The Code of Civil Procedure 1908-Amish Shah

9924035128 (M

THE CODE OF CIVIL PROCEDURE, 1908 (C.P.C.)

Decree, Order & Judgeme ! Decree Defined u/s 2(2) of Civil Procedure Code, 1908. It means the "#rm$% e&'re(()# #" $ $d*ud)c$!)# hich c# c%u()+e%, de!erm) e( !-e r)g-!( #" !-e '$r!)e( ith re!ard to all or an" of the matter in controvers" in the suit. # decree ma" $e either 're%)m) $r, or ") $%. # decree is 're%)m) $r, .-e $ "ur!-er 'r#cedure -$( !# /e !$0e /e"#re !-e (u)! c$ /e c#m'%e!e%, d)('#(ed #"". 1-e $d*ud)c$!)# c#m'%e!e%, d)('#(e( #" !-e (u)! (uc- decree )( ") $%. It ma" $e noted that the term decree doesn%t include the follo in!& #n" ad'udication from hich an a((eal lies as an a((eal from an order or #n" order or decision of the dismissal of the suit for default. )*ormal e+(ression, means the recordation of the rulin! of the Court on the matter (resented $efore it, so far as the Court e+(ressin! it alludes to the fact that the same issue cannot $e ad'udicated $" or $efore the Court a!ain $ut onl" $efore a hi!her forum i.e. an a((ellate forum. # decree must $e dra n se(aratel" after a 'ud!ment. Deemed Decrees& # deemed decree is one hich, thou!h not fulfillin! the essential features of a decree as re-uired $" the Code has $een e+(ressl" cate!orised as a decree $" the le!islature. .he re'ection of a (laint and the determination of -uestions of facts are deemed decrees. Order Defined u/s 2 (1/) of the Civil Procedure Code. It means the "#rm$% e&'re(()# #" $ , decision of the Civil Court hich is not a decree. .he startin! (oint for an order need not al a"s $e a (laint, it ma" $e an a((lication or (etition. .hou!h $ein! a formal e+(ression, it follo s that an order need not conclusivel" determine the ri!hts of (arties on an" matter in dis(ute. 0o ever, it ma" relate to the matters in controvers". Judgme ! Defined u/s 2 (9) of the Civil Procedure Code. It means the (!$!eme ! g)+e /, !-e Judge # !-e gr#u d( #" $ Decree #r Order. .hus a 'ud!ment sets out the !round and the reason for the 1ud!e to have arrived at the decision. Pa!e 1 of 11

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Judgme ! )( !-e dec)()# of a court of 'ustice u(on the res(ective ri!hts and claims of the (arties to an action in a suit su$mitted to it for determination 2 2!$!e #" T$m)% $du V. 2. T-$ g$+$%. 1ud!ment is the statement of the Court on the !rounds for havin! arrived at a decision. # 'ud!ment must contain the follo in! com(onents& 1. 2. 4. /. # cris( statement of facts of the case3 .he (oints or issues for determination3 .he decision on such issues and finall"3 .he reasons for such a decision. #" c#ur!( $ d +e ue #" (u)!(

Jur)(d)c!)#

1urisdiction means the authorit" $" hich a court has to decide matters that are $rou!ht $efore it for ad'udication. .he limit of this authorit" is im(osed $" charter, statute or commission. If no such limit is im(osed or defined that the 'urisdiction is said to $e unlimited. 5imitation of 'urisdiction of civil court is $asicall" four 6inds& 1. 1urisdiction over the su$'ect matter7 to tr" certain matters $" certain court is limited $" statute (8+. 9mall cause court7 suit for mone" due under (romissor" note or a suit for (rice of or6 done) 2. Place of suin! or territorial 'urisdiction 2 # territorial limit of 'urisdiction for each court is fi+ed $" :overnment. 4. 1urisdiction over (ersons 2 #ll (erson of hatever nationalit" are su$'ect to the 'urisdiction of the countr" e+ce(t forei!n state. /. Pecuniar" 'urisdiction de(endin! on (ecuniar" value of suit 2.here is no (ecuniar" 'urisdiction of hi!h court and district court. 1urisdiction ma" $e further classified& ;ri!inal 'urisdiction #((ellate 'urisdiction Criminal and a((ellate 'urisdiction7 9u(reme Court, 0i!h Courts and District courts have $oth ori!inal and a((ellate 'urisdiction in various matter. 2!$, #" (u)! 3(2ec!)# 10)

