INTRODUCTION: CIVIL PROCEDURAL CODE (CPC)

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INTRODUCTION

 There are two groups of laws: (i) Substantive law and (ii) Procedural law
 What does substantive law do?- It determines rights and liabilities of the parties. Examples- Indian Contract Act, The
Transfer of Property Act, Indian Penal Code, Industrial Disputes Act.
 What does procedural law do?- It provides for mechanism and procedure for the enforcement of those rights and
liabilities. Examples- The Code of Civil Procedure, The Code of Criminal Procedure, The Evidence Act.
 Why do we need to have procedural laws?- The efficacy of substantive laws to a large extent depend on the quality of the
procedural laws.
 “A procedural law is always in aid of justice, not in contradiction or to defeat the very object which is sought to be
achieved. 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 Mohd. Bakar v. Abdulhabib Hasan, (1998) 4 SCC 343 at p. 349: AIR 1998 SC 1624 at p.
1627.]
 There are two types of courts: (i) Civil courts and (ii) Criminal courts. All cases other than criminal cases are dealt by 2

civil courts. Civil law comes into play in matters related to divorce, transfer of property, bankruptcy, consumer matters
etc. Judges of civil and criminal court have one difference of power. While judges of criminal court can send the convict
THE CODE OF CIVIL PROCEDURE, 1908

 Consolidation and Codification:

 An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature. To consolidate
means to collect all the laws relating to a particular subject and to bring it down to date in order that it may form a
useful Code applicable to the circumstances existing at the time when the consolidating Act is enacted.
 It came into force on January 1, 1909.

 Extent and Applicability:

 The Code extends to the whole of India, except (a) the State of Jammu and Kashmir; and (b) the State of Nagaland and
the Tribal Areas. It also extends to the Amindivi Islands and the East Godavari and Vishakhapatnam Agencies in the
State of Andhra Pradesh and the Union Territory of Lakshadweep. By the Amendment Act of 1976, the application of
the provisions of the Code have been extended to Schedule Areas also.
 Object of the code:
 It is designed to facilitate justice and further its ends and is not a penal enactment for punishments and penalties, not a
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thing designed to trip up people. The provisions of the code therefore should be construed liberally, and technical
objections should not be allowed to defeat substantial justice.
 CONTINUED....
 As the Supreme Court Stated, “A procedural law is always an aid of justice, not in contradiction or to defeat the very object
which is sought to be achieved. 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 substantive law and nothing can be taken away by the procedural law what
is given by the substantive law.”
 Scope:
 The code is exhaustive on matters specifically dealt with by it. The legislature is incapable of contemplating all the possible
circumstances which may arise in future litigation and consequently for providing procedure for them. With regards to those
matters, the Court has inherent power to act according to the principles of justice, equity and good conscience.
 Interpretation:
 A hyper technical view should not be adopted by the Court in interpreting procedural laws. A party cannot be refused just
relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of the procedure.
 The principle underlying interpretation of procedural laws has been succinctly laid down by the Supreme Court in the case
of State of Punjab v. Shamlal Murari, (1976) I SCC 719 speaking for the Court, Krishna Iyer, J. observed:

“We must always remember that procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. 4It
has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in
the administration of justice.”
 IMPORTANT DEFINITIONS
1. Decree: Section 2(2): 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, 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.
 In order that a decision of a court may be a “decree” the following elements must be present:

I. There must be an adjudication;

II. Such adjudication must have been done in a suit;
III. It must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit;
IV. Such determination must be of conclusive nature; and 5

V. There must be a formal expression of such adjudication.

DEFINITIONS CONTINUED...

I. What is adjudication?- For a decision of a Court to be a decree, there must be an adjudication, i.e., a judicial determination
of any matter in dispute. For example, a decision on a matter of an administrative nature or an order passed by an officer
who is not court is not a decree.
II. What is a suit?- A civil proceeding instituted by the presentation of a plaint.
III. What are rights of parties in controversy?- The word ‘rights’ means substantive rights of the parties and not merely
procedural rights. The term ‘parties’ means parties to the suit, i.e., the plaintiff and the defendant. The expression ’matters in
controversy’ means the subject-matter of the suit with reference to which some relief is sought.
IV. What is conclusive determination?- The determination must be final and conclusive regards to the court which passes it.
Thus, an interlocutory order, which does not decide the rights of parties finally is not a decree. For example, an order
refusing an adjournment or an order striking out defence of a tenant under the relevant Rent Act is not a decree as it does not
decide rights of parties conclusively.
V. What is formal expression?- The decree follows the judgment and must be drawn up separately. Thus, if a decree is not
formally drawn up in terms of the judgment, no appeal lies from that judgment.
 It has been held that the nomenclature or label is immaterial. Even if the judgment is styled as “order” but it fulfills all 6

