Code of Civil Procedure

Index of Headings – Notes on CPC

1.Introduction
2.History of Civil Procedure in India
3.Nature and Scope of CPC
4.Structure of the CPC
5.Definitions under Section 2
6.Decree, Order, and Judgment
7.Judgment
8.Important Case Laws

• S. Satnam Singh v. Surinder Kaur (2009)
• Chhelaram v. Manak (1997)
• Ashwini Kumar v. Vidya (2007)
• S. Balwant Lokande v. Chandrakant Lokhande (1995)
• Hasham Abbas Sayyad v. Usman Abbas Sayyad (2007)
• Paramjeet Singh Patheja v. ICDS Ltd (2007)
• Puranmasi Yadav v. Narmadeshwar Tripathi (1998)
• Balraj Taneja v. Sunil Madan (1999)
• Islamic Academy of Education v. State of Karnataka (2003)

9.FAQs

Introduction 

The Code of Civil Procedure is both procedural and substantive law but we need to sort and understand law. 

Since the object of the Act, stated in the preamble is both to consolidate and amend the word Act has to be construed as forming a code exhaustive of the matters dealt herein. 

To consolidate a law means to collect the statutory law relating to a particular subject and to bring it down to take in order that it may form a useful Code applicable to the circumstances existing at the time when the consolidation act is enacted. 

Thus, we can say that the provisions of the Act have to be construed with reference to the circumstances existing at the time of its enactment, if the language is plain and unambiguous, resort need not be made to the earlier law but if it is capable of more than one meaning, it is permissible to refer to the previous state of law to affix the meaning the provision under construction.

This is so because a Consolidating Act raises the presumption that the Consolidating Act does intend to alter the earlier law. Bringing together and arrangement of existing laws as a coherent whole is considered to be the purpose. 

History of Civil Procedure in India

No written code was there but there were court directions, rules and procedures before 1859. First Code came into existence on 1st July 1859, before the date the Code of Civil Procedure (“CPC”) was a mixture of some ill-arranged and ill-drawn rules which ended in a chaotic disposal when applied and there was no uniformity and coherence in them. The act of consolidation also brings uniformity and coherence in the existing procedures. This Act also did not meet the challenges and it was replaced by CPC of 1877 that came into force from 1st October 1877, a third code came into force from 1st June 1882, this enactment was well directed towards the problems and was technically sound but was rigid as it was too clinical and problems of the people were varied and diverse, to meet these problems the current Code was enacted in 1908. Came in force on 1st January 1909. The courts were not satisfied with the procedure during the lis and problems were there in the enforcement.

In case of non-compliance with the decree of restitution of conjugal rights even after attachment of property the same will be executed as the money decree.

The CPC is not exhaustive: Not every fact and circumstances can be thought of. S.151 of the CPC itself prescribed that: 

“151. Saving of inherent powers of Court. — Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. ”

Section 2 - Definition Clause 

The definition clause provides for an interpretation of a provision and avoids the repetition of the same words in the enacting parts of the main provisions. Definition clause delineates that words and expressions used in the provisions have the meaning assigned to them. The definition clause may be restrictive or expansive depending on the terminology used in the clause.

• ‘Means’ - Restrictive
• ‘Includes’ - Expansive.

The chief feature of the CPC is division into two parts in line with the presidency legislations: 

1. Sections 
2. Rules

The main body in the act is sections and the rules are the machinery that the High Court may adapt to local conditions. The High Courts may make their own rules of procedure and may amend the rules provided under Schedule I of the CPC. This power to the High Courts is provided under section 122 of the CPC which reads as follows: 

• 122. Power of certain High Courts to make rules — [High Courts [not being the Court of a Judicial Commissioner]] may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subjects to their superintendence, and may by such rules annul, alter or add to all or any of the rules in the First Schedule.

Shesha Girdas v. Sundar AIR 1946 Bom 361

In this case, the Bombay High Court held that: 

• The body of the Code is made of sections. 
• The body is fundamental and unalterable except by the legislature. 
• The rules are alterable by the respective high court of the states, the first schedule orders and rules are about the functionality of the courts when the suit is filed before them.
• The body creates jurisdiction while the rules indicate the mode in which it is to be exercised.
• The body is expressed in more general terms and it has to be read in conjunction with the more particular rules. 

For example - Section 73 should be read subject to Order 21 Rule 89. Section 73(c) should be read with relevant rules relating to sale of immovable property.

