CPC

Unit – 1

Definitions

1. Decree – it 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 plaint and the determination of
any question within section 144, but shall not include –

i. Any adjudication from which an appeal lies as an appeal from

an order,

ii. Any order of dismissal for default.

In order that a decision of a court may be a ‘decree’, the following

elements must be present:

i. There must be an adjudication

ii. Such adjudication must have been done in a suit

iii. It must have determined the rights of the parties with regard to
all or any of the matters in controversy in the suit.

iv. Such determination must be of a conclusive nature

v. There must be a formal expression of such adjudication.

2. Judge – He is the presiding officer of a civil court. And the court is a

place where justice is judicially administered.

3. Judgment – it means the statement given by a judge of the grounds

of a decree or order. Followings are the essential of judgment

i. A concise statement of the case.

ii. The points for determination

iii. The decision there on

iv. The reasons for such decision.

Difference between judgment and decree

i. Judgment means statement given by a judge of the grounds of

decree or order, whereas, in decree it is not necessary for a
judge to give statement of ground in a decree.

ii. It is not necessary that there should be a formal expression of

order in the judgment, but, it is necessary that there must be
formal expression of the decree.

iii. Judgment should state preciously the relief granted. Decree

must determinate the rights of the parties.
 iv. Judgment contemplates stage prior to the passing of a decree.
Decree follows after judgment.

v. There may be a civil suit as well as in criminal case. Generally

decree is passed in a civil suit.

4. Order – it means the formal expression of any decision of a civil court

which is not a decree. Thus, the adjudication of a court which is not a
decree is an order.

Similarities in between order and decree

As discusses above, the adjudication of a court of law may either be a

decree; or an order; and cannot be both. There are some common
elements in both of them, viz

i. Both relate to matters in controversy.

ii. Both are decisions given by a court.

iii. Both are adjudications of a court of law.

iv. Both are ‘formal expressions’ of a decision.

Distinction between order and decree

i. A decree can only be passed in a suit which commenced by

presentation of a plaint. An order may originate from a suit by
presentation of a plaint or may arise from a proceeding
commenced by a petition or an application.

ii. A decree is an adjudication conclusively determining the rights

of the parties with regard to all or any of the matters in
controversy; an order, on the other hand, may or may not finally
determine such rights.

iii. A decree may be preliminary or final, or partly preliminary and

partly final, but there cannot be a preliminary order.

iv. Except in certain suits, where two decrees, one preliminary and
the other final are passed, in every suit there can be only one
decree; but in the case of a suit or proceeding, a number of
orders may be passed.

v. Every decree is appealable, unless otherwise expressly provided,

but every order is not appealable. Only those orders are
appealable as specified in the code.

vi. A second appeal lies to the High Court on certain grounds from
the decree passed in First appeal. Thus, there may be two
appeals; while no Second Appeal lies in case of appealable
orders.

5. Decree-holder – it means any person in whose favor a decree has

been passed or an order capable of execution has been made.

6. “Government Pleader” includes any officer appointed by the State

Government to perform all or any of the functions expressly imposed
 by this Code on the Government Pleader and also any pleader acting
under the directions of the Government Pleader;

7. “judgment-debtor” means any person against whom a decree has

been passed or an order capable of execution has been made;

8. “legal representative” means a person who in law represents the

estate of a deceased person, and includes any person who
intermeddles with the estate of the deceased and where a party sues
or is sued in a representative character the person on whom the
estate devolves on the death of the party so suing or sued;

9. “means profits” of property means 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
but the person in wrongful possession;

10. “pleader” means any person entitled to appear and plead for another
in Court, and includes an advocate, a vakil and an attorney of a
HighCourt;





Suits in general

Suits of civil nature

Under first explanation of section 9, the suits of civil nature have been
defined. According to this, a suit in which the right to property or to an
office is contested is a suit of civil nature, not withstanding that such
right may depend entirely on the decisions of questions as to religious
rites or ceremonies. It is clear that all suits related to property or offices
are civil nature. In the other words, it can be said that the suit of civil
nature is such suit the objective of which is to enforce the right or
liability against the individual or the state.

