful possession of A’s property. A can file a suit for eviction
and Mesne Profit. The term mesne profit means the profit actually received by a
person, in wrongful possession of another’s property together with profits which
might have been received with the due diligence; the and interest thereon. But the
term does not include the profits due to the improvements made by the person in
wrongful possession (LUCY v. KOCHU VAREED)

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 6. ORDER AND DECREE- The formal expression of an adjudication of a civil court, which
is not a decree, is an order. Decree is defined as follows: The formal expression of
adjudication in a suit, which conclusively determines the rights and liabilities of the parties
with regard to all and any of the matter in controversy. It can be final or preliminary or partly
final and partly preliminary.
The term includes
(1) Rejection of a plaint; and
(2) Determination of any question under Sec. 144.
The term does not include
(1). Dismissal for default and
(2.) Orders which an appeal can be made as specified under Sec. 104.
Essentials of Decree:
1. Formal Expression by a Civil Court
2. Adjudication – A judicial determination of the matter.
3. Suit – Proceedings started by a plaint.
4. Conclusive determination.
5. Three types of decrees– Final, Preliminary, Partly Final and partly Preliminary.
Example for partly preliminary & partly final:--‘A’ sues against ‘B’ for eviction and mesne
profit. Court decreed ownership in favour of ‘A’ and directed an enquiry in fixing mesne
profit. As far as ownership is concerned, decree is final. But mesne profit is concern it is
preliminary. On the whole, it is partly preliminary and partly final.
6. Term includes (1) Rejection of a plaint (2) Determination of any question
under Sec 144 – dealing with Restitution (Restitution means restore)
7. The term does not include (1) Dismissals for default and (2) Orders from
which an appeal can be made as specified under Sec. 104.

DECREE ORDER
Originate only from a suit. (Proceeding May originate from a suit or any
started by a plaint) proceeding started by application
petition etc.
Conclusive determination May or may not determine conclusively
All decrees are appealable except Appealable only if specified under Sec
consent decree 104
Classified into 3 No such classification
1. Final
2. Preliminary
3. Partly Final and Partly
Preliminary
Only one final decree from a single suit More than one order is possible from a
single suit

Suit of Civil Nature (S. 9)

As per Section 9, a civil court can have jurisdiction over a matter only if the following
conditions are fulfilled.

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 a. It must be a suit of civil nature. That is, the principal question before
the court must be with regard to a legal right and its enforcement. The
principal question shall not be purely social, religious, political or
caste. Eg. Ramanuja Jeer’s Case, Plaintiff’s claim for priority right to
get theertham was dismissed because it is purely religious. However
social, political, religious etc questions can be incidental questions.
b. No express Bar – Certain statutes expressly bars the jurisdiction of
civil courts. Eg. As per Industrial Disputes Act 1947, dispute between
the employer and employee to be settled by Labor Court, Industrial
Tribunal etc and not by ordinary Civil Courts.
c. No implied Bar – Certain matters are impliedly barred by the general
principles of law Eg. Time barred debt
SECTION 10 : DOCTRINE OF RES SUBJUDICE OR (DOCTRINE OF STAY OF SUITS)
Two Suits – Previously instituted and subsequently instituted. Then the Court can proceed
the trial of the former suit only. Illustration: A files a suit against B with regard to X property
before Munsiff I. While it is pending ‘A’ filed the same case before Munsiff II – Section 10 step
in and stays the trial of the subsequent suit. The aim of Sec 10 is to prevent parallel litigations
on the same subject matter and contradictory decisions.
Conditions for the application of Sec 10
a. Two suits required
b. Formal suit is pending before any court in India
c. Same subject matter
d. Same parties
DOCTRINE OF RESJUDICATA (Sec. 11):A matter once heard and finally decided by a
competent court shall not be re-opened again before the same court by the same parties with
regard to the same subject matter.
Essential Conditions for the application of Sec. 11:
1. Matter once heard and finally decided by a competent Court
2. Same parties
3. Same subject matter
DIFFERENCE BETWEEN SEC. 10 AND SEC 11 (Difference between Doctrine of Res Sub-
judice and Res judicata)The former is applicable where a matter is pending before a court
but the latter is applicable in the case of an already decided matter.
CONSTRUCTIVE RES JUDICATA OR MIGHT AND OUGHT THEORY: A matter which might
and ought to have been raised by a party in a suit is deemed to have been raised and hence
operate as Resjudicata Eg. : ‘A’ files a suit against ‘B’ for possession on the ground of
ownership. Court made decree in favour of ‘B’. Subsequently ‘A’ brings the matter before the
court on the ground that there was a mortgage transaction. The second suit is barred by
Doctrine of Constructive Res judicata because the fact regarding Mortgage could have been
raised by ‘A’ during the trail of the first suit.
CONCLUSIVENESS OF FOREIGN JUDGMENT (S. 13): A foreign judgment is conclusive in
India and operates as Resjudicata. But, Sec 13 itself provides the following exceptions where
in a foreign judgment can be opened in India. They are:

