CPC MOD 1 NOTES

Background of code
It is a consolidated act that forms part of the procedural law. Enacted in 1908 and came into
effect from 01/01/1909.
Important amendments – 1977,1999, 2002.
Framework of code
The code can be classified into two,
 Orders – procedural law (enforcement rules) provided in 1 schedule through many
rules and orders that can be amended by the court.
 Sections – substantive law that provides with rights, duties, liability, obligations. It is
the body of the code that can be amended only by the legislations. There are totally
158 sections.
Saiyad Bakar v Abdullah Hasan – CPC cannot be in isolation as it is also a procedural law
that is subservient to substantive law.
Prem lata nahata v chandi prasad sikaria – interpretation has to be liberal for effective
implementation of substantive rights.
Mohan lal jain v sawain singhi - Non retrospective operation of the code.
STO V Farid ahmed and sons – adopt harmonious construction of the code.
Director of inspection v pooranmal – sections prevails over rules in case of inconsistency
as they are fundamental and substantive in nature.
Salem bar association v uoi - Whether the 1999 and 2002 Amendments to the Civil
Procedure Code, 1908 were constitutionally valid? 3 reports were submitted,
Report 1-Consideration of various grievances
Report 2-Draft Rules for ADR and mediation
Report 3-Case management conferences.

The references made might differ from one place to another.

Generally, written statement is the response filed to the plaint by the defendant. But in tier 1
cities that has small causes court, it is referred to as written plea.
Objective – consolidate and amend the laws relating to the procedure of courts of civil
judicature.
Definitions
1. Decree
Section 2(2).-'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 in 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.

Explanation-A decree is preliminary when further proceedings have to be taken

before the suit can be completely disposed of. It is final when such adjudication
completely disposes of the suit. It may be partly preliminary and partly final.

Essentials,
 Compulsory adjudication
 Adjudication must have been given in a suit.
Every suit is initiated with a plaint. There are proceedings that are proceeded
through an application, these are statutory suits that doesn’t result in decree. Ad is
a Latin word means according to and judication means justice. Madan naik v
hansubala devi – for a decree to be passed, there should be an adjudication or a
judicial determination. Such judicial determination should be by the court.
Note- any decisions that is administrative in nature cannot be said as judicial
determination and are thus not orders. Example – dismissing suit for non
appearance of party/ dismissing a appeal for want of prosecution.
Deepchand v LAO – adjudication should be in the court and not a officer merely.
Divan bros v Central Bank of India – administrative nature determinations are
not adjudication. Decree of tribunal doesn’t come under the ambit of this section.
Suit means civil proceedings initiated by presenting a plaint – Hansraj Gupta v
Official Liquidators of the Dehra dun Mussoorie electric tramway co ltd.
There are instances wherein specific provisions like HMA, ISA, land acquisition
act and Arbitration act provides in the statute itself to treat these applications as
suits. Thus, they are statutory suits.
 Determining the rights of the parties that is in dispute.
The rights here refer to substantive rights and not procedural rights. It includes,
rights relating to status, limitation, jurisdiction and frame of suit.
The decree should be for the parties to the suit and not third parties.
Interlocutory orders are not decrees as it doesn’t decide on the substantive rights
of the party.

 Determination should be conclusive in nature – although it does not completely

dissolve the suit, it should determine the rights of the parties. There are instances
wherein the rights are conclusively determined but yet the suit is not disposed of
as through Order 41are preliminary decrees.
 Formal expression - decree to be formally drawn up from judgement and should
be formally expressed as required by law.
If the interpretation of the decree gives two different outcomes wherein one benefits the
decree holder more than the other interpretation. The decree is to be executed in the
manner that is most beneficial to the decree holder.
Execution of decree – usually enforceable on the day it was passed but at times a future
date is mentioned.
Narayanan Chandra v Prathirush sahini – the determination should be final and
conclusive. Remands under Order 23 is not a decree as it is not conclusive.
Shivashakthi cooperative housing society v swaraj developers – test to determine
decree. Consider – pleadings, proceedings and circumstances.
United India insurance co ltd v masha imran khan – Award by lok Adalat is a decree.

Generally it is said that appeal lies in a decree. But what if a decree is not drawn? – fresh
institution of suit.
What are decrees?
(i) Order of abatement of suit:
(ii) Dismissal of appeal as time barred:
(iii) Dismissal of suit or appeal for want of evidence or proof: (iv) Rejection of plaint for
non-payment of court fees,
(p) Granting or refusing to grant costs or instalment
(vi) Modification of scheme under Section 92 of the Code:
(vii) Order holding appeal not maintainable: (viii) Order holding that the right to sue does
not survive
(ix) Order holding that there is no cause of action;
(x) Order refusing one of several reliefs.
What are not decrees?
(1) Dismissal of appeal for default;
(ii) Appointment of Commissioner to take accounts,
(iii) Order of remand
(iv)Order granting or refusing interim relief,
(v) Return of plaint for presentation to proper court,
(vi) Dismissal of suit under Order 23 Rule 1;
(ii) Rejection of application for condonation of delay:
(viii) Order holding an application to be maintainable,
 (ix) Order refusing to set aside sale;
(x) Order directing assessment of mesne profits.
Deemed decree
Deemed – used to create a statutory fiction. In reality it is not the way that the parliament
or legislation requires him to be treated as.
Includes,
 Rejection of a plaint order – though a fresh suit can be initiated, it is still
Rules 11-13 has to be complied well.
o The cause of action has to be chronological and topographical.
o Fees to be paid – ad havoc (fixed cost)
o If not properly evaluated, then time will be given to correct the
undervaluation.
o If valuation is proper but not adequately stamped.
o Not filed in duplicate.
o Barred by law.
 Determination of question u/s 144 – related to restitution and there exist right of
appeal.
 Adjudication under order 21, Rule 58, Rule 98 or 100.
If appeal lies from the adjudication they are appealable orders – exparte decrees or
rejecting applications. There is no second appeal for these order unlike decrees.
CIT v Bombay trust corporation - "When a person is 'deemed to be' something, the
only meaning possible is that whereas he is not in reality that something, the Act of
Parliament or the Legislature requires him to be treated as if he were."