The following suits are considered suits of civil nature:

i. The suits relating rights and property [tangible and intangible

property]

ii. The right relating to temple or any religious property.

iii. The suits relating to compensation for civil wrongs and contract.

iv. Suits for Specific Performance under specific Relief Act.

v. Suits relating to common law.

vi. Suits relating to worship

vii. The right relating to burying of dead body

viii.The right relating to religious processions

ix. The suits relating to the rights of any elected office bearer.

x. Suits relating to divorce or restitution of conjugal rights.

xi. Suits relating to the enforcement of the rights of member of any club.

xii. Suits relating to any right arisen under any contract.

xiii.Suits relating to accounts.

xiv.Suits for contribution.

xv. Suits for partnership

xvi.Suit relating to any benefit from any office of religious nature.

xvii.Suits relating to customary right of privacy.

xviii.Suits relating to caste or suspension from caste property.

xix.Suits relating to the legality and constutionality of laws enacted by

the legislature.

Apart from these, these following suits have not been considered as suits
of civil nature –

i. Such suit in which the question relating to caste is involved.

ii. Suits relating to the maintenance of dignity and honor.

iii. Suits relating to voluntary payments not based on any contract or

perpetual right;

iv. Any suit which is expressed barred by any act

v. Any suit relating to political question

vi. Any suit against public policy etc. 


 Unit –2

Res judicata

Section 11: Res Judicata

"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".

Section 11 embodies the rule of conclusiveness of the judgment. It

enacts that once a matter is finally decided by the competent court,
no party can be permitted to reopen it in subsequent litigation. To
bring an end to litigation and to save the parties from constant
troubles, harassment and expenses this rule was made in the Code.

To bring the finality of the judgment, such rule is required and this
rule is not an exception in Indian law. Almost every civilized legal
system have this rule by one name or another, such as, under Roman
Law, it is in the name of ‘ex captio res judicata’, that is one suit and
one decision is enough for any single dispute. The doctrine of res
judicata is conceived in the larger public interest which requires that
all litigation must, sooner than later, come to an end. The principle is
also founded on justice, equity and good conscience which require
that a party who has once succeeded on an issue should not be
harassed by multiplicity of proceedings involving the same issue.

1. Object

i. No man should be vexed twice for the same cause

ii. It is in the interest of the State that there should be an end to a

litigation

iii. A judicial decision must be accepted as correct.

➢ Res subjudice [Stay on Suit – Section 10]

1. Stay on suit

"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".

Explanation- The pendency of a suit in a foreign Court does not

preclude the Courts in India from trying a suit founded on the same
cause of action. 
 As the heading of the section says ‘stay of suit’, means no court
should proceed with the trial of any suit in which the matter in issue
is directly and substantially in issue with the 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.

The purpose of the section is to bring finality in the judgment and to

avoid the contradictory decision by the two different court, as there is
a very good possibility that in case when matter is simultaneously
being decided by different courts of concurrent jurisdiction, the courts
may come up with different decisions and then it will be very difficult
to finalize which decisions to be abided by.

In simple word, the very authority of law will come at stake, there will
be no finality of judgment. So, with the objective to prevent courts of
concurrent jurisdiction from simultaneously entertaining and
adjudicating upon two parallel litigations in respect of same cause of
action, the same subject-matter and the same relief, this section is
provided in the Code. However, this section can only be applied if the
following condition are satisfied. These are:

i. Two suits – Previously Instituted and Subsequently Institute.

ii. Matter in issue in subsequent suit – directly and substantially

in issue in previous suit

iii. Both suits between same parties or their representatives

iv. Previous suit must be pending in same or in any other court in

India.

v. The court dealing with previously instituted suit competent to

grant relief claimed in subsequent suit

vi. Parties litigating under the same titles in both the suit.

2. Conditions

For the application of this section, the following conditions must be

satisfied:

i. There must be two suits, one previously instituted and the

other subsequently instituted.

ii. The matter in issue in the subsequent suit must be directly and
substantially in issue in the previous suit.

iii. Both the suits must be between the same parties or their
representatives.

iv. 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.
 v. Such parties must be litigating under the same title in both the
suits.

