CIVIL PROCEDURE CODE, 1908

PRELIMINARIES:
 Forms part of procedural Law.
 w.e.f. 01.01.1909
 Amendment Act 104/76 – w.e.f.01.02.1977
 Amendment Act, 1999 – w.e.f 01.07.2002
 Amendment Act, 2002 - w.e.f.01.07.2002
Object: consolidate and amend the laws relating to
procedure of Courts of Civil Judicature.
Uniform Civil Code: Designed to facilitate justice and further
its ends and is not a penal enactment for punishment and
penalties, not a thing designed to trip up people.
CHINNAMMAL v P. ARUMUGAM, AIR 1980 SC 1828 @ p
1833.
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 CIVIL PROCEDURE CODE, 1908 (continued)
PRELIMINARIES: (CONTINUED):
 AN INSTANCE OF PROCEDURAL LAW ‘A procedural law is always
subservient to the substantive law. Nothing can be given by a procedural
law what is not sought to be given by a substantive law and nothing can be
taken away by the procedural law what is given by the substantive law.’.
SAIYAD Md. BAKAR v ABDULLAH HASAN, AIR 1998 SC 1624.
 CODE IS NOT EXHAUSITIVE: ‘Nothing in this Code shall be deemed to
limit or otherwise affect the inherent power of the Court top make such
Orders as may be necessary for the ends of justice or to prevent abuse of the
process of the court”.
 INTERPRETATION :The rules of procedure are intended to be a handmaid
to the administration of justice and they must, therefore, be construed
liberally and in such a manner as to render the enforcement of substantive
rights effective.
PREM LALA NAHATA v CHANDI PRASAD SIKARIA, AIR 2007
SC 1247.
 OPERATIVE EFFECT: Not retrospective in operation. –
MOHANLAL JAIN v SAWAIMAN SINGHI, AIR 1962 SC 73.

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 CIVIL PROCEDURE CODE, 1908 (continued)
• SCHEMEOF THE CODE: Peculiar
• divided into 2 parts.
(i) Body of the Code – 158 Sections.
(ii) I Schedule – 51 Orders and Rules.
 Sections are substantive in nature
 Orders are procedural in nature.
 Sections are fundamental and can be amended by the Legislature.
 Orders and Rules can be amended by respective High Courts
 Sections are to be stated in numerals.
 Orders are to be stated in Roman Letters and Rules in numerals – Example:.
Or.VII Rule 1 .
 Harmonious construction is to be adopted.
S.T,O, V FARID AHAMED & SONS, AIR 1975 SC 756.
 If Rules are inconsistent with Sections , Sections will prevail.
DIRECTOR OF INSPECTION I.T. (Investigation) V POORANMAL
& SONS, 1975 4 SCC 568.

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 CIVIL PROCEDURE CODE, 1908 (continued)

• 9 steps to be pursued in a Civil Case: from the stage of filing a

case till a Decree is given by the court.
1) Filing of a suit by a Plaint/Petition (O.S./O.P. etc.)
2) Service of Summons on the Defendant/s. –
(a) If Defendants/s appear grant of time to file Written Statement
(b) If Defendant/s does/do not appear even after completion of service of
summons, defendant/s to be set ex parte and Court to pronounce Decree in
favour of the Plaintiff/s.
3) Plaintiff/Petitioner not prosecuting the Plaint/Petition diligently - Court to
dismiss the Plaint/Petition..
4) If Defendant/s appear/s and files Written Statement Court to proceed to
settle the Issues.
5) After settlement of Fair Issues Plaint/Petition is to be posted for
Trial/enquiry.
6) Conduct of trial/enquiry as per established procedure – Recording of
evidence as per the principles of Law of Evidence.
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 CIVIL PROCEDURE CODE, 1908 (continued)
• 9 steps to be pursued in a Civil Case: (continued):
7) Arguments to be advanced by the counsel on both sides.
8) Court to pronounce Judgment & Decree on a Specified date. –
Information is to be provided by the Court to the respective parties/
their Counsels.
9) Based on the Judgment a Decree is drawn.
 Judgment declares the propriety rights of the parties – their rights
and liabilities through statements while Decree quantifies the said
rights and liabilities.