<o Court shall (roceed ith the trial of an" suit in hich the matter in issue is also directl" and su$stantiall" in issue in a (reviousl" instituted suit $et een the same (arties or $et een (arties under hom the" or an" of them claim liti!atin! under the same title here such suit is (endin! in the same or an" other Court in India havin! 'urisdiction to !rant the relief claimed or in an" Court $e"ond the limits of India esta$lished or continued $" the Central :overnment and havin! li6e 'urisdiction or $efore the 9u(reme Court.

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1. . o suits instituted at different times, 2. .he matter in issue in the later suit should $e directl" and su$stantiall" in issue in the earlier suit, 4. suit $et een the same (arties, /. 9uch earlier suit is still (endin! either in the same court or in other com(etent court, not $efore forei!n court. C$(e 4 E&$m'%e& (=in!s Pharmaceuticals (P) ltd and another >. ?/s. 9 an (harmaceuticals and other) # suit as instituted $" the (laintiff com(an" alle!in! infrin!ement $" the defendant com(an" $" usin! trade name of medicine and sellin! the same in ra((er and carton of identical desi!n ith the same colour com$ination etc. as that of (laintiff com(an". # su$se-uent suit as instituted in different court $" the defendant com(an" a!ainst the (laintiff com(an" ith same alle!ation. .he court held that su$se-uent suit should sta"ed as a simultaneous trial of the suits in different courts mi!ht result in conflictin! the decision as issue involved in t o suit as totall" identical. Re( *ud)c$!$ (2ec!)# 11)

<o Court shall tr" an" suit or issue in hich the matter directl" and su$stantiall" in issue has $een directl" and su$stantiall" in issue in a former suit $et een the same (arties, or $et een (arties under hom the" or an" of them claim, liti!atin! under the same title, in a Court com(etent to tr" such su$se-uent suit or the suit in hich such issue has $een su$se-uentl" raised and has $een heard and finall" decided $" such Court. .he intention of this doctrine is the (arties of the suit should not $e harassed to a!ainst the same issue or matter alread" decided $et een them and the time of court should not asted over the matters that ou!ht to have $een and should have $een decided in the former suit $et een the (arties. .his doctrine 6no n as C# (!ruc!)+e re( *ud)c$!$ 8ssential condition for res 'udicata 1. .he matter must $e directl" and su$stantiall" in issue in t o suits 2. .he (rior suit should $e $et een the same (arties or (erson claimin! under them 4. .he (arties should have liti!ated under the same title /. .he court hich determined the earlier suit must $e com(etent to tr" the latter suit @. .he same -uestion is directl" and su$stantiall" in issue in the latter suit A. .he (rior suit has $een heard and finall" decided. E&$m'%e 15 6# as a trustee of a trust, after #Bs death C ron!full" ta6es the (ossession of the trust (ro(ert". C the son of # file a suit for recover" of (ossession of the (ro(ert" a!ainst C as the le!al heir of # in his Pa!e 3 of 11