➢ Constructive Res Judicata

Rule of constructive res judicata is engrafted under Explanation IV of

Section 11 of the Code. It is artificial form of res judicata and provides
that if a plea could have been taken by a party in a proceeding between
him and his opponent, he should not be permitted to take that plea
against the same party in a subsequent proceeding with reference to the
same subject-matter. That clearly is opposed to considerations of public
policy on which the doctrine of res judicata is based and would mean
harassment and hardship to the opponent. Besides, if such a course is
allowed to be adopted, the doctrine of finality of judgments pronounced
by the courts would also be materially affected.

Thus, it helps in raising the bar of res judicata by suitably construing the
general principle of subduing a cantankerous litigant. That is why this
rule is called constructive res judicata, which, in reality, is an aspect or
amplification of the general principle of res judicata.

➢ Foreign Judgment

1. Definition

i. According to section 2(5) “foreign Court” means a Court situate

outside India and not established or continued by the authority
of the Central Government;

ii. According to section 2(6) “foreign judgment” means the

judgment
of a foreign Court;

2. When foreign judgment not conclusive [section 13]

A foreign judgment shall be conclusive as to any matter thereby

directly adjudicated upon between the same parties or between
parties under whom they or any of them claim litigating under the
same title except-

i. Where it has not been pronounced by a Court of competent

jurisdiction;

ii. Where it has not been given on the merits of the case;

iii. Where it appears on the face of the proceedings to be founded

on an incorrect view of international law or a refusal to
recognise the law of India in cases in which such law is
applicable;

iv. Where the proceedings in which the judgment was obtained are
opposed to natural justice;

v. Where it has been obtained by fraud;

vi. Where it sustains a claim founded on a breach of any law in

force in India.

3. Presumption as to foreign judgments [section 14]

The Court shall presume upon the production of any document
purporting to be a certified copy of a foreign judgment that such
judgment was pronounced by a Court of competent jurisdiction,
unless the contrary appears on the record; but such presumption
may be displaced by proving want of jurisdiction.

 Unit – 3

Place of trial

1. Court in which suits to be instituted [section 15]

According to section 15 of the code “every suit shall be instituted in

the court of the lowest grade competent to try it.” It means, the suit
should be filed for the first time, in the lower grade court which\is
competent to hear it, not in the court higher to it.”

2. Suits to be instituted where subject matter situate [section 16]

According to section 16 of the Code, “subject to economic limits and

provisions of any law, the suits should be filed in the local jurisdiction
of that court where such immoveable property is situated:

i. For the recovery of immovable property with or without rent or

profits.

ii. For the partition of immovable property

iii. For the prohibition of redemption or sale of any immoveable

property which is subject to any charge or for its redemption;

iv. For maintaining any right in the immoveable property.

v. Any suit for compensation for causing any wrong to immoveable

property;

vi. Suit for recovery of moveable property subject to liquidation

order

It has been said in the proviso that the suit for required relief or the
wrong done to property by the defendant or compensation therefore
will be instituted in the jurisdiction of the court where the required
relief could have been sought, due to the property in personal
obedience of defendant and

a. The property is situated in the local limits of jurisdiction;

b. Where the defendant volumta

i. Resides there

ii. Does his business

iii. Works for profits.

3. Suits for immovable property situate within jurisdiction of

different courts. [section 17]

Any suit for seeking relief or for compensation for wrong done to such
property by the defendant, where such property is situated in the
jurisdiction of various courts, will be filed in the jurisdiction of that
court where any portion of such property is situated.
4. Place of institution of suit where local limits of jurisdiction of
courts are uncertain. [section 18]

Where it is not certain as to the jurisdiction of the court where such

property is situated, suit can be filed in the jurisdiction of any such
court.