5 steps to be pursued after Judgment and Decree:

1) Parties become Judgment Creditor and Judgment Debtor.
Judgment Debtor to satisfy the Judgment Creditor in terms of the
Decree.
2) J. C/J.D if aggrieve3d by the Judgment and Decree may exercise
his right of Appeal, Reference, Review or Revision as the case may
be . Time limit and procedure prescribed in this regard are to be
observed.
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 CIVIL PROCEDURE CODE, 1908 (continued)
5 steps to be pursued after Judgment and Decree: (continued)
3) When an Appeal is preferred from the decision of Trial Court it is termed
as I Appeal. The I Appellate court can go into questions of fact as well
questions of law. The I Appellate Court may either dispose of the case by
itself or remand the case to the Trial Court for disposal.

4) If a party is aggrieved by the Judgment in I Appeal such party may prefer

a II Appeal only if a substantial question of Law is involved. (Sec.100). –
otherwise not, in which case the decision of the I Appellate shall become
final.
5) In certain cases an Appeal may be preferred to the Supreme Court.
DEFINITIONS:
Section 2 (i): Decree: Ingredients:
 a) There must be an adjudication - Judicial determination of a matter in
dispute.
 No judicial determination – no Decree..
 MADAN NAIK v HANSUBALA DEVI, AIR 1983 SC 676.
 Must be by a court and not by an Officer who is not a Court.
 DEEPCHAD v L.A.O., AIR 1994 SC 901.

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 CIVIL PROCEDURE CODE, 1908 (continued)

DEFINITIONS (continued):
Section 2 (i): Decree: Ingredients. (continued)
b) Such adjudication must be in a suit. – civil proceedings commenced by a
Plaint. - DIVAN BROS v CENTRAL BANK OF INDIA. SIR 1976
SC 1503.
But certain enactments make specific provisions to treat
Application as suits. Example: Indian Succession Act, Hindu
Marriage Act, the Land Acquisition Act, The Arbitration Act etc.
In all these cases ‘Statutory suits’ come into being and decisions
given there under are Decrees.
c) Determination of the rights of the parties with regard to all or any
of the matters in controversy in the suit.
“Rights” mean substantive rights of the parties and not meaning
procedural rights.
‘Matters in controversy” refer to the subject-matter of the suit with
reference to which some ‘relief’ is sought. Therefore, not confined
to the merits of the case alone.
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 CIVIL PROCEDURE CODE, 1908 (continued)
DEFINITIONS (continued):
Section 2 (i): Decree: Ingredients. (continued)
d) Determination must be of a CONCLUSIVE NATURE.
The determination must be final and conclusive as regards the Court which
passes it.
NARAYANAN CHANDRA v PRATIRUDH SAHINI, AIR 1991 1 Cal
531.
A Remand order under Order XXXXI, Rule 23 are not Decrees because they
do not decide rights of the parties conclusively.
But an Order may determine conclusively the rights of the parties though it
may not dispose of a suit
Example Under Order XXXXI Summary disposal of an Appeal holding it as
not maintainable or dismissing a suit for want of evidence or proof are
Decrees.
e) FORMAL EXPRESSION: -
Requirements of form must be complied with
The formal expression must be deliberate and given in the manner provided by
law. The Decree follows the judgment and must be drawn up separately.