1. Foreign court has no jurisdiction

2. Decision not on the merits of the Case. Eg. Non appreciation of Evidence

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 3. Obtained by fraud
4. Violation of the p
5. Violation of the principles of Natural Justice. Eg. Violating Audi Alteram Partem or
Nemo Judex rule
6. Against International Law
7. Against Indian Statutory law
8. Failure to recognize and apply an Indian law where such law is applicable Eg.
Dissolving Hindu marriage ignoring Hindu Marriage Act. 1955.
PLEADINGS – GENERAL RULES
1. State the facts only
2. State only the material facts
3. Law and evidence need not be stated
4. In a precise form and
5. Suit to be instituted in the lowest competent court.
RETURN OF PLAINT : If a court finds that it has no jurisdiction it can return the plaint to be
filed before the appropriate court
REJECTION OF PLAINT: Grounds: 1. Disclose no cause of action; 2. Time barred; 3.
Insufficiently stamped and the party fails to rectify within the time allotted by the Court;
4.Undervalued and the party fails to rectify it within the allotted time; 5. Lack of the required
number of copies of the plaint.
STRIKING OUT PLEADING: If a claim is found to be false frivolous or vexatious, court can
strike it down.
AMENDMENT OF PLEADING: After the filing of the suit, the parties can make amendments
with the consent of the court. But court permits such amendments subject to the following
conditions: -
1. Such amendment is necessary to determine the real controversy
2. No injustice to the other party
3. A totally new picture shall not be created
COURT’S POWER TO AWARD COST (Sec. 35)
Court can award cost under the following headings:
1. General Cost: Loosing party to the winning party
2. Miscellaneous Cost: Eg. Typing charges, expenses to sent summons etc.
3. Compensatory Cost: for false frivolous and vexatious claims (Sect.35-A)
4. Cost for causing delay; or for delaying tactics (Sect. 35-B)
COURT’S POWER TO AWARD INTERESTS
Interest means “the Premium paid for the use of money”
Four Stages

Breach Date of filing the suit Date of Decree Date of Actual payment
Percentage fixed by the parties
Percentage at the discretion of the court; but not exceeding the prevailing bank rate
CONSEQUENCE OF NON APPEARACE OF PARTIES: If the plaintiff is absent on the date of
hearing, the suit is dismissed. If the defendant is absent the court can proceed, Ex parte (Ex
parte means in the absence of a party). Remedies available against ex-parte decree:
1. Appeal

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 2. Application to set aside the ex-parte decree, before the same court on the following
grounds :
(a) Summons not duly served
(b) Summons duly served, but he had sufficient cause for the non-appearance. Eg.
Admitted in the ICU ( Sufficient cause theory)
3. Appeal against the rejection of the above application
4. Review petition – Re consideration by the same court
5. If the ex parte decree is obtained by fraud, a separate suit can be filed to set aside ex
parte decree
JOINTER OF PARTIES: If the act of one person adversely affects another, then there is only
one plaintiff and one defendant. The question of joiner of parties does not arise. But if the act
of one person adversely affect many, question of jointer arise. Jointer can be either jointer of
plaintiff or jointer of defendants. Persons can be joined as plaintiff in a single suit if the
following conditions are fulfilled. :-
1. The right to relief claimed by each person arise out of same transaction
2. If separate suit were brought before the court, common question of law or fact arise.
Persons can be joint as defendants in a single suit if the following conditions fulfilled
– (a). The right to relief claimed against them arise out of some transaction
(b)Separate suit were brought against them common question of law and fact will
arise.
Illustration for jointer of Plaintiff: ‘B’ executed a promissory note in favour of ‘X’, ’Y’ and ‘Z’
and borrowed Rs. 10000/- ‘B’ fails to pay the amount. Here X, Y, Z can be joined as plaintiffs.
Illustration for Jointer of Defendants: - X, Y and Z jointly executed a promissory note and
borrowed money from B. But fails to pay, Here X, Y, Z can be joined as defendants.
MISJOINTER OF PARTIES: If persons are jointed as plaintiffs or defendants in violation of
the conditions mentioned above, it is called mis- jointer of parties.
NON JOINTER OF PARTIES:
Parties can be either: -
(1) Necessary party – In whose absence, a court cannot pass an effective judgment Eg. In a
partition suit all shares are necessary parties. In a suit for dissolution of partnership firm
all partners are necessary parties.
(2) Proper parties – In whose absence court can pass an effective judgment Eg. In a suit for
eviction by land lord against the tenants, sub tenants are proper parties.
Non jointer of necessary party is fatal (serious or complicated). But the suit is not dismissed
straight away. Time will be given to rectify the defects.
MULTIFARIOUSNESS: Mis jointer of defendants and cause of action is technically termed
multifariousness
REPRESENTATIVE SUIT – One person filing a suit for and on behalf of other persons, as a
representative
Conditions to be fulfilled:-
(1.) Numerous persons
(2.) Same Interest
(3). Consent of the Court
(4). Notice to all persons so represented because the judgment in favour or against the
representative binds all parties.

