Decree

To understand the meaning of the term “decree”, let us see what the CPC says about it. Section 2(2) of the CPC
defines a “decree” as 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 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-
1. Any adjudication from which an appeal lies as an appeal from an order, or
2. Any order of dismissal for default.
A decree is the manifestation of the court’s adjudication. In simple language, the court’s expression of its
adjudication in favour of one or more parties to a suit is called a “decree.” It is the decree that clarifies which
party won the suit.
In a decree, there are two parties; one is the decree-holder and the other is the decree-debtor. A decree-
holder is the party in favour of whom a decree is passed (Section 2(3) of the CPC); on the other hand, a decree-
debtor is the party against whose favour a decree is passed.
To further understand what a “decree” actually means, it is important for us to know the meaning of another
term, “judgement”. As per Section 2(9) of the CPC, a “judgement” means the statement given by the judge on
the grounds of a decree or order. It means that a judgement contains the grounds of a decree. A decree is
derived from a judgement. So, every decree follows a judgement. Ultimately, a decree is the formal
manifestation or representation of the judge’s ruling.
Decree Holder
Section 2(3) of CPC defines the term decree holder. Decree holder means any person in whose favour a decree
has been passed or an order capable of execution has been made.The term decree holder denotes a person:
○ In whose favour a decree has been passed.
○ In whose favour an order capable of execution has been made.
○ Whose name appears in the decree, either as plaintiff or defendant and the following conditions are satisfied:
The decree must be capable of execution.
The said person, by the terms of the decree itself or from its nature, should be legally entitled to seek its
execution.
In Ajudhia Prasad v. The UP Govt. through the Collector (1947), the Allahabad High Court considered the scope
of the expression decree holder. The Court held that it is clear from this that a person in whose favour an order
capable of execution has been made is also a decree holder.
○ It is also evident from this definition that a decree-holder need not be a party to the suit.
Judgement Debtor
Judgement debtor is defined in Section 2(10) of CPC.
Judgement-debtor means any person against whom a decree has been passed or an order capable of
execution has been made.
The definition does not include legal representative of a deceased judgement-debtor.
○ A judgment debtor is a person against whom a judgment ordering him to pay a sum of money has been
obtained and remains unsatisfied. That order or decree may be for payment of money or for recovery of
possession or any other order or decree.
Mesne Profits: Sec-2(12)
“Mesne profits” of the property are 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 possessions.”

So, Mesne Profits are the profit that the defendant had obtained from the wrongful possession of the property.
It is not the profit that the plaintiff would have obtained rather it is the profits that defendant obtained during
the period of wrongful possession of the suit property.
In case the defendant had not obtained any profits out of the suit property because of his carelessness, it never
mean that court will not award any mesne profit to the plaintiff. The very word in the act ‘might by ordinary
diligence have received’ indicate that court will allow the amount that courts find appropriate.
There is no straight jacket formula to calculate the amount that to be awarded to the plaintiff as the mesne
profit but court will consider every case on individual basis.
Say for example, in case the defendant in the wrongful possession of a residential building, in that case the rent
applicable in that area along with interest may form part of the amount decreed as mesne profit. Similarly, in
case of a land, the general crops that usually grown by the farmer of that area taking that into consideration
the amount will be determined.
So, it is immaterial whether defendants have actually availed benefits or not but what would have the general
benefit that would have been obtained by ordinary diligence, will be awarded to the plaintiff.
Therefore, the test to ascertain mesne profit is not what the plaintiff has lost by being out of possession but
what the defendant gained or might reasonably and with ordinary prudence have gained by such wrongful
possession.
What is foreign Judgement?
The term foreign judgments defined under Section 2 (6) of the code of civil procedure means the judgment of a
foreign court, and Section-13 of the code provides the criteria with the code for recognition of a foreign
judgment and is a pre-condition to any enforcement proceedings unless a foreign judgment passes the
conclusiveness test under Section 13 of the Code of Civil Procedure Code, it cannot be enforced.
What is a Foreign court?
"Foreign court " defined under Section 2 (5) means court outside India and not established or continued by the
authority of the central government. Criminal procedure code sections that deal with foreign judgment are
Sections 13, Section 14, and Section 44. Section 13 embodies the principles of private international law that a
Court will not enforce a foreign judgment if the judgment is not that of a competent court. The rules laid down
under Section 13 are substantive law, as well, along with being that of procedural law.

