Code of Civil Procedure

Module – 01

DECREE
Section 2 (2) of CPC defines decree as follows: "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 for 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 settling all the matters in dispute between the parties. It may be partly preliminary and
partly final."

Essential Elements of Decree:

i. There must be an adjudication.
ii. The adjudication should be done in a suit.
iii. It must determine the rights of parties regarding the matter in dispute.
iv. The determination of the right should be of conclusive nature.
v. There must be a formal expression of such adjudication.

Types:

1. PRELIMINARY DECREE
Where an adjudication decides the rights of the parties with regard 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 known as a Preliminary Decree. It is only a stage in working
out the rights of the parties, which are to be finally adjudicated by a final decree.

2. FINAL DECREE
A final decree is one which completely disposes off the suit and finally settles all the
questions in controversy between the parties and nothing further remains to be decided
thereafter. Under special circumstances, more than one final decree can be passed in
the same suit.

3. PARTLY PRELIMINARY & PARTLY FINAL DECREE

In a suit for possession of immoveable property with mesne profits, the court-
i. Decrees possession of the property
ii. Directs an enquiry into the mesne profits
 The former part of the decree is final while the later part is preliminary, hence, it is
Partly Preliminary and Partly Final.

JUDGEMENT
The term Judgement is defined in Section 2(9) of the Code of Civil Procedure, 1908. A
judgement contains facts of the case, the issues involved, the evidence brought by the parties,
finding on issues (based on evidence and arguments). Every judgement shall include a
summary of the pleadings, issues, finding on each issue, ratio decidendi and the relief granted
by the court. Daily, numerous judgements are pronounced, and various cases are disposed of.
Judgements play a very important role in the working of our judicial system because they act
as precedents for cases to come soon. A judge in the judgement pronounced, always states the
reasons for such a decision.

Difference between Judgement & Decree:

Judgement Decree
A judgement is based upon facts A decree is based upon judgement
It is made prior to the decree It always follows judgement
A judgement contains facts of the case, the A decree contains the outcome of the suit and
issues involved, the evidence brought by the conclusively determines the rights of the
parties, finding on issues (based on evidence parties about the issues in dispute in the suit.
and arguments).
The definition of the word judgement given The definition of the word decree given in
in section 2(9) of the Code of Civil section 2(2) of Code of Civil Procedure,
Procedure, 1908 does not include the word 1908 includes the word ‘formal’.
‘formal’.
Judgement may result in a preliminary The decree may be a preliminary or final or
decree or a final decree or an order by itself, partly preliminary and partly final.
the judgement is always final.
Judgement leads to the final disposal of the After passing the decree, the suit stands
suit after the decree is drawn up. disposed of since the rights of the parties are
finally determined by the court.

ORDER
The term order has been defined under Section 2(14) of the Code as the formal expression of
any decision of a civil court which is not a decree.

Essential elements:
i. It should be a formal expression of any decision
ii. The formal expression should not be a decree
iii. The decision to be pronounced by a civil court

Thus, an adjudication of the court which is not a decree is an order. As a general rule, an order
of the court is founded on the objective considerations and as such judicial order must contain
a discussion of the question at issue and the reasons which prevailed the court which led to
passing of the order.
Difference between Order and Decree:

Decree Order
Under Section 2(2) of the CPC, a decree is Under Section 2(14) of the CPC, an order is
the formal expression of an adjudication the formal expression of any decision of a
which, so far as regards the Court expressing civil court which is not a decree.
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
preliminary or final.
A decree may be preliminary, final, or partly An order is always final
preliminary and partly final.
Usually, a decree is appealable until and Most orders are not appealable, except those
unless it is explicitly prohibited by law. specified in Section 104 and Order 43, Rule
1 of the CPC.
A decree is passed in a suit instituted upon An order is passed in a suit that may be
presenting a plaint. instituted upon the presentation of either a
plaint, an application, or a petition.
A decree ascertains the substantive rights and An order ascertains the procedural rights of
duties of the parties. the parties.