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INTERLOCUTORY APPLICATIONS AND INTERIM ORDERS: Interlocutory stage is a stage
between pleadings and judgment. Parties can file interlocutory applications. Eg.
Appointment of Commissions
COMMISSIONS: As per Sec 75 court can appoint Commissions for the following purposes
1. Examination of parties who cannot be produced before the court.
2. To make local Investigations. Eg. To ascertain a market value of property.
3. To conduct sale.
4. To perform ministerial act. Eg. Auditing, Calculating etc.
INJUNCTION
Injunctions are court order to do or not to do something
If it is to do something it is called mandatory Injunction.
Eg. To cut and remove over hanging branches of a tree
If it is to prevent a person from doing something it is called prohibitory Injunction (Stay)
Eg. Not to construct a wall.
If injunction is given temporarily until the final disposal of a case, it is called Temporary
Injunction. If it gives permanently it is called Permanent or Perpetual injunction. Specific
Relief Act 1963 contains elaborate portions for the issuance of injunction.
APPOINTMENT OF RECEIVER: Person appointed to look after and manage property
involved a dispute. DUTIES : He is always answerable to the Court. He must not make secret
profits, must maintain proper accounts.
ATTACHMENT BEFORE JUDGEMENT: If there is reasonable apprehension that a party will
transfer his assets in order to defeat the claims of the other person, Court can order
attachment before judgment.
ARREST BEFORE JUDGMENT: If there is reasonable apprehension that a party will abscond
to evade arrest, court can order arrest before judgment.
INTERPLEADER SUIT: In an ordinary suit, the real dispute is between the plaintiff and
defendant. But in an inter pleader suit, the dispute is not between the plaintiff and defendant
but between the defendant themselves --Illustration: A workshop owner is confused when
Car owner dies- two claimants – daughter as legal heir and another person as transferee
before owner’s death. Here the workshop owner can file a suit against daughter and
transferee. They interplead and the court finds out the real owner. Plaintiff claims only
reasonable remuneration for the service rendered.
PRECEPT
Direction given by one court to another Court to do something. Eg. Execute a Decree
SUING INFORMA PAPURIS – ORDER 33- OR SUIT BY INDIGENT PERSON
A person is said to be indigent if:--
1. Having no sufficient means to remit the required court fees or
2. Having only property worth less than 1000/-. Such person can file an application under
order 33 to sue as indigent person without remitting the court fees for the time being.
CAVEAT Sec. 148 A: A person who files a Caveat is called Caveator. Court has to give notice
to him before taking any steps.
INTROGATORIES: - Questionnaire administrated by one party to the other party to clarify
doubts regarding any facts. Clarification regarding evidence is not possible through
interrogatories. Before administrating interrogative, consent of the court must be sought.
The other party is having an obligation to furnish it. Otherwise court can order viva voce.

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GARNISHEE ORDER: Garnishee means judgment debtor’s debtor. Garnishee order is an
order given by the court to the judgment debtor not to give the amount to judgment debtor
but to the Court.
SET OFF: A files a suit against ‘B’ for Rs. 1 lakhs. ‘B’ holds a decree against ‘A’ for Rs. 75000/-
. B can claim set off. Set off means the reciprocal acquittal of debts between two persons. CPC
recognizes 2 types of set off.
1. Legal set off – Essentials
(a) Only in money suit.
(b) The amount must be ascertained or fixed.
(c) Sum must be legally recoverable – not time barred.
(d) Amount must be recoverable from the plaintiff.
(e) The amount must be recoverable by the defendant.
If the above conditions are satisfied, the defendant can claim set off as a matter of right.
2. Equitable Set off – In certain cases law permits set off even for unascertained
sum of money if the cross demands arise out of same transaction.
Illustration: Washer man claims wage due from his employer. The employer can set off the
amount of the lost cloth due to the negligence of the washer man.
DIFFERENCE BETWEEN LEGAL SET OFF AND EQUITABLE SET OFF

Sl. No. Legal Set off Equitable Set off

1 Right of the defendant Discretion of the Court
2 Amount must be ascertained Even for unascertained sum
3 Cross demands need not arise from Cross demands must arise out of the
the same transaction same transaction
4 Sum must be legally recovered Not so
5 Based on the practice of common Based on the practice of equity courts
law courts in England in England
COUNTER CLAIM: A cross suit filed by the defendant against the plaintiff. As an answer to
the Counter claim, the plaintiff has to file a reply. It is similar to written statement.
LAW OF LIMITATION [DELAY CONDONATION THEORY]
“LAW DOES NOT CARE THOSE WHO SLEEP OVER THEIR RIGHTS” (Vigilantibus non
dormientibus jura subveniunt) A person must seek the legal remedies available to him
within the time prescribed by law. In India, the law of limitation is contained in the
Limitation Act 1963.
Exceptions: (1) Sufficient cause theory or Condonation of delay: If the party proves a
sufficient cause, example admitted in ICU, the court could condone the delay, sufficient cause
depends upon the facts and circumstances of a case (2) Period of Minority, Lunacy and other
legal disabilities will be excluded
LIMITATION UNDER Cr. PC (Sec. 468) If punishable with fine only, prosecution must be
launched within six months. If one year imprisonment, within one year; and if three years
imprisonment, within 3 years prosecution must be launched. No period prescribed if
punishment exceeds 3 years.