THE CODE OF CIVIL PROCEDURE, 1908 AND LAW OF LIMITATION

NOTES

UNIT-I

Introduction:

Laws are the set or system of rules established by the government for the citizens to obey and also
to govern their behaviors and conduct. They are usually enforced by governmental institutions.
The mechanism of the law ensures that all citizens abide by them and that society can function
safely without any obstructions.

Law can be divided into two broad categories –

I. Substantive laws and

II. Procedural laws. They form the two major branches of law.

Substantive laws are the statutory laws passed by the legislature.

Whereas, procedural laws comprise the rules and processes which any court follows for hearing
and determining the cases.

Procedural laws are also known as ‘Adjective laws’. In absence of substantive laws, procedural
laws cannot be framed. Similarly, without procedural laws, substantive laws cannot be applied
fairly and properly. Both the laws are equally important and one could not be applied effectively
in absence of the other law.

The Court defined substantive laws as the laws which fix duties and establish rights and
responsibilities among and for natural or artificial persons, while procedural laws are those which
prescribe the methods in which such rights and responsibilities may be exercised and enforced
respectively.
Conceptions of Civil Procedure.

The Code of Civil Procedure is a procedural law and deals with the administration of civil
proceedings in India. Once the proceedings are initiated under it, rights and remedies of the parties
will be governed by the Code. As it is a settled proposition of law, if the law prescribes a procedure
for anything to be done then it is to be done in the manner prescribed only.

The Code of Civil Procedure is a complete code in itself consisting of Sections 1 to 158 in the first
part and Orders I to LI with Appendices to the first schedule and Forms in the second part. The
schedules can be amended by High Courts but the Sections can only be amended by Legislature.

The main aim of the CPC is to facilitate justice, it has been rightly observed that procedural law is
always subservient to and is in aid of Justice.

The code of 1908 came into force with effect from 1st January 1909

Historical background of CPC.

Before 1859, there was no uniform codified law relating to

procedure of civil courts in India. In those days the crown courts at presidency towns and the
provincial courts at mofussils were governed by the different systems of civil procedures by certain
rules, regulations and special acts as, applicable to them from time to time.

For the first time in 1859, uniform code of civil procedure

was introduced with passing of the Civil Procedure Code (Act/VIII of 1859), but it did not serve
the purpose since it was not applicable to the supreme courts (Crown Courts under the Royal
Charter) and Sadar Diwani Adalats (Principal Courts under the Judicial Plan by the Governor
General). After the passing of Indian High Courts Act, 1861, the Supreme courts and Sadar Adalats
were abolished as in their place High Court were established in their place at Madras, Bombay and
Calcutta and the code of 1859 was made applicable to high courts.

The code of 1859 was amended from time to time and was replaced with the passing of Code
of Civil Procedure 1877. The Code of 1877 also was amended in 1878 and 1879. In 1882, the third
Code of Civil Procedure was enacted. The Code of Civil procedure, 1882 also was amended
several times and ultimately the present Code of Civil Procedure, 1908 was passed overshadowing
the defects of the Code of 1882.

The Code of Civil Procedure (Amendment) Act, 2002.

The main features of the code of Civil Procedure (Amendment) Act, 1999 and the Code of Civil
Procedure (Amendment) Act, 2002 include measures taken to reduce delays at pre-trial stage in
terms of obligations of the plaintiff, the court are defendant.

The 2002 Amendment Act also modifies the 1999 Amendment Act following a broad consensus
arrived at after consultations with the Law Commission of India, representatives of the Bar Council
of India, Bar Associations, Law Officers of the Union and others.

Besides restricting adjournments to three times only, it seeks to abolish second appeal in money
suits where value does not exceed Rs. 25,000. Further, the general power of the courts to extend
the time prescribed in the Code is restricted to 30 days now. Earlier, the court could extend time
without any limit. Besides, on the filing of revision application against the orders of a sub-ordinate
court, its records shall not be called unless the High Court orders to do so specifically.

The amendments also empower the courts to refer suits in appropriate cases for conciliation and
arbitration. This is intended to reduce the bulk of litigation which otherwise increases the pendency
of cases in the Civil Courts.