FOREIGN COURT
Section 2(5) “foreign Court” means a Court situate outside India and not established or
continued by the authority of the Central Government.

FOREIGN JUDGEMENT
Section 2(6) “foreign judgment” means the judgment of a foreign Court.

MESNE PROFITS
Section 2(12) of the Code of Civil Procedure, 1908 defines the term “mesne profits”. The Delhi
High Court in the notable case of Phiraya Lal Alias Piara Lal vs Jia Rani And Anr (1973)
interpreted the meaning of the term “mesne profit” by observing that when a party claims
damages to recover the loss resulted from wrongful occupation of immovable property by a
trespasser that originally belonged to the party then such damages will be known as mesne
profits. The definition provided by Section 2(12) includes the exception of mesne profits which
is the profits obtained from the improvements made by the wrongful possessor in the property
will not fall under the ambit of mesne profits. The three significant takeaways from Section
2(12) of the Code have been laid down hereunder;
i. It is to note that the definition has attached importance to due diligence for obtaining
mesne profits.
ii. Mesne profits can only be awarded if the property in concern was unlawfully occupied
thereby depriving the original owner of his rights.
iii. Interest is a fundamental part of mesne profits under Section 2(12).
Order XX Rule 12 of the Code of Civil Procedure, 1908 lays down the provision for the passing
of the decree by a competent civil court where there exists a suit for recovery of immovable
property possession, rent, or mesne profits. Put simply, a civil court while presenting the rights
of the parties involved in a suit concerning mesne profits, will rely on Rule 12 of Order XX.

SUITS OF CIVIL NATURE

In the suit, if the principal question relates to the determination of a civil right, then the suit is
of a civil nature. The expression suit of civil nature covers the private rights and obligations of
a citizen. If the principal question relates to caste or religion, it is not a suit of civil nature.

The following can be held to be suits of civil nature:

1. Suits for damages for breach of contract.
2. Suits for specific relief.
3. Suits for conjugal rights.
4. Suits for the right of worship.
5. Suits for rent and so on.

Some suits that are not of civil nature are:

1. Suits involving purely religious rites.
2. Suits for mere dignity or honour.
3. Suits against compulsion from caste and so on.

What Is Suit Expressly Barred?

1. When a suit is barred by an enactment or act in force, then such a suit is said to be
expressly barred.
2. For example, some of the matters that are expressly barred from the cognizance of a
civil court are matters falling under revenue courts, special tribunals like an industrial
tribunal, rent tribunal, labour tribunal.
3. But in case the remedy provided by statute is not adequate, then a person is not barred
from taking the case to the jurisdiction of a civil court.

What Is Suit Impliedly Barred?

1. When a suit is barred by the general principles of law, then such a suit is said to be
impliedly barred.
2. For example, political questions belong in the domain of the public administrative law
and not the jurisdiction of a civil court. If there is a dispute of a political nature, a civil
court has no authority to adjudicate such matters.

After reading the concept underlying section 9 of CPC, we can say that the civil court tries only
suits of civil nature. And the cases which are not of civil nature or the suits which are expressly
or impliedly barred are tried either in tribunals or councils or special courts specified under any
enactment.
RES SUB-JUDICE
Res means every object of right that forms the subject matter in a particular case. In Latin, the
term Sub-judice means ‘under a judge’ or in other words, a matter ‘under consideration’. It
means a cause that is under trial or pending before a court or judge. The doctrine of res-judicata
prevents the trial of a suit which is already pending in a court of competent jurisdiction. When
the same parties file two or three cases in the same matter, the competent court has the power
to stay proceedings of another court. The primary aim is to prohibit the courts of concurrent
jurisdiction from simultaneously entertaining two parallel litigations.

NATURE: The principle of res sub-judice prevents the court from proceeding with the trial of
any suit in which the matter in issue is directly or substantially the same with the previously
instituted suit between the same parties and the court where the issue is previously instituted is
pending has the power to grant the relief sought.

SCOPE: This rule is applicable to the trial of the suit and not the institution. It does not restrict
the court from passing interim orders like injunction or stay. However, it applies to revisions
and appeals.