5. Suits for compensation for wrongs to person or movables [section

19]

According to section 19, the suits for compensation for wrong to

individual or moveable can be filed in any court depending upon the
will of the plaintiff –

a. Where the wrong has been done in the local jurisdiction of any
court;

b. The defendant in the jurisdiction of any other court

i. Resides

ii. Does his business

iii. Does his work for profit

6. Other suits to be instituted where defendants reside or cause or

cause of action arises. [section 20]

Any suit can be filed in the jurisdiction of the court

a. Defendant or where there are more than one defendants, then each
of these defendants voluntary

i. Resides

ii. Does his business

iii. Does his work for profit.

b. Where there are more than one defendants then any of such
defendants at the time of institution of suit actually and
voluntarily:

i. Resides

ii. Does his business

iii. Does his work for profit

iv. Either the permission has been given by the court

v. The defendants do not reside or work but they have

acquiesced for institution of such suit.

c. Where the cause of action arises wholly or in part.

➢ Transfer of suits

1. Power to transfer suits which may be instituted in more than one

Court. [section 22]

Where a suit can be established in more than two or more courts and
any defendant can be established in any one of such courts, after the
notice to the other parties, at the earliest possible opportunity and in
all cases in which issues are settled. Before such settlement, apply for
transfer of suit to another court, and In the court of which such
application is made, after considering the objections raised by the
other parties (if any), it will determine that in which court it is going
to prosecute, from several courts.

2. General power of transfer and withdrawal [Section 24]

I. After giving notice to any party's application and for the parties
and for them, such as the desired for the hearing, or on their
own proposal without such notice, the High Court or District
Court may be at any level –

a. transfer any suit, appeal or other proceeding pending before

it for trial or disposal to any Court subordinate to it and
competent to try or dispose of the same, or

b. withdraw any suit, appeal or other proceeding pending in

any Court subordinate to it, and-

i. try or dispose of the same; or

ii. transfer the same for trial or disposal to any Court

subordinate to it and competent to try or dispose of
the same; or

iii. Retransfer the same for trial or disposal to the Court

from which it was withdrawn.

II. Where any suit or proceeding has been transferred or

withdrawn under sub-section (1), the Court which 1[is
thereafter to try or dispose of such suit or proceeding] may,
subject to any special directions in the case of any order of
transfer, either retry it or proceed from the point at which it was
transferred or withdrawn.

III. For the purposes of this section,-

a. Courts of Additional and Assistant Judges shall be deemed

to be subordinate to the District Court;

b. “Proceeding” includes a proceeding for the execution of a

decree or order.]

IV. The Court trying any suit transferred or withdrawn under this
section from a Court of Small Causes shall, for the purposes of
such suit, be deemed to be a Court of Small Causes.
 V. A suit or proceeding may be transferred under this section from
a Court who has no jurisdiction to try it.]

3. Power of Supreme Court to transfer suits, etc. [Section 25]

I. After such hearing as a wish for hearing on the application of a

party, and the parties, and as a wish for their hearing, the
Supreme Court can be satisfied at any level, if it is satisfied that
an order under this section give instructions that any suit,
appeal or other proceeding be transferred from High Court or in
other Civil Court of a state to the High Court or other civil court
of any other state.

II. Every application under this section shall be made by a motion

which shall be supported by an affidavit.

III. The Court to which such suit, appeal or other proceeding is

transferred shall, subject to any special directions in the order
of transfer, either retry it or proceed from the stage at which it
was transferred to it.

IV. In rejecting of any application under this section, the Supreme

Court believed that the application was trivial or abhorrent,
then order the applicant to pay the compensation through a
person who opposes such an application, not more than 2000
rupees, as it considers appropriate in the circumstances of the
case.

V. The law applicable to any suit, appeal or other proceeding

transferred under this section shall be the law which the Court
in which the suit, appeal or other proceeding was originally
instituted ought to have applied to such suit, appeal or
proceeding.

Unit –4

Joinder

1. Meaning

In law, a  joinder  is the joining of two or more legal issues together.

Procedurally, a joinder allows multiple issues to be heard in
one  hearing  or  trial  and is done when the issues or parties involved
overlap sufficiently to make the process more efficient or more fair. It
helps courts avoid hearing the same facts multiple times or seeing the
same parties return to court separately for each of their legal
disputes. The term is also used in the realm of contracts to describe
the joining of new parties to an existing agreement.

