What is suit ?

The term suit is not defined under the in the

C.P.C. but by various decisions it can be said
that Suit ordinarily means a civil proceedings
instituted by presentation of a plaint.
A suit is resulted into decree. Without suit
there can not be a decree
AIR 1933 PC 63 Hansraj Vs DehradunMaussoori Electric Transway Co. Ltd.
AIR 1989 SC 2259 Secretary to Govt. of Orissa
Vs Central Bank of India.
AIR 1965 SC 1798 Usman Ali Vs Sagar Mal.

Essentials of a Suit

There are four essentials of a suit

Name of Parties
Cause of Actions
Subject matter
Relief claimed by the plaintif

Name of Parties

In a suit there must be at least two parties

the plaintif & the defendant

A person is party to a suit if there is a cause

of action against him.

Necessary Party, Proper Party, Joinder, nonjoinder and misjoinder of parties in a suit

Necessary Party whose presence is essential

and in whose absence no efective decree or
order can be passed or made.

Proper Party without whom a decree or order

can be passed or made but whose presence is
necessary for efectual and complete
adjudication of the matter

Cause of action

The cause or the set of events or circumstances

which leads or resulted into presentation of a
plaint or filing a suit. lay man language

Legally The cause of action means every facts

which is necessary for the plaintif(s) to be
proved with a view to obtain a decree in his
favour.

Cause of action means all essential facts

constituting the right and its infringement.

Every plait must disclose a cause of action if not,

it is the duty of the court to reject the plaint
O7R11 - very important

Steps of Civil Litigation

Preparation plaint Institution of plaint

Admission & issue summon Service
of summon Appearance & filing of reply
by defendants Interrogatories &
Discoveries Examination of Parties &
Stage of S. 89 Production of Documents
Framing of Issues Adducing of
Evidence [examination of Chief + Cross
Examination + Document exhibiting ]
Hearing of Parties Judgment
Preparation of Decree Appeal from
original decree Appeal from appellate
decree Appeal before S.C.
After Finality Execution takes place.

Fundamental Rules

Under the code of Civil procedure ,

1908, there are basically three
fundamental rules :-

Rule 1 Section 6 of CPC Pecuniary

Jurisdiction
Rule 2 - Section 9 of CPC Jurisdiction
relating to subject matter
Rule 3 Section 15 of CPC suit
instituted in the court of the lowest
grade competent to try & territory

Subject Matter

Section 9 of the CPC

Relief Claimed

Ubi jus ibi remedium i.e. where

there is right, there is remedy.
Jus referred to cause of action
Remedium to relief.
The nature of relief or remedy to which
the plaintif is entitled depends upon
the nature or his cause of action

2.

Provisions of C.P.C. relating to Suit, Institutions,

pleadings, plaint, appearance and examination,
judgement, decree & execution

Definitions Section 2 of C.P.C.

Suit in General Part I Section9 to 74

Orders I to XXI

Law makers has defined decree as the

first term whereas in practical it comes
in the last

Definitions Section 2 of C.P.C.

First Set: Decree 2(2)/ Order- 2(14)/ Judgment
2(9)
Decree Holder 2(3)/ Judgment
Debtor2(10)
Foreign Judgment Sec. 2(6)/
Legal Representative 2(11)
Mesne Profits 2(12)
Public Officer 2(17)

DECREE 2(C.P.C.)
Decree means 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 matter in
controversy in the suit,
and it may be either preliminary or final.
It shall be deemed to include
the rejection of plaint
Determination of question U/S144 C.P.C.
But shall not include

(a) Any adjudication from which appeal lies an

appeal from order.
(b) By an 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 partly final.

Decree means- Essentials

Formal Expression by a court in a suit

Existence of an adjudication in a suit
The said adjudication must
determined the right of the parties:With regard to all
With regard to any
Matter in controversy in suit

Determination must be conclusive in

nature

AIR 2009 SC 1089 S.Satnam

Singh Vs Surendra Kaur

For determining a question that whether an

order passed by a court a decree or not it
must satisfy the following tests
There must be an adjudication
Such adjudication must be in a suit
It must have determined the right of the
parties with regard to all or any of the
matter in controversy
Such determination must be of a conclusive
in nature
There must be a formal expression of such
adjudication

1.Formal expression 2. Adjudication, 3. Conclusive in nature

1.

2.

3.

The formal express of an adjudication.

All requirement of form must be
complied with
It means judicial determination of a
matter in dispute.
Determination must be final and
conclusive as regards to court passing
it.