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individual ca(acit" $ut C did not succeed. .he C files another suit for recover" of trust (ro(ert" a!ainst C in the ca(acit" of trustee as he as a((ointed trustee after the death of #. =hether second suit is $arredD *irst suite filed $" C as individual ca(acit" i.e. as le!al heir here as second suit as a ca(acit" of trustee of the trust (ro(ert"7 second suit is not $arred $" the doctrine of res 'udicata. E&$m'%e 75 *indin! incidentall" does not o(erate as res 'udicata (?adhvi #mma Cha ani #mma >. Eun'i6utt" P. ?. Pillai. P%$ce #" (u) g (Terr)!#r)$%) 2ec!)# 18 !# 18 4 C#ur! ) .-)c- (u)!( !# /e ) (!)!u!ed9 (:$!!er re%$!) g !# )mm#+$/%e 'r#'er!,) 8ver" suit shall $e instituted in the Court of the lo est !rade com(etent to tr" it. 9u$'ect to the (ecuniar" or other limitations (rescri$ed $" an" la , the follo in! suit shall $e institutes in the court ith in the local limits of hose 'urisdiction the (ro(ert" is situated (9ection 1A)&7 (a) *or the rec#+er, of immova$le (ro(ert" ith or ithout rent (rofits, ($) *or the '$r!)!)# of immova$le (ro(ert", (c) *or "#rec%#(ure, ($%e #r redem'!)# in the case of a mort!a!e of char!e u(on immova$le (ro(ert", (d) *or the de!erm) $!)# #" $ , #!-er r)g-! !# #r ) !ere(! immova$le (ro(ert", (e) *or c#m'e ($!)# "#r .r# g to immova$le (ro(ert", (f) *or the rec#+er, #" m#+$/%e (ro(ert" actuall" under distraint attachment, or or in or

# suit to o$tain relief res(ectin! or com(ensation for ron! to, immova$le (ro(ert" $e instituted either in the Court ithin the local limits of hose 'urisdiction the (ro(ert" is situate or in the Court ithin the local limits of for !ain or here the either (art" actuall" and voluntaril" resides or carries on $usiness or (ersonall" or6s. 9uits for immova$le (ro(ert" situate CourtsD (9ection 1F) ithin 'urisdiction of different ithin the local limits of hose

.he suit ma" $e instituted in an" Court 'urisdiction the (ro(ert" is situate.

Provided that, in res(ect of the value of the su$'ect matter of the suit, the entire claim is co!niGa$le $" such Court. Place of institution of suit uncertainD (9ection 18) here local limits of 'urisdiction of Courts are

; , # e #" !-#(e C#ur!( ma", if satisfied that there is !round for the alle!ed uncertaint", record a statement to that effect and thereu(on (roceed to entertain and dis(ose of an" suit relatin! to that (ro(ert". Pa!e 4 of 11

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Provided that the suit is one ith res(ect to hich the Court is com(etent as re!ards the nature and value of the suit to e+ercise 'urisdiction. 2u)!( "#r c#m'e ($!)# "#r .r# g( !# 'er(# #r !# m#+$/%e9 (2ec!)# 19) =here a suit is for com(ensation for ron! done to the (erson or to mova$le (ro(ert", if the ron! as done ithin the local limits of the 'urisdiction of one Court and the defendant resides or carries on $usiness or (ersonall" or6s for !ain, ithin the local limits of the 'urisdiction of another Court, the suit ma" $e instituted at the o(tion of the (laintiff in either of the said Courts. I%%u(!r$!)# ( (a) #, residin! in Delhi, $eats C in Calcutta. C ma" sue # either in Calcutta or in Delhi. ($) #, residin! in Delhi, (u$lishes in Calcutta statements defamator" of C. C ma" sue # either in Calcutta or in Delhi. O!-er (u)!( !# /e ) (!)!u!ed .-ere de"e d$ !( re()de #r c$u(e #" $c!)# $r)(e(9 (2ec!)# 70) 8ver" suit shall $e instituted in Court 'urisdiction& ithin the local limits of hose

