Civil Procedure Code and Limitation Act (Paper Code: K-501)

CIVIL PROCEDURE CODE AND
LIMITATION ACT
(Paper Code : K-501)
Ashok Kumar Sharma

Asst. Professor
Dept. Of Law
Meerut College, Meerut
Ashok Kumar Sharma, Asst Professor,

Dept of Law, Meerut College, Meerut. 1
CIVIL PROCEDURE CODE AND LIMITATION ACT
(Paper Code : K-501
C.C.S. University, Meerut Syllabus
 The Course shall comprise of the following :

 (1) Preliminary, Definitions, Suits of civil nature, Principles
of Res-judicata and Res-subjudice, Foreign judgement, place
of suing.
 (2) Parties to suit, Frame of suit, Pleading : Plaint, Written
statement, Set-off, Counter claim, Suits by indigent persons,
Suits in particular cases.
 (3) Summons and Discovery, Issues of Summons,
Appearance of parties, Summoning and Attendance of
witness, Execution of Decrees. (Cont…)

cont….
 (4) Incidental proceedings : Commission, Letter of request,
Supplemental proceedings : Arrest and Attachment before
judgement, Temporary injunction, Interlocutory orders,
Receiver appeals, References, Review, Revision, Restitution,
Caveat, Inherent powers of court.
 (5) Limitation of suits, appeals and applications, Period of
Limitation, Continuous running of time, Effect of sufficient
cause for not preferring appeals or making applications
within the period of limitation, Legal disability, Computation
of period of Limitation and Execution of time in legal
proceedings, Effect of Death, Fraud, Acknowledgement in
writing, Acquisition of ownership by possession.
 BOOKS RECOMMENDED
 Mulla, Code of Civil Procedure.
 Takwani C.K., Civil Procedure.
 Mathur D.N., The Code of Civil Procedure.
 Jain J.D., Indian Limitation Act.
Preliminary
 ‘The’ Code of Civil Procedure, 1908
 Can be referred as ‘Act No. 5 of 1908’
 Every Act must have a number except the

Constitution, the supreme law.
 Procedural, or
 Adjective, or
 Processual Law
Cont…
 Substantive Law- Determines rights and
liabilities of parties. For instance- The
Indian Contract Act
Procedural Law- prescribes the practice,

procedure and machinery for the
enforcement of these rights and liabilities.
For Instance- CPC, CrPC, the Limitation
Act etc.
Cont…
Civil Court
 Civil matters
 Criminal matters
Criminal Court

Eleven parts of CPC, contain
sections.
2
Part 1 3
11 4
10 5
9 6
8 7
Scheme of the CPC
• Eleven Parts Contain
1,2,3,4,5,6,7,8,9,10,11 • Total 158 sections
• Substantive in nature
• First Schedule
• Orders are like
51 Orders Chapters
• Procedural in nature
• Eight Appendices
• Models=Forms
A,B,C,D,E,F,G,H
• For Drafting
purposes

Cont…
 Orders(1-51)- 1st Schedule
 Orders are like Chapters
 Longest -Order 21
 8 Appendices(A-H)
 Appendix (singular)
 Appendices(Plural)
 ‘x’= ‘es’

Cont…
 Parts(1-11)-amendable by –
(i) Parliament
(ii) State Legislature
 Orders(1-51)-1st Schedule- amendable

by-
(i) Parliament
(iii) High Court
Cont…
 8 Appendices
Amendable by-
(i) Parliament
*High Court can not amend appendices.

Relevancy between Parts(sections)
and Orders(rules)
 In most cases sections go with hand in

hand together.
 Harmonious Construction

Preamble of CPC
 1. CPC is a Consolidating Act
 1859 Code
 1877 Code
 1882 Code
 Before 1859, there was no uniform Code
of Civil Procedure.
 Different systems of civil procedure in
different parts of the country.

Cont…
 The first uniform Code of Civil
procedure-1859;
 initially it was not applicable to the
Supreme Court of the presidency and to
the Presidency Small Cause Courts, after
some amendments it was made so
applicable.
 After 1859, 1877 and 1882 Code in 1908,
the present Code was enacted.
Cont…
 CPC is an amending Code
(i) 1951 Amendment Act
(ii) 1956 Amendment Act
(iii) 1976 Amendment Act
(iv) 1999 Amendment Act
(v) 2002 Amendment Act

Justice Malimath Committee and
1999 and 2002 CPC amendments
 Justice Malimath Committee, with a view
to dispose of civil cases expeditiously.
 1999 and 2002 Amendment Acts were
based on Justice Malimath Committee.
Important Amendments-
(i) Time limit was prescribed for several
matters i.e. issuing of summons, filing of
W.S., amendment of pleadings, production
of documents, examination of witnesses
etc.
Cont…
(ii) Settlement of disputes outside the court
has been introduced.
(iii) Number of adjournments have been
restricted;
(iv) Fixed time limit for oral argument and
permitting written arguments etc.