Classes of decrees
Preliminary decree
It has conclusively determined the rights of the parties involved in the dispute. If an
appeal is raised to dispute the decree, it will remain as preliminary decree.
Bhagwan Singh v kalla shah :
Particulars Order and Rule

Suits for possession and mesne 20,12

profits
Administration Suits 20,13

Pre-emption 20,14
 Dissolution of partnership 20,15

Accounts between prin and 20,16

agent
Partition and separate 20,18
possession
Foreclosure of mortgage 34, 2-3

Sale of mortgaged property 34, 4-5

Redemption of mortgage 34, 6-7

Final decree
The conclusive decree that would either supersede and supplement the preliminary
decree.
A decree becomes final when,
 Time to appeal is expired.
 Decided by highest court.
 Completely disposed of the suit.
Shankar v Chandrakant - A preliminary decree is one which declares the rights and
liabilities of the parties leaving the actual result to be worked out in further proceedings.
Then, as a result of the further inquiries, conducted pursuant to the preliminary decree, the
rights of the parties are fully determined and a decree is passed in accordance with such
determination which is final. Both the decrees are in the same suit.
Kasi v Ramanathan chettiar – More than one preliminary decree can be passed in a a suit. The
code doesn’t prohibit passing of more than one decree.
Partly preliminary and partly final decree
2. Order – 2(14) – formal expression that is not a decree. There is no chances of appeal
for orders unlike decree.
Similarities
 Relates to matter in controversy.
 Decision given by court
 Adjudication by court of law.
 Formal expression.
Differences – to differentiate between order and decree consider the pleadings of the
party and the circumstances and proceedings that led to passing such an order.
ORDER DEBTOR
 Passed in any way in Passed in suit.
proceedings
No conclusive Conclusively determine
determination. rights
No preliminary order Preliminary or final
Many orders can be passed. Only one be passed.
Not appealable Appealable

3. Judgment debtor - Judgment-debtor" means any person against whom a decree has
been passed, or an order capable of execution has been made. Where a decree is
passed against a surety, he is a judgment-debtor within the meaning of this section.
4. Judgment creditor – Means a person in favour of whom the decree is directed to.
5. Judgement – the judge provides the statements of reason for the decision in the
judgement only. Balraj Taneja v. Sunil Madan, a judge cannot merely say "Suit
decreed" or "Suit dismissed". The whole process of reasoning has to be set out.it
should contain the following,
o Concise statement of case.
o Points of determination
o Decision
o Reasoning.
6. Judge – presiding officer in court.
7. Mesne profits – Section 2(12)- profits that the person in wrongful possession has
received or might receive together with interest on such profits.
1. Objective – protect rights of a person to possess his property. If they are deprived,
then they are restored and paid compensation alongside damages. Lucy kochuvareed
v mariappa gounder – mesne profits can be claimed only for immoveable property.

2. The decree for mesne profits is passed against, Nataraj achari v balambal ammal-
against whom can mesne profits be claimed,
o Trespasser
o Tenant to whom eviction notice is issued.
o Mortgagee even after redemption or foreclosure.
Steps in civil case
There are 9 steps in a civil case,
i. Filing of a suit
Court system is to ensure that he disputes are resolved in a civilised manner.
The filing is to be done through a plaint or petition.
Plaint is derived from the word complain.
Every suit is to be instituted in the court of lowest grade competent to hear the
dispute. It is the trial court and as it is said to have original jurisdiction or the court of
first dispense, the suit is referred as OS – Original Suit.
The end result for the suit – decree and petition is an order. For statutory petition, it is
a decree.
 ii. Service of summons
If defendant arrives – he will be given time to submit the written statement.
If defendant doesn’t arrive – set ex-parte.
iii. If plaintiff or petitioner is not prosecuting properly, then the case should be dismissed.
iv. Proceed to settle issue if the written statement is submitted. (Or.14, R.7)
v. Drafting of issues
vi. Settlement of fair issues, posted for inquiry or trial
vii. Conduct of trial through established procedure
viii. Posted for arguments (both sides)
ix. Decree of judgement is served.
Steps after decree
i. Parties become judgement debtor and judgement creditor wherein the former has to
satisfy the latter in terms of decree.
ii. Execution proceedings (Or.21) can be initiated against the judgement debtor.
iii. Aggrieved party has the right to appeal. First appeal from trial court takes question of
law and fact as well.
iv. Second appeal (S.100) – only when there is substantial question of law.
v. Appeal to SC in certain cases.
Concept of caveat
Means ‘beware’.
S.148A – inform the court that without hearing a party/ without their knowledge it cannot
pass an order.
Caveator can serve the notice on another person.
It will be in enforcement for 90 days after which a new application has to be filed.