THE CODE OF CIVIL PROCEDURE, 1908 (C.P.C.

Decree, Order & Judgement

Decree

Defined u/s 2(2) of Civil Procedure Code, 1908. It means the formal expression of an
adjudication which conclusively determines the rights of the parties with regard to all or any
of the matter in controversy in the suit.

A decree may be either preliminary or final.

A decree is preliminary when a further procedure has to be taken before the suit can be
completely disposed off. When adjudication completely disposes of the suit such decree is
final.

It may be noted that the term decree doesn’t include the following:

Any adjudication from which an appeal lies as an appeal from an order or

Any order or decision of the dismissal of the suit for default.

“Formal expression” means the recordation of the ruling of the Court on the matter presented
before it, so far as the Court expressing it alludes to the fact that the same issue cannot be
adjudicated by or before the Court again but only before a higher forum i.e. an appellate
forum.

A decree must be drawn separately after a judgment.

Deemed Decrees: A deemed decree is one which, though not fulfilling the essential features
of a decree as required by the Code has been expressly categorised as a decree by the
legislature. The rejection of a plaint and the determination of questions of facts are deemed
decrees.

Order

Defined u/s 2 (14) of the Civil Procedure Code. It means the formal expression of any
decision of the Civil Court which is not a decree.

The starting point for an order need not always be a plaint, it may be an application or
petition. Though being a formal expression, it follows that an order need not conclusively
determine the rights of parties on any matter in dispute. However, it may relate to the matters
in controversy.

Judgment
Defined u/s 2 (9) of the Civil Procedure Code. It means the statement given by the Judge on
the grounds of a Decree or Order. Thus a judgment sets out the ground and the reason for
the Judge to have arrived at the decision.

Judgment 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.

Judgment is the statement of the Court on the grounds for having arrived at a decision.

A judgment must contain the following components:

1. A crisp statement of facts of the case;

2. The points or issues for determination;
3. The decision on such issues and finally;
4. The reasons for such a decision.

Jurisdiction of courts and venue of suits

Jurisdiction means the authority by which a court has to decide matters that are brought
before it for adjudication. The limit of this authority is imposed by charter, statute or
commission. If no such limit is imposed or defined that the jurisdiction is said to be unlimited.

Limitation of jurisdiction of civil court is basically four kinds:

Jurisdiction over the subject matter- to try certain matters by certain court is limited by
statute (Ex. Small cause court- suit for money due under promissory note or a suit for price
of work done)
Place of suing or territorial jurisdiction – A territorial limit of jurisdiction for each court is fixed
by Government.
Jurisdiction over persons – All person of whatever nationality are subject to the jurisdiction of
the country except foreign state.
Pecuniary jurisdiction depending on pecuniary value of suit –There is no pecuniary
jurisdiction of high court and district court.

Jurisdiction may be further classified:

Original jurisdiction
Appellate jurisdiction

Criminal and appellate jurisdiction- Supreme Court, High Courts and District courts have
both original and appellate jurisdiction in various matter.

Stay of suit –(Section 10)

No Court shall proceed with the trial of any suit in which the matter in issue is also directly
and substantially in issue in a previously instituted suit between the same parties or between
parties under whom they or any of them claim litigating under the same title where such suit
is pending in the same or any other Court in India having jurisdiction to grant the relief
claimed or in any Court beyond the limits of India established or continued by the Central
Government and having like jurisdiction or before the Supreme Court.

Essential conditions for stay of suit:

Two suits instituted at different times,

The matter in issue in the later suit should be directly and substantially in issue in the earlier
suit,
suit between the same parties,
Such earlier suit is still pending either in the same court or in other competent court, not
before foreign court.

Case / Example: (Wings Pharmaceuticals (P) ltd and another V. M/s. Swan pharmaceuticals
and other)

A suit was instituted by the plaintiff company alleging infringement by the defendant
company by using trade name of medicine and selling the same in wrapper and carton of
identical design with the same colour combination etc. as that of plaintiff company. A
subsequent suit was instituted in different court by the defendant company against the
plaintiff company with same allegation.

The court held that subsequent suit should stayed as a simultaneous trial of the suits in
different courts might result in conflicting the decision as issue involved in two suit was totally
identical.