Constitutional validity of 1999 &
2002 amendments
 Salem Advocate Bar Association,Tamilnadu
v.
Union Of India
Supreme Court(2005)
The Supreme Court declared these

amendments valid.

Scope: Code not exhaustive
 The Code is exhaustive on matters
specifically dealt with by it.
 The code is not exhaustive on the points

not specifically dealt with therein.
 The civil court has inherent power to act

according to the principles of justice,
equality, and good conscience.
Retrospective Operation
 It is well settled principle of
Interpretation of Statutes that procedural
laws are always retrospective in operation
unless there are good reasons to the
contrary.
 The code of Civil Procedure is NOT

retrospective in operation.

Part One
Chapter Two
Definitions
 Definition Clause, or
 Interpretation Clause, or
 Statutory Dictionary, or
 Legislative Device
Objective- To avoid making different
provisions of the statute to be
cumbersome.

Section 2.
 Definition clause, if repugnant- Not

applicable.
 If not repugnant then applicable.
 Law should enforce and interpret in

relation to its “context”.

Section 2.
Important Definitions
 Section 2(1) “Code” includes rules.
 Section 2(2) “decree”
(i) Decree in general

(ii) Deemed decree
(iii) Statutory definition
(iv) Essentials of Decree

(i)Decree in General
 Decree- “ Operative part of Judgment in a

suit.”
 That part of judgment which is included in

practical.

(ii) Deemed Decree
 Decree & Deemed Decree- An adjudication not
fulfilling the requisites of s.2(2) can not be a “decree”.
 Legal fiction
 Rejection of plaint
 Restitution – determination of any question u/s 144
Rule 58
 Rule 98 Order 21
 Rule 100
 Determination of any question u/s 47 is not a decree
now.( before 01-02-1977 it was a decree)

(iii) Statutory Definition of Decree, 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 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 of 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. It may be partly preliminary and partly final.
(iv) Essentials of a Decree
 Adjudication- a judicial determination of the matter in
dispute
 Suit- Not defined in the Code. “A civil proceeding
instituted by the presentation of plaint”- Hansraj v.
Dehradun- Mussourie Electric Tramways Co. ltd. (1933)
privy Council
 Rights of parties in controversy- Substantive rights of
the parties and not merely procedural rights.
 Conclusive Determination- An interlocutory order is
not a decree. Final and conclusive in essence and
substance.
 Formal Expression- Written, Sealed & Signed

Section 2(14) Order
 “Formal expression of a decision of Civil
Court.”
 But not decree: Similar to decree.
 “Formal” means- Written, Signed and

Sealed.

Adjudication
 Civil adjudication is either
Decree or Order
2(2) 2(14)

Decree Conclusive determination
of the rights of the parties
Matters in
controversy
Judgment = determination=
decision= adjudication
Suit Preliminary; Final; Partly prelim.

Partly Final

Two things are included in Decree-
1. Determination of any question under

s.144 (Restitution)
2. Rejection of Plaint
Two things are NOT included in Decree-

1.Dismissal for default
2.Adjudication from which AFO lies (s.104
& Order 43- Appealable orders)

Kinds of decree
 Preliminary (Suit has not disposed of finally)
 Final (Suit has disposed of finally)
 Partly Prelim. & Partly Final

Decree and order
Order: s. 104
No right of appeal Order 43

Decree:
Right of
appeal
Second
s. 2(2) Appeal
s. 2(14)
s. 2(10) s. 2(3)
Decree-
Judgment Holder
debtor
Part 2 divided in 12 sub parts
 Scheme of Part 2
12 1
2
11
3
10
Part 2
4
9
5
8 6
7

Part 2 (Ss. 36-74)-Execution
 1-General (Ss. 36-37)

 2-Courts by which decree may be executed(Ss.38-46)
 3-Questions to be determined by the Court executing decree(s. 47)
 4- Repealed (s. 48)
 5-Transferee and LRs(Ss. 49-50)
 6-Procedure in execution(Ss.51-54)
 7-Arresr & Detention (Ss.55-59)
 8-Attachment(Ss. 60-64)
 9-Sale(Ss.65-67)
 10-Repealed(Ss.68-72)
 11-Distribution of assets(s. 73)
 12-Resistance of Execution

