In this article w shall study the terminology of the code of civil procedure. These are the terms and phrases used in civil proceedings, decree, and judgment.

Abatement of a Suit:

Thus the termination of a suit by operation of the law caused by the death of one of the parties during the pendency of the suit is called the abatement of the suit.

Adjournment of Hearing:

An adjournment of hearing or adjournment of the suit is the postponement of the hearing of the suit to a future date by the Court.

Affidavit:

An affidavit is a declaration of facts, reduced to writing and sworn or affirmed before a person having authority to administer oaths, as for instance, a Magistrate or a Notary Public.

Appeal:

An appeal is a judicial examination of the decision of a lower court by a higher court.

Attachment:

Attachment means restraining or holding some rights over any asset or recoverable amount.

Attachment Before Judgment:

Attachment before judgment is the attachment of property of the defendant when he fails to furnish security to the court, sufficient to satisfy the decree.

Cause of Action:

The cause of action is an act, action, or omission, that gives rise to the institution of a suit.

Caveat:

The caveat is a caution in writing given by an interested party to the court, calling upon the court not to give any relief to another party, without notice or intimation to the party filing the caveat. The person filing a caveat is called a caveator.

Code:

According to Sectio 2(1) of the Civil Procedure Code, 1908, “Code” includes rules.

Commission:

As per the Civil Procedure Code a commission, refers to an authority which is appointed to exercise a power or a direction issued by the Court.

Counter-Claim:

Counter-claim is the cross-claim made by the defendant against the plaintiff and this claim is treated as a plaint filed by the defendant against the plaintiff.

Decree:

According to Sectio 2(2) of the Civil Procedure Code, 1908, “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, 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.

Decree Holder or Judgment Creditor:

According to Section 2(3) of the Code of Civil Procedure, 1908, a “decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made.

Defendant:

The litigant against whom the plaintiff has filed suit is called the defendant.

District:

According to Sectio 2(4) of the Civil Procedure Code, 1908, “district” means the local limits of jurisdiction of a principal Civil Court of original jurisdiction(hereinafter called a “District Court”) and includes the local limits of the ordinary civil jurisdiction of a High Court.

Evasive Denials:

When a defendant files a written statement, he must deal with each allegation specifically with each allegation of the plaintiff, that is, he must admit or deny each and every allegation contained in the plaint. If he skips answer to some allegations made by the plaintiff, then it is called evasive denial.

Execution:

The term ‘execution’ refers to the process of enforcing or giving effect to judgment, decree, or order of a court.

Execution of Decree:

Execution of Decree is the enforcement of Decree and Orders of the Court enabling the Decree holder to realize the fruits of decree.

Ex-parte:

An order or a decree is said to be passed ex parte when it is passed after hearing only one side, and not the other.

Ex Parte Decree:

Ex parte decree is a decree passed by a Court on a defendant being absent when the suit is called out for the hearing.

Foreign Court:

According to Section 2(5) of the Civil Procedure Code, 1908, “foreign Court” means a Court situate outside India and rot established or continued by the authority of the Central Government

Foreign Judgment:

According to Section 2(6) of the Civil Procedure Code, 1908, ” foreign judgment ” means the judgment of a foreign Court.

Garnishee:

Garnishee is a person who is a debtor of the judgment debtor.

Garnishee Order:

A garnishee order is an order by which a court can call upon the garnishee not to pay the amount due to the judgment debtor from the garnishee but instead to pay the judgment creditor.

Government Pleader:

According to Section 2(6) of the Civil Procedure Code, 1908, “Government Pleader” includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader

Indigent Person or Pauper:

An indigent person is one who does not have sufficient means to pay the court fees in respect of the plaint being filed by him.

Injunction:

An injunction is an order of a court calling upon a party to do or to refrain from doing a particular act.

Interpleader suit:

An interpleader suit is one where the real dispute is between the defendants only, and therefore, the defendants “interplead”, that is, they plead against each other, instead of pleading against the plaintiff as in an ordinary suit.

Issues:

The term “issue” means a point of the question in the legal proceedings or issues are material propositions of facts affirmed by one party and denied by the other.

Judge:

According to Section 2(8) of the Code of Civil Procedure, 1908, “Judge” means the presiding officer of a Civil Court.

Judgment:

According to Section 2(9) of the Code of Civil Procedure, 1908, “judgment ” means the statement given by the Judge of the grounds of a decree or order

Judgment Debtor:

According to Section 2(10) of the Code of Civil Procedure, 1908, a “judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made;

Jurisdiction:

Jurisdiction, in law, is the authority of a court to entertain, hear and determine cases (suits or other proceedings). This authority is based on the Constitution.

Jurisdictional Fact:

The existence of a fact which gives authority to a court to try and dispose of a particular legal proceeding is called jurisdictional fact.

Legal Representative:

According to Section 2(11) of the Code of Civil Procedure, 1908, ” legal representative ” means 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

Letter of Request or Rogatory Letter:

A letter of request is a letter issued by a court in one country to a court in a foreign country requesting some judicial assistance from the judiciary of that country.

Litigant:

A litigant is a party to a lawsuit. It is a person engaged in a suit or petition before the Court.

Litigation:

Litigation is a judicial proceeding undertaken in court to determine the rights, duties and obligations of parties in dispute.

Mesne Profits:

According to Section 2(12) of the Code of Civil Procedure, 1908, ” mesne profits ” of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received there from, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.

Next Friend of Minor or Guardian ad litem:

The next friend of the minor is that person who files a suit on behalf of a minor.

Order:

According to Section 2(14) of the Code of Civil Procedure, 1908, ” order ” means the formal expression of any decision of a Civil Court which is not a decree.

Petitioner:

In the case where a petition is filed for example say writ petition, then the person filing it is called the petitioner.

Plaint:

A plaint is a statement of claim. It is the document by which a suit is instituted in a court. It contains the grounds on which the assistance of the Court is sought by the plaintiff. It forms part of pleadings before the Court.

Plaintiff:

The litigant who approaches a court of law by filing a suit or other legal proceedings is called the plaintiff.

Pleader:

According to Section 2(15) of the Code of Civil Procedure, 1908, “pleader” means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court.

Pleadings:

The term “Pleadings” as used in the Code refers to the plaint or written statement. They are to be signed and verified as provided in the Code.

Preliminary Decree:

A preliminary decree is that decree given by the court when further proceedings are required before a suit can be completely disposed of.

Precept:

A precept is an order or direction given by the court which passes a decree to any other court competent to execute the decree.

Public Officer:

According to Section 2(17) of the Code of Civil Procedure, 1908,

” public officer ” means a person falling under any of the following descriptions, namely:-

(a) every Judge;

(b) every member of the Indian Civil Service;

(c) every commissioned or gazetted officer in the military naval or air forces of the Union while serving under the Government;

(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the Court, and every person especially authorized by a Court of Justice to perform any of such duties;

(e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

(f) every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue-process, or to investigate, or to report on, any matter affecting the pecuniary interests of the Government or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; and

(h) every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty:

Reference:

When the subordinate court in order to take assistance refers the case to the High Court, it is called the reference. The opinion of the High Court can also be sought when the subordinate court has some doubts about the question of law. Reference is always made to the High Court.

Respondent:

The party against whom a petition is filed is called the respondent.

Restitution:

The literal meaning of restitution is an act of restoring a thing to its proper owner.

Review:

“review” is the process of judicial re-examination of a case by the same court and by the same judge who has passed the judgment or order earlier.

Revision:

A revision is said to take place when the High Court calls for the record of any case decided by a subordinate court and passes an appropriate order if the subordinate court has exercised a jurisdiction not vested in it or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or material irregularity.

Rules:

According to Sectio 2(18) of the Civil Procedure Code, 1908, “rules” means rules and forms contained in the First Schedule or made under section 122 or section 125.

Set-off:

Set-off is a defence available to the defendant in his written statement, by which he seeks to wipe out or reduce the claim of the plaintiff against him.

Share in Corporation:

According to Sectio 2(19) of the Civil Procedure Code, 1908, “share in a corporation” shall be deemed to include stock, debenture stock, debenture bonds.

Summary Suit or Summary Procedure:

A summary suit is a suit where the defendant cannot defend the suit as a matter of right and requires the leave of the court to do so. It is to prevent unreasonable obstruction by the defendant who has no defence.

Summons:

A summons is a document issued by an officer of a court, calling upon the person to whom it is directed to appear before the court or an officer of the court for a particular purpose on a stated date at a stated time.

Written Statement:

A written statement is the reply or defence of the defendant in answer to the plaint or the plaintiff. It constitutes the pleading filed by the defendant.

Indian Legal System > Civil Laws > The Code of Civil Procedure > Terminology of CPC

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The right to possession is a sacred right guaranteed to all law-abiding citizens. If the rightful owner is deprived of his possession and at the same time he is deprived of the income he can obtain from such possession, then he should be compensated with damages. In such situation the concept of mesne profits comes into play. Mesne profits are profits to which a person is entitled but from, which he has been kept out by the defendant. Simply ‘Mesne Profits” means rents or profits accruing during the rightful owner’s exclusion from his land and interest accrued on the profit. A claim for mesne profits is usually joined with the action for recovery of the possession of the land. Relevant provision of law concerned with mesne profits are

1. Section 2(12) of C.P.C.
2. Order 2, Rule 4 and order 20 Rule 12 of C.P.C.

Concept of Ownership:

The concept of ownership is one of the fundamental juristic concepts common to all system of law. Ownership is a relation of a person to an object which is exclusive or absolute and ultimate. The person who stands in this relation is called the ‘owner’ and he has a right of complete control and enjoyment of the object. Ownership consists of an innumerable number of claims, liberties, powers & immunities with regard to the things owned.