Difference between Decree, Order and Judgment 

Section 2(2)- “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;

S Satnam Singh v. Surinder Kaur AIR 2009 SC 1089

In this case, the Court, at paragraph 15 of the judgement, said that whether a order passed by the court is a decree or not it must satisfy the following tests:

1. There must be an adjudication.
2. Such adjudication must have been given in a suit. 
3. It must have determined the rights of the parties with regard to all or any controversy in the suit. 
4. Such determination must be of a conclusive nature.
5. There must be a formal expression of such adjudication. 

Appeal is filed only against a decree (preliminary or final). In the same judgement, Justice SB sinha observed:

•  “14. A `decree' is defined in Section 2(2) of the Code of Civil Procedure to mean 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. It may either be preliminary or final. It may partly be preliminary and partly be final. The court with a view to determine whether an order passed by it is a decree or not must take into consideration the pleadings of the parties and the proceedings leading upto the passing of an order. The circumstances under which an order had been made would also be relevant.” 

The judgement stands on a different footing from the order and the decree, the legislature has avoided the use of words ‘formal expression’ in the use of word judgement, though the words formal expression have been used in the definition of order. Conversely, it is not necessary that in a decree there should be a statement of reasons given by the judge, a statement of reasons is to be given by the judge only in the judgement. The decree is a formal expression of conclusions arrived at in the judgement. 

Formal expression - means laying down of specific rights of parties. For example: an order disposing off a suit might not be a decree as it might not conclusively determine the rights of the parties. 

All requirements of a form must be complied with an order and must satisfy all requirements of section 2(2) to become an order. Conclusive determination of adjudication must be there to be a decree under s.2(2) of the CPC. The conclusive determination implies that the decision must be complete and final as regards the court that passed it. There might be conclusive determination of rights of the parties although it does not completely dispose of the suit. 

Chhelaram v. Manak AIR 1997 RAJ 284

In this case, it was held that when any order decides only the question of limitation such an order will not be a decree within the meaning of 2(2) of the CPC because such an order does not result in conclusive determination of rights of the parties by section 2(2) with regard to all or any matter in a suit. 

(Limitation Act, 1963 - does both the extinguishment and bars the rights- extinguishment in case of adverse possession while barring in case of money decree.) 

Ashwini Kumar v. Srimati Vidya AIR 2007 All 105

In this case, the Allahabad High Court said that an order dismissing application under Order 22 (death, marriage or insolvency) of the CPC on the ground that the adoption deed was not executed in accordance with the Hindu Adoption and Maintenance Act, 1956 does not amount to a decree under the Code since it does not determine the question finally as to who is the legal representative of the deceased.  The conclusive determination is not there as the order does not tell who is the legal representative and only tells that a person is not and is not a conclusive determination. There must have been an adjudication on rights of the parties and that any adjudication which determines the rights of the parties with regard to any of the matter in the controversy in the suit is a decree within the meaning of section 2(2) of the CPC and an appeal lies against it under section 96. 

“All or any” - clearly indicates that the decree may be preliminary or final - implying that the decree  might not determine the whole of the rights of the parties but only some of it making it only preliminary or final. Every suit is commenced by a plaint and only when there is a civil suit there will be a decree (Refer to Order IV: Institution of Suits). 

Some proceedings commenced by application are statutory statutes so that the decision is a decree - an application to file to refer a dispute to arbitration under 11(2).

In a preliminary decree, some rights are conclusively determined and unless it is challenged in appeal, the rights so determined become final and conclusive and cannot be questioned in the final decree. For example: Month to month tenancy and novation of lease agreement, Suit for partition by metes and bounds examples. A declaratory decree is a non-executable decree for e.g. divorce decree. 

Suit for possession and mesne profits - partly preliminary and partly final as the decree was executable. Suit for partition by metes and bounds- preliminary and declaratory in nature. [read with Order XX Rule 18(2)]

Preliminary decree is one which decides the rights and obligations of the parties leaving the actual results to be worked out in subsequent proceedings as a result of further enquiries conducted pursuant to the preliminary decree the rights of the parties are finally determined and a decree is passed in accordance with such determination and that is the final decree both the decrees are in the same suit and if the preliminary decree is set aside the final decree is superseded. 

S Balwant Lokande v. Chandrakant Shankar Lokhande AIR 1995 SC 1211

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, as regards the court passing the decree, the same stands are completely disposed of.

It is in the latter sense that the word “decree” is used in s.2(2) of the CPC.  The appealability of the decree will, therefore, not affect its character as a final decree. The final decree merely carries into fulfilment the preliminary decree.

Hasham Abbas Sayyad v. Usman Abbas Sayyad AIR 2007 SC 1077

The preliminary decree declares the right of the parties but in given circumstances a decree may be both preliminary and final. There can be more than one final decree. The decree may be partly preliminary or partly final, but what can be executed is a final decree not a preliminary decree unless the final decree is not a part of the preliminary decree. Preliminary decree is a decree within the meaning of section 2(2), but it is not capable of execution, normally, till a final decree is passed.  Preliminary decree will not be changed in the final decree as that is the very basis of the final decree and might result in the annulment of the judgement itself.  