Definitions

Decree [section 2(2)]

A decree as defined under Section 2(2) of Civil Procedure Code, is a formal expression which
determines the interest of both the parties in a conclusive manner, with regards to any disputed
matter in a civil suit. Significantly, a decree is a formal expression of adjudication by which the
court determines the rights of parties regarding the matter in a controversy or a dispute. A set-off
or a counterclaim can be obtained on the decree.
A decree shall be deemed to include-

 Rejection of a plaint
  Determination of any question under Section 144 of the Act.
 The decree might not include –
 Any adjudication from which an appeal lies as an appeal from an order
 Any order of dismissal for default.
Illustration: In a suit between A and B wherein A claims that a particular property ‘P’ belongs
him while B claims that the said property belongs to him. After hearing all the arguments, the court
will rule in the favor of either A or B. The final decision of the court regarding the above claim
i.e. whether the property belongs to A or B is a decree.

Essential elements of a Decree

Following are the mandatory elements to be fulfilled for the adjudication to be termed as a decree-

1. Formal expression: There must be a formal expression of adjudication. In simple terms

to be a decree, the court must formally express its decision in the manner provided by law.
A mere comment of the judge cannot be a decree. The decree follows the judgment and
must be drawn up separately. If a decree has not been drawn up, then there is absolutely no
scope of an appeal from the judgment i.e. No appeal lies against the judgment, if the decree
is not formally drawn upon the judgment.
2. Adjudication: It means judicial determination of the matter in dispute. Hence, if the
decision is of administrative in nature, then it cannot be considered as a decree. The
adjudication must be about any or all of the matters in controversy in the suit. The court
should resolve the matter of controversy through its own, by applying the facts and
circumstances of the case therein.
The Supreme Court in Madan Naik v. Hansubala Devi, held that if the matter is not
judicially determined then, it is not a decree. Also, in Deep Chand v. Land Acquisition
Officer, the apex court held that the adjudication should be made by the officer of the
Court, in absence of which it is ought not to be recognized as a decree.
3. Suit: The Adjudication must have been given in a suit, which is commenced by filing a
plaint in a civil court. Without a civil suit there lies no decree. However, there are several
specific provisions which enable certain applications to be treated as suits such as
proceedings under the Hindu Marriage Act, the Indian Succession Act, the Land
 Acquisition Act, etc. They are regarded as statutory suits and the decision given there under
are decrees. In Hansraj Gupta v. Official Liquidators of The Dehra Dun-Missoorie
Electric Tramway Co. Ltd., their Lordship of the Privy Council stated that the word ‘suit’
ordinary means, a civil proceeding instituted by the presentation of a plaint.”
4. Rights of the parties: ‘Right’ means substantive rights and not merely procedural rights.
Similarly, the parties to the rights in controversy should be the plaintiffs and defendants
and, if an order is passed upon the application made by a third party who is a stranger to
suit then it is not a decree. It must have determined the rights of the parties with regard to
all or any of the matters in controversy in the suit. An order rejecting the application of a
poor plaintiff to waive the court costs is not a decree because it does not determine the right
of the party in regards to the matters alleged in the suit. Dismissing a suit for default in
appearance of the plaintiff is not a decree. However, dismissing a suit on merits of the case
would be a decree. The disputed matter should be the subject matter of the suit, regarding
which the relief is sought. Any question regarding the status and characters of party suing,
the jurisdiction of the court, maintainability of suit or any other preliminary matter is
covered under this subject.
5. Conclusive Determination: The decision must be one which is complete and final as
regards the court which passed it. This means that the court will not entertain any argument
to change the decision i.e. as far as the court is concerned; the matter in issue stands
resolved. For example, an order striking out defense of a tenant under a relevant Rent Act,
or an order refusing an adjournment is not a decree as they do not determine the right of a
party conclusively. An interlocutory order which does not finally determine the rights of
parties is not considered as a decree. On the other hand, out of several properties in issue
in a suit, the court may make a conclusive determination about the ownership of a particular
property. Such a conclusive determination would be a decree even though it does not
dispose off the suit completely. The Calcutta High Court in Narayan Chandra v.
Pratirodh Sahini, held that the determination should be final and conclusive regarding the
court which passes it.
Types of Decree
The Civil procedure code recognises three kinds of decrees
a) Preliminary decree
b) Final decree
c) Partially preliminary and partially final decree