According to Austin, “ownership means a right which avails against everyone who is subject to the law conferring right to put thing to user of infinite nature”.

According to Hibbert ownership includes four kinds of rights within itself.

• Right to use a thing;
• Right to exclude others from using the thing;
• Disposing of the thing;
• Right to destroy it.

In Blacks Law Dictionary, ownership has been defined as “collection of rights of rights to use & enjoy property, including the right to transmit it to others”.

Concept of Mesne Profits:

According to Section 2(12) of the Civil Procedure Code, 1908, “mesne profits” of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received there from, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.

It is to be noted that this definition explicitly excludes any profit earned due to improvement in the property made by the person in unlawful possession of such property.

Illustration 1:

A is in wrongful possession of B’s house. B has rented some part of this house to some subtenants. Thus depriving A, B is receiving profits from such property. Such profits are known as ‘Mesne Profits’. Hence A has right to claim for the profits which have been received by B from the unlawful possession of the property, together with interest on such profits.

Illustration 2:

‘A’ a trespassers, claims B’s house and collects rents. This is Mesne Profits. He digs a bore-well in the land, constructs a group house and gives it for rent. According to definition of mesne profits given in the Code, mesne profits shall not include profits due to improvements made by the person on the property which is in his wrongful possession. In this case A has done improvement by digging a bore well and constructing a group of house. Hence B can claim for rent collected by A from B’s house as mesne profits but he cannot claim the profits from well and newly constructed group of house as mesne profits.

Illustration 3:

‘A’ (Mortgagee) has mortgaged his property to ‘B’ (Mortgagor). An order of foreclosure of the mortgage and decree of redemption is passed, but ‘B’ does not give possession to ‘A’. Then the profit earned by B using this property or he can earn with due diligence is mesne profits. Hence A has right to claim for the profits which have been received by B from the unlawful possession of the property, together with interest on such profits.

Thus “Mesne profits” are the profits, which the person in wrongful possession actually earned or might have earned with the ordinary diligence.

In Purificacao Fernandes v. Hugo Vincente de Perpetuo Socorro Andhrade, AIR 1985 Bom. 202 case, the Court observed that the Mesne profits are nothing but a compensation that a person in the unlawful possession of others property has to pay for such wrongful occupation to the owner of the property.

In Nataraja Achari v. Balambal Ammal, AIR1980 Mad 222 case, taking into consideration the definition of mesne profits provided under Section 2(12) the Madras High Court observed that there are three different types of cases in which question of rights of profits arise:

1. Suit for ejectment or recovery of possession of immovable property from a person in possession without title, together with a claim for past or past and future mesne profits.
2. A suit for partition by one or more tenants in common against others with a claim for account of past or past and future profits.
3. Suits for partition by a member of joint Hindu family with a claim for an account from the manager.

The Court observed, “In the first case, the possession of the defendant not being lawful, the plaintiff is entitled to recover mesne profits such profits being really in the nature of damages. In second case the possession and receipt of profits by the defendant not being wrongful the plaintiffs remedy is to have an account of such profits making all jus allowance in the favour of the collecting tenant in common. In the third case the plaintiff must take the joint family property as it exists at the date of the demand for partition and is not entitled to open up past account or claim relief on the ground of past inequality of enjoyment of the profit, except where the manager has been guilty of fraudulent conduct or misappropriation. The plaintiff would however, be in the position of the tenant in common from the date of severance in status and his right would have to be worked out on that basis.”

Objects of Mesne profits:

The right to possession is a sacred right guaranteed to all law-abiding citizens. We have to understand that in this case the rightful owner is deprived of his possession and at the same time he is deprived of the income he can obtain from such possession.  The fundamental object of passing Mesne Profit Is to compensate the actual owner of the property for all the loss he has suffered. Thus the mesne profits are compensation paid to the real owner.

In Lucy kochuvareed v. P Mariappa gounder, AIR 1979 SC 1214, the Court observed that the object of awarding a decree for mesne profits is to compensate the person who has been kept out of possession and deprived of enjoyment of his property even though he was entitled to possession thereof.

Mesne Profits- against whom means profits can be ordered?

Generally, Court can award Mesne Profits against the following persons:

• Tenants in a suit for recovery of possession. (Anderson wright v. Amar Nath Roy, AIR 2005 SC 2457)
• Persons against whom a decree for possession of the immovable property was passed. (Gopal Krishna Pillai v. Meenakshi Ayal, AIR 1967 SC 155)
• Trespass (Sita Ram Lakshmanji v. Dipnarain Mandal, AIR 1977 SC 1870)
• Mortgagors in possession of mortgaged property against whom a decree for foreclosure was passed. (Shiv Kumar Sharma v. Santhosh Kumari, AIR 2008 SC 171)
• Mortgagors in possession of the property after a decree for redemption was passed. (Prabhakaran v. M. Azhagiri Pillai, AIR 2006 SC 1567).

Conditions for Claiming Mesne Profits:

1. There should be a wrongful or unauthorized possession of a property
2. A person possessing the property is getting some profit out of the property or can obtain profit from such property with ordinary diligence.

Wrongful possession of the defendant is the essence of a claim for mesne profits and very foundation of the defendant’s liability therof.

In Mohadei v. Kaliji Birajman, 1969 All LJ 896 case, the Court held that the expression ‘mesne profits’ as defined in Section 2(12) of the Code means those profits which a person in wrongful possession of such property either actually received or might have received with due diligence. It is not always necessary that there should be proof of actual receipt.

It is plaintiff’s responsibility to lead evidence to prove the compensation defendant may have received due to illegal possession. In the absence of such proof the Court may reject the plaint for mesne profits.

In Kishen Kumar Narayandas Jobanputra v. Purushottam Mathuradas Raithatha, 2006 (2) Civil Court cases 600 (Bom) case, where the plaintiff did not lead any evidence, it was held that he was not entitled to claim mense profits.

In Lucy kochuvareed v. P Mariappa gounder, AIR 1979 SC 1214, where the plaintiff is dispossessed by several persons. The Court held that all the trespassers are jointly and severally liable, leaving them to have their respective rights adjusted in a separate suit for contribution, or, may ascertain and apportion the liability of each of them.

What does Mesne Profit Include?

Mesne profit includes theprofits received by him or might have been received by him with ordinary diligence; and the interest on such profits. The rate of interest payable is not fixed and it depends upon the discretion of the court subject to the limitation that it may not exceed 6% per annum. The determination of the amount rests entirely at the discretion of the court and it is difficult to lay down fixed principles which can be applied in every case.

In Mahant Narayana Dossjee Varu vs The Board of Trustees, Tirupati Devasthanam, AIR 1959 AP 64 case, the Court held that under the express terms of the definition, mesne profits are profits received by a person in wrongful possession and they are made up of two items

• The profits received by him or might have been received by him with ordinary diligence; and
• The interest on such profits.

Mesne Profits Includes Interest on Such Profit:

Mense profits includes interest on such profits and interest shall be allowed when computing the mesne profits.

In Mahant Narayana Dasjee Varu v. Tirupathi Devasthanam, AIR 1965 SC 1231 case, the Court observed that the Code of Civil Procedure 1882, for the first time, included interest in the definition of mesne profits. It was rightly done because interest is an integral part of mense profits and has therefore, to be allowed while computing items.

In Kalidas Bakshit v. Saraswati Dasi, AIR 1943 Cal 1 (11) case, the suit was for possession and for mesne profits. After the preliminary decree was passed, there was an enquiry into mesne profits under Order 20, Rule 12, CPC. It was argued that interest should not be awarded. Mitter J. observed: “We do not see why the plaintiff should not get interest. Interest is a part of mesne profits.”

Assessment of Mesne Profit:

In Fateh Chand v. Balkrishna Dass, AIR 1963 Sc 1405 (1412-13) case the Court observed that the mesne profits are in the form of damages, no invariable rule governing their award and assessment in every case can be laid down and the Court may mould it according to the justice of the case.

In Granish vs. Soshi Skildar (MP) case, the court held that the mesne profits are due from the moment possession is wrongfully held by the defendant an interest on such mesne profit is due from the day on which each instilments becomes due. A decree which is salient as to interest must, be taken to mean that mesne profit shall carry interest on them.

In P. L. Kapur v. Jia Rani, AIR 1973 Del 186 case, the Court observed that the criteria for calculation of mesne profits is not what owner loses by reason of deprivation from possession but what trespasser received or might have received with ordinary diligence.

In Sri Ramnik Vallbhdas Madhvani v. Taraben Pravinlal Madhvani, (2004) 1 SCC 497, the Supreme Court held that A mistake has been committed by the High Court in calculation of interest on mesne profits. Interest has to be calculated on yearly basis because the amount of mesne profits on which interest is to be awarded has to be arrived at on year to year basis. It keeps adding on from year to year. Interest cannot be allowed on the whole amount form the beginning. Interest had to be worked out on amounts falling due towards mesne profits on yearly basis i.e. on the amount of mesne profits which could be taken to be due to the plaintiff at the end of each successive year.

In Gray v. Bhagumian, (1939) 57 I.A. 105 case where the person in wrongful possession planted indigo for use in his adjacent factory and it was proved that an ordinary farmer would have grown sugarcane, wheat or tobacco, their Lordships of Privy Council assessed mesne profits on the profits of cultivation of those more profitable crops.

Deductions from Mesne Profits:

The Court must allow the following deductions from the gross profit of the defendant in possession of the property:-

1. The charge for collecting rent, etc.
2. The costs of cultivating and reaping the crops, and
3. Public charges made from the preservation of the property, e.g., Government revenue.