Decisions of a Court

Decree means 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 matter in
controversy in the suit, - 2(2) + S.33 +
O20R6 onwards

Order means the formal expression of any

decision of a civil court which is not a decree
2(14)

Judgment means the statement given by the

judge on the grounds of a decree or order.
2(9) + S.33 + O20R1to5

Adjudication of a Court

It is of two kinds:

Decree S2(2)
Order - S2(14)
Appelable Orders
Non appealable orders

Types of Decree

Preliminary Decree
When an adjudication decides the right of the parties
with regard to all or any matter of controversy in the suit,
but does not completely dispose of the suit

Whether there can be more than one preliminary decree

AIR 2003 SC 3322

What are the diferent types of cases/suits in which

Preliminary decree has to passed
Suit for possession & mesne profit O20R12
Administrative suits O20R13
Suit for pre-emption O20R14
Suit for dissolution of Partnership
O20R15
Suit for accounts between principal & agent O20R16
Suit for partition & separate possession O20R18
Suit for foreclouser of a mortgage O34 R2-3
Suit for sale of mortgage property O 34 R4-5
Suit for redemption of a mortgage O34 R 7-8

Final Decree

Final Decree

A decree so far as regards the court

passing it completely disposes of the suit.
If within the prescribed period of limitation
no appeal filed against the decree
If the matter has been decided by the
decree of the highest court

The latter two comes under the category of

Decree acquires finality.

Partly Preliminary and partly final

decree

In such type of decree one part is

completely final in nature and one part
is Completely preliminary in nature.

In the following types of cases such

types of decree can be passed:

In a suit for possession of property with

mesne profit

Order rejecting Plaint

Rejection of Plaint

Rejection of a plaint authorised under the

code amounts to decree,
Order returning the plaint to present before
the proper court is not decree
Order rejecting plaint due to non payment
of court fee O7R11amounts to decree.
But other orders rejecting plaints as
described in O7 R11 does not amount to
decree
Dismissed for default is not decree

Restitution under s.144 CPC

Where decree or order has been varied or reversed

in exercise of appellate or revisional jurisdiction, the
court of first instance,

Where the decree or order has been set aside by a

separate suit, the court of first instance which
passed such decree,

Where court of first instance has ceased to exist or

has ceased to have jurisdiction to execute it, the
court which, if the suit wherein the decree or order
was passed were instituted at the time of making
the application for restitution under this section,
would have jurisdiction,

Order - S2(14) CPC

Order - It means formal expression of

any decision of a Civil court, which is not
a decree.
It means adjudication of a court which is
not a decree is an order.
AIR 1964 SC 1099
In general no appeal lies against an order
But there are exceptions of order against
whom appeal lies i.e. known as
Appealable Orders,

Orders

Appelable Orders

Non appealable orders

Decree & Order - Similarity

Both are adjudication of a court of

law and it be either decree or order,
Both relates to matter in
controversy,
Both are decision given by a court,
Both are formal expression of a
decision.

Decree & Order Dissimilarity

A decree can only be passed in a suit after filing of a

plaint, whereas an order may originate from a suit or
presenting a plaint or may arise from a proceeding
commenced by a petition or an application.

A decree conclusively determines the right of parties,

but an order may or may not finally determines such
rights.

A decree may be preliminary or final or party preliminary

or partly final, but an order can not be preliminary rather
it is always final.

In general there is one decree in one suit with (certain

exception where more than one decree lies), but in a suit
there are number of orders.

Every decree is appealable other wise expressly barred,

but in general order are revisable ( exceptions are the
appealable orders as described U/O43R1 C.P.C.

Decree Holder Sec.2(3)

Decree holder means any person in

whose favour a decree has been
passed or an order capable of
execution has been made

In whose favour decree has been

passed
Person in whose favour an order
capable of execution has been made

Judgement Debtor Sec. 2(10)

Any person against whom a decree

has been passed and includes an
person against whom a decree has
been passed or an order capable of
execution has been made

Person against whom a decree has

been passed
Person in whose favour an order
capable of execution has been made.

DECREE OTHER PROVISIONS

Section 33 Judgment and decree

Order xx- judgment and decree
What is judgment ?

As defined in S.2(9) :It means statement given by judge

on the grounds of a decree or order.

Judgement & Decree

Section 33 CPC - The court, after the case has been

heard shall pronounce judgment, and on such
judgment a decree shall follow.