.he defendant, or each of the defendants here there are more than one, at the time of the commencement of the suit, actuall" and voluntaril" resides, or carries on $usiness, or (ersonall" or6s for !ain3 or .he cause of action, holl" or in (art, arises. Provided that the suit is one ith res(ect to hich the Court is com(etent as re!ards the nature and value of the suit to e+ercise 'urisdiction. E&'%$ $!)# & # cor(oration shall $e deemed to carr" on $usiness at its sole or (rinci(al office in India or, in res(ect of an" cause of action arisin! at an" (lace here it has also a su$ordinate office, at such (lace. I%%u(!r$!)# ( (a) # is a tradesman in Calcutta, C carries on $usiness in Delhi. C, $" his a!ent in Calcutta, $u"s !oods of # and re-uests # to deliver them to the 8ast Indian Hail a" Com(an". # delivers the !oods accordin!l" in Calcutta. # ma" sue C for the (rice of the !oods either in Calcutta, here the cause of action has arisen or in Delhi, here C carries on $usiness. ($) # resides at 9imla, C at Calcutta and C at Delhi #, C and C $ein! to!ether at Cenaras, C and C ma6e a 'oint (romissor" note (a"a$le on demand, and deliver it to #. # ma" sue C and C at Cenaras, here the cause of action arose. 0e ma" also sue them at Calcutta, here C resides, or at Delhi, here C resides3 $ut in each of these cases, if the non7 resident defendants o$'ect, the suit cannot (roceed ithout the leave of the Court.

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C# ce'! #" (e! #"", E<u)!$/%e 2e! #"" $ d C#u !er C%$)m 2e! O"" ;rder 8, Hule A deals ith set off hich is a reci(rocal dischar!e of de$ts $et een the (laintiff and he defendant. It has the effect of e+tin!uishin! the (laintiff%s claim to the e+tent of the amount claimed $" the defendant as a counter claim. =here the defendant%s claims to set off a!ainst the (laintiff%s demand, in a suit for the recover" of mone", an" ascertained sum of mone" le!all" recovera$le $" him from the (laintiff, the defendant ma" (resent a ritten statement containin! the (articulars of the de$t sou!ht to $e set off. E&$m'%e& I H and 9 sale rice for Hs 2@000 to # and ?. # sell cloth orth Hs. 28000 to 9. # file a suit a!ainst 9 for recover" of (rice of cloth. 9 claims set off of the cost of rice in this suit. 9 ill not allo set off 2 in dealin! (arties are not 'ointl" same. E<u)!$/%e 2e! O"" =here the defendant claims set off in res(ect of an unascertained sum of mone", here the claim arises of the same transaction and then such set off is 6no n as e-uita$le set off. :enerall", the suits emer!e from cross demands in the same transaction and this doctrine is intended to save the defendant from havin! to ta6e recourse to a se(arate cross suit. C#u !er C%$)m ;rder 8, Hule A# of Civil Procedure Code deals ith the Hule of Counter claim. .his Hule (ermits the defendant to set u( the claim as a counter to the claim of the (laintiff, hich arose $et een the (arties. .his rule is a((lica$le in the interest of (u$lic (olic" so as to minimiGe liti!ation $et een the (arties hich could have $een filed $" the defendant se(aratel". # defendant in suit ma" in addition to his ri!ht of (leadin! a set off under rule A, set u( $" a" of counter claim a!ainst the claim of the (laintiff, an" ri!ht or claim in res(ect of a cause of action accruin! to the defendant a!ainst the (laintiff either $efore or after the filin! of the suit $ut $efore the defendant has delivered his defense or $efore the time limited for deliverin! his defense has e+(ired hether such counter claim is in the nature of claim for dama!e or not. 9uch counter claim must $e ith in the limit of the court. Tem'#r$r, ) *u c!)# $ d ) !er%#cu!#r, #rder

.he court ma" !rant tem(orar" in'unction to restrain an" such act or ma6e such other order for the (ur(ose of sta"in! and (reventin! the& Pa!e " of 11