In Dakshina v. Saroda, ILR (1894) 21 Cal 142 (PC) case, the Court held that while awarding mesne profits, the Court may allow deductions to be made from the gross profits of the defendant in wrongful possession of the property, such as land revenue, rent, cesses, cost of cultivation and reaping, the charges incurred for collection of rent, etc. In other words, mense profits should be net profits.

Types of Cases in which Question of Rights of Profit Arises:

1. Suit for ejection  or recovery of possession of immovable property from a person in possession without title, together with a claim for past or past and future mesne prof
2. A suit for possession by one or more tenants in common against others with a claim for account of past or past and future profits.
3. Suits for possession by number of Joint Hindu Family with a claim for an account from the manager.

Principals to be Applied to Award Mesne Profits:

The Court must apply the following settled principles to award mesne profits:-

1. the profit to be taken into account is that made by a person in wrongful possession;
2. the aim should be restoration of status before dispossession of the Decree-holder;
3. the use to which the decree-holder may have put the property if he himself was in possession is relevant only as evidence of what the defendant might with reasonable diligence have received.

Provisions in the Limitation Act:

The defendant is liable for all mesne profits received by him or which he might with ordinary diligence have received during the 3 years before suit and not before Section 109 of the limitation Act.

Conclusion:

Mesne profits are profits to which a person is entitled but from, which he has been kept out by the defendant. A claim for mesne profits is usually joined with the action for recovery of the possession of the land. The relevant provision of law concerned with mesne profits are a) Section 2(12) of C.P.C. and b) Order 2, Rule 4, and order 20 Rule 12 of C.P.C. The fundamental object of passing Mesne Profit Is to compensate the actual owner of the property for all the losses he has suffered. Mesne profit includes the profits received by him or might have been received by him with ordinary diligence, and the interest on such profits. The criteria for calculation of mesne profits is not what the owner loses by reason of deprivation from possession but what the trespasser received or might have received with ordinary diligence. Mesne profits are in the nature of damages and the right to sue for mesne profit is the right to sue for damages. Such a right cannot be attached and sold in execution of a decree against the person entitled to the decree under section 60.

Indian Legal System > Civil Laws > The Code of Civil Procedure > Mesne Profits

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In this article, we should study the orders which are deemed decrees and the orders which are considered to be deemed decree and the orders which are not a decree.

Deemed Decree:

An adjudication which does not formally fall under the definition of decree stated under section 2(2) of the Code of Civil Procedure but due to a legal fiction, they are deemed to be decrees are considered as deemed decrees.

In East End Dwellings C. ltd. v. Fisbury Borough Council, 1952 AC 109 case, the Court observed that the term ‘deemed’ is generally used to create a statutory fiction for the purpose of extending the meaning which it does not expressly cover.

Order 21, Rule 58(4) declared that the order made under sub-rule (3) “will have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree”. Thus, the order is declared to be a ‘deemed decree’ and not a ‘decree’ by itself.
Rejection of plaint and determination of the issue of restitution of decree are deemed decree. Also, an adjudication under Rule 98 and Rule 100 are also deemed decrees.

In CIT v. Bombay Trust Corpn. Ltd., AIR 1930 PC 54 case, the Privy Council stated that the term ‘deemed’ is generally used to create statutory fiction for the purpose of extending the meaning which it does not expressly cover. It further stated that 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.

In Lucky Kochuvareed v. P. Mariappa Gounder, AIR 1979 SC 1214 (1220) case, the Court observed that whenever the legislature uses the word ‘deemed’ in any statute in relation to a person or thing, it implies that the Legislature, after due consideration, conferred a particular status on a particular person or thing. 

In B. Nukaraju v. MSN Charities, AIR 1994 AP 334 the Court held that Deemed Decrees are not covered by the definition under Section 2(2) namely of ‘decree’ so as to attract the provisions of Section 96 of the Civil Procedure Code and therefore, only a ‘Miscellaneous appeal’ lies against such ‘order’ and not a ‘Regular appeal’.

In Rajan Kakar v. Vijaya Bank, AIR 2008 Del 17 case, where, under the securitisation and Reconstruction of Financial Assets and Enforcement of Security Interests Act, 2002, the borrower approached the Lok Adalat and an award was passed with the consent of the Bank, no further action under the Act can be taken as the award is a deemed decree.

Orders which are decrees:

The following have been held to be decrees within this sub-section:

1. An order under s 24 of the Bombay Money Lenders Act, 1946 granting or refusing to grant instalments for payment of the decretal amount. (State of Bombay v. Narayan Pure, AIR 1960 Bom 334)
2. an order rejecting the application of tenants under s 6 of the West Bengal Premises Rent Control (Amendment) Act, 1950, for rescission of a decree in ejectment. (Gobardan Dutta v. Pramoda, AIR 1953 Cal 412)
3. an order under s 14 of the Religious and Charitable Endowments Act, 1863. (Ram Narain v. Jai Narain, AIR 1961 All 125)
4. an order transmitting a decree to the collector for execution under s 19 of the UP Encumbered Estates Act, 1934 with the information that the debt is reduced. (Chief Inspector of Stamps v. Uggar Sen, AIR 1965 All 298)
5. an order declaring the defendant a debtor under s 3 (c) of the Karnataka Debt Relief Act, 1976, with the consequence that the debt advanced to him stood discharged under s 4 (a) of the Act is a decree. (Kariyaiah v. Puttathayamma, AIR 1977)
6. a modification in a decree is also a decree. (Panneshwar Lal v. Gokula Nandan Prasad, AIR 1984 Pat 344  ( 346-47)).
7. An award under Pt III of the Land Acquisition Act by a civil court is by reason of s 26 of that Act, a decree. (Louis Pascal v. Spl. Land Acq. Officer, (1970) 72 Bom LR 703)
8. An order made in winding up proceedings under the Indian Companies Act, 1956. (Pushpabai v. Offl. Liquidator, AIR 1970 Bom 271)
9. An order setting aside an ex-parte decree is a decree and the plaintiff aggrieved by such an order can appeal against it. (Bhim Rao v. Laxmibai, AIR 1966 Mys 112)
10. The determination of a question under s 47 was expressly included in the definition of a decree, although such determination was not made in a suit and sometimes not drawn up in the form of a decree. (Shakuntala Devi v. Kantal Kumar, AIR 1969 SC 575)
11. It is no longer so in view of deletion of the words s 47 or. A right of appeal had been provided to a party litigant to go up in appeal against an order passed under s 47, before the Amending Act of 1976, by virtue of the legal fiction introduced in the definition of the term decree as including any order passed in the execution proceedings. This right had been taken away by a valid enactment and it no longer survived after the execution was levied on 4 January, 1979, as the Amending Act had already come into force with effect from 1 February, 1977. No appeal would lie against any order passed under s 47 of the Code of Civil Procedure. (Babulal v. Ramesh Babu Gupta, AIR 1990 MP 317)
12. An order modifying a scheme under s 92 of the Code of Civil Procedure 1908, which is part of a decree, constitutes an amendment in decree against which an appeal would lie. (Bhogaraju v. J. Rama Rao v. Board of Commrs for Hindu Religious Endowments, AIR 1965 SC 231)
13. An order rejecting an application for modification of such a scheme. (Shree Kalimata v. R.C. Chatterjee, AIR 1970 Cal 373)
14. An adjudication under s 5 (2) of the Malabar Tenancy Amendment Act, 1956, is in substance the final adjudication of a matter in controversy and is a decree, although the proceedings thereunder were initiated by an application. (Vamanan Nambudiri v. Narayan, AIR 1965 Ker 1)
15. The High Courts of Gujarat and Punjab have taken the view, that adjudications under ss 911 and 13 of the Hindu Marriage Act, 1955, are decrees for the purposes of those provisions only, but are not decrees within the meaning of this sub-section as they are not passed in a suit. (Bai Umiyaben v. Ambalal, AIR 1966 Guj 139)
16. An order rejecting a plaint is a decree and is not revisable under s 115 of the Code but appealable under s 96 of CPC.  (Meera Sinha v. Girja Sinha, AIR 2009 Pat 19)
17. When a criminal case is referred by a criminal court and is settled by the Lok Adalat, its award cannot be executed as a decree passed by a civil court. The reason behind this view is that when a reference is made to Lok Adalat, that authority is exercising the powers enjoyed by the reference court and can only pass such order which the reference court was competent to pass. (K.N .Govindan Kutty Menon v. C.D. Shaji, AIR 2010 Ker 97)

Orders which are not a decree.