conditions of the definition of the decree, it would be treated as “decree” which will be appealable.
DEFINITIONS CONTINUED...
 There are three types of decrees:

i. Preliminary Decree: Where an adjudication decides the rights of the parties with regard to all or any of the matters in
controversy in the suit but does not completely dispose of the suit, it is a preliminary decree.
ii. Final Decree: A final decree is one which completely disposes of a suit and finally settles all questions in controversy between
parties and nothing further remains to be decided thereafter.
iii. Partly Preliminary and Partly Final Decree: For example- in a suit for possession of immovable property with mesne
profits, where the court:
a. Decrees possession of the property; and
b. Directs an inquiry into the mesne profits.
 The former part of the decree is final while the latter part is only preliminary because the final decree for mesne profits can be
drawn only after enquiry, and the amount due is ascertained. In such cases even though the decree is only one, it is partly
preliminary and party final. (Lucy Kochuvareed v. P. Marippa Gounder, (1979) 3 SCC 150 at p.159)
 It is only the final decree which is executable. A preliminary decree is not executable, unless final decree is a part of the
preliminary decree. For example: in a suit for recovery of money, if the amount found due to the decree-holder is declared and
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the manner in which the amount is to be paid has also been laid down, the decree is a final decree.
 Thus, where a decree passed by a special court did not contemplate any further proceedings, the decree even though described as
DEFINITIONS CONTINUED...

2. Decree holder: Section 2(3): Decree-holder means any person in whose favour a decree has been passed or an order
capable of execution has been made.
 From this definition it is clear that the decree-holder need not necessarily be the plaintiff. A person who is not a party to a
suit but in whose favour an order capable of execution has been passed is also a decree-holder.
3. Judgment debtor: Section 2(10): Judgment-debtor means any person against whom a decree has been passed or an
order capable of execution has been made.
4. Mesne Profits: Section 2(12): 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.
 Object: Every person has a right to possess his property. And when he is deprived of such right by another person, he is
not only entitled to restoration of possession of his property but also damages for wrongful possession from that person.
 The mesne profits are thus a compensation paid to the real owner. And it can be claimed with regard to immovable
property only. For example, a decree of mesne profits can be passed against a trespasser or against a person against whom
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a decree for possession is passed or against a tenant holding over at will after a notice to quit has been served upon him.
DEFINITIONS CONTINUED...
5. Judgment: Section 2(9): “Judgment” means the statement given by a judge of the grounds of a decree or order.
Every judgment other than that of a Court of Small Causes should contain:
i. Statement of Fact
ii. Point of determination
iii. The decision
iv. Reasons for such decision
6. Order: Section 2(14): “Order” means the formal expression of any decision of a civil court which is not a decree.
 Order and Decree: Similarities:- There are some common elements in both of them, viz.
i. Both relate to matters in controversy
ii. Both are decisions given by a court
iii. Both are adjudications of a court of law
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iv. Both are formal expressions of a decision

DEFINITIONS CONTINUED...
 Order and Decree: Distinction:- There are fundamental distinctions between the two expression as follows:

Decree Order
• Can only be passed in a suit commenced by • Can originate from a suit by presentation of a plaint
presentation of a plaint. or petition or an application.
• Deals with substantive rights. • Deals with procedural rights/ matters.
• May be preliminary, final or partly preliminary and • Cannot be a preliminary order.
final.
• Every order is not appealable.
• Every decree is appealable unless otherwise
• No second appeal lies in case of appealable orders.
expressly provided.
• A second appeal lies to the High Court on certain
grounds from the decree passed in the First Appeal.
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IN CONCLUSION

 An ORDER is passed to regulate court proceedings.

 A JUDGMENT discusses issues with answers and detailed reasons.
 A DECREE has description about rights of the parties.

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