Res judicata (Section 11)

No Court shall try any suit or issue in which the matter directly and substantially in issue has
been directly and substantially in issue in a former suit between the same parties, or
between parties under whom they or any of them claim, litigating under the same title, in a
Court competent to try such subsequent suit or the suit in which such issue has been
subsequently raised and has been heard and finally decided by such Court.

The intention of this doctrine is the parties of the suit should not be harassed to against the
same issue or matter already decided between them and the time of court should not wasted
over the matters that ought to have been and should have been decided in the former suit
between the parties. This doctrine known as Constructive res judicata

Essential condition for res judicata

The matter must be directly and substantially in issue in two suits

The prior suit should be between the same parties or person claiming under them
The parties should have litigated under the same title
The court which determined the earlier suit must be competent to try the latter suit
The same question is directly and substantially in issue in the latter suit
The prior suit has been heard and finally decided.
Example 1: -A was a trustee of a trust, after A's death B wrongfully takes the possession of
the trust property. C the son of A file a suit for recovery of possession of the property against
B as the legal heir of A in his individual capacity but C did not succeed. The C files another
suit for recovery of trust property against B in the capacity of trustee as he was appointed
trustee after the death of A. Whether second suit is barred?

First suite filed by C as individual capacity i.e. as legal heir where as second suit as a
capacity of trustee of the trust property- second suit is not barred by the doctrine of res
judicata.

Example 2: Finding incidentally does not operate as res judicata (Madhvi Amma Bhawani
Amma V. Kunjikutty P. M. Pillai.

Place of suing (Territorial) Section 15 to 18 / Court in which suits to be instituted? (Matter

relating to immovable property)

Every suit shall be instituted in the Court of the lowest grade competent to try it.

Subject to the pecuniary or other limitations prescribed by any law, the following suit shall be
institutes in the court with in the local limits of whose jurisdiction the property is situated
(Section 16):-

(a) For the recovery of immovable property with or without rent or profits,
(b) For the partition of immovable property,
(c) For foreclosure, sale or redemption in the case of a mortgage of or charge upon
immovable property,
(d) For the determination of any other right to or interest in immovable property,
(e) For compensation for wrong to immovable property,
(f) For the recovery of movable property actually under distraint or attachment,

A suit to obtain relief respecting or compensation for wrong to, immovable property be
instituted either in the Court within the local limits of whose jurisdiction the property is situate
or in the Court within the local limits of for gain or where the either party actually and
voluntarily resides or carries on business or personally works.

Suits for immovable property situate within jurisdiction of different Courts? (Section 17)
The suit may be instituted in any Court within the local limits of whose jurisdiction the
property is situate.
Provided that, in respect of the value of the subject matter of the suit, the entire claim is
cognizable by such Court.
Place of institution of suit where local limits of jurisdiction of Courts are uncertain? (Section
18)

Any one of those Courts may, if satisfied that there is ground for the alleged uncertainty,
record a statement to that effect and thereupon proceed to entertain and dispose of any suit
relating to that property.
Provided that the suit is one with respect to which the Court is competent as regards the
nature and value of the suit to exercise jurisdiction.
Suits for compensation for wrongs to person or to movable? (Section 19)

Where a suit is for compensation for wrong done to the person or to movable property, if the
wrong was done within the local limits of the jurisdiction of one Court and the defendant
resides or carries on business or personally works for gain, within the local limits of the
jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of
the said Courts.
Illustrations
(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.
(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A
either in Calcutta or in Delhi.
Other suits to be instituted where defendants reside or cause of action arises? (Section 20)
Every suit shall be instituted in Court within the local limits of whose jurisdiction:
The defendant, or each of the defendants where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or
personally works for gain; or
The cause of action, wholly or in part, arises.
Provided that the suit is one with respect to which the Court is competent as regards the
nature and value of the suit to exercise jurisdiction.

Explanation: A corporation shall be deemed to carry on business at its sole or principal office
in India or, in respect of any cause of action arising at any place where it has also a
subordinate office, at such place.