Order XX Rule1:- Judgement when pronounced

After case has been heard
It shall be pronounced in the open court
At once or on any other fixed date
Parties shall be informed about the said date of
pronouncement of the judgment
It has to be pronounced within 30 days from the
date of the conclusion of hearing
But the said date of pronouncement of the date of
judgment shall not be later than 60 days from the
date of conclusion of hearing.
If 60 days lapsed, again hearing shall be made after
giving notice to the parties

Judgement & Decree

OXXR1It may be by written and pronounced in the court

It may be pronounced by dictation in open court
The judgment shall be signed by the judge, it shall bear the
date on which it was pronounced and form a part of record.
In case of written judgment finding of the court on each
issue, then final order,
OXXR2
A judge shall not pronounce judgment written by his
predecessor
OXXR3
The judgment once signed shall not after ward be altered or
added, save as provided by section 152 CPC or review
OXXR4 Court shall contain concise
statement of case,
the points for determination
the decision thereof, and
reason for such decision

Judgement & Decree

OXXR5 Court to state decision on each issue

but only if finding upon any one or more of
the issues is sufficient for decision of the suit.

OXXR5A- In case a suit is not presented by the

pleaders, the court shall inform the parties
present in the court :As to the court to which appeal lies
About period of limitation for filing of such
appeal
Place on record the information so given to the
parties

Judgement & decree

OXXR6 Contents of a decree

No. of Suit
Name and description of parties with addresses
Particular of claim, relief granted or other
determination of suit
Amount of cost incurred in suit
By whom such cost to be paid,
by what property such cost be paid
In what proportion such cost be paid
Court may direct about the set of of the said cost
against any sum which is admitted or found to be
due on the parties (former of later)
It shall bear the date the day on which the
judgment was pronounced also the date on which
decree has been drawn in accordance with the
judgment, court shall sign on the decree.
In case judge pronounced the judgment and
without drawn up of the decree from the said
judgment, vacated office, in that case the decree

Judgement & decree

Types of Decree :-OXXR9 to OXXR19

OXXR9 Decree for recovery of
immovable property, decree shall contain

A description of such property to identify the

same
boundary, numbers in records of settlement
or survey

OXXR10 Decree for movable property

Decree shall state amount of money to be

paid
as an alternative if delivery cannot be had

Judgement & decree

OXXR11 Decree may direct payment by

installment

Direction of payment by installment can be

made in a decree
Order, after decree, for payment by
installments can be made on the request of
the parties

OXXR12 Decree for Possession & mesne

profit

for possession of the property

For rents accrued during the period prior to
institution of the suit or directing the enquiry
to the suit
For mesne profit or directing enquiry

Judgement & decree

OXXR12A Decree for specific performance of contract

for the sale or lease of immovable property
The description of purchase money
Other sum to be paid by the purchaser or lessee
Period within which the payment shall be made
OXXR13 Decree in administrative suit
Preliminary decree
Ordering account and inquires & other directions as it think
fit in the eye of the court
OXXR14 Decree in pre-emption suit
- specify a day on or before the purchase money shall be so
paid
On payment of cost the defendant shall deliver the
possession of the property
Upon rival claim of pre-emption
Claim of inferior pre-emptor shall not take efect unless
and until the superior pre-emptor has failed to comply with
the said provisions.

Judgement & decree

OXXR15- Decree in suit for dissolution of partnership

OXXR16- Decree in suit for account between

principal and agent

OXXR17 Special direction as to account

OXXR18 Decree in suit for partition & separate

possession of a share therein

OXXR19Decree when set-of or counter claim is

allowed

Certified copy of the judgment & Decree shall be

furnished to the parties on application to the cost of
the parties.

Judgment & Decree

Essentials of judgment
1. Concise statement of Case,
2. Points for determination
3. decision thereon &
4. reason for such decision.

Judgment means the statement given by judge of

the grounds of a decree or order.

It is not necessary that a judge be give a statement

in a decree but it is necessary in the judgment.

Judgment should state precisely the relief granted.

Thus the judgment is contemplates a stage prior to
passing of a decree or an order.

After pronouncement of judgment, a decree shall

follow,

Foreign Judgment

Judgment of a foreign court 2(6)

Foreign Court means 2(5)

It must be situate out side India.

It must not established by authority of
the Central Govt.
It must not continued by authority of
the Central Govt.

PERIOD OF LIMITATION FOR

FILING DIFFERENT TYPES OF
SUITS

All suits relating to account 3 years

from the date of cause of action
All suits relating to contracts 3yrs.
All suits relating to declaration 3 yrs.
All suits relating to decrees &
instruments- 3 years
Suit relating to movable property
3yrs.
Suits relating to Torts vary from 1yrs
to 3 yrs.

