@civil Procedure Code, 1908

Civil Procedure Code,
1908
Amit Pratap Singh

Assistant Professor in Business Laws
•The Code of Civil Procedure (Act V of 1908)
•Received the assent of the Governor-General

21st March 1908
•An Act to consolidate and amend the laws relating to

the Procedure of the Courts of Civil Judicature
• It shall come into force on the first day of
January, 1909
• It extends to the whole of India, except -

• Clause (a) omitted by Act 34 of 2019, s. 95 and the
Fifth Schedule (w.e.f. 31-10- 2019).
• Tribal Area
• Scheme of the Code.—
• Divided into two parts;
• The first part consists of 158 sections and
• The second part consists of the First Schedule wherein

there are 51 Orders and every order contains rules.
• The first part i.e.,
• the sections lay down the provisions of a substantive nature and
the principles regarding jurisdiction of the courts.
• The second part i.e.,

• the First Schedule deals with the procedure and the mode and
the method of which is to be followed by the courts while
exercising jurisdiction bestowed by the code.
• The sections create jurisdiction while the rules indicate the manner in
which the jurisdiction is to be exercised, the inherent power of the court
to do justice is inadditions to and complementary to the powers conferred
under the Code- Vareed Jacob v Sosamma Geevarghese, AIR 2004 SC 3992 .
• The sections create jurisdiction while the rules indicate the
manner in which the jurisdiction is to be exercised, the
inherent power of the court to do justice is in additions to
and complementary to the powers conferred under the Code
• Vareed Jacob v Sosamma Geevarghese, AIR 2004 SC 3992 .
• The sections under the code can be amended only by the legislature.
• But the orders and rules provided in the First Schedule of the code
can be amended by the High Court. Under section 122, the High Courts
have powers to amend, by rules, the procedure laid down in the orders.
• The sections and the rules, therefore, must be read together and
harmoniously construed.
• However, if the rules are inconsistent with the sections, the sections
will prevail.
Consolidate and Amend
• To consolidate a law means to collect the statutory law

relating to a particular subject and to bring it down to date
in order that it may form a useful Code applicable to the
circumstances existing at the time when the consolidation
Act is enacted.
• If the language is plain and unambiguous, resort need not be had to
the earlier law; but if it is capable of more than one meaning, it is
permissible to refer to the previous state of law to fix the meaning of
the provision under construction.
• Pari Materia
• where it plainly amends, resort cannot be had to the earlier law
• Ex Vis Ceribus Actus
Interpretation of the Act
• A statute is an edict of the Legislature
• RMD Chamarbaugwala v. Union of India- the Supreme
Court observed that a statute is to be construed according
to the intention of them that make it.
• The duty of the judicature is to act upon the true intention
of the Legislature the mens or sententia legis.
• The courts are therefore, held as finishers, refiners, and polishers of
legislatures which give them in a state requiring varying degrees of
further processing
• Harmonious Construction - The Code of Civil Procedure 1908 is one

continuous whole, the sections being enacted simultaneously;
• and therefore, in order to ascertain the true legislative intent, the
words and phrases are to be taken, not in an isolated and detached
manner dissociated from the context, but are to be read together and
construed in the light of the purpose and object of the Act itself
• Liberal Construction of Procedure Codes - Procedure is mere
machinery and its object is to facilitate and not to obstruct the
administration of justice.
• The Code of Civil Procedure should therefore, be considered liberally

and, as far as possible, technical objections should not be allowed to
defeat substantial justice
• The Code of Civil Procedure is a body of general law, designed to

facilitate justice. It should not be treated as an enactment providing for
punishment and penalties. The law of justice should be so constructed
as to render justice where reasonably possible.
• Code Exhaustive –
• The essence of a Code is to be exhaustive of the matters in respect of which it declares
the law and it is not the province of the judge to disregard or go outside the letter of
the enactment according to its true construction.
• Where there is no specific provision in the Code, the court has the power and it would
seem it is its duty to act according to justice, equity and good conscience.
Retrospective Operation
• Every statute which takes away or impairs vested rights acquired
under the existing law must be presumed to be intended not to have
retrospective operation
• but this presumption does not apply to enactments affecting procedure

or practice, such as the Code of Civil Procedure
• The reason is that no person has a vested right in any course of

procedure. The general principle indeed seems to be that alterations in
the procedure are always retrospective unless there be some good
reasons against it
• The Code of Civil Procedure is thus not retrospective so as to affect vested rights
except where the amendment has been expressly or by necessary implication been
made retrospective
• Hitendra Vishnu Thakur v. State of Maharashtra – five guidelines – retrospectivity of

amending act
• The Halsburys Law of England states the law on retrospective operation of
statutes thus:
• The general rule is that all statutes, other than those which are merely
declaratory, or which relate only to matters of procedure or of evidence, are
prima facie prospective, and retrospective effect is not to be given to them
unless, by express words or necessary implication, it appears that this was
the intention of the legislature. Similarly, the courts will construe a
provision as conferring power to act retrospectively only when clear words
are used
CIVIL PROCEDURE
• Punjab Co-operative Bank v Lala Bikram Lal, AIR 1959 Punj 71
• procedure is a handmaid and not mistress of law and rules of
procedure should only sub-serve and not govern.
• Procedure is only channel to administer law and thus it should

not be instrumental in impleading or obstructing justice

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Civil Procedure Code,

Amit Pratap Singh

•Received the assent of the Governor-General

•An Act to consolidate and amend the laws relating to

• It extends to the whole of India, except -

• Divided into two parts;

• The ﬁrst part consists of 158 sections and

• The second part consists of the First Schedule wherein

• The second part i.e.,

• To consolidate a law means to collect the statutory law

• Harmonious Construction - The Code of Civil Procedure 1908 is one

• The Code of Civil Procedure should therefore, be considered liberally

• The Code of Civil Procedure is a body of general law, designed to

• but this presumption does not apply to enactments affecting procedure

• The reason is that no person has a vested right in any course of

• Hitendra Vishnu Thakur v. State of Maharashtra – five guidelines – retrospectivity of

• Procedure is only channel to administer law and thus it should

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