The following are instances of orders which are not decrees:

1. An order rejecting an application for leave to sue in forma pauperis for no suit has till then been filed. (Secretary of State v. Jillo, (1899) ILR 21 All 133)
2. An order refusing leave to institute a suit for accounts of religious endowments. (Mozaffer Ali v. Hedayet, (1907) ILR 34 Cal 584)
3. An order on a petition to appoint a new member on the committee of a religious endowment. (Minakshi v. Subramanya, (1888) ILR 11 Mad 26 (35))
4. An order under the Indian Trusts Act, 1882 dismissing an application for the removal of a trustee. (Nathu Wilson v. Mcafee, (1897) ILR 19 All 131)
5. An order on a settlement case under s 104 (2) of the Bengal Tenancy Act 3 of 1898 as the proceeding is instituted not by a plaint but by an application. (Upadhya Thakur v. Persidh Singh, (1896) ILR 23 Cal 723 (729))
6. An order made on an application to the District Court under s 84 (2) of the Madras Hindu Religious Endowments Act 2 of 1927. (Rajagopala v. Hindu Religious Endowments Board, AIR 1934 Mad 103)
7. An order for ejectment in a proceeding under Ch-VII of the Presidency Small Cause Court Act, 1882. (Madhav Prasad v. SG Chandravarkar, AIR 1949 Bom 104)
8. An Award by the Calcutta Improvement Trust Tribunal. (A.K. Hossin v. Province of Bengal, AIR 1942 Cal 569)
9. An order rejecting a petition on the ground that the Madras Act IV of 1938 is not appealable. (Lakshmi Devi v. Raja Rao, (1954) 2 Mad LJ 192)
10. An order under s 7 of the Guardian and Wards Act, 1890 on an application under s 10 of that Act. (Wahid v. Jabida Begum, AIR 1952 Nag 190)
11. An order under s 10 of the Disabled Persons Act, 1951. (Punjab National Bank v. Firm of Iswardas Kaluram, AIR 1957 Raj 146)
12. An order passed on an application made to the Insolvency Court under s s 53 and 54 of the Provincial Insolvency Act, 1920. (Lakshmi Devi v. Varada Reddi 1958 Andh LT 896)
13. An order granting interim relief under s 24 of the Hindu Marriage Act, 1955. (Mansingh v. Siva Prabakumari, AIR 1960 Bom 315)
14. An order passed on an application for restitution of conjugal rights, judicial separation, declaration of nullity of marriage or divorce under ss 9 to 12 respectively of the said Act. (Varalakshmi v. Veera Reddy, AIR 1961 AP 359)
15. An order under s 34 of the Malabar Tenancy Act, (Nicholas v. Yasamma, AIR 1961 AP 359)
16. An order under s 17 (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, directing the landlord to restore possession of the premises to the tenant. (Vishnumurthi v. Lakshminarayana, (1961) 63 Bom LR 106)
17. An order passed under s 52 of the Malabar Tenancy Act 33 of 1951 for restoration of a holding. (Choyikutty v. Vasu, (1962) Ker LJ 517)
18. An award by the Debt Board under the Hydrabad Agricultural Debtors Relief Act, 1956. (Dattu Apparao v. D.G. Shengde, AIR 1968 Bom 361)
19. An order passed in proceedings under s 25 of the Guardian and Wards Act. (Kiran Devi v. Abdul Wahid, AIR 1996 All 105)
20. The award given by the motor accident claim tribunal does not have the status of a judgment, decree or order as contemplated by the Code of Civil Procedure. (Oriental Insurance Co. Ltd. v. Sardar Sadhu Singh, AIR 1994 Raj 44 (57))
21. An order refusing to wind up a company is not decree, since such an order does not adjudicate upon any right of a party. (Dundappa v. SG Motor Transport Co., (1966) 1 Mys LJ 786)
22. A decision on a reference under s 49 (1) of the Land Acquisition Act. (Deepchand v. LA Officer, AIR 1975 MP 55)
23. Rejection of application for condonation of delay and consequent dismissal of appeal as time barred. (Ratansingh v. Vijaysingh, AIR 2001 SC 279)
24. Decision of water disputes tribunal as notified. (State of Andhra Pradesh v. State of Karnataka, AIR 2001 SC 1560)
25. Order passed by High Court under contempt proceedings on consent terms. (In Re:Siddharth Srivastava, AIR 2002 Bom 494)
26. Order of dismissal of suit for default or non prosecution is not appealable as a decree. (Firdous Omer v. Bankim Chandra Daw, AIR 2006 SC 2759)

Indian Legal System > Civil Laws > The Code of Civil Procedure > Deemed Decree

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Definition Clause is a dictionary of the word used in the statute which is useful in interpreting the statute. It gives the meaning of that word or phrase related to the statute. Objects of this clause are to provide for proper interpretation of the enactment and to shorten the language of enacting part.  According to Craies, the word or phrase is defined in two ways restrictively and extensively. When the word ‘mean’ is used in the definition it is used in a restrictive way to restrict the meaning as given in the definition only. While when the word ‘includes’ is used in the definition it is used in an extensive way to broaden the meaning of the word in the statute.

Justice G.P. Singh, in his book on interpretation, has explained it thus: “A definition section may borrow definitions from an earlier Act and the definition so borrowed may not necessarily be in the definition section but may be in some other provisions of the earlier Act. A definition borrowed by incorporation or reference may be sometimes found in the rules made under the referred statute. For example, Article 366(1) of the Constitution defines agricultural income to mean agricultural income as defined for the purpose of enactments relating to Indian Income-tax.”

Section 2 of the Code of Civil Procedure is the Definition Clause. Presently, there are 20 definition clauses in all. We shall study them one by one.

Section 2(1) Code:

“Code” includes rules;

The Code of Civil Procedure has two parts. The main body of the Code is in the Sections and the rules refer to matters of mere machinery which the High Court may adapt to local conditions. Thus Hig Courts are allowed to modify the rules as per circumstances.

In Manekbai Manohar v. M. Deshpande, AIR 1971 Bom 21 case, the Court observed that the body of the Code of Civil Procedure creates a jurisdiction while the rules indicate the mode in which it is to be exercised.

In Lakshmi Kumar v. Krishna Ram, AIR 1950 MB 156 case, the Court opined: “It follows that the body of the Code of Civil Procedure is expressed in more general terms and it has to be read in conjunction with the more particular provisions of the rules.

In Basavayya v. Venkatappiah, AIR 1926 Mad 676 case, the Court held that where there is a clear conflict between the body of the Code of Civil Procedure and the rules, the former must prevail.

Section 2(2) 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, 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;

A decree is an official order that is drafted and issued by someone in a position of legal authority, like a judge.

In Vidyacharan Shukla v. Khubchand Baghel, AIR 1964 SC 1099 (1113) case, the Supreme Court held that in order that a decision of a court to be a “decree” the following elements must be present.

• There must be an adjudication;
• Such adjudication must have been given in a suit;
• It must have determined the rights of the parties with regard to all or any of the matters in dispute in the suit;
• Such determination must be of conclusive nature; and
• There must be a formal expression of such adjudication.

In Bal Kishan v. Tulasi Bai, AIR 1987 MP 120 case, the Court held that order must satisfy the requirements of Section 2(2) in order to become decree. Merely labelling it as a decree does not make it a decree.

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Section 2(3): Decree Holder:

“Decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made;

In Bajirao v. Kashirao, AIR 1978 Bom 350 case, the Court held that a decree-holder is one whose name is inscribed on the decree and in whose favour such decree has been passed.

Section 2(4): District:

“District” means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a District Court), and includes the local limits of the ordinary original civil jurisdiction of a High Court;

In Daily Calendar Supplying Bureau v. United Concern, AIR 1967 Mad 381 case, the Court during a discussion on the jurisdiction for the suit, under the Copyright Act, 1957, held that in the absence of such a court having the jurisdiction, a High Court having the ordinary original civil jurisdiction would be deemed to be the District Court.

In Raja Soap Factory v. Shantharaj, AIR 1965 SC 1449 case, the Court held that if a High Court does not possess the ordinary original jurisdiction, it would not, though at the apex of the civil courts, be the District Court for the purpose of the Trade and Merchandise Marks Act 1958.

Section 2(5): Foreign Court:

“Foreign Court” means a Court situate outside India and not established or continued by the authority of the Central Government;

Section 2(6): Foreign Judgment:

“Foreign judgment” means the judgment of a foreign Court;

Section 2(7): Government Pleader:

“Government Pleader” includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader;

The government can have as many government pleaders as it likes. The definition is inclusive. It must be read with O 27, rr 4 and 8B.

In Kanta Kathuria v, Manak, Air 1970 SC 694 (700) case, the Court observed that a person appointed as a special government pleader under O 27, r 8(B) to conduct a particular case specified in the notification appointing him does not hold the office of government pleader.

Section 2(7A): High Court:

“High Court” in relation to the Andaman and Nicobar Islands, means the High Court in Calcutta;

Section 2(7B): India:

“India”, except in sections 1, 29, 43, 44, 44A, 78, 79, 82, 83 and 87A, means the territory of India excluding the State of Jammu and Kashmir.

Section 2(8): Judge:

“Judge” means the presiding officer of a Civil Court;

In Aloo v. Gabubha, ILR 19 Bom 608 case, the Court held that no judge can act in any matter in which he has any pecuniary interest, nor where he has any interest, though not a pecuniary one, sufficient to create a real bias.

In Anand Prakash v. Asst. Registrar Co-op Societies, AIR 1968 All 2 case, the Court held that an Arbitrator is neither a judge nor a court.

Section 2(9): Judgment:

“Judgment” means the statement given by the Judge of the grounds of a decree or order;

Section 2(10): Judgment-debtor:

“judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made;

In Iaq v. Ramji, (1952) ILR All  618 case, the Court held that the word “judgment-debtor’ as used in this rule has been not to include the legal representative of a deceases judgment-debtor.

In Vijay Raj v. Lal Chand, (1966) ILR Raj 194 case, Court held that surety of judgment-debtor is not himself a judgment-debtor.

Section 2(11): Legal Representative:

“Legal representative” means 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 issued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;

In Manjushri Bera v. Oriental Insurance Co. Ltd., AIR 2007 SC 1474 case, the Court observed: “According to the definition given in the Code, legal representative means 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 2(12): mesne profits:

“mesne profits” of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession;

The main object of awarding mesne profits is to compensate the person entitled to be in possession of the property. The concept of mesne profits is applied due to the wrongful possession of the defendant.

In Mahadei v. Kaliji Birajman, 1969 All LJ 896 case, the Court held that the expression mesne profits as defined in s 2 (12) of the Code means those profits which a person in wrongful possession of such property either actually received or might have received with due diligence. It is not always necessary that there should be proof of actual receipt.

In Kishen Kumar Narandas Jobanputra v. Purushottam Mathurdas Raithatha, 2006 (2) Civil Court Cases 600 (Bom) case, the Court held that for entitling him to grant of mesne profits, the plaintiff must lead evidence to prove what would be the compensation the defendant might have received with due diligence for his wrongful possession. Where the plaintiff did not lead any evidence, it was held that he was not entitled to claim mesne profits.

