Topic: Definitions of CPC

By: Babar Nadeem

Definitions under CPC

By
Babar Nadeem

CODE

1. Relevant Provision:

Section 2(1)

2. Text of Section 2(1):

"Code" includes rules:

3. Explanation:

• Under section 121, rules are also part of sections.

• Under section 122, power to amend the rules has been delegated to
High Courts.
• The difference between sections and orders is that sections create
jurisdiction while the rules indicate the mode in which it is to be
exercised.
• Both must be read with each other.
• Sections may be amended by the Legislature while rules being sub-
ordinate legislation may be amended by High Courts.

DECREE

1. Relevant Provision:
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Section 2(2)

2. Text of 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 which 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 the
determination of any question within section 144 and an order
under rule 60, 98, 99, 101, or 103 of Order XXI] but shall not
include;

(a) any adjudication form 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 dispose of. It is final when such
adjudication completely disposes of the suit. It may be partly
preliminary and partly final;

3. Explanation:

• Very Important Definition

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• “Adjudication” means judicial determination of a matter in

controversy different from determination on administrative side.
For example decision by a court on an application under Order
XXI, Rule 72 for permission to auctioneer to bid in an auction is
an administrative determination and is not adjudication.

• “Formal Expression” of adjudication means prescribed and

written format of the judicial determination of a matter. The
prescribed format is given under Appendix D of Schedule I of
CPC. Order 20, Rule 6 also prescribes the contents of a decree.

• “So for as regards the Court expressing it, conclusively

determines the rights of the parties”: “Conclusively
determination of the rights of the parties” means the
adjudication by the court shall be final and conclusive w.r.t to
the court passing such adjudication. In other words, the court
passing the decree shall have no right to amend it after
pronouncement. In this regard Order XX, Rule 3 is very
relevant according to which after pronouncement of judgment
and decree, the court becomes functus officio. “So for as
regards the court expressing it” means the Matter conclusive
with respect to the court adjudicating it and not with respect to
the appellate court.
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• “With regard to all or any of the matter in controversy”

This text may be explained with the help of an examples:

For example where defendant admits a part of a matter

in controversy, the court is competent under Order 12,
Rule 6 to pass decree in respect of part admitted
without waiting decision in respect to the remaining
disputed matter.

For example where the court comes to the conclusion

that plaintiff’s claim is not maintainable in respect of
one of several defendants, the court may pass a decree
in respect of that defendant.

For example where compromise is made u/s O.23, Rule

3 in respect of part of a controversy, the consent decree
shall be passed in respect of part compromised.

• Five types of decrees u/s 2(2)

1. Preliminary Decree

2. Final Decree

3. Partly preliminary and party final

4. Order for Rejection of Plaint u/o 7, rule 11

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5. Order determining question under section 144, Rules 60, 98,

99, 101 and 103 of Order XXI.

• “Preliminary Decree”:

Explanation to Section 2(2) defines preliminary decree:

A decree is preliminary when further proceedings have to be

taken before the suit can be completely dispose of.

Examples of Preliminary Decrees:

For example under order XX, Rule 18, in a suit for

partition, the court firstly pass a preliminary decree by
declaring parties co-owners along with appointment of
a commission to determine the share of each co-owner.
After report of the commission or inquiry the court
shall pass a final decree declaring the share of each
party.

• “Final Decree”:

Explanation to Section 2(2) defines final decree:

It is final when such adjudication completely disposes of the

suit.
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• “Partly preliminary and Partly final decree”:

This type of decree may be explained with the help of an

example….

Where under Order XX, Rule 12, in a suit for

possession of immovable property along with mesne
profit, Where court pass a decree for part payment of
mesne profit, it is called partly final decree and where
court directs inquiry to the extent of other remaining
part of mesne profit, it is called party preliminary
decree.

• Rejection of Plaint under Order VII, Rule 11

i. No Cause of action

ii. Relief claimed is under value

iii. When plaint is not or insufficiently stamped.

iv. Suit is barred by law

• Order determining question under section 144, Rules 60, 98, 99,
101 and 103 of Order XXI.
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Determination of any question within section 144

Section 144 deals with restitution of a decree. For

example possession was delivered in execution of a
decree. Later on the same decree was reversed or varied
by the court. In such a situation an application for
restitution of the possession may be made.

Order Under Order XXI, Rule 60

Rule 60 states that where the court comes to the

conclusion that a property attached belongs to a person
strange to the litigation, the court may pass an order to
release the property.

Order Under Order XXI, Rule 98

Where a judgment-debtor obstructs peaceful delivery of

possession of disputed property in execution of a decree
for possession, the court has power to order for the
arrest of the judgment debtor for a period not exceeding
30 days.

Order Under Order XXI, Rule 99

Order XXI, Rule 97 states that where decree-holder is

obstructed or resisted in delivery of possession, he may
move an application to complain against the resistance
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whereas rule 99 states that if the resistance is made by a

bona fide claimant, the court may dismiss the
application complaining resistance may be dismissed
u/s Order XII, Rule 99.