OBJECTIVE: The purpose behind this rule is to prevent multiplicity of cases in courts. It is
also sought to prevent the plaintiff from getting two separate decisions from different courts in
his favour or two contradictory judgements. It also ensures to protect the litigant from
unnecessary harassment. The policy of law is to restrict the plaintiff to one legislation, thus
obviating the possibility of two conflicting verdicts by one and the same court in respect of the
same relief.

CONDITIONS: Section 10 of the Civil Procedural Code, 1908 deals with the conditions
required to apply the principle of res sub judice. The conditions in the process of application
of res sub-judice are:

(A) Where the matter in issue is same

Section 10 clearly states that the matter in issue in both the suits must be directly or
substantially be the [Link] other words there must be two suits one that is previously instituted
and another that is subsequently substituted. The issues of both the suits should be same to get
the benefit of this principle, it is not sufficient if only one or two issues are common. In the
circumstances were the entire issues are not the same, the court may exercise its power under
Section 151 and stay the trial in a subsequent suit or the trial of the suit may be consolidated.
The power of courts to stay the trial under Section 151 is discretionary in nature and can be
exercised only when there is an abuse of process of court and if it defeats the ends of justice.

According to Indian Evidence Act, 1872 “matter in issue” are of two kinds:
i. Matter directly and substantially in issue– Here “directly” means immediately i.e.
without any intervention. The word “substantially” implies essentially or materially.
ii. Matter collaterally and incidentally in issue– It is just contrary to the matter directly or
substantially in issue.
(B) Where the parties in suits are same
The two suits should have the same parties or their representatives.

(C) Where the title of the suit is same

The title of both the suits for which the parties are litigating should also be same.

(D) Where the suit must be pending

The former suit must be pending in the court while the latter suit is instituted. The word pending
is for the previously instituted suit, where the final decision has not been arrived at.

(E) In a competent court

Section 10 also specifies that the former suit must be pending before a court which is competent
to carry out the trial. If the former suit is pending before an incompetent court, no legal effects
can flow from it.

RES JUDICATA
Res Judicata is a phrase which is defined in Section 11 of the Civil Procedure Code has been
evolved from a Latin maxim, which stands that the thing has been judged which means if an
issue is brought in the court and it has already been decided by another court, between the same
parties and which has the same cause of action then the court will dismiss the case before it as
being useless. The concept of Res Judicata has high significance both in Civil and Criminal
System.
Provision of Section 11 of the enacts that once a matter is finally decided by a competent court,
no party can be permitted to reopen it in subsequent litigation. The basic objects and operation
of Section 11 was rightly pointed and observed by the Supreme Court in the case of Satyadhan
Ghosal vs. Deorajin Debi
If we breakdown the words of Res Judicata, here the word Res means a subject matter or dispute
between the parties and the other word Judicata means adjudged or decided or adjudicated, that
is the matter is adjudicated or a dispute is decided.

OBJECTIVES:
This doctrine is based on three maxims which are as follows:
i. Nemo debt bis vexari pro una et eadem causa which means no man should be vexed
twice for the same cause;
ii. Interest reipublicae ut sit finis litium which means it is in the interest of the State there
should be an end to a litigation; and
iii. Res judicata pro veritate occipitur which means judicial accepted as correct.

EXTENT & APPLICABILITY: The doctrine of res judicata is a fundamental concept based
on public policy and private interest. This doctrine is applicable to civil suits, execution
proceedings, arbitration proceedings, taxation matters, industrial adjudication, writ petitions,
administrative orders, interim orders, criminal proceedings, etc. Thus, this doctrine is not
exhaustive in nature.
PRINICIPAL & SCOPE: The rule of Res judicata is intended not only to prevent a new
decision but also to prevent a new investigation, so that the same person cannot be harassed
again and again in various proceedings upon the same question.
The rule of res judicata is based on two important grounds namely:
i. The hardship to an individual, who could otherwise be vexed twice for the same cause,
and
ii. Public policy, which requires that there should be an end to litigation.