Sub-part 1: General (Ss. 36-37)
 General (36-37)
 S. 36-Decree & order- Same executing Proceeding
 S. 37- Definition of Court which passed a decree
(a) Where decree to be executed has been passed in the
exercise of appellate jurisdiction-the court of first
instance.
(b) Where the Court of first instance has ceased to exist-
the Court in which such the suit could have been
instituted at the time making application for execution.

s. 38-Court by which decree may be executed
 By the Court which passed the decree, or
 By the Court to which it is sent for execution
s.39- Transfer of Decree

 (1)The Court which passed the decree
 On application of decree holder
 Sent it for execution
 To any other Court of competent jurisdiction

s. 39 (1)
 (a) J.D. actually and voluntarily resides or carries on

business, or personally works for gain, within the local
limits of the jurisdiction of such other courts.
 (b) if the property to satisfy such decree is out of local
limits of the Court.
 (c) if the decree directs the sale or delivery of
immovable property situate out side the local limit.
 (d) any other reason record in writing by Court which
passed the decree.

s.39(2)
 s. 39(2)- by own motion the Court may send it to any

other Court of competent jurisdiction.
 S.39(3)- if such court can try such nature of suit, it can
execute the decree.(1976 amendment)
 S. 39(4)- The court which passed the decree can not
execute such decree against any person or property
outside the local limits of its jurisdiction.

s.40-Transfer of decree to Court in another State
 The decree be executed by rules in force in the State.

S.41- Result of execution proceeding to be certified- the
Court to which a decree is sent for execution shall
certify to the Court which passed it the fact of such
execution or failure of execution.
 S. 42- powers of Court in executing transferred decree

Suppose such decree has been passed by the Court which
is executing it.
 Obstruction or disobey-same penal power
 Appeal-same power

s.42(2)
 Powers of the Court which passed the decree-

(a) Power to send the decree for execution to another
Court u/s 39;
(b)Power to execute the decree against the legal
representative of the deceased J.D. u/s 50;
(c) Power to order attachment of a decree
s.42(3)- A court passing an order in exercise of the

powers specified in sub-section (2) shall send a copy
thereof to the Court which passed the decree.
Ashok Kumar Sharngma, Asst Professor,

s.43
 Execution of decrees passed by Civil Courts in places to
which this code does not extend.-
-be executed in the manner herein provided within the
jurisdiction of any Court in the territories to which this
Code extends.
Section 44- Execution of decrees passed by Revenue

Court in place to which this Code does not extend.-
The State Govt. may, by notification in the Official
Gazette, ….such decrees may be executed in the State
as if they have been passed by Courts in the State.

s.45- Execution of Decrees outside India
 The State Govt. has by notification in the Official

Gazette declared this section to apply.
 S.46- Precepts.-
 Upon the application of the D.H.
 The Court which passed the decree may
 Whenever it thinks fit
 Issue a precept to any other Court
 Which would be competent
 To execute such decree
 To attach any property belonging to the J.D. & specified
in the precept
Precepts cont…
 Section 46(2).- Precept shall proceed to
attach the property in the manner
prescribed in regard to the attachment of
property in execution of decree.
 Precept shall continue for 2 months.

3.Questions to be determined by the Court
executing decree(s. 47)
 All questions
 Between the parties to the suit
 In which the decree was passed, or their
representatives, relating to-
Q1.Execution of the decree
Q2.Discharge of the decree
Q3.Satisfaction of the decree
Q4.Representative (whether a person is or is not
the representative of a party)
Cont…3.Questions to be determined by the Court
 Section 47(1)- independent or separate suit barred.
(any order)
before a “decree” 01-02-1977 after not a “decree”
‘Determined’
‘Q’ determined under

section 47

 Q. Whether ‘Plaintiff-2’ and ‘Defendant-2’

would be included in party?
 A. Yes. P-2 & D-2 would be included in the
party.
 Explanation-1
 Suit by Plt.- dismissed
 Suit against def. – dismissed
 Plt. & Def. deemed to be party to the suit.