Order XX enumerates the classes of cases where preliminary decree can be passed but does not preclude the court from passing a preliminary decree in cases not expressly provided for in the CPC.
A supplemental party determining period for which the party is liable for mesne profit was held to be a preliminary decree - the exact amount has not been determined but determination of the period makes it a preliminary decree.

Paramjeet Singh Patheja v. ICDS Ltd IR 2007 SC 168

An award rendered under A&C act is a deemed decree only for the purpose of enforcement under the act. The enforcement is done by taking steps under the CPC for realisation of money , the use of the words “as if” in section 36 of the Act demonstrates that it is a decree only by a legal fiction and the said legal fiction is created for the purpose of enforcement, as decree cannot be extended beyond the purpose for which it was created. 

Puranmasi Yadav v. Narmadeshwar Tripathi AIR 1998 All 260

Rejection of a plaint under Order VII Rule 11 - provides the rejection of a plaint shall be deemed to be a decree therefore, such adjudication is appealable as a decree. Return of the plaint order VII rule 10/Order VI Rule 17 (amendments of the pleadings) - a plaint may be returned for amendment or for presentation to the proper court in either case the decision returning the plaint is an order as distinguished from a decree. 

Balraj Taneja v. Sunil Madan AIR 1999 SC 3381

S.2(9) - Judgment - Order XX Rule 4- a judgement shall contain concise facts of the case. It should be a self contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the court and in what manner. The process of reasoning by which the court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgement. 

Islamic Academy of Education v. State of Karnataka AIR 2003 SC 3724 

In this judgement, it was said that a judgement, it is tried, is not to be read as statute. The ratio decidendi of a judgement is its reasoning which can be deciphered only upon reading the same in its entirety. A ratio decidendi is the reason on which the case is based and is distinct from the relief finally granted or the manner finally adopted in its disposal. Answers given in the judgement to the question are not the ratio of the judgement and they are merely answers to the questions. They are to be read with reasons assigned in support thereof in the body of the judgement, therefore, it would be essential to read other paragraphs of the judgement also. It is also permissible for this purpose to look to the pleadings of the parties. 

• “208. Most of the petitioners/applicants before us are unaided professional educational institutions (both minority and non-minority). On behalf of the petitioners/applicant it was submitted that the answers given to the questions, as set out at the end of the majority Judgement, lay down the true ratio of the Judgment. It was submitted that any observation made in the body of the judgement had to be read in the context of the answers given. We are unable to accept this submission. The answers to the questions, in the majority Judgement in Pai's case, are merely a brief summation of the ratio laid down in the Judgment. The ratio decidendi of a Judgment has to be found out only on reading the entire Judgement. In fact the ratio of the judgement is what is set out in the judgement itself. The answer to the question would necessarily have to be read in the context of what is set out in the judgement and not in isolation. In case of any doubt as regards any observations, reasons and principles, the other part of the judgement has to be looked into. By reading a line here and there from the judgment, one cannot find out the entire ratio decidendi of the judgement. We, therefore, while giving our clarifications, are deposed to look into other parts of the Judgment other than those portions which may be relied upon.”

FAQs

1. What is the difference between a decree and an order under the Code of Civil Procedure (CPC)? A decree is a formal adjudication that conclusively determines the rights of parties in a suit, as per Section 2(2) of the CPC. An order, however, may not always determine rights conclusively and includes decisions like dismissal for default. Appeals lie against decrees, not all orders.

2. How does the CPC define jurisdiction, and what are its types? Jurisdiction is the court’s authority to decide matters and issue decrees, as outlined in the CPC. It includes territorial, pecuniary, subject matter, and foreign rule jurisdictions. Courts must operate within these limits to ensure valid adjudication.

3. What is the purpose of Section 15 of the CPC regarding the place of suing? Section 15 mandates that suits be filed in the court of the lowest grade competent to try them. This prevents overcrowding in higher courts and ensures convenience for parties and witnesses. It regulates territorial jurisdiction within India.

SUMMARIES

CPC: The Silent Engine of Civil Justice
The Code of Civil Procedure (1908) isn’t just “procedure”, it’s the backbone of how rights are enforced in India.
From decrees, orders, and judgments to courts’ inherent powers under S.151, CPC keeps the system fair and functional.
Landmark rulings like Satnam Singh v. Surinder Kaur remind us: procedure shapes justice as much as substance.
It’s time we ask, should CPC evolve for the digital age of e-courts?