PERIOD OF LIMITATION

Suits relating to immovable property:

By Mortgager

To enforce payment of money secured by mortgage

12 Yrs.
By Mortgage

To redeem
- 3Yrs.
To recover possession of immovable property mortgaged 12 Yrs.
To recover surplus collections by mortgagee -3Yrs.

For foreclosure 30 yrs.

For possession of immovable property 12 yrs.

For possession of immovable property based on

previous possession and not on title 12 Yrs.
For possession of any immovable property based on
title 12 Yrs,
For possession of immovable property when the
plaintif has become entitled for possession by
reason of any forfeiture or breach of condition 12
Yrs.
By a landlord to recover possession from a tenant
12 Yrs.

PERIOD OF LIMITATION in SUIT

For property which the plaintif has conveyed while

insane 3 yrs.

To set aside any decision or order of a civil court in any

proceeding other than a suit 1 yrs.

By a Hindu for arrear of maintenance 3yrs.

By a Hindu governed by Mitakshara Law to set aside his

fathers alienation of ancestral property 12 yrs.

By a person excluded from a joint family property to

enforce a right to share therein 12 yrs.

Any suit by or on behalf of the Govt. (Central & State)

30 yrs.

Any Suit for which no period of limitation is provided 3

yrs. Article 113 of Limitation Act

PERIOD OF LIMITATION IN APPEAL

Appeal to a High Court from any Decree or order 90 days- from

the date of decree & order Art.116 I.L.A.
Appeal to any other court from any decree or order 30 days
from the date of decree or order. Art. 116 I.L.A.
Petition for substitution of a party after death of plaintif &
defendant 90 days- Art.120ILA
Petition for setting aside abatement 60 days from the date of
abatement Art.121 ILA
Petition for restoration of a suit or appeal 30 days from the date
of dismissal Art.122 ILA
Petition for setting aside decree passed ex-parte 30 days from
the date of decree Art. 123 ILA
For review of Judgment (other than S.C.) 30 days- From the date of
decree or order - Art. 124
To record an adjustment or satisfaction of decree 30days Art.
125 ILA
Leave to appeal as pauper to the HC 60 days other than HC
30 days
To the SC for SLA Special leave to appeal

In case of death sentence 60 days

In a case where leave to appeal was refused by the HC 60 days
In any other case 90 days

PERIOD OF LIMITATION IN
execution of decree

For execution of any decree (other

than the decree of mandatory
injunction) or order of civil court
12 years when the decree or
order became enforceable

Application for enforcement of

execution of a decree granting a
perpetual injunction shall not be
subject to any period of limitation

IMPORTANT POINT

Case Law is a good servant but bad Master ____

C.K.ALLEN
Case law is a stepping stone and not halting
stage
Each case has peculiar facts and situations and
principles apply in the context of facts and
situations.
Application of Case law

Binding precedent

Persuasive value

Diferent High Courts Judgment

Foreign Courts Judgment

Distinction

Superior courts Judgments

On fact situation

Development

Life of Law is not logic but experience

Development by way of analogy

Followings are Decree

Order of abetment
Compromise decree or consent decree
Holding a particular defendant liable for mesne profit
Dismissal of appeal as time barred
Dismissal of appeal for deficiency of court fee or for want
of extra court fee
Dismissal of suit or appeal for want of evidence of proof
Order dissolving partnership
Order rejecting surety to pay debt of judgment debtor
Refusing of granting installment
Admission of execution application
Order U/S 25 of the Hindu Marriage Act
Remand order conclusively determines the right of the
parties.
ORDER REJECTING THE PLAINT

Followings are not a Decree

Order permitting withdrawal of suit

Appeal dismissed for default
Appointment of Commissioner to take accounts
Order passed on res judicata and limitation
Order directing decree to be drawn
Order of remand for framing additional issue by appellate
court.
Order passed U/S 24 of the Hindu Marriage Act
Order refusing stay to sale
Dismissal of suit as withdrawn U/O 23 R 1
Order rejecting Memo of appeal U/O 41 R 3
Dismissal of appeal U/O 34 Rule 8
Dismissal of appeal for insufficient of court fee
Order refusing to windup a company
Order for dismissal for default
Return of plaint for presentation before proper court
An award Under M.V. Act
Award under Arbitration & Conciliation Act

MORE ABOUT JUDGEMENT

Judgment under CPC consists of the

reasons and grounds for a decree
passed
Judgment
AIR 1981 SC 1786 & AIR 1967 SC
1471