2. Joinder of causes of action [O2R3]

 i. A plaintiff may unite in the same suit several causes of action
against the same defendant, or the same defendants jointly; and
any plaintiff’s having causes of action in which they are jointly
interested against the same defendant or the same defendants
jointly may unite such causes of action in the same suit.

ii. Where causes of action are united, the jurisdiction of the Court
as regards the suit shall depend on the amount or value of the
aggregate subject-matters at the date of instituting the suit.

3. Joinder of plaintiff [O1R1]

All persons may be joined in one suit as plaintiffs where—

a. any right to relief in respect of, or arising out of, the same act or
transaction or series of acts or transactions is alleged to exist in
such persons, whether jointly, severally or in the alternative; and

b. if such persons brought separate suits, any common question of

law or fact would arise.

4. Joinder of Defendant [O1R3]

All persons may be joined in one suit as defendants where—

a. Any right to relief in respect of, or arising out of, the same act or
transaction or series of acts or transactions is alleged to exist
against such persons, whether jointly, severally or in the
alternative; and

b. If separate suits were brought against such persons, any common

question of law or fact would arise.

➢ Non – Joinder

Non-joinder can be defined as an omission to join some person as a party

to a suit, whether as plaintiff or as defendant, who ought to have been
joined according to the law. In other words, non-joinder means an
omission to join a party to the suit. The Code does not define non-
joinder, but lays down "No suit shall be defeated by reason of … non-
joinder of parties, and the court may in every suit deal with the matter in
controversy so far as regards the rights and interests of the parties
actually before it. " 

➢ Mis – Joinder

1. Meaning

In  legal procedure  (both civil and criminal),  misjoinder  refers to a

wrongful joinder. Misjoinder of causes of action, or counts, consists in
joining several demands to enforce substantive rights of recovery that
are distinct and contradictory. Misjoinder of parties consists in joining
 as plaintiffs or defendants persons who have conflicting interests, or
who were not involved in the same transaction or event.

2. Misjoinder of Plaintiffs

Where two or more persons may have been joined as plaintiffs in one
suit but the right to relief alleged alleged to exist in each plaintiff does
not arise out of the same act or transaction (or series of acts or
transaction) and if separate suits were brought by each plaintiff no
common question of fact or law would have been arisen, there is
misjoinder of plaintiffs.  The objection on the ground of misjoinder of
the plaintiffs, should be taken at the earliest possible opportunity; if
not, it is be deemed to have been waived.

3. Misjoinder of defendents

Likewise, where two or more persons have been joined as defendants

in one suit but the right to relief alleged to exist against each
defendant does not arise out of the same act or transaction (or series
of acts or transactions) and if separate suits were brought against
each defendant, no common question of fact or law would have arisen,
there is misjoinder of defendants. 

4. Misjoinder of cause of action

Misjoinder of causes of action may be coupled with the misjoinder of

plaintiffs or misjoinder of defendants. Thus, the subject may be
considered under the following three heads-

5. Misjoinder of plaintiffs and cause of action

Where in a suit there are two or more plaintiffs and two or more
causes of action, the plaintiffs should be jointly interested in all the
causes of action. If the plaintiffs are not jointly interest in all the
cause of action, the case is one of misjoinder of plaintyiffs and cause
of action. The objection on the ground of misjoinder of plaintiffs and
causes of action should be taken at the earliest opportunity.

➢ Causes of action

The term Cause of Action refers to a set of facts or allegations that make
up the grounds for filing a lawsuit. A Cause of Action is therefore by its
very nature essential to a Civil Suit, since without a Cause of Action a
Civil Suit cannot arise. 

A cause of action is said to consist of two parts, legal theory (the legal
wrong the plaintiff claims to have suffered) and the remedy (the relief a
court is asked to grant). Sometimes cases arise where the facts or
circumstances create Multiple Causes of Action

Unit – 5

Service of summon

Procedure thereafter