 Explanation II.-
(a)Purchaser of property sold in execution
of decree.
Yes.
(b)Qs. Relating to delivery of possession to
representative or purchaser– determined
by Exe. Court

CIVIL PROCEDURE CODE, 1908
 Scheme of the Act:- It consolidates the law relating
to procedure of Civil Courts.
 It has 158 sections in the first part (the main part)
and 51 ORDERS in the second part containing
Rules and 8 appendices .
 The Sections contain the fundamental principles,
and thus create jurisdiction hence a substantive law
whereas the Rules deal with the detailed
procedure as to how the jurisdiction should be
exercised.
s.39 cont..
a. (a) If JD resides out of local limits- to
the Court in whose local limits JD
resides.
b. Property of JD out of local limits
c. Sale or delivery of immovable property
situate out side of local limits.
d. The Court passed the decree considers
for any other reason (record in writing)

Jurisdiction of the Civil Courts
 Jurisdiction is the basic authority of the Court by which it adjudicates
the disputes brought before it.
 jurisdiction is of various types such as 1. Pecuniary 2. Territorial 3. of
the given subject matter
Basic Structure of Civil Courts 1 Civil Judge (Junior Dn.) 2. Civil Judge
(Senior Dn.) 3. District Judge 4. High Court 5. Supreme Court
 There are some other designated courts created both under the CPC
and outside the Code, Small causes courts are created under CPC.
Other courts are created by various special Acts through which the
jurisdiction of the civil courts relating to some specified subject matters
becomes barred and these adjudicatory bodies acquire jurisdiction e.g.
Family Courts, Labour Courts and Tribunals, Administrative Tribunals,
Electricity Tribunals, MACT.
 All Civil claims and proceedings are required to be filed in the lowest
competent courts.
S. 11: Res - Judicata- A suit or an issue
decided by a Competent Court cannot be
reopened and re-adjudicated in a
subsequent suit between the same parties
or parties claiming through them, in another
Court or the same Court.
The matter should be directly and

substantially issue, in the former suit,

oSuits to be filed:-
● (S.15)- in the Court of lowest grade competent
to try.
● (S.16)- if relating to immovable property,
where the property is situated, or where the
defendant resides or works for gain.
If the property is situated within jurisdiction
of different Courts, in any of those Courts,
or
Where cause of action / part arises.

Parties to Suits
•Plaintiff is the person who files the suit seeking
relief against some person or set of persons.
•Defendant or defendants are the persons against

when the suit is filed and relief sought.
•In some cases certain parties against whom no

actual relief is claimed are shown as “Proforma
defendants” since those parties are otherwise
necessary to be impleaded or joined in the
proceeding.

Institution of Suits
•Filed by presentation of plaint in Court.
•Plaint to contain all facts alleged by plaintiff and the

relief prayed for by him.
•Plaintis to be filed along with the prescribed Court

Fees, wherever applicable.
•After preliminary scrutiny, the Court orders issuance

of summons upon the defendant, if the plaint is in
order.
Issuance & Services of Summons
•Additional copies of the plaint are filed by the plaintiff in Court.
•Additional
copied are served upon the defendant by various means such as
through Court staff personally, by Registered post, through Courier or by E-
mail.
•Purpose of service is to inform the defendants about the suit being filed,
and the allegations against them.
•Some times summons are served by pasting or publication in the newspaper

when defendant is not available.
•Refusal to accept service amounts to good service.
•Serviceof summons is the stage when it becomes the defendants

responsibility to appear and contest the case.

Appearance &
Non- Appearance of parties
•Afterservice of summons the defendant is expected to
appear and file his written statement on the fixed date. If
defendant appears and contests, the case proceed
according to Law.
• If defendant dose not contest, the case is heard exparte.
•Ifplaintiff himself does not appear, the case is dismissed

for default.
•Order of exparte hearing or dismissal for default are

revocable.

Inspection and Production of
documents
•Ina contested case the documentary evidence
of both sides is vital.
•Eitherside can have the documents relied upon

by the other side to be produced in Court.
•He can then inspect those documents and if

necessary, challenge the same in Court.

Affidavits
•Affidavits
are the statements given by the parties on
oath before authorized persons in or outside the
Court.
•Such persons are generally lawyers em-powered by

the State and Central Government to attest the
affidavits. They are known as “Oath Commissioners”
or “Notaries”.
•Affidavitscan also be sworn by the parties in the

Court to support the statements made by them in
their pleadings and other applications.

Temporary injunctions & Interlocutory Orders
•During pendancy of suit a Civil Court is competent to grant a

Temporary injunction or pass such interlocutory order as is
necessary for the ends of justice.
•The temporary injunction is an order by which any or all parties

may be restrained from doing any act or directed to do any act,
normally during pendancy of the suit.
•Normally an injunction is granted after notifying the other party in

the suit, but in an emergency it may be granted without notice or ex
parte.
•For disobedience of an other of injunction, guilty party may be

detained in Civil prison.