CONDITIONS:
The Plea of res judicata questions the jurisdiction of the court to try the proceedings. However,
the doctrine of res judicata will apply only if the requirements of Section 11 are fulfilled. To
avail the plea and constitute a matter as res judicata under Section 11 the following conditions
must be satisfied:
i. The matter directly and substantially is in issue in the subsequent suit or issue must be
the same matter which was directly and substantially in issue either actually or
constructively in the former suit;
ii. The former suit must have been a suit between the same parties or between the parties
under whom they or any of them claim.
iii. Such parties must have been litigating under the same title in the former suit.
iv. The court which decided the former suit must be a court competent to try the subsequent
suit or the suit in which such issue is subsequently raised;
v. The matter directly and substantially in issue in the subsequent suit must have been
heard and finally decided by the court in the former suit.

RESTITUTION
The doctrine of restitution implies to brings the aggrieved party to the original position where
the benefit of the erroneous judgment of the court is received by the other party who was not
entitled to such benefit. Restitution is not a new concept and Section 144 merely gives statutory
recognition to this principle. Section 144 of CPC deals with the application for restitution.
Section 144 states that:
When a decree or order of the Court has been:
i. varied/reversed in any appeal, revision or other proceedings;
ii. is set aside/ modified in any suit instituted for that purpose.
The Court that passed the decree/order will grant restitution on receiving an application of the
party entitled to the benefit.

CONDITIONS: In applying for restitution, the following conditions must be fulfilled:

i. The decree/order must have been varied or reversed in any appeal, revision or is set
aside or modified.
ii. The party in respect of the reversed or modified decree/order must be entitled to benefit
by way of restitution or otherwise.
iii. The relief claimed by the party must be properly consequential of the variation, reversal,
setting aside or modification of the decree/order.
WHO MAY APPLY?
A person may apply for restitution who:
i. Was a party to the order or decree being varied, reversed, set aside, or modified.
ii. Is entitled to any benefit by way of restitution or otherwise in respect of the order or
decree being varied, reversed, set aside, or modified.

CAVEAT
Under the Civil Procedure Court, the provision of caveat is dealt with in Section 148A. Even
Though CPC does not define caveat in the case of Nirmal Chand v. Girindra Narayan, the
court defined caveat as a warning given by an individual to the court that no order or judgment
shall be passed without giving notice or without hearing the caveator. The person who files a
caveat is called the Caveator and the person who has instituted a suit or is likely to do so is
called caveatee. The main object of caveat is to ensure that the court does not pass ex parte
orders and that the interests of the caveator are protected. Caveat also reduces the burden of
court and brings an end to the litigation as it reduces the multiplicity of proceedings.

WHEN TO LODGE A CAVEAT?

According to Section 148A, when people apprehend that some case against them is filed or is
about to be filed in any court of law in any manner, they have a right to lodge a caveat. The
Caveat may be lodged in the form of a petition under the following circumstances:
i. During an ongoing suit or litigation and in that the application is already been made or
is expected to be made;
ii. The suit is about to be instituted and in that suit, an application is expected to be made.
Thus, firstly it is always about an application in a suit of the proceeding and secondly that suit
or proceeding can be in the present which is already instituted or it can be in the future where
a suit is not instituted yet but the same is expected. In all such situations the right to lodge a
caveat arises.

WHO MAY LODGE A CAVEAT?

Section 148A further provides that a caveat may be filed by any person, whether a party to the
suit or not, as long as the person filing the caveat has the right to appear before the court in
regard to the suit in question. Thus caveat can be filed by a third party as well, if they in any
manner are connected to the suit in question.