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=astin!, dama!in!, alienation or sale or removal or dis(osition of the (ro(ert" or dis(osition of (laintiff or other ise in'ur" to the (laintiff in relation to an" (ro(ert" in dis(ute in the suit, here it is (rovided $" affidavit or other ise&7 that (ro(ert" in dis(ute in a suite is in dan!er or $ein! asted, dama!ed or alienated $" an" (art" to the suit or ron!full" sold on e+ecution of decree or3 that the defendant threatens or intend to remove or dis(ose of his (ro(ert" ith a vie to defraudin! his creditor or3 that the defendant threatens to dis(oses the (laintiff or other ise cause in'ur" to the (laintiff in relation to an" (ro(ert" in dis(ute in suit. It ould $e necessar" for the (laintiff to satisf" the court that su$stantial and irre(ara$le harm or in'ur" ould $e suffered $" him if such tem(orar" in'unction is not !ranted and such loss or dama!e or harm can not $e com(ensated $" dama!es. I !er%#cu!#r, #rder (P#.er !# #rder I !er)m ($%e) If the immova$le (ro(ert" hich is su$'ect to ('eed, and $!ur$% dec$, or hich for an" other sufficient cause it ma" $e desira$le to $e sold at once. .he court ma" on the a((lication of the a((licant of an" (art" to a suit order the sale of such detained !oods. De!e !)# , 're(er+$!)# , ) ('ec!)# e!c. #" (u/*ec! m$!!er #" (u)!

.he court ma" on a((lication of an" (art" to a suit and on such terms as it thin6 fit& ?a6e an order for detention, (reservation or ins(ection of an" (ro(ert" hich is in the su$'ect matter of suit3 ?a" authorise an" (erson to e !er u'# !-e 'rem)(e(. #uthorise an" 'er(# !# !$0e ($m'%e(, for o$servation and for o$tain desired information%s etc. Part" ould made a((lication for aforesaid (ur(oses at an" time after institution of suit or at an" time durin! the (roceedin! of the suit. Court shall identif" the intention of (art" for the order and it thin6 fit than issue the an" of aforesaid order. Court ma" order de(osit of mone" or other thin! etc. in court :)(*#) der #" P$r!)e( =hen more than one (ersons 'oined in one suite as (laintiff or defendants in hom or a!ainst hom an" ri!ht to relief does not arise or a!ainst hom se(arate suit are $ou!ht, # c#mm# <ue(!)# of la or fact ould airs. .o avoid such mis'oinder t o factors are essentiall" considered $" ad'udication& Pa!e # of 11

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1. the ri!ht to relief must arises out of same act or transactions $rou!ht $" (laintiffs or a!ainst the defendant, 2. .here is common -uestion of la or facts. De%)+er, #" 2umm# ( /, c#ur!6 Ru%e 9 9ummons delivered to defendant either (ersonall" or his a!ent or an" adult male or female mem$er of the famil", a!ainst si!nature o$tained in ac6no led!ement of the service. 9ummons ma" $e delivered $" #n (ro(er officer of court or .hru re!istered ac6no led!ement (ost or ac6no led!ed s(eed (ost or couriered services a((roved $" hi!h court or a((ro(riate court. Court satisfied or $elieve that the (erson summoned is 6ee(in! out of a" for (ur(ose of avoidin! service or that an" of reason the summons can not $e served in the ordinar" a" in that case court order the service of summons to $e served $" affi+in! a co(" thereof in (#me c# (')cu#u( '%$ce ) !-e c#ur! -#u(e $ d $%(# u'# (#me c# (')cu#u( '$r! #" !-e -#u(e ) .-)c- !-e 'er(# (umm# ed )( 0 #. !# -$+e %$(! re()ded #r c$rr)ed # /u() e(( #" 'er(# $%%, .#r0ed "#r g$) #r $ , (uc- #!-er m$ er( $( c#ur! !-) 0( ")!. If defendant is (u$lic servant / officer 9ummons ill $e delivered ;ffice in hich he/she is em(lo"ed. If defendant is com(an" summons ill $e delivered to Com(an" 9ecretar" / Director / (rinci(al officer. ;''e$% #((eal is a (rocess for re-uestin! a formal chan!e to a decision of su$ordinate ad'udication. Hi!ht of a((eal is not a natural ri!ht or inherent ri!ht attached to liti!ation. 9uch ri!ht is !iven $" statute or $" rules havin! the force of statute. *our 6inds of a((eals& 1. #((eal from ori!inal Decree (9ection 9A799) 2. 9econd #((eals (9ection 1007 104) 4. #((eal from ;rder (10/ 710A) /. #((eal to the su(reme court (9ection 10/710A) Re"ere ce, Re+)e. & Re+)()# Re"ere ce 9u$'ect to such conditions as ma" $e (rescri$ed, at an" time $efore 'ud!ement a court in hich a suit has $een instituted ma" state case and refer the same for o(inion of the hi!h court, and hi!h court ma" ma6e such order as it thin6 fit. Re+)e. Conferred $", 9ection 11/ and order /F rule 1 of code. Pa!e 8 of 11