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 CIVIL PROCEDURE CODE, 1908 (continued)
DEFINITIONS (continued):
Section 2 (i): Decree: Ingredients. (continued)
Test to be adopted to determine a Decree:
 Whether or not an Order of a Court is a Decree, the Court should take into
account the pleadings of the parties and the proceedings leading up to
passing of the Decree. SHIVSAKTI CO-OPERATIVE HOUSING
SOCIETY v SWARAJ DEVELOPERS, , AIR 2003 SC 2434.
 An award passed by Lok Adalat shall be treated as a Decree of a Civil Court
– UNITED INDIA INSURANCE CO. LTD., MASHA IMRAN KHAN,
AIR 2008 SC 26.
DECISIONS WHICH ARE DECREES: ILLUSTRATIONS:
i. Order of abatement of suit
ii. Dismissal of appeal as time-barred.
iii. Dismissal of a suit or appeal for want of evidence or proof.
iv. Rejection of Plaint for non-payment of court fees.
v. Granting or refusing to grant costs or installment.
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 CIVIL PROCEDURE CODE, 1908 (continued)
DEFINITIONS (continued): Section 2 (i): Decree: Ingredients. (continued)
DECISIONS WHICH ARE DECREES: ILLUSTRATIONS (c0ntinued)
vi . Modification of Scheme under Section 92 of the Code.
vii. Order holding appeal not maintainable.
viii. Order holding that the right to sue does not survive.
ix. Order holding that there is no cause of action.
x. Order refusing one of several reliefs.
DECISIONS WHICH ARE NOT DECREES:
i. Dismissal of appeal for default.
ii. Appointment of Commissioner to take accounts.
iii. Order of remand.
iv. Order granting or refusing interim relief.
v. Return of plaint for presentation to proper court.
vi. Dismissal of suit under Order XXIII, Rule 1.
vii. Rejection of application for condonation of delay.
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 CIVIL PROCEDURE CODE, 1908 (continued)
DEFINITIONS (continued): Section 2 (i): Decree: Ingredients. (continued)
DECISIONS WHICH ARE NOT DECREES: (continued):
viii Order holding an application to be maintainable.
ix. Order refusing to set aside sale.
x. Order directing assessment of mesne profits.
DEEMED DECREES: The term ‘deemed’ is generally used to create a statutory
fiction for the purpose of extending the meaning which it does not expressly cover.
 In CIT v BOMBAY TRUST CORPORATION, AIR 1930 PC 54, the Privy
Council stated , ‘(W)hen 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”.
 An adjudication not fulfilling the requirements of Section 2(2) of the Code cannot
be said to be a ‘decree” By a legal fiction , certain Orders and determination are
deemed to be ‘decrees’ under the Code. They are:
 1) Rejection of a Plaint Order VII, Rules 11 to 13.
 2) Determination of questions under Section 144 (Restitution).
 3) Adjudication under Order XXI Rule 58.
 4) Adjudication under Order XXI Rules 98 or 100.
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 CIVIL PROCEDURE CODE, 1908 (continued)
DEFINITIONS: Order: Section 2 (14):
 ‘Order means the formal expression of any decision of a civil court which
is not a decree.
C.VIDYACHARAN SHUKLA v KHUBCHAND BAGHEL, AIR 1964
SC 1099 @ p.1123.
 Thus the adjudication of a court which is not a decree is an Order.
 Therefore, the adjudication of a court of law may either be (a) a decree or
(b) an Order..
ORDER &DECREE: Similarities:’
1) Both relate to matters in controversy.
2) Both are decisions given by a Court.
3) Both are adjudications of a court of law.
4) Both are “formal expressions” of a decision.
ORDER &DECREE: DISTINCTIONS:
D: Passed in suit commenced by a plaint
O: may originate from a suit by a plaint or from a proceeding commenced by a
Petition or Application.
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 CIVIL PROCEDURE CODE, 1908 (continued)

• ORDER: SECTION 2 (14): (continued)

 ORDER &DECREE: DISTINCTIONS: (continued)
D: Adjudication conclusively determining the rights of the parties.
O: may or may not conclusively determine such rights.
D: may be preliminary or final or partly preliminary or partly final.
O: No preliminary Order.
D: There can only be one Decree in one suit except in certain suits
where preliminary and final decrees are passed.
O: Number of Orders may be passed in a suit or proceeding.
D: Every Decree is appealable unless otherwise expressly provided.
O: Every Order is NOT APPEALABLE unless otherwise expressly
provided.
D: There may be 2 Appeals from Decrees.
O: No II Appeal in case Appeallable Orders.
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 CIVIL PROCEDURE CODE, 1908 (continued)
DEFINITIONS (continued):
Section 2 (i): Decree: CLASSES OF DECREES:
 The Code recognizes the following classes of decrees.
i) Preliminary decree, ii) Final decree and iii) Partly preliminary and
partly final.
 In Shankar V Chandrakant 1995 3 SCC 413, the Supreme Court said “
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. A final decree may be said to
become final in two ways: (1) 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.; (2) When the decree, so far as
regards the Court passing it, completely disposed of the suit.
It is in the latter sense that the word ‘decree’ is used in Section 2 (2) of
CPC.”