Illustrations
(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta,
buys goods of A and requests A to deliver them to the East Indian Railway Company. A
delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in
Calcutta, where the cause of action has arisen or in Delhi, where B carries on business.
(b) A resides at Simla, B at Calcutta and C at Delhi A, B and C being together at Benaras, B
and C make a joint promissory note payable on demand, and deliver it to A. A may sue B
and C at Benaras, where the cause of action arose. He may also sue them at Calcutta,
where B resides, or at Delhi, where C resides; but in each of these cases, if the non-resident
defendants object, the suit cannot proceed without the leave of the Court.

Concept of set off, Equitable Set off and Counter Claim

Set Off

Order 8, Rule 6 deals with set off which is a reciprocal discharge of debts between the
plaintiff and he defendant. It has the effect of extinguishing the plaintiff’s claim to the extent
of the amount claimed by the defendant as a counter claim.

Where the defendant’s claims to set off against the plaintiff’s demand, in a suit for the
recovery of money, any ascertained sum of money legally recoverable by him from the
plaintiff, the defendant may present a written statement containing the particulars of the debt
sought to be set off.

Example: [ R and S sale rice for Rs 25000 to A and M. A sell cloth worth Rs. 28000 to S. A
file a suit against S for recovery of price of cloth. S claims set off of the cost of rice in this
suit.
S will not allow set off – in dealing parties are not jointly same.

Equitable Set Off

Where the defendant claims set off in respect of an unascertained sum of money, where the
claim arises of the same transaction and then such set off is known as equitable set off.
Generally, the suits emerge from cross demands in the same transaction and this doctrine is
intended to save the defendant from having to take recourse to a separate cross suit.

Counter Claim

Order 8, Rule 6A of Civil Procedure Code deals with the Rule of Counter claim. This Rule
permits the defendant to set up the claim as a counter to the claim of the plaintiff, which
arose between the parties. This rule is applicable in the interest of public policy so as to
minimize litigation between the parties which could have been filed by the defendant
separately.

A defendant in suit may in addition to his right of pleading a set off under rule 6, set up by
way of counter claim against the claim of the plaintiff, any right or claim in respect of a cause
of action accruing to the defendant against the plaintiff either before or after the filing of the
suit but before the defendant has delivered his defense or before the time limited for
delivering his defense has expired whether such counter claim is in the nature of claim for
damage or not. Such counter claim must be with in the limit of the court.

Temporary injunction and interlocutory order

The court may grant temporary injunction to restrain any such act or make such other order
for the purpose of staying and preventing the:

Wasting, damaging, alienation or sale or removal or disposition of the property or disposition

of plaintiff or otherwise injury to the plaintiff in relation to any property in dispute in the suit,
where it is provided by affidavit or otherwise:-

that property in dispute in a suite is in danger or being wasted, damaged or alienated by any
party to the suit or wrongfully sold on execution of decree or;
that the defendant threatens or intend to remove or dispose of his property with a view to
defrauding his creditor or;
that the defendant threatens to disposes the plaintiff or otherwise cause injury to the plaintiff
in relation to any property in dispute in suit.
It would be necessary for the plaintiff to satisfy the court that substantial and irreparable
harm or injury would be suffered by him if such temporary injunction is not granted and such
loss or damage or harm can not be compensated by damages.
Interlocutory order (Power to order Interim sale)

If the immovable property which is subject to speedy and natural decay or which for any
other sufficient cause it may be desirable to be sold at once. The court may on the
application of the applicant of any party to a suit order the sale of such detained goods.

Detention, preservation, inspection etc. of subject matter of suit

The court may on application of any party to a suit and on such terms as it think fit:

Make an order for detention, preservation or inspection of any property which is in the
subject matter of suit;
May authorise any person to enter upon the premises.
Authorise any person to take samples, for observation and for obtain desired information’s
etc.
Party would made application for aforesaid purposes at any time after institution of suit or at
any time during the proceeding of the suit.

Court shall identify the intention of party for the order and it think fit than issue the any of
aforesaid order.

Court may order deposit of money or other thing etc. in court

Misjoinder of Parties

When more than one persons joined in one suite as plaintiff or defendants in whom or
against whom any right to relief does not arise or against whom separate suit are bought, no
common question of law or fact would airs.

To avoid such misjoinder two factors are essentially considered by adjudication:

the right to relief must arises out of same act or transactions brought by plaintiffs or against
the defendant,
There is common question of law or facts.