Section 9 of the Code of Civil Procedure (CPC)

is a provision in the civil procedure laws of India that pertains to the jurisdiction of courts to entertain a suit.
Section 9 of the CPC reads as follows:“9. Courts to try all civil suits unless barred.- The Courts shall (subject to
the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred
[Explanation I].--A suit in which the right to property or to an office is contested is a suit of a civil nature,
notwithstanding that such right may depend entirely on the decision of questions as to religious rites or
ceremonies.
[Explanation II].--For the purposes of this section, it is immaterial whether or not any fees are attached to the
office referred to in Explanation I or whether or not such office is attached to a particular place.]
Section 9 of the CPC establishes the general principle that civil courts in India have jurisdiction to entertain and
try all civil suits, unless the cognizance of a particular suit is expressly or impliedly barred by law. This means
that, by default, civil courts in India have the authority to hear and decide civil suits, unless there is a specific
legal provision that explicitly or implicitly prohibits them from doing so.
The expression “expressly or impliedly barred” in Section 9 of the CPC means that the prohibition on the
court’s jurisdiction may be explicitly stated in a law or legal provision, or it may be inferred or implied from the
nature of the suit, the parties involved, or the legal relationship between them. For example, if there is a
specific statute or law that prohibits a court from hearing a particular type of suit, such as a suit involving a
matter that falls under the exclusive jurisdiction of a specialized tribunal, then the court’s jurisdiction may be
expressly barred. On the other hand, if there is a legal principle or doctrine that suggests that a court should
not entertain a certain type of suit, even if there is no explicit provision, then the court’s jurisdiction may be
impliedly barred.Section 9 of the CPC is an important provision that establishes the general rule of jurisdiction
for civil courts in India and serves as a basis for determining whether a court has the authority to hear a
particular civil suit or not.
SECTION 10 CPC
‘’ 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
constituted by the Central Government and having like jurisdiction, or before the Supreme Court.’’
NATURE AND SCOPE
Section 10 declares that no court should proceed with the trial of any suit in which the matter in issue is
directly and substantially in issue in a previously instituted suit between the same parties and the court before
which the previously instituted suit is pending is competent to grant the relief sought.
Indian Bank v. Maharashtra State Coop. Marketing Federation, (1998) 5 SCC 69 , The SC held that this rule
applies to trial of a suit and not the institution thereof. It also does not preclude a court from passing interim
orders, such as, grant of injunction or stay, appointment of receiver, etc.
OBJECT
The object of the rule contained in Section 10 is to prevent courts of concurrent jurisdiction from
simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of
action, the same subject-matter and the same relief. The policy of law is to confine a plaintiff to one litigation,
thus obviating the possibility of two contradictory verdicts by one and the same court in respect of the same
relief. The section intends to protect a person from multiplicity of proceedings and to avoid a conflict of
decisions. It also aims to avert inconvenience to the parties and gives effect to the rule of res judicata.
It is to be remembered that the section does not bar the institution of a suit, but only bars a trial if certain
condition is fulfilled. The subsequent suit, therefore, can’t be dismissed by a court but is required to have
stayed.
Conditions
For the application of section 10, the following condition must be satisfied:
1. There must be two suits, one previously instituted and the other subsequently instituted.
2. The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit.
3. Both the suit must be between the same parties or their representatives.
4. The previously instituted suit must be pending in the same court in which the subsequent suit is brought or
in any other court in India or in any court beyond the limits of India established or continued by the Central
Government or before the Supreme Court.
5. The court in which the previous suit in instituted must have jurisdiction to grant the relief claimed in the
subsequent suit.
6. Such parties must be litigating under the same title in both the suits.

