MODULE I

Basics of Code of Civil Procedure 1908 (CPC)

Introduction:

Law may be classified in two types:

1. Substantive law;

2. Adjective or procedural law.

Whereas substantive law determines rights and liabilities of parties, procedural or adjective law
prescribes practice, procedure and machinery for the enforcement of those rights and liabilities.
Procedural law is thus an adjunct or an accessory to substantive law. The Civil Procedure Code
consolidates and amends the law relating to the procedure of the Courts of Civil jurisdiction. The
Code of Civil Procedure is an adjective law; it neither creates nor takes away any right. It is
intended to regulate the procedure to be followed by Civil Courts. The Civil Procedure Code
consists of two parts. 158 Sections form the first part and the rules and orders contained in Schedule
I form the second part. The object of the Code generally is to create jurisdiction while the rules
indicate the mode in which the jurisdiction should be exercised.

The Code of Civil Procedure was first codified in 1859, it is an attempt to consolidate the laws
relating to civil procedure that resulted in the legislation of the ‘Code of 1859’. The aim of
subsequent Code of 1908 was consolidating and amending the laws relating to the procedure of
the Courts of Civil judicature. The main aim of amending the Civil Procedure Code, 1908 is to
consolidate and amend the laws relating to the procedures of the courts of civil judicature.

Some important terms:

Cause of Action

“Cause of action” means every fact that it would be necessary for the plaintiff to prove in order to
support his right to the judgement of the Court. Under Order 2, Rule 2, of the Civil Procedure Code
it means all the essential facts constituting the rights and its infringement. It means every fact
which will be necessary for the plaintiff to prove, if traversed in order to support his right to the
judgement.

Judgement, Decree and Order

“Judgement” as defined in Section 2(9) of the Civil Procedure Code means the statement given by
the Judge on the grounds of a decree or order. Thus a judgement must set out the grounds and
reasons for the Judge to have arrived at the decision. In other words, a “judgement” is the decision
of a Court of justice upon the respective rights and claims of the parties to an action in a suit
submitted to it for determination (State of Tamilnadu v. S. Thangaval, AIR (1997) S.C. 2283).

Decree

“Decree” is defined in Section 2(2) of the Code as (i) the formal expression of an adjudication
which, so far as regards the Court expressing it; (ii) conclusively; (iii) determines the rights of the
parties; (iv) with regard to all or any of the matters in controversy; (v) in the suit and may be either
preliminary (i.e. when further proceedings have to be taken before disposal of the suit) or final.

But decree does 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

“Decree-holder” means any person in whose favour a decree has been passed or an order capable
of execution has been made. [Section 2(3)] Thus, a person who is not a party to the suit but in
whose favour an order capable of execution is passed is a decree-holder.

Judgement-debtor

“Judgement-debtor” means any person against whom a decree has been passed or an order capable
of execution has been made. [Section 2(10)]. The definition does not include legal representative
of a deceased judgement-debtor.

Judgement

The “judgement” means a statement given by a judge on the grounds of a decree or order [Section
2(9)]. What is ordinarily called as an order is in fact a judgement. Also an order deciding a primary
issue is a judgement.

Order

“Order” as set out in Section 2(14) of the Code means the formal expression of any decision of a
Civil Court which is not a decree.

Application of Code:

The Code of Civil Procedure, 1908 applies to all proceedings of the civil court. The ‘Code’ is
concerned mainly to the very institution of a suit in a civil court, the progress of its trial, ending
with orders or a decree and its further stages. Such as appeal, reference, review, revision till the
execution of such decree or order.

The Code of Civil Procedure, 1908 is effectively divided into two different Schemes:

(A) Part I - Body containing the principles spread in 158 Sections;

(B) Part II - Schedule 1 containing 51 Orders along with the Rules framed there under this
Sections which lay down the general principles of jurisdiction. The Orders and the Rules must be
framed under prescribe the method, manner and mode in which such jurisdiction is to be
exercised.

Scope and Objective:

The main object of the CPC is to consolidate and amend the laws relating to the procedures of the court of
Civil Judicature. It collects all the laws that should be adopted by the civil courts. The main aim of the CPC
is to facilitate justice rather than providing any type of punishment and penalty.
The procedural law is always subservient to and is in aid to justice. 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 be the procedural
law what is given by the substantive law, was stated in case of Saiyad Mohhamad Bakar v. Abdul Hasan
Arab [(1998) 4 SCC 43]
The Code is exhaustive on the matters directly dealt by it but does not expand much upon the points that it
does not specifically deal with. The writers of the code could not foresee the possible circumstances which
may arise in the future litigations and could not result according to the procedure.

Conclusion:

Civil Procedural Code has been very important in the legal field owing to its various procedural
aspects as well as its objective of pursuing of an efficient and effective justice system through fair
trial, free provision of legal aid and speedy justice. It can be concluded that these ideals are being
properly followed through the innumerable efforts in the Code towards the objective of natural
justice system. The Code specifies various innovative measures to achieve its goal of speedy trials
like that of arbitration and measures of settlement which helps to reduce the pending cases and
provides fair trial to the people. There are other forms of efforts being taken for fair trial to be
followed in Indian Judicial process such as Open and Public trial. The principles of natural justice
have been referred. Each and every amendment that have taken place clearly has been through
such understanding. The conclusion that can be reached is that the Code is well-defined and careful
deliberations have been made towards its modifications so that it could suit the present societal
terms.