Section 2(13): Movable Property:

“movable property” includes growing crops;

The definition must be limited to the Code of Civil Procedure, for under s 3 (26) of the General Clauses Act, 1897, standing crops are immovable property.

Section 2(14): Order:

“order” means the formal expression of any decision of a Civil Court which is not a decree;

Section 2(15): Pleader:

“Pleader” means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court;

In Re Pleaders of the High Court, (1884) ILR 8 Bom 155 case, the Court observed: “The term pleader is, here, used in a much larger sense than its ordinary signification as a convenient term to designate all persons who are entitled to plead for others in court. Pleader, in its ordinary sense, is synonymous with vakil.

Advoate: An advocate is defined in s 22 (a) of the Bar Councils Act, 1926, as one whose name is entered on the rolls of an advocate of the High Court. An advocate whose name has been removed from the roll is not within this definition.

Section 2(16): Prescribed:

“prescribed” means prescribed by rules;

Section 2(17): Public Officer:

“public officer” means a person falling under any of the following descriptions, namely:

public officer means a person falling under any of the following descriptions, namely:

(a) every Judge;

(b) every member of All India Service;

(c) every commissioned or gazetted officer in the military, naval or air forces of the Union while serving under the Government;

(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the Court, and every person especially authorised by a Court of Justice to perform any of such duties;

(e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

(f) every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue-process, or to investigate, or to report on, any matter affecting the pecuniary interests of the Government or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary

interests of the Government; and

(h) every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty;

Section 2(18): Rules:

“rules” means rules and forms contained in the First Schedule or made under section 122 or section 125;

Section 2(19): Share:

“share in a corporation” shall be deemed to include stock, debenture stock, debentures or bonds; and

Section 2(20): Signed:

“signed”, save in the case of a judgment or decree, includes stamped.

The definition is wider than in the General Clauses Act, 1897. Indians of rank sometimes use a stamp instead of signing, and the inability to write is not a condition precedent to the use of a stamp. The Madras High Court has observed that there is no provision that initials may be made by a stamp.

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Indian Legal System > Civil Laws > The Code of Civil Procedure > Definition Clause

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In the last article, we have studied about preliminary decree. In this article, we shall study final decree and partially preliminary and partially final decree.

A decree is an official order that is drafted and issued by someone in a position of legal authority, like a judge.  Section 2(2) of the Code of Civil Procedure, 1908 defines Decree as follows:-                          

Section 2(2) of the Code of Civil Procedure, 1908

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 of CPC, 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;

Generally, there are three types of decrees:

1. Preliminary decree
2. Final decree
3. Partly preliminary and partly final.

Final Decree:

A final decree is one which completely disposes of a suit and finally settles all questions in the controversy between parties and nothing further remains to be decided thereafter. Ordinarily there will be only one final decree in the suit. However, where two or more causes of action are joined together there can be more than one final decree.

A decree may be said to be final in two ways,

1. when within prescribed period there has been no appeal filed against the decree or the matter has been decided by the decree of the highest Court, or
2. when the Court passing it completely disposes of the suit.

In Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande, AIR 1995 SC 1211 (1212) case, the Court observed: “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. Final decree may be said to become final in two ways: (i) when the time for appeal has expired without any appeal being filed against the preliminary decree or the matter has been decided by the highest court; (ii) when, as regards the court passing the decree, the same stands completely disposed of It is in the latter sense the word “decree” is used in, s. 2(2) of CPC.”

In Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare, (2008) 8 SCC 198 case the Court observed that “A decree, therefore may denote final sdjudication between the parties and against which appeal lies, but only when a suit is completely disposed of thereby a final decree would come into being. There cannot be any doubt whatsoever that a decree may b partly preliminary and partly final.”

Characteristics of Final Decree:

• Final decree is executable:

In A. Akkukamma v. G. Papi Reddy, AIR 1995 AP 166 case, the Court held that Preliminary decree is a decree within the meaning of s. 2(2) of the Code of Civil procedure, but it is not capable of execution, normally, till a final decree is passed.

• In some suits final decree can be passed without passing a preliminary decree.

In Purushottam Haridas v. Amruth Ghee Co. Ltd., Gunthur, (1960) Andh. LT 524 case, the Court held that even in suits of nature mentioned in O 20, if the matters in dispute are simple and do not require elaborate scrutiny of accounts, the court is not bound to pass preliminary decree and may proceed straightway to pass a decree for the amount determined as due.

• It settles matter in controversy:

In Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande, AIR 1995 SC 1211 (1212) case, the Court observed that until the final decree is passed, there is “no formal expression” of the court that conclusively settles all the issues in the case.

• It carries fulfilment of the primary decree:

In Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande, AIR 1995 SC 1211 (1212) case, the Court held that the final decree merely carries into fulfilment the preliminary decree.

• Court can pass more than one final decree:

In Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande, AIR 1995 SC 1211 (1212) case, the Court held that it is settled law that more than one final decree can be passed.

Partly preliminary and partly final

A decree may be partly preliminary and partly final and this may be explained by way of example.

For example, two brothers argue over who inherits the family property from their late father. This property is currently leased out to a family. While the determination of who gets the property is the subject of the final decree, the determination of who gets the profits that accrue from the lease rent being paid during the length of the trial, is a matter of partly preliminary and partly final decree.

In Lucky Kochuvareed v. P. Mariappa Gounder, AIR 1979 SC 1214 (1220) case, in a suit for possession of immovable property with mense profits, where the court (a) decides possession of the property; and (b) directs an enquiry into mense profits. The Court observed that the former part of decree is final, while the latter part is only preliminary because the final decree of mense profits can be drawn only after enquiry, and the amount due is ascertained. In such a case, even though the decree is only one, it is partially preliminary and partially final.

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Indian Legal System > Civil Laws > The Code of Civil Procedure > Final Decree

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In the next few articles, we are going to study different types of decrees. In this article, we shall study preliminary decree.

A decree is an official order that is drafted and issued by someone in a position of legal authority, like a judge.  Section 2(2) of the Code of Civil Procedure, 1908 defines Decree as follows:-                          

Section 2(2) of the Code of Civil Procedure, 1908

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 of CPC, 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;

Generally, there are three types of decrees:

1. Preliminary decree
2. Final decree
3. Partly preliminary and partly final.

Preliminary decree

A decree is the final decision given by the court after determining the rights of the parties in a dispute. The explanation attached to the Section 2(2) of the Act says that “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.”

In certain situations, the court cannot give its final decision without conclusively determining the rights of the parties on a particular issue.

• Example 1: Let us consider a joint family of three members X, Y, and Z who jointly own two properties and approaches the court asking for partition. In this case, the court must determine the share of each member i.e. the rights of the parties in the property first. Hence, the court must pass a preliminary decree that conclusively decides the shares of each member in the property. We can see that in this decree the actual partition has not taken place. Hence the suit continues to be pending in the court. In the second stage the court further inquires and passes the final decree affecting the actual partition or division of the properties in accordance with the preliminary decree. Thus the suit gets disposed of after passing the final decree. Thus the declaration of rights or shares or liabilities is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until division takes place by passing a final decree.
• Example 2: A wife sues her husband for maintenance. In this case, the Court has to first decide whether she gets maintenance during the time the trial is taking place. Then order regarding the maintenance during the time the trial is a preliminary decree. The Court will further enquire and will give final decree after hearing both the parties.

When does preliminary decree can be passed?

The code provides for passing of preliminary decree in the following suits.

In Narayan Thampi v. Lakshmi Narayana Iyer, AIR 1953 TC 220 (222) FB case, the court observed that the above list, however is not exhaustive and a court may pass a preliminary decree in cases not expressly provided for in the code.

Characteristics of Preliminary Decree:

• It is passed when an adjudication decides the rights of the parties with regard to all or any of the matters in controversy in the suit.
• It does not completely dispose of the suit.
• It is passed in those cases in which the court has to first adjudicate upon the rights of parties.
• It is succeeded by a final decree.

In Renu Devi v. Mahendra Singh, AIR 2003 SC 1608 case, the Court held that a preliminary decree only declares the rights of the parties leaving room for some further inquiry to be carried on.

In Baman Chandra Acharya v. Balaram, AIR 1966 Ori. 160 case, the Court observed that the rights so determined form the preliminary decree which are conclusive in nature. In that limited sense, a preliminary decree is final, so far as the rights are concerned. The court then makes a further inquiry to settle all the issues and gives its final decision known as final decree.

In Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande, AIR 1995 SC 1211 (1212) case, the Court observed: “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. Final decree may be said to become final in two ways: (i) when the time for appeal has expired without any appeal being filed against the preliminary decree or the matter has been decided by the highest court; (ii) when, as regards the court passing the decree, the same stands completely disposed of It is in the latter sense the word “decree” is used in, s. 2(2) of CPC.” The Court also observed that until the final decree is passed, there is “no formal expression” of the court that conclusively settles all the issues in the case.

In Hasam Abbas Sayyad v. Usman Abbas Sayyad, (2007) 2 SCC 355 case, the Court observed that it is worth noting that what is executable is a final decree and not preliminary unless the latter becomes a part of the final decree.

• There can be more than one preliminary decree.

In Phoolchand v. Gopal Lal, AIR 1967 SC 1470 case, a suit for partition was filed against four people. A preliminary decree was passed by the lower court specifying the shares of all the parties. However, before the final decree could be passed, two parties died, and there arose a dispute with respect to the shares of these two persons. The court had to decide the dispute, redistributing the shares indicated in the initial preliminary decree.  The Court observed that there is nothing in a Code of Civil Procedure which prohibits passing of more than one preliminary decree, if the circumstances justify the same and it may be necessary to do so. The Court clearly mentioned that their view is only with respect to partition suit only.