INHERENT POWERS OF COURT

Inherent powers of courts are those powers which may be applied by the court to perform full
and complete justice between the parties before it. It is the duty of the Courts to serve justice
in every case, whether given in this code or not, brings with it the important power to do justice
in the absence of a definite or separate provision. This power is said to be the inherent power
that is maintained by the court, though not conferred. Section 151 of the Civil Procedure Code
deals with the inherent powers of the court.
PROVISIONS: The law relating to inherent powers of Court is mentioned in Section 148 to
Section 153A of the Civil Procedure Code, which deals with the exercise of powers in different
situations. Following are the provisions of Inherent powers of Courts:
1. Section 148 and Section 149 deals with grant or enlargement of time;
2. Section 150 deals with the transfer of business;
3. Section 151 protects the inherent powers of the courts; and
4. Section 152, 153 and Section 153A deals with amendments in judgments, decrees or
orders or in separate proceedings.

Enlargement of Time
Section 148 of the CPC states that where any term is fixed or awarded by the Court for the
doing of any act provided by CPC, it is the discretionary power of the Court that Court may
enlarge such period from time to time, even though the term originally fixed or awarded may
have departed.

Transfer of Business
According to Section 150 of CPC, “Save as otherwise granted, where the business of any Court
is assigned to any other Court, the Court to which the business is so assigned shall have the
same authority and shall make the same duties as those sequentially presented and forced by
or under this Code upon the Court from which the business was so assigned.”

Protection of Inherent Powers of the Court

Section 151 deals with “Saving of inherent powers of Court.” This Section states that ‘Nothing
in CPC shall be considered to restrict or otherwise affect the inherent power of the Court to
make such orders as may be important for the ends of justice or to limit abuse of the method of
the Court.’ It is not obligatory for the court to wait for the law made by parliament or order
from the higher judiciary. Court has discretionary or inherent power to make such order which
is not given in terms of laws for the security of justice or to check misuse of the method of the
Court. The scope of exercising of Section 151 of CPC can be represented by some cases as
follows:
1. The court may recheck its orders and resolve errors;
2. Issuance of provisional sanctions when the case is not included by order 39 or to place
alongside an ‘ex parte’ order;
3. Illegal orders or orders passed without jurisdiction can be set-aside;
4. Subsequent events in the case can be taken into consideration by the court;
5. Power of Court to continue trial ‘in camera’ or prevent disclosure of its proceedings;
6. The court can erase remarks made against a Judge; and
7. The court can improve the suit and re-hear on merit or re-examine its order.

Amendments in Judgement, Order or Decrees or in Separate Proceedings

1. Section 152 of CPC deals with the “Amendment of judgements, decrees, and order.”
According to Section 152 of CPC, Court has the power to change (either by own actions
or on the application of any of the parties) written or arithmetical mistakes in judgments,
decrees or orders or faults arising from an unexpected lapse or imperfection.
2. Section 153 deals with the “General authority to amend.” This Section empowers the
court to amend any fault and error in any proceedings in suits and all required
 improvements shall be made for the purpose of arranging raised issues or depending on
such proceeding.
3. Section 152 and 153 of the CPC makes it clear that the court may set correct any
blunders in their experiences at any time.
4. Power to amend decree or order where an appeal is summarily dismissed and place of
the trial to be deemed to be open Court are defined under Section 153A and 153B of
CPC,1908.

REFERENCE, REVIEW AND REVISION

REFERENCE: Section 113 of Civil Procedure Code deals with the provision of reference.
Under the provision of Section 113, a lower or subordinate court can reach out to higher court
for the doubt in order to avoid the misinterpretation of the law which is called reference. Parties
through an application can move the reference to the High court. Lower Court can apply the
provision of reference suo-moto in case of any doubt with respect to any legal provision. The
lower court is not bound to refer to the High Court other than in case of validity of legal
provision. It helps the lower court to avoid commission of error while pronouncing the
judgement.

REVIEW: Section 114 of Civil Procedure Code defines the provision of review. In case of
review, the party who is not happy or aggrieved with the order of the court can file an
application for review in the same court which has passed the decree. This provision has been
made so as to facilitate the court to review their own decree or judgement and rectify the same
in case any error has been made while passing the judgement.

REVISION: If we go to the literal meaning, “to revise” stands for “to look again” or “to look
repeatedly at” or “to go through a matter carefully and correct where necessary”. The High
Court has been empowered with the revisional jurisdiction under section 115 of the Code of
Civil Procedure,1908.