Section 10, however, does not take away the power of the court to examine the merits of the matter. If the
court is satisfied that subsequent suit can be decided purely on legal point, it is open to the court to decide
such suit.
CONTRAVENTION: Effect
A decree passed in contravention of Section 10 is not a nullity, and therefore be disregarded in execution
proceedings. (Pukhraj D. Jain v. G. Gopalakrishna ). Thus, it lays down a rule of procedure, pure and simple,
which can be waived by a party. Hence, if the parties waive their right and expressly ask the court to proceed
with the subsequent suit, they can’t afterwards challenge the validity of the subsequent proceedings.

Section 11
The doctrine of Res Judicata is originated from 3 Roman maxims:
1.Nemo debet lis vaxari pro eadem causa – It means that no person should be vexed annoyed, harassed or
vexed two times for the same cause;
2.Interest republicae ut sit finis litium – It means that it is in the interest of the state that there should be an
end of litigation; and
3.Re judicata pro veritate occipitur – Decision of the court should be adjudged as true.
Res Judicata under Section 11 Civil Procedure Code, 1908
The doctrine of Res Judicata has been defined in Section 11 of the Civil Procedure Code. The doctrine of the
Res Judicata means the matter is already judged. It means that no court will have the power to try any fresh
suit or issues which has been already settled in the former suit between the same parties. Also, the court will
not try the suits and issue between those parties under whom the same parties are litigating under the same
title and matter are already been judged and decided by the competent court. When the court finds any suits
or issues which has been already decided by the court and there is no appeal pending before in any court, the
court has the power to dispose of the case by granting a decree of Res Judicata. This doctrine is based on the
premises that if the matter is already decided by the competent court then no one has rights to reopen it with
the subsequent suit.
What is a Suit?
The term “suit” has not been explicitly defined in the CPC. However, Section 26 of CPC provides that every suit
shall be constituted by the presentation of a plaint or in any other manner prescribed. Order VI provides that
pleading means plaint and written statement. The particulars of the plaint are contained in Order VII. Further,
in the case of Hansraj Gupta and others v. Dehradun Mussoorie Electric Tramway Company Ltd. the term “suit”
was explained by the Privy Council to mean a civil proceeding instituted by the presentation of a plaint.
What is an Issue?
Order XIV of the Code of Civil Procedure deals with the framing of “issues” to be decided upon and their
further determination on issues of law. Rule 1 deals with the framing of issues as follows: The court may frame
the issues from all or any of the following materials”:—(a) accusation made on oath by the parties or made by
the lawyers of such parties; (b) accusation made in the pleadings or in answers to interrogatories delivered in
the suit; (c) the information from documents produced by either party.” In the case of Mathura Prasad Bajoo
Jaiswal and Ors. v. Dossibai N.B. Jeejeebhoy the Court has held that “the matter in issue” in Section 11 CPC
means the right litigated between the parties i.e. the facts on which the right is claimed or repudiated and the
law applicable for the settlement of that issue.
a decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties only
if:
1.The cause of action of the subsequent proceeding be the same as in the previous proceeding
2.When the law has since the earlier decision not been altered by a competent authority,
3.When the decision doesn’t relate to the jurisdiction of the Court to try the earlier proceeding,
4.The earlier decision doesn’t declare valid a transaction which is prohibited by law.
Scope of the doctrine of Res Judicata
The scope of the Res Judicata is not restricted to Section 11. Res Judicata is the principle which is also applied
to Administrative Law, constitutional law & Criminals matters. It is applicable to other legislation and acts too.
In the case of the Sheoprasad Singh v. Ramnandan Prasad Singh[4], Sir Lawerence Jenkins observed the rule of
Res Judicata as “the rule..while finding on ancient precedent is dictated by a wisdom which is for all time.” In
the case of Daryao vs. the State of UP[5], the court stated that for this rule there would be no end to litigation
and no security for any person; the rights of the person is involved in the endless confusion and great injustice
done under the cover of the law.
Essentials of Res Judicata under Section 11 CPC
Before granting a decree of Red Judicata following conditions should be satisfied first:
1.There must be two suits one former (previously decided) suit and the other subsequent suit.
2.Parties of the former and subsequent suit or the parties under whom they or any of them claim should be
the same.
3.The subject matter of the subsequent suit should be identical or related to the Former suit either actually or
constructively.
4.The case must be finally decided between the parties.
5.The former suit should be decided by the court of competent jurisdictions.
6.Parties in the former as well as in Subsequent suit must have litigated under the same title.
Exceptions to the Plea of Res Judicata
1.Judgment in original suit obtained by the fraud – if a court thinks that the judgment of former suit is obtained
by the fraud, then the doctrine of the res judicata is not applied.
2.When previous SLP is dismissed – When special leave petition is dismissed without adjudication or decision
then res judicata should not be applied. For obtaining Doctrine of Res Judicata, the formal suit should be
decided finally by the competent court.
3.A different cause of action – Section 11 will not be applied when there is a different cause of action in the
subsequent suits. The court cannot bar a subsequent suit if it contains the different cause of action.
4.When there is Interlocutory Order – Interlocutory order is the interim order, decree or sentence passed by
the court. A principle of the Res Judicata will be not applied when an interlocutory order is passed on the
former suit. It is because in Interlocutory order immediate relief is given to the parties and it can be altered by
subsequent application and there is no finality of the decision
When the court fails to apply Res Judicata
If the court fails to apply for the res judicata and orders a contradictory decision on the same issue and
Afterwards matter is listed to the third court then the third court will apply res judicata on the basis of the
decision on the previous suit. Thus it is the duty and responsibility of the parties to the suit to bring the earlier
case to the attention of the court and Judge will decide on whether a plea of Res judicata should be granted or
not.