In Ganduri Koteshwaramma v. Chakiri Yanadi, (2011) 9 SCC 788 case, the Court held that the final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree cannot be altered by the court, before the final decree is passed. Such an alteration is justified in the event of changed circumstances.

• The preliminary decree can be varied if the law affecting the parties is changed before the passing of the final decree.

In Prema v. Nanje Gowda, AIR 2011 SC 2077 case, the Court held that a preliminary decree can be varied if the law affecting the parties is changed before the passing of the final decree. The court must take into consideration the amended law and pass a second preliminary decree accordingly.

In S. Sai Reddy v. S. Narayana Reddy, (1991) 3 SCC 647 case, the members of a joint family filed a suit for partition. At the time when preliminary decree was passed, daughters were not allowed to claim shares in the joint family property. However, the State, prior to the passing of the final decree, amended the law as a result of which unmarried daughters became entitled to claim a share. The Court held that unless the division of property is effected (i.e., final decree is passed), the daughters cannot be deprived of the benefit of this amended law. Hence, a second preliminary decree must be passed accordingly.

• It cannot be challenged in a final decree

In Parvathamma v. Muniyappa, AIR 1997 Ker 37 case, the Court held that in a preliminary decree certain rights are conclusively determined and unless the preliminary decree is challenged in appeal, the rights so determined become final and conclusive and cannot be questioned in final decree.

• Appeal against preliminary decree cannot be filed when final decree is passed.
• A preliminary decree is a final decree, when the time for appeal has expired without any appeal being file against the preliminary decree or a matter has been decided by the highest court.
• A preliminary decree is a final decree, when as regard the court passing decree, the same stand completely disposed off.

In S. Talabali v. Abdul Aziz, AIR 1920 Cal 689 case, the Court held that both preliminary and final decrees are in the same suit and if the preliminary decree is set aside, the final decree is suspended.

In Selvamani v. Chellamal, (2015) 1 MWN (Civil) 739 case, in a dispute regarding the partition of a property, the court passed a preliminary decree determining the shares of the parties. On the basis of this preliminary decree, a final decree was passed. One of the parties filed an appeal from the final decree stating that, no share was allotted to the party in the preliminary decree. The Court held that the appeal against a preliminary decree cannot be filed after the final decree had been passed and appeal was not allowed by the Court.

In Sital Parshad v. Kishorilal, AIR 1967 SC 1236  case, the lower court made a final decree on the lines of its preliminary decree, even though an appeal against preliminary decree was pending. After this, the pending appeal comes on for hearing and the preliminary decree is reversed. The Court held that if an appeal preferred against a preliminary decree succeeds, the final decree automatically falls to the ground for there is no preliminary decree thereafter in support of it

In Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992 case, the lower court made a final decree on the lines of its preliminary decree, even though an appeal against preliminary decree was pending. After this, the pending appeal comes on for hearing and the preliminary decree is reversed. In this case, the Court discussed preliminary decree under light of Section 97 of the Act. Section 97 of the Act provides that, “Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.” The Court held that if an appeal preferred against a preliminary decree succeeds, the final decree automatically falls to the ground for there is no preliminary decree thereafter in support of it and it is not necessary in such a case for the defendant to go to the court passing the final decree and ask it to set aside final decree.

• It is not executable

In A. Akkukamma v. G. Papi Reddy, AIR 1995 AP 166 case, the Court held that Preliminary decree is a decree within the meaning of s. 2(2) of the Code of Civil procedure, but it is not capable of execution, normally, till a final decree is passed.

• There is no need to pass preliminary decree in all suits.

In Purushottam Haridas v. Amruth Ghee Co. Ltd., Gunthur, (1960) Andh. LT 524 case, the Court held that even in suits of nature mentioned in O 20, if the matters in dispute are simple and do not require elaborate scrutiny of accounts, the court is not bound to pass preliminary decree and may proceed straightway to pass a decree for the amount determined as due.

Conclusion:

The term preliminary decree has not been defined in the code but it says that a decree can be preliminary, final or partly preliminary and partly final. In a preliminary decree, the suit is not disposed off. One must appeal against the preliminary decree at the earliest stage. The code lays down certain instances wherein the court can pass a preliminary decree. It cannot be challenged when final decree is passed. There is no bar on as to how many preliminary decrees can there be in a suit.

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Indian Legal System > Civil Laws > The Code of Civil Procedure > Preliminary Decree

The post Preliminary Decree appeared first on The Fact Factor.

A decree is one of the most frequently used terms in Civil Matters. The adjudication of a court of law is divided into two classes: decree and orders.  In this article, we are going to discuss the decree.

Execution is the act of carrying into effect the final judgment of a court or other tribunal. The writ authorising a particular officer to carry such judgment is called execution, in its rational and practical sense execution is the formal method prescribed by law, whereby the parties entitled to the benefit of the judgment or any other equivalent obligations may obtain, that benefit. Execution, is the fast stage of a suit whereby possession/recovery of anything/amount recovered by a judgment is obtained. The word execution of criminal means enforcing death sentence.

In Ramnarayan v. Anandilal, AIR 1970 MP 110(118) case, the Court observed that the word execution embraces all the appropriate means by which a decree is enforced and includes ail processes and proceedings in aid of or supplemental to execution.

In State of Rajasthan v. Savaksha, AIR 1972 GUJ 1719 case, the Court observed that the word “Execution” is not defined under the Civil Procedure Code. It is the enforcement of decrees and orders by the process of the court so as to enable the decree-holder to realise the fruits of decree

Decree:

A decree is an official order that is drafted and issued by someone in a position of legal authority, like a judge.  Section 2(2) of the Code of Civil Procedure, 1908 defines Decree as follows:-                          

Section 2(2) of the Code of Civil Procedure, 1908

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 of CPC, 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;

Section 2(3) of the Code of Civil Procedure, 1908 defines decree holder.

Section 2(3) of the Code of Civil Procedure, 1908

“decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made.

Essentials Elements of Decree:

In Vidyacharan Shukla v. Khubchand Baghel, AIR 1964 SC 1099 (1113) case, the Supreme Court held that in order that a decision of a court to be a “decree” the following elements must be present.

• There must be an adjudication;
• Such adjudication must have been given in a suit;
• It must have determined the rights of the parties with regard to all or any of the matters in dispute in the suit;
• Such determination must be of conclusive nature; and
• There must be a formal expression of such adjudication.

In Bal Kishan v. Tulasi Bai, AIR 1987 MP 120 case, the Court held that order must satisfy the requirements of Section 2(2) in order to become decree. Merely labelling it as a decree does not make it a decree.

Adjudication:

Adjudication is the first essential of decision of the court to be a decree. The matter in dispute should be judicially determined.

In Madan Naik v. Hansubala Devi, AIR 1983 SC 676 case, the Court held that if the matter is not judicially determined then, it is not a decree.

In Deep Chand v. Land Acquisition Officer, AIR 1994 SC 1901 (1903) case, the Court held that the adjudication should be made by the officer of the Court and if it is not passed by an officer of the court then it is not a decree.

In Motilal v. Padmaben, AIR 1982 Guj. 254 case, the Court held that a decision on matter of an administrative nature, or order dismissing a suit for default of appearance of parties or dismissing an appeal for want of prosecution cannot be termed as a decree inasmuch as it does not judicially deal with the matter in dispute.

Suit:

A requirement of a suite is the second essential of decision of the court to be a decree. Without suit there cannot be a decree. Suit ordinarily means a civil proceedings instituted by presentation of a plaint. Civil suit is the institution of litigation for enforcement of civil rights (or substantive rights, it may be against state or individual). A suit is resulted into decree.

In Jagadishwar Sahai v. Surjan Singh Pal, AIR 1977 ALL 554 case, the Court observed every suit is commenced by a plaint.

In Minakshi v. Subramanaya, (1888) ILR 11 Mad 26 (35) case, the Court held that when there is no civil suit there is no decree.

In Hansraj Gupta v. official Liquidators of the Dehra Dun-Mussoorie Electric Tramway Co. Ltd. AIR 1933 PC 63 case, the privy council Lordship defined the term “suit” as: “The word ‘suit’ ordinarily means and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint.”

Essentials of a Suit:

• Name of Parties:  To constitute a suit, there must be at least two opposing parties the plaintiff and the defendant. There is no limitation with regards to number on either side.
• A Cause of Action: A cause of action means the whole of the material facts which it is necessary for the plaintiff to allege and prove in order to succeed. The cause of action is essential to a suit represented in Order II Rule 2 of the Code wherein it is stated that a plaint must mention the cause of action. Every plaint must disclose a cause of action if not, Order VII Rule 11 of the Code states that it is the duty of the court to reject the plaint. Examples of cause of action are breach of contract, fraud, defamation, etc.
• Subject Matter: There must be a subject matter with respect the civil dispute exists. A subject matter of the suit is the particular thing in respect of which the suit has been filed. The process of proving and disproving in proceedings can be done on basis of certain facts. These facts which essentially go on to prove or disprove the cause of action will be called the matter in issue. It can either be some property upon which the plaintiff exercises his legal right or it can be a personal right of the plaintiff not related to any property. There cannot be practically anything other than these things for a subject matter of a suit. 
• Relief Claimed by Plaintiff: No court will give relief unless relief is specifically claimed by the party. Relief is of two types: specific relief and alternative relief.

However, under certain enactments specific provisions have been made to treat applications as suits. Proceedings under following Acts are statutory suits and decision given thereunder are, therefore decrees.