A. Preliminary Decree
A decree is identified as a preliminary decree when an adjudication decides the rights of parties
regarding all or any of the matter in dispute but it does not dispose of the suit completely. In simple
terms, the preliminary decree is passed when the court is compelled to adjudicate upon a certain
matter before proceeding to adjudicate upon the complete dispute. It is considered to be only a
former stage.
As held in the case of Mool Chand v. Director, Consolidation, a preliminary decree is only a
stage to work out the rights of parties until the matter is finally decided by the Court and
adjudicated by a final decree. A preliminary decree can be passed by the court in the following
suits as provided by the Code of Civil Procedure, 1908-

 Order 20 Rule 12: Suit for possession and Mesne profit

 Order 20 Rule 13: Administration Suits
 Order 20 Rule 14: Suits of pre-emption
 Order 20 Rule 15: Suit filed for dissolution of a partnership
 Order 20 Rule 16: Suits related to accounts between the principal and agent
 Order 20 Rule 18: Suit for partition and separate possession
 Order 34 Rule 2: Suits related to the foreclosure of a mortgage
 Order 34 Rule 4: Suits related to the sale of the mortgaged property
 Order 34 Rule 7: Suits for the redemption of a mortgage

However, in Narayanan v. Laxmi Narayan AIR 1953, it was held that the list given in code is
not exhaustive and a court has the right to pass a preliminary decree in cases not expressly provided
for, within the code.
Illustration: A files a partition suit against B. During the proceedings, the Court passes a
preliminary decree on the share of A and B. Subsequently, after hearing both the parties and the
arguments contended by both, the court passes a final decree adjudicating upon the said partition.

B. Final Decree
A decree is recognized as ‘final’ when it disposes of the suit completely, so far as the court passing
it is concerned. A final decree settles all the issues and controversies between the parties to the suit
by the court of law. Consideration of final decree depends on the facts the following facts No
appeal was filed against the said decree within the prescribed time period. The disputed matter in
the decree has been decided by the highest court. When it completely disposes off the suit.
Primarily, a civil suit contains only one preliminary and one final decrees.
However, in Gulusam Bivi v. Ahamadasa Rowther, the Madras High Court in the light of Order
20 Rule 12 and 18 stated that the code nowhere contemplates more than one preliminary or final
decree.
Reinforcing this observation, the Supreme Court in Shankar v. Chandrakant, finally settled the
conflict of opinion and stated that more than one final decree can be passed in a single suit.

C. Partly preliminary and partly final decree

A decree shall be held as partly preliminary and partly final, when it determines certain disputes
but leaves the rest open for further decision. What is executable is a final decree and the one which
is not executable is a preliminary decree, unless it merges with the final one.
Illustration: ‘A’ filed a suit for the recovery of possession of a property from B. The court passed
a partly preliminary and partly final decree. So far as final decree is concerned if the court granted
possession of the suit property to A; and it was preliminary as even though mesne profits were
awarded. In this case, only the granting of possession of property to A will be executable; however,
preliminary decree will be executable only after the amount due is determined.

Amendment of Decree
On an application by the Plaintiff or the Respondent, under Section 152 of the Civil Procedure
Code, any clerical errors in the decrees can be changed or corrected by the courts themselves.
However, the entitled corrections shall be only be related to the accidental omission or clerical
errors and not any other errors, which may result in gross negligence. Before the execution of such
correction by the courts, it must be satisfied and validly proven that the error was nothing more
than a clerical one or an arithmetical one.

Contents of a Decree

A decree always follows the judgement, coincide with it and contains:

1. The suit’s number – Every suit has a particular number and it should be mentioned in
the decree.

2. The names, description and registered addresses of the parties – Every decree shall
have the names of all the parties of that particular suit, the proper description of the
parties of the suit, and the registered addresses of all the parties of the suit.