Order Under Order XXI, Rule 101

Under Rule 101, the court may pass an order to restore

possession to a bonafide claimant previously
dispossessed in execution of the decree.

Order Under Order XXI, Rule 103

Section 103 bars suit in respect of certain rules of Order

XXI, whereas this definition states that any order
passed under Order XXI, Rule 103 amounts to decree.

• “In a suit”

A decree can be passed only in a suit….

• Exclusion:

An adjudication from which an appeal lies as an appeal from

an order, or

Section 104 and Order 43 narrates those orders which are

appealable while present section 2(2) states that adjudication
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is not a decree merely on the ground that an appeal lies

against that adjudication.

Any order of dismissal in default

Order 9, Order 17, Order 41, Rule 11, Order 41, Rule
17 deals with dismissal of suit or appeal because of
default in appearance, while present section states that
that order for dismissal in default is not a decree.

DECREE-HOLDER:

1. Relevant Law:

Section 2(3) of CPC

2. Text of 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.

3. Explanation

• In an interview a question may be asked whether an order may be

executable if yes, what may be an example and what is procedure
for its execution.

An order to pay cost u/s 35 or 35-A is an executable order.

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The procedure for execution of orders is the same as that of decree

as it is written under section 36 of CPC which is reproduced as
under:

“The provisions of this Code relating to the execution of

decrees shall, so far as they are applicable, be deemed to
apply to the execution of orders.”

DISTRICT:

1. Relevant Law:

Section 2(4)

2. Text of Section 2(4)

“District” means the local limits of the jurisdiction of a principle

Civil Court of original Jurisdiction (Hereinafter called a “District
Court”), and includes the local limits of the ordinary original civil
jurisdiction of a High Court.

3. Explanation

No need to explain….

FOREIGN COURT:

1. Relevant Law:
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Section 2(5)

2. Text of Section 2(5):

“Foreign Court” means a court situate beyond the limits of

Pakistan which has no authority in Pakistan and is not established
or continued by the Federal Government.

3. Explanation

Three conditions to constitute a “Foreign Court”:

i. It must be situated outside Pakistan.

ii. It should have no authority in Pakistan and

iii. It should not have been established or continued by the

Federal Government.

FOREIGN JUDGMENT:

1. Relevant Law:

Section 2(6)

2. Cross References:

Section 2(5)

Explanation to section 10

Section 13
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3. Text of Section 2(6)

“Foreign Judgment” means the judgment of a foreign court.

4. Explanation

We will discuss in detail when we will discuss “Section 13”…..

GOVERNOMENT PLEADER

1. Relevant Law:

Section 2(7)

2. Text of Section 2(7)

“Government Pleader” includes any officer appointed by the

Provincial Government to perform all or any of the functions
expressly imposed by this Code on the Government Pleader and
also any pleader acting under the directions of the Government
Pleader.

3. Explanation:

• Whenever in a definition the word “include” has been used, it

means that term has not been defined rather something has been
added to that. Similarly in present definition does not define
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“Government Pleader” rather it adds to the definition of

“Pleader”.

The term “Government Pleader” has been defined Order XXVII,

Rule 8-B as under:

“8B. In this Order "[Government]" and "[Government]

pleader" means respectively-

a) in relation to any suit by or against *** the Central

Government, or against a public officer in the service of
that Government, the Central Government and such
pleader as that Government may appoint whether
generally or specially for the purposes of this Order:

b) * * * * * * * * *

c) in relation to any suit by or against a Provincial

Government or against a public officer in the service of
a Province, the Provincial Government and the
Government pleader, or such other pleader as the
Provincial Government may appoint, whether generally
or specially for the purposes of this Order.”

• Order XXVII deal with duties of a “Government Pleader”…

Judge:
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1. Relevant Law:

Section 2(8)

2. Text of Section 2(8)

“Judge” means the presiding officer of a Civil Court.

3. Explanation

• A question may be asked in interview…What is difference

between “Judge” and “Court”?

•Another question may be asked…”Difference between tribunal

and court”?

Judgment

1. Relevant Law:

Section 2(9)

2. Text of Section 2(9)

"Judgment" means the statement given by the Judge of the grounds

of a decree or order:

3. Explanation

• In simple words a judgment means the judicial decision of a court

or judge.
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• After pronouncement of a judgment, the judge becomes functus

officio and cannot change or amend the decision except under
section 152 and 114. (Order XX, Rule 3)

• Order XX deals with various aspects of a “judgment”.

• An essential element of a judgment is that there should be a

statement of the grounds for decision.

Judgment-debtor:

1. Relevant Law:

Section 2(10)

2. Text of Section 2(10)

"Judgment-debtor" means any person against whom a decree has

been passed or an order capable of execution has been made:

3. Explanation

• Only that person can be called “Judgment Debtor” who was party
to the suit in which that decree was passed.