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 CIVIL PROCEDURE CODE, 1908 (continued)

• Section 2 (i): Decree: CLASSES OF DECREES:

• The Code provides for passing of preliminary decrees in the following
suits.
1) Suits for possession and mesne profits Order XX, R12.
2) Administration Suits Order XX, R13
3) Suits for pre-emption Order XX, R14
4) Suits for dissolution of partnership Order XX, R15
5) Su8ts for accounts between Principal & Agent Order XX, R16
6) Suits for partition and separate possession Order XX, R18
7) Suits for foreclosure of a mortgage Order XXXIV, R 2 - 3
8) Suits for sale of mortgaged property Order XXXIV, R 4 - 5
9) Suits for redemption of mortgage Order XXXIV, R 7 – 8
 The above list is not exhaustive and a Court may pass a preliminary
decree in cases not expressly provided by the Code.
 BHAGWAN SINGH v KALLA MAULA SHAH, AIR 1977 MP 257.

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 CIVIL PROCEDURE CODE, 1908 (continued)

• Section 2 (i): Decree: CLASSES OF DECREES:

• PRELIMINARY DECREE:
• Conflict of opinion prevails if there can be more than one preliminary decree in
one suit. Different High Court s have held different views - some holding only
one and others more than one.
• The question whether a decision amounts to a preliminary decree or not is one of
great significance in view of the provisions of Section 97 of the Code which that
, “Where any party aggrieved by a preliminary decree does not appeal from such
decree, he shall be precluded from disputing its correctness in any appeal which
may be from the final decree”.
• In view of the above the controversy was resolved in KASI v RAMANATHAN
CHETTIAR, 1947 2 MLJ 523, PATHANJALI SASTRI, J (as he then was)
rightly concluded the matter thus: “The question is not whether the Code allows
more than one preliminary or final decree to be made, but whether the Code
contains a prohibition against the Court in a proper case passing more than one
such decree”
• Finally, in SHANKAR v CHANDRAKANT, AIR 1995 SC 1211, the Supreme
Court said: “It is well settled that more than one final Decree can be passed”.

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 CIVIL PROCEDURE CODE, 1908 (continued)
DEFINITIONS: (continued): MESNE PROFITS (SECTION 2 (12):
 Means those profits which the person in wrongful possession of such
property actually received or might receive 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.
 Object: is to protect the right of a person to possess his property.
 When a person is deprived of such a right by another, he is not only
entitled to restoration of possession of his property, but also damages
for wrongful possession from that person.
 Thus the mesne profits are thus a compensation paid to the real
owner.
 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.
 LUCY KOCHUVAREED v P.MARIAPPA GOUNDER, AIR 1979 SC
1214.
 Mesne profits can be claimed with regard to immovable property
only.

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 CIVIL PROCEDURE CODE, 1908 (continued)
DEFINITIONS: (continued): MESNE PROFITS (SECTION 2 (12): (continued):
Against whom mesne profits can be claimed:
 Wrongful possession of the defendant is the essence of a claim for
mesne profits and the very foundation of the defendant’s liability
there for. Thus a decree for mesne profits can be passed against:
a) Trespasser,
b) A person a decree for possession is passed,
c) A mortgagor in possession of mortgaged property after a decree for
foreclosure has been passed against him,
d) A mortgagee in possession of property even after a decree for
redemption is passed,
e) A tenant holding over at will after a notice quit has been served on
him.
 Where the plaintiff is dispossessed by several persons, every one of
them would be liable to pay mesne profits to the plaintiff even though
he might not be in actual possession or the profits might not have
been received by him.
 The Court in the above cases may hold all the trespassers jointly and
severally liable leaving them to have their respective rights adjusted
in separate suits for contribution or may ascertain and apportion the
liability of each of them.
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