Withdrawal & Compromise of Suits
•A plaintiff is at liberty to withdraw his suit against any defendant(s)

or give up his claim.
•Some times suits can be withdrawn with liberty to file a fresh one if
there is any formal defect which otherwise cannot be rectified while
it remains pending.
•A suit can also be withdrawn on compromise between the parties if

the terms of compromise are otherwise not unlawful.
•The compromise decree can however not be challenged later own

by either party on the ground of its being illegal.

First & Second Appeal
•Appeal is the proceeding which a losing party normally files in
The Superior Court after the suit is decided against him by the
Trial Court.
• Original decrees and certain orders can be appealed against.
•A compromise decree between the same parties can however

not be appealed against.
•Infirst appeal the findings of the Trial Court both on points of

law and facts can be challenged.
•However in the second appeal (before the High Court) only

points of law can be challenged.

Reference, Review & Revision
• When any substantive question of law arises, or where the legality
or constutionalty of any law or enactment is doubtful, a
subordinate court can refer the matter for consideration of the
High Court. It is known as “Reference”.
• Similarly the trial Court can “Review” the propriety of its own
judgment if any party applies for doing so within 30 days of the
original judgment.
• Revision:- Any party can approach the Superior Court (generally

High Court) against an order of the Lower Court on the ground of
its Jurisdictional irregularity within 90 days.
•TheSuperior Court in deciding such application exercises its

power of “Revision”.

Execution
• Execution means implementation or forced compliance of any
decree or judgment by the original trial Court.
• The party in whose favour the order was passed applies for
execution if the other party dose not comply with the order
or decree passed again him, within the prescribed time.
• In exercise its power of execution, the Court can adopt

various means.
• Some such means are :-

1. Taking forcible possession of immovable property ;
2. Attachment of movable property;
3. Attachment of money such as salaries, bank accounts etc.;
4. Detention of the defaulting party in civil prison etc.;


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CIVIL PROCEDURE CODE AND

Ashok Kumar Sharma

Ashok Kumar Sharma, Asst Professor,

 The Course shall comprise of the following :

Ashok Kumar Sharma, Asst Professor,

 Can be referred as ‘Act No. 5 of 1908’

 Every Act must have a number except the

Procedural Law- prescribes the practice,

Ashok Kumar Sharma, Asst Professor,

Ashok Kumar Sharma, Asst Professor,

Ashok Kumar Sharma, Asst Professor,

 Orders(1-51)-1st Schedule- amendable

*High Court can not amend appendices.

Ashok Kumar Sharma, Asst Professor,

 In most cases sections go with hand in

Ashok Kumar Sharma, Asst Professor,

Ashok Kumar Sharma, Asst Professor,

Ashok Kumar Sharma, Asst Professor,

Ashok Kumar Sharma, Asst Professor,

The Supreme Court declared these

Ashok Kumar Sharma, Asst Professor,

 The code is not exhaustive on the points

 The civil court has inherent power to act

 The code of Civil Procedure is NOT

Ashok Kumar Sharma, Asst Professor,

Ashok Kumar Sharma, Asst Professor,

 Definition clause, if repugnant- Not

 If not repugnant then applicable.

 Law should enforce and interpret in

Ashok Kumar Sharma, Asst Professor,

(i) Decree in general

Ashok Kumar Sharma, Asst Professor,

 Decree- “ Operative part of Judgment in a

 That part of judgment which is included in

Ashok Kumar Sharma, Asst Professor,

Ashok Kumar Sharma, Asst Professor,

Ashok Kumar Sharma, Asst Professor,

 “Formal” means- Written, Signed and

Ashok Kumar Sharma, Asst Professor,

Ashok Kumar Sharma, Asst Professor,

Suit Preliminary; Final; Partly prelim.

Ashok Kumar Sharma, Asst Professor,

1. Determination of any question under

Two things are NOT included in Decree-

Ashok Kumar Sharma, Asst Professor,

 Preliminary (Suit has not disposed of finally)

 Final (Suit has disposed of finally)

 Partly Prelim. & Partly Final

Ashok Kumar Sharma, Asst Professor,

No right of appeal Order 43

Ashok Kumar Sharma, Asst Professor,

 1-General (Ss. 36-37)

Ashok Kumar Sharma, Asst Professor,

Ashok Kumar Sharma, Asst Professor,

 By the Court which passed the decree, or

 By the Court to which it is sent for execution

s.39- Transfer of Decree

Ashok Kumar Sharma, Asst Professor,

 (a) J.D. actually and voluntarily resides or carries on

Ashok Kumar Sharma, Asst Professor,

 s. 39(2)- by own motion the Court may send it to any

Ashok Kumar Sharma, Asst Professor,