Legal Representative:

1. Relevant Law:

Section 2(11)

2. Text of Section 2(11)

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"Legal representative" means a person who in law represents the

estate of a deceased person, and includes any person who
intermeddles with the estate of the deceased and where a party sues
or is sued in a representative character the person on whom the
estate devolves on the death of the party so suing or sued:

3. Explanation:

• Question asked in an interview:

Difference between “Legal Representative” and “Legal

Heir”…

• Order XXII deals with “Legal Representatives”

According to definition, there are three categories of persons

who may fall under the definition of “Legal Representative”:

i. All persons who under law represent the estate of a

deceased.

For example legal heirs of a deceased

ii. Intermeddlers:

Intermeddler is that person who assume

possession and authority over the estate of a
deceased by managing the property.
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iii. Persons who sue and be sued in representative

capacity:

For example after the death of a mutawalli, the

representative of deceased may be arrayed as
party.

• Under section 50 and 52, a decree may be executed against a

Legal Representative.

Mesne Profits:

1. Relevant Law:

Section 2(12)

2. Text of 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:

3. Explanation:
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• Only person deprived wrongfully of the corpus or usufruct of

property can claim compensation for such deprivation. Such
compensation is called Mesne Profit.

• Mesne Profit may be awarded for three years preceding the

institution of the suit.

• Profits due to improvement during wrongful possession cannot be

claimed as mesne profits.

• Mesne Profits may be claimed only in respect of immovable

property.

• A suit for Mesne Profit alone is not maintainable…It must be

prayed as consequential relief while claiming recovering of
possession. (We will discuss this point later on)

Movable Property:

1. Relevant Law:

Section 2(13)

2. Text of Section 2(13)

"Movable property" includes growing crops:

Order

1. Relevant Law:
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Section 2(14)

2. Text of Section 2(14)

"Order" means the formal expression of any decision of a civil

Court which is not a decree:

3. Explanation

• An order may be interim or final.

• An order may be executable or non-executable

• An order may be appealable or revisable.

• An order may be a decree as order for rejection of plaint.

Pleader:

1. Relevant Law:

Section 2(15)

2. Text of Section 2(15):

"Pleader" means any person entitled to appear and plead for

another in Court, and includes an advocate, a vakil and an attorney
of a High Court:

3. Explanation:

• Order III, Rule 4 deal with the appointment of a pleader.

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• We will discuss in detail this term while discussing Order III.

"Prescribed":

1. Relevant Law:

Section 2(16)

2. Text of Section 2(16):

"Prescribed" means prescribed by rules:

Public Officer:

1. Relevant Law:

Section 2(17)

2. Text of Section 2(17):

"Public officer" means a person falling under any of the following

descriptions, namely:

(a) every Judge;

(b) [every person in the service of Pakistan].1

(c) every commissioned or gazetted officer in the military, 2[naval

or airy] forces of 3[Pakistan while in the service of the State];

(d) every officer of a Court of Justice whose duty it is, as such

officer, to investigate or report on any matter of law or fact, or to
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make, authenticate or keep any document, or to take charge or

dispose of any property, or to execute any judicial process, or to
administer any oath, or to interpret, - or to preserve order, in the
Court, and every person especially authorized by a Court of Justice
to perform any of such duties;

(e) every person who holds any office by virtue of which he is

empowered to place or keep any person in confinement;

(f) every officer of 4[the 5[Government] ] whose duty it is, as such

officer, to prevent offences, to give information of offences, to
bring offenders to justice, or to protect the public health, safety or
convenience;

(g) every officer whose duty it is, as such officer, to take, receive,
keep or expend any property on behalf of 4[the 5[Government]], or
to make any survey, assessment or contract on behalf of '[the
2(Government] 1. or to execute any revenue-process, or to
investigate, or to report on, any matter affecting the pecuniary
interests of 1[the 2[Government], or to make, authenticate or keep
any document relating to the pecuniary interests of 1[the
[Government] ] or to prevent the infraction of any law for the
protection of the pecuniary interest of 1[the 2[Government] ]; and
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(h) every officer in the service or pay of 1[the 2[Government]], or

remunerated by fees or commission for the performance of any
public duty:

Rules:

1. Relevant Law:

Section 2(18)

2. Text of Section 2(18)

"Rules" means rules and forms contained in the First Schedule or

made under section 122 or section 125.

“Share in corporation”:

1. Relevant Law:

Section 2(19)

2. Text of Section 2(19):

“Share in a corporation" shall be deemed to include stock,

debenture-stock, debentures or bonds; and

“Signed”:

1. Relevant Law:

Section 2(20)
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2. Text of Section 2(20):

"Signed", save in the case of a judgment or decree, includes

stamped.

3. Explanation

• Under section 6 of General Clauses Act, 1887, signature include

the mark of an illiterate person and for the purpose of CPC,
“signed” also include stamped, even though the person stamping is
literate.