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#n" (erson considerin! himself a!!rieved $" a decree or order ma" a((l" for revie of 'ud!ement to the court hich (assed the decree or made the order on an" of the !rounds as mentioned ion order /1 Hule 1, namel"& 1. Discover" $" the a((licant of ne and im(ortant matter or evidence hich after the e+ercise of due dili!ence as not ith in his 6no led!e or could not $e (roduced $" him at the time hen the decree as (assed or order made or 2. ;n account of some mista6e or error a((arent on the face of the record, or 4. for an" other sufficient reason3 .he court ma" ma6e such order thereon as it thin6 fit. Re+)()# (2ec!)# 18)

0i!h court ma" call for record of an" case hich has $een decided $" an" court su$ordinate to such hi!h court and in hich no a((eal lies thereto and if such su$ordinate court a((ears& .o have e+ercised a 'urisdiction not vested in it $" la 3 or .o have failed to e+ercise a 'urisdiction so vested or3 .o have acted in the e+ercise of its 'urisdiction ille!all" or ith material irre!ularit". .he hi!h court ma" ma6e such order as it thin6s fit. .he hi!h court shall not var" of reverse an" order made or an" order decidin! an issue in the course of suit or (roceedin! e+ce(t here the order if ht had $een made in favour of the (art" a((l"in! for revision ould have $een finall" dis(osed of the suit or other (roceedin!s. .he 0.C. shall not var" or reversed an" decree or order a!ainst hich an a((eal lies either to the 0.C. or an" court su$ordinate thereto. # revision shall not o(erate as a sta" of suit or other (roceedin! $efore the court e+ce(t here such suit or (roceedin! is sta"ed $" 0.C. 2u)! /, #r $g$) (! $ c#r'#r$!)# 4 m) #r

(Com(an")Pleadin! ma" $e si!ned and verified $" 9ecretar", Director or (rinci(al officer of Com(an" (?inor) <e+t friend of the minor7 on satisfaction court ma" a((oint a (ro(er (erson to $e a !uardian for the suit. =hen minor attend ma'orit" 2 minor ill 'oin the suit. 2umm$r, Pr#cedure # (rocedure $" a" of summar" suit a((lies to suits u(on& Cills of e+chan!e or, Promissor" notes .he summar" (rocedures are a((lica$le in the follo in! courts& 0i!h court, Cit" civil court J 9mall courts. .he de$t or li-uidated demand in mone" (a"a$le $" the defendant should arise on ritten contract or an enactment or on !uarantee. Defendant is not entitled to define the suit unless he enters an a((earance ith in 10 da"s from the service of summons. Pa!e 9 of 11

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.he summar" suit must $e $rou!ht ith in one "ear from the date on hich the de$t $ecomes due and (a"a$le, hereas the (eriod of limitation for suit for ordinar" case under ne!otia$le instrument is three "ear.

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Decree, Order & Judgeme !

Decree 9ection 2(2) *ormal e+(ression of an ad'udication hich conclusivel" determine the ri!ht of (arties ith re!ardin! to the matter in controvers" in suit. Decree Preliminar" *inal Decree #d'udicate and conclusivel" determine the ri!ht of the (arties. #l a"s a((eala$le, unless (rohi$ited $" la . 9econd a((eal (ermissi$le. Decree Preliminar" *inal Order Judgeme ! 9ection (1/) 9ection 2(9) *ormal e+(ression of an" decision of civil 9tatement !iven $" 'ud!e on the !round court, hich in not decree. of decree or order. 1ud!ement set out in the !round and the reason for the 'ud!e to have arrived at the decision. & Order ;rder does not do so. ;rder not a((eala$le unless (ermitted $" la . <o second a((eal (ermissi$le. #l a"s final

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