• The Indian Succession Act
• The Hindu Marriage Act
• The Land acquisition Act
• The Arbitration Act

In Leela Hotels Ltd. v. Housing & Urban Development Corporation Ltd., AIR 2012 SC 903 case, where the question was whether the Award of an Arbitrator tantamounts to a decree or not, the Court held that Section 36 of the Arbitration & Conciliation Act, 1996 makes it very clear that such an award has to be enforced under CPC in the same manner as if it were a decree of a court. Accordingly, it was held that the said language leaves no room for the doubt as to the manner in which the Award is to be accepted.

In Diwan Bros. v. Central bank of India, AIR 1976 SC 1503 (1518) case, the Court observed that a decision of a tribunal, even though described as “decree” under the Act, is a decree passed by the tribunal and not by a court covered by Section 2(2) of the Code of Civil Procedure.

Rights of the parties: 

In Dattatraya v. Radhabai, AIR 1921 Bom 220 case, the court observed that the word ‘Right’ means substantive rights and not merely procedural rights.

In Kanji Hirjibhai v. Jivraj Dharamshi, AIR 1976 Guj 152 case, the Court held that the term parties means parties to the suit, i.e 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.

An order to be a decree it must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit. The expression ‘matter in controversy in the suit’ means such matter as has been brought up for adjudication by the court through the pleadings. Hence, the conclusive determination, in order to amount to a decree must be on matters in controversy in the suit. For example, an order rejecting the application of a poor plaintiff to waive the court costs is not a decree because it does not determine the right of the party in regards to the matters alleged in the suit.

In Ahmed Musaji Saleji v. Hashim Ibrahim Saleji, AIR 1915 PC 116, the Privy Council held that the expression ‘matter in controversy’ refers to the subject matter of the suit with reference to which some relief is sought.

In Ma Chon v. Maung Myint, AIR 1927 Rang 148 (PC) case, the Privy Council held that there must have been an adjudication on the rights of the parties.

In Gauhati Bank Ltd. v. Baliram. AIR 1950 Assam 169 case, the Court held that an order of dismissal for the default of appearance is no determination of rights of the parties and, therefore, not a decree.

Conclusive Determination: 

Such determination by the court must be conclusive in nature. This means that the court will not entertain any argument to change the decision i.e. as far as the court is concerned, the matter in issue stands resolved. Thus any interlocutory order not deciding of the parties is not a decree.

In Narayan Chandra v. Pratirodh Sahini, AIR 1991 Cal 53 case, the Court held that the determination should be final and conclusive regarding the court which passes it.

Test of Order to be a Decree:

In Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992 case, the Court observed that the crucial point which requires to be decided in such a case is whether the decision is final and conclusive in essence and substance. If it is, it is a decree, if not, it is not a decree. The Court further held that whether or not an order of the court is a decree, the court should take into account pleadings of the parties and proceedings leading up to the passing of an order. With a view to find out the meaning of the words in the order and to determine whether such order is a decree, the court often may have to consider the circumstances under which the order was made and the words were used.

Formal Expression:

There must be a formal expression of adjudication. In simple terms to be a decree, the court must formally express its decision in the manner provided by law. All the requirements of form must be complied with. The decree should be drawn separately and it should follow the judgment. A mere comment of the judge cannot be a decree. If a decree has not been drawn up, then there is absolutely no scope of an appeal from the judgment i.e. No appeal lies against the judgment, if the decree is not formally drawn upon the judgment.

In Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 (577) case, the Court held that the decree should follow the judgment and it should be drawn separately.

Decisions considered as a decree

The decisions held to be decree are as follows:

• 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 granting costs and instalments;
• An order refusing costs or instalments;
• An order refusing maintainability of appeal;
• 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;

Decisions not considered as a decree

The decisions which are not considered as a decree are as follows:

• Dismissal of appeal for default;
• Appointment of Commissioner in order to take accounts;
• Order for remand;
• Order granting interim relief;
• An order refusing the grant of interim relief;
• Rejection of plaint in order to present it to the proper court;
• Application rejected for condonation of delay;
• Order holding an application to be maintainable;
• Order of refusal to set aside the sale;
• The order issuing directions for the assessment of mesne profit.

Classes of Decree:

Preliminary Decree:

A decree is preliminary when the adjudication. though it conclusively determines the rights of the parties with regard to some matters in controversy in the suit, does not completely dispose of the suit, and further proceedings have to be taken before the suit can be completely disposed of.

Example: A wife sues her husband for maintenance. In this case, the Court has to first decide whether she gets maintenance during the time the trial is taking place. Then order regarding the maintenance during the time the trial is a preliminary decree. The Court will further enquire and will give final decree after hearing both the parties.

Final Decree:

A final decree is one which completely disposes of a suit and finally settles all questions in the controversy between parties and nothing further remains to be decided thereafter. Ordinarily there will be only one final decree in the suit. However, where two or more causes of action are joined together there can be more than one final decree.

A decree may be said to be final in two ways,

1. when within prescribed period there has been no appeal filed against the decree or the matter has been decided by the decree of the highest Court, or
2. when the Court passing it completely disposes of the suit.

Partially preliminary and Partially Final Decree:

A decree may be partly preliminary and partly final and this may be explained by way of example.

For example, two brothers argue over who inherits the family property from their late father. This property is currently leased out to a family. While the determination of who gets the property is the subject of the final decree, the determination of who gets the profits that accrue from the lease rent being paid during the length of the trial, is a matter of partly preliminary and partly final decree.

Order Rejecting a Plaint:

When a plaint is rejected, the order rejecting it is not an order, but a decree, and is, as such, appealable. It must be noted that there is no decree where the rejection of plaint is not under the Civil Procedure Code.

Determination of Question Under S. 144 of the Code:

An application for restitution can be filed under Section 144 of the Code. A restitution is ‘an act of restoring a thing to its proper owner’. When code passes an order of such restitution, then that order amounts to a decree.

Other Terms Used w.r.t. Decree:

Absolute Decree:

When a decree is complete by itself and becomes of full effect at once, it is called absolute decee

Decree Nisi:

The decree which is not to take effect, unlessthe person affected by it fails to show cause against it within a specified time is called decree nisi.

Ex Parte Decree:

When a plaint is filed and the plaintiff appears in court, but the defendant does not, when the suit is called out, if it is proved the summons were duly served on the defendant, the court may make an order that the suit shall be heard ex parte. In such case, the court may hear the plaintiff only and pass a decree in the matter. Such a decree is called an ex parte decree.

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Indian Legal System > Civil Laws > The Code of Civil Procedure > What is a Decree?

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In this article, we shall study the scheme of the Code of Civil Procedure and the Code at glance.

Scheme of the Code:

The Code can be divided into two parts and they are –

1. The Body of the Code, having Preliminary and 11 parts containing 158 sections
2. The First Schedule, containing 51 Orders and Rules

The Body of the Code lays down general principles of jurisdiction relating to Power of the court. The body of the Code containing Sections is fundamental and cannot be amended except by the legislature.

The First Schedule which is the only schedule to the code now has 51 orders provides for the procedures, methods, manners, and modes in which the jurisdiction of the court may be exercised. In fact, there were five schedules when this code was enacted. Later the Schedules II, III, IV, and V were repealed by the subsequent amendments of the code.

There are eight appendices giving model formats (Forms), such as –

1. Pleadings (Plaint and Written Statement formats)
2. Process formats
3. Discovery, Inspection, and Admission
4. Decrees
5. Execution
6. Supplemental Proceedings
7. Appeal, Reference, and Reviews
8. Miscellaneous

The various High Courts are empowered to alter or add any rules in the schedules under Section 122 to 127, 129, 130, and 131 and such new rules should not be inconsistent with the provisions of the body of the code.

The Provisions of the Body of the code can be amended only by the legislature and the Courts can not alter or amend the body of the code.

Code at a Glance

The Body of the Code (substantive part) has preliminary plus 11 parts containing 158 sections. The first schedule comprises 51 Orders and Rules providing procedure.

Sections 1-8 are preliminary in nature. Section 1 provides for commencement and applicability of the Code. Section 2 is a definition clause and a sort of statutory dictionary. Sections 3 to 8 deal with the constitution of different types of courts and their jurisdictions.

Part – I include Sections 9 to 35-B and Orders 1 to 20 of the (First) Schedule deal with suits. Section 9 enacts that a civil court has jurisdiction to try all suits of civil nature unless they are barred expressly or impliedly. Section 10 provides for stay of suit (res sub judicata). Section 11 deals with the well-known doctrine of res judicata. Section 12 deals with bar to further suit. Sections 13 and 14 relate to foreign judgments.

Sections 15 to 21-A regulate the place of suing. They lay down rules as to jurisdiction of courts and objections as to jurisdiction. Sections 22 to 25 make provisions for transfer and withdrawal of suits, appeals, and other proceedings from one court to another.

Orders 1 to 4 deal with institution and frame of suits, parties to suit and recognized agents, and the pleaders. Order 5 contains provisions as to issue, and service of summons. Order 6 deals with pleadings. Orders 7 and 8 relate to plaints, written statements, set-offs, and counter-claims. Order 9 requires parties to the suit to appear before the court and enumerates consequences of non-appearance. It also provides the remedy for setting aside an order of dismissal of the suit of a plaintiff and of setting aside an ex parte decree against a defendant.

Order 10 enjoins the court to examine parties with a view to ascertaining matters in controversy in the suit. Orders 11 to 13 deal with discovery, inspection, and production of documents and also admissions by parties. Order 14 requires the court to frame issues. Order 15 enables the court to pronounce judgment at the “first hearing” in certain cases.

Orders 16 to 18 contain provisions for summoning, attendance and examination of witnesses, and adjournments. Order 19 empowers the court to make an order or to prove facts on the basis of an affidavit of a party.