Delivery of Summons by court- Rule 9

Summons delivered to defendant either personally or his agent or any adult male or female
member of the family, against signature obtained in acknowledgement of the service.
Summons may be delivered by
An proper officer of court or
Thru registered acknowledgement post or acknowledged speed post or couriered services
approved by high court or appropriate court.

Court satisfied or believe that the person summoned is keeping out of way for purpose of
avoiding service or that any of reason the summons can not be served in the ordinary way in
that case court order the service of summons to be served by affixing a copy thereof in some
conspicuous place in the court house and also upon some conspicuous part of the house in
which the person summoned is known to have last resided or carried on business of
personally worked for gain or any such other manners as court thinks fit.

If defendant is public servant / officer 🡪 Summons will be delivered Office in which he/she is
employed.
If defendant is company 🡪 summons will be delivered to Company Secretary / Director /
principal officer.

Appeal

Appeal is a process for requesting a formal change to a decision of subordinate adjudication.

Right of appeal is not a natural right or inherent right attached to litigation. Such right is given
by statute or by rules having the force of statute.

Four kinds of appeals:

Appeal from original Decree (Section 96-99)
Second Appeals (Section 100- 103)
Appeal from Order (104 -106)
Appeal to the supreme court (Section 104-106)

Reference, Review & Revision

Reference
Subject to such conditions as may be prescribed, at any time before judgement a court in
which a suit has been instituted may state case and refer the same for opinion of the high
court, and high court may make such order as it think fit.

Review

Conferred by, Section 114 and order 47 rule 1 of code.

Any person considering himself aggrieved by a decree or order may apply for review of
judgement to the court which passed the decree or made the order on any of the grounds
as mentioned ion order 41 Rule 1, namely:

Discovery by the applicant of new and important matter or evidence which after the exercise
of due diligence was not with in his knowledge or could not be produced by him at the time
when the decree was passed or order made or
On account of some mistake or error apparent on the face of the record, or
for any other sufficient reason;
The court may make such order thereon as it think fit.

Revision (Section 15)

High court may call for record of any case which has been decided by any court subordinate
to such high court and in which no appeal lies thereto and if such subordinate court appears:
To have exercised a jurisdiction not vested in it by law; or
To have failed to exercise a jurisdiction so vested or;
To have acted in the exercise of its jurisdiction illegally or with material irregularity.
The high court may make such order as it thinks fit.
The high court shall not vary of reverse any order made or any order deciding an issue in the
course of suit or proceeding except where the order if ht had been made in favour of the
party applying for revision would have been finally disposed of the suit or other proceedings.
The H.C. shall not vary or reversed any decree or order against which an appeal lies either
to the H.C. or any court subordinate thereto.
A revision shall not operate as a stay of suit or other proceeding before the court except
where such suit or proceeding is stayed by H.C.

Suit by or against a corporation / minor

(Company)Pleading may be signed and verified by 🡪 Secretary, Director or principal officer

of Company

(Minor) 🡪 Next friend of the minor- on satisfaction court may appoint a proper person to be a
guardian for the suit.
When minor attend majority – minor will join the suit.

Summary Procedure

A procedure by way of summary suit applies to suits upon:

Bills of exchange or, Promissory notes
The summary procedures are applicable in the following courts:
High court, City civil court & Small courts.

The debt or liquidated demand in money payable by the defendant should arise on written
contract or an enactment or on guarantee.

Defendant is not entitled to define the suit unless he enters an appearance with in 10 days
from the service of summons.

The summary suit must be brought with in one year from the date on which the debt
becomes due and payable, whereas the period of limitation for suit for ordinary case under
negotiable instrument is three year.

Decree, Order & Judgement

Decree
Order
Judgement
Section 2(2)
Section (14)
Section 2(9)
Formal expression of an adjudication which conclusively determine the right of parties with
regarding to the matter in controversy in suit.
Formal expression of any decision of civil court, which in not decree.
Statement given by judge on the ground of decree or order.
Decree
Preliminary
Final

Judgement set out in the ground and the reason for the judge to have arrived at the decision.
Decree & Order

Adjudicate and conclusively determine the right of the parties.

Order does not do so.

Always appealable, unless prohibited by law.

Order not appealable unless permitted by law.

Second appeal permissible.

No second appeal permissible.

Decree
Preliminary
Final
Always final