Does the doctrine of Res Judicata is applied to the Writ Proceedings?

A writ has been defined in Article 32 and Article 226 of the Constitution of India. Article 32 has given power to
Supreme court to issue writs whereas same power is granted to High courts in Article 226. There are 5 types of
writs – Certiorari, Mandamus, Habeas Corpus, Prohibition & Quo Warranto.
The question that whether the doctrine of Res Judicata applies to the writ proceedings is still disputable. If we
study the explanations of section 141 of the Civil Procedure Code, 1908 we can find that Section 11 is not
applicable to the proceedings under Article 226 of the constitution. But the doctrine or the principle of Res
Judicata can be applied to the writ proceedings when there is no applicability of Section 11 of the code.
In the case of Rural Litigation & Entitlement Kendra v. the State of U.P.[11], the court held that the doctrine of
the res judicata cannot be applied in the cases of Public Interest Litigation.

Order 5
Meaning, object and essentials of summons
If we try to understand the legal recourse in the case of a civil suit, then the first step leading to a civil suit is a
dispute over a particular matter or property. This gives rise to a cause of action followed by identification of the
parties, i.e., plaintiff and defendant. This is followed by the identification of the subject matter over which the
dispute has arisen. The jurisdiction of the court is determined along with the value of the suit/plaint. After
considering the jurisdiction and valuation of plaint, a plaintiff files a suit or plaint in a civil court. The most
important step comes after the institution of a suit, which is the issuance of summons within seven days of the
institution of the plaint, after which a defendant is under an obligation to submit a written statement within 30
days. This is followed by further proceedings and arguments. The importance of summons lies in the fact that
when a plaintiff files a suit, the defendant must be informed about the suit that has been filed against him so
that he can be heard and the procedure of fair trial is followed. The document which is sent by the court to the
defendant to inform him about the suit filed against him is known as a summon.
Mode of service of summons
This is one of the most fundamental and important rules of law that states that a party must be given a fair
chance to represent himself, and this is only possible if he has been served with fair and reasonable notice of
legal proceedings stating the legal action taken against him. This will also give him the opportunity to defend
himself and present his case. One of the major causes of delay in justice or pendency in cases is the service of
summons. The defendants or people to whom the summons are issued may avoid it or ignore it, which results
in a delay in proceedings, leading to a delay in justice.
Personal or direct service
This mode of service of summons is simple. In this mode, a copy of the summons is issued to the concerned
person or his agent or any other person on his behalf, and the person receiving the summons must
acknowledge the same. It is the duty of the officer serving summons to ensure and make an endorsement with
regard to the summons served that states the time and manner of service, the name and address of the person
receiving the summons, and witness to the delivery of the summons.
Rules 10 to 16 and Rule 18 of the order deal with personal or direct service. While serving summons through
this mode, the following principles must be taken into consideration:
● The service officer must try to serve the summons to the defendant or his agent.
● If the defendant is not present at his place of residence and there is no agent, then it must be served on any
adult male or female member of the family living with him on his behalf.
● If a suit is related to the business or work of a person who does not reside within the territorial jurisdiction of
the court, then it may be served to the manager or agent of that business or work.