Sections 75 to 78 (Part III) and Order 26 make provisions as to the issue of Commissions. Sections 94 and 95 (Part VI) and Order 38 provides for the arrest of a defendant and attachment before judgment. Order 39 lays down the procedure for issuing a temporary injunction and passing interlocutory orders. Order 40 deals with the appointment of receivers. Order 25 provides for security for costs. Order 23 deals with withdrawal and compromise of suits. Order 22 declares the effect of death, marriage, or insolvency of a party to the suit.

After the hearing is over, the court pronounces a judgment. Section 33 Order 20 deals with judgments and decrees. Section 34 makes provisions for interest. Sections 35, 35-A, 35-B, and Order 20-A deal with costs.

Parts IV and V (Sections 79-93) and Orders 27 to 37 lay down the procedure for suits in special cases, such as suits by or against Government or public officers (Section 79 to 82 and Order 27); suits by or against aliens, foreign rulers, ambassadors and envoys (Sections 83 to 87-B) suits by or against soldiers, sailors, and airmen (Order 28); suits by or against corporations (Order 29); suits by or against partnership firms (Order 30); suits by or against trustees, executors, and administrators (Order 31); suits by or against minors, lunatics and persons of unsound mind (Order 32); suits relating to family matters (Order 32-A); suits by indigent persons (paupers) (Order. 33); suits relating to mortgages (Order 34); interpleader suits (Section 88 and Order 35); friendly suits (Section 90 and Order 36); summary suits (Order 37); suits relating to public nuisances (Section 91) suits relating to public trusts (Section 92). Section 89 as inserted from 1 July 2002 provides for settlement of disputes outside the court through arbitration, conciliation, mediation, and Lok Adalats.

Parts VII and VIII (Sections 96 to 115) and Orders 41 to 47 contain detailed provisions for Appeals, Reference, Review, and Revision. Sections 96 to 99-A and Order 41 deal with First Appeals. Sections 100 to 103 and Order 42 discuss law relating to Second Appeals. Sections 104 to 108 and Order 43 contain provisions as to Appeals from Orders. Sections 109, 112, and Order 45 provide for Appeals to the Supreme Court. Order 44 enacts special law concerning Appeals by indigent persons (paupers). Section 113 and Order 46 pertain to References to be made to a High Court by a subordinate court when a question of the constitutional validity of an Act arises. Section 114 and Order 47 permit a review of judgments in certain circumstances. Section 115 confers revisional jurisdiction on High Courts over subordinate courts.

Part II (Sections 36 to 74) and Order 21 cover execution proceedings. The principles governing the execution of decrees and orders are dealt with in Sections 36 to 74 (substantive law) and Order 21 (procedural law). Order 21 is the longest Order covering 106 Rules.

Part X (Sections 121 to 131) enables High Courts to frame rules regulating their own procedure and the procedure of civil courts subject to their superintendence.

Part XI (Sections 132 to 158) relates to miscellaneous proceedings. Explanation to Section 141 as added by the Amendment Act of 1976 clarifies that the expression “Proceedings” would not include proceedings under Article 226 of the Constitution. Section 144 embodies the doctrine of restitution and deals with the power of the court to grant relief of restitution in case a decree is set aside or modified by a superior court.

Section 148-A as inserted by the Code of Civil Procedure (Amendment) Act, 1976 is an important provision which permits a person to lodge a caveat in a suit or proceeding instituted or about to be instituted against him. It is the duty of the court to issue notice and afford an opportunity of hearing to a caveator to appear and oppose interim relief sought by an applicant.

Sections 148 to 153-A confer inherent powers in every civil court. Section 148 enables a court to enlarge time fixed or granted by it for doing any act. Section 149 authorizes a court to permit a party to make up the deficiency of court fees on plaint, memorandum of appeal, etc. Section 151 is a salutary provision. It saves inherent powers in every court to secure the ends of justice and also to prevent the abuse of the process of the court. Sections 152 to 153-A empower a court to amend judgments, decrees, orders, and other records arising from accidental slip or omission.

Section 153-B was added by the Amendment Act of 1976 and it expressly declares that the place of trial shall be open to the public. The proviso, however, empowers the Presiding Judge, if he thinks fit, to order that the general public or any particular person shall not have access to the court.

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Indian Legal System > Civil Laws > The Code of Civil Procedure > Scheme of the Code of Civil Procedure

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In this article, we shall study the historical background and the object of civil procedure code.

Historical Background:

The first Code of Civil Procedure was enacted in 1859 (Act VII of 1859) by the Committee headed by Mr. John Romily. It was amended in 1877 and, subsequently, in 1882, however, those amendments did not serve the purpose, therefore, the present Code of Civil Procedure was enacted in 1908. It was drafted by the Committee headed by Sir Earle Richards. Committee before submitting the draft to the West Minister Parliament travelled India, read its history and ancient texts, and then knew the traditions and culture of this country, and draft legislation was prepared, keeping all such things in view.

Civil Procedure Code, 1908:

The Code of Civil Procedure, 1908 (5 of 1908) came into force with effect from January 1, 1909. There are three major amendments. The object of amendments was to keep procedural law in tune with the changing needs of society and even technological advances.

• The Amendment Act (104 of 1976) came into force with effect from February 1, 1977 (except Sections 12, 13, and 50). Section 12 and 50 come into force on May 1, 1977 and Section 13 came into force on July 1, 1977.
• The Code of Civil Procedure (Amendment) Act, 1999 came into force from July 1, 2002.
• The Code of Civil Procedure (Amendment) Act, 2002 came into force from July 1, 2002.

The Object of Civil Procedure Code:

 The word CODE signifies ‘a systematic collection of statutes, a body of laws so arranged as to avoid inconsistency and overlapping‘. The Preamble of the Code states that the object of the Act is to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature. The main aim of the CPC is to facilitate justice and seek an end to the litigation rather than provide any form of punishment and penalties. The Civil Procedure Code directs each activity in civil courts and the gatherings previously it till the execution of the degree and order.

In Administrator General of Bengal v. Prem Lal Mullick ILR (1895) 22 Cal 788 (PC) and Mahant Shantha Nand Gir Chela v. Mahant Basu Devanand, AIR 1930 All 225 (230) FB case, the Court observed that to consolidate law means to collect, statutory law relating to a particular subject and to bring it down to date in order that it may form a useful Code applicable to circumstances existing at the time when the consolidation Act is enacted.

In Kapildeo Prasad v. Ramanand Prasad, AIR 2007 Pat 1 case, the Patna High Court the Court observed that CPC is a complete code in itself. Once proceedings are initiated under the Code, rights, and remedies have to be looked thereunder.

In Prem Lal Nahata v. Chandi Prasad Sikaria, AIR 2007 SC 1247 case, the Court observed that the code consolidates and amends laws relating to Courts of Civil Judicature. It also deals with substantive rights but mainly aims to consolidate the law relating to civil courts and procedures.

In Saiyad Mohammad Bakar v. Abdul Habib Hasan Arab AIR 1998 SC 1624 case, the Court opined that procedural law is always subservient to substantive and is in aid to justice. Nothing can be given by a procedural law what is not sought to be given by substantive law and nothing can be taken away by the procedural law what is given by the substantive law. 

Extent and Applicability

The Code is applicable to the whole country except –

1. The State of Jammu and Kashmir
2. The state of Nagaland and the tribal areas

Through the amendment of 1976, the provision has also been extended to scheduled areas.

In Westarly Dkhar v. Sehekaya Lyngdoh, (2015) 4 SCC 292 case the Court held that courts in such areas (exempted areas) shall be guided by the spirit of the Code and would not be bound by the letter of CPC.

Retrospective Operation

The principle of interpretation of statutes that procedural laws are well-settled is always retrospective in operation unless there are good reasons to the contrary. Their provisions will already apply to the proceedings commenced at the time of enactment. This is so because no can have a vested right in forms of procedure.

In Garikapati Veeraya v. N. Subbiah Chaudhry, AIR 1957 SC 540 case, the Court held that the CPC is not retrospective in operation.

Interpretation of the Act:

In Sangram Singh v. Election Trbunal, AIR 1955 SC 425 (429) case, the Court held that the function of adjective law is to facilitate justice and further its ends.In

In RMD Chamarbaugwala v. Union of India, AIR 1957 SC 628 (631) case, the Supreme Court observed that a statute is to be construed according “ to the intention of them that make it”. The duty of the Judicature is “to act upon the true intention of the Legislature – the mens or sentential legis”.

In District Mining Officer v. Tata Iron & Steel Co., AIR 2001 SC 3134 (3152) case, the Court held that if a statutory provision is open to more than one interpretation, the Court has to choose that interpretation which represents the true intention of the Legislature.

In Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484 (488) case, the Court held that a “hypertechnical view” should not be adopted by the court in interpreting procedural law.

In Ghanshyam Dass v. Dominion of India, AIR 1984 SC 1004 (1010) case, the Court observed that our laws of procedure are based on the principle that, as far as possible, no proceedings in the court of law should be allowed to be defeated on mere technicalities. The provisions of the Code of Civil Procedure, therefore must be interpreted in a manner so as to subserve and advance the cause of justice rather than defeat it.

In The State of Punjab v. Shamlal Murari, AIR 1976 SC 1177 case, the Supreme Court, while dealing with the scope of the procedural law, observed “We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed  that   procedural   prescriptions   are    the    hand-maid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non- compliance, tho’ procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After, all Courts are to do justice, not to wreck this end product on technicalities.

In Collector, Land Acquisition, Anantnag v. Mst. Katiji, AIR 1987 SC 1353 case, the Court observed that substantial justice has to be preferred upon the procedural technicalities. The Hon’ble Supreme Court of India returned the finding as under ”When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.”

In Zolba v. Keshao, AIR 2008 SC 2099 case, the Court observed that the use of the word ‘shall’ is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory.

In next article, we shall study the scheme of the Code of Civil Procedure.

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