● In the case of a suit on immovable property, if the defendant is not found, then the summons may be served
on any person or agent who is in charge of such property.
● If a suit involves two or more defendants, then the summons must be issued to each of them.
Service by the court
Rule 9 of the Order deals with the service of summons by court. It provides that if a defendant resides within
the jurisdiction of the court, then the summons must be served to him by the court officer. It can also be
served by post, fax, message, email service, approved courier service, etc., but if the defendant does not live
within the jurisdiction, then it must be served by the officer of the court within whose jurisdiction he resides.
In the case, summons are served by Registered post acknowledgment due (RPAD), the court will assume the
valid service of summons is complete even if there is no acknowledgement slip. If a person refuses to accept it,
the court may treat it as a valid service. The Supreme Court, in the case of Salem Advocate Bar Association v.
Union of India (2005), directed the high courts to make appropriate rules or guidelines to ensure that the
provisions of summons are implemented properly without any abuse of power or process of law.
Service by plaintiff
According to Rule 9A of the Order, the court may permit the plaintiff, on his application, to serve summons to
the defendants. He has to deliver the copy of the summons which is sealed and signed by the judge or any
other officer appointed by the judge to do so, and also make sure that the defendant summons acknowledges
the service. If the defendant refuses to acknowledge the service or if it cannot be served personally, the court
will re-issue the summons and serve it to the defendant.
Substituted service
Substituted service means a mode of service of summons that is adopted in place of ordinary service of
summons. There are two modes of substituted service as given under Rules 17, 19 and 20 of the Order. These
are:
● If the defendant or his agent refuses to acknowledge or sign the receipt of the summons, or if the officer
serving the summons reasonably believes that the defendant is not present at his residence and will not be
found within a reasonable time, and moreover if there is no agent to receive summons on his behalf, he may
affix the copy of the summons on the door or any conspicuous part of his house.
○ In this case, the serving officer has to make a report stating the reasons for affixing the summons, the
circumstances, the name and address of the person who helped him and the witnesses to affixing the
summons.
○ The court can declare that the summons has been issued if it is satisfied with the report of the officer.
● If the defendant is deliberately avoiding service and the court has a reason to believe so, it may affix the
summons in some conspicuous place in the court and house of the defendant where he used to reside, carry
on business or work for somebody.
In the case of Yalllawwa v. Shantavva (1997), the Supreme Court held that this mode of service of summons is
not an ordinary mode and must not be used normally. It must only be used in exceptional cases and treated as
the last option.
According to Rule 20, if a court orders to advertise the summons in the newspaper, then it must be done in a
local newspaper where the defendant lived, had a business, or worked. This service is an effective option to
serve summons even if the defendant is not reading the newspaper (Sunil Poddar v. Union Bank of India, 2008).
Before issuing the summons through this mode of service, the court must give the defendant a reasonable time
to appear before the court. In another case, State of Jammu and Kashmir v. Haji Wali Mohammad (1972), the
Supreme Court held that if a summon does not fulfil the requirements of Rule 19 of Order 5 under the Code,
then such service of summons is not in accordance with the law.
Service by post
The Code earlier provided that the summons could be served through the post as well and was given under
Rule 20A of the Order, but this provision has been repealed by the Amendment Act of 1976.