3. The particulars of the parties’ claims or defence – Every decree shall contain the details
of the claims and the defences the parties are claiming as an outcome of the said suit.

4. The relief or the remedy granted to the aggrieved party – The decree should in particular
mention the relief granted to the particular party as a remedy and not a reward.

5. The total amount of cost incurred in the suit-

1. by whom; or

2. out of what property; and

3. in what portions are they paid or are to be paid.

6. The judgement’s date of pronouncement or delivery date of the judgement – The decree
should mention the date on which the judgement was delivered followed by the decree.

7. The judge’s signature on the decree – The judge’s signature is an essential and
indispensable element of any decree. The signature of the judge delivering the
judgement is an essential requisite.
Drawing up of a Decree

Rule 6A Order XX of Code of Civil Procedure,1908 states that a decree shall be drawn within 15
days of the judgement. An appeal can be favoured or preferred without filing a copy of a decree if
it is not drawn within 15 days of the judgement.

Decree Holder

Under Section 2(3) of the Civil Procedure Code, any person in whose favour a decree or an order
capable of execution has been passed, he/she is referred to as the Decree Holder. Accordingly, any
decree passed in favour of a person who is not even a party to the suit shall also be considered as
the Decree holder under the code.

Judgement [section 2(9)]

The term Judgement is defined in Section 2(9) of the Code of Civil Procedure, 1908. A judgement
contains facts of the case, the issues involved, the evidence brought by the parties, finding on issues
(based on evidence and arguments). Every judgement shall include a summary of the pleadings,
issues, finding on each issue, ratio decidendi and the relief granted by the court. On a daily basis,
numerous judgements are pronounced and various cases are disposed of. Judgements play a very
important role in the working of our judicial system because they act as precedents for cases to
come in the near future. A judge in the judgement pronounced, always states the reasons for such
a decision.

After the Amendment Act of 1976, the time limit was provided between the hearing of the
arguments and the pronouncement of the judgement. Prior to this amendment no time limit was
provided as such. Such a time limit was provided because there was indefinitely continuous
imposition from all over India.

Essential elements of Judgment:-

A judgment should possess the essentials of a case, reasoning and basic contention on which it is
delivered or the grounds of the decision.

Judgment of the courts other than that of the Small Causes Court – Rule 4 (2) of Order 20

a) A concise statement of the case

b) The points of determination

c) The decision of the court and

d) The reason for such decision by the court

Judgment of the Small Causes Court

a) The points for determination and

b) The decision thereon

Copy of the judgement

Once the judgement is pronounced the copies of that particular judgement should be immediately
made available to the parties on payment of costs as specified, by the party applying for such copy,
of such charges as may be specified in the rules and orders made by the High Court (H.C.) Such a
rule is specified in Order XX Rule 6-B of the Code of Civil Procedure, 1908.

Alteration of a judgement

Once a judgement is dated and signed by the judge it can only be altered or amended if:

There are arithmetical or clerical errors. (clerical errors refer to the errors made by clerks and
arithmetical errors refer to errors made in numbers such as addition, subtraction, multiplication
and division). There are errors due to accidental slips or omissions (these errors take place when
some essential element is left unnoticed) (Section 152) on review (Section 114).

Order [section 2(14)]

The term Order has been defined under Section 2(14) of the Code as the formal expression of any
decision of a civil court which is not a decree.

Essential elements of order are as follows:

 It should be a formal expression of any decision.

 The formal expression should not be a decree.
 The decision to be pronounced by a civil court.

Thus, an adjudication of the court which is not a decree is an order. As a general rule, an order of
a court is founded on the objective considerations and as such judicial order must contain a
discussion of the question at issue and the reasons which prevailed the court which led to the
passing of the order.

Orders are of two kinds:

 Appealable orders – Orders against which an appeal lies.

 Non appealable orders – Orders against which no appeal lies.

Similarly, there are two classes of orders:

 Final orders – An order that disposes of all of the claims and adjudicates the rights and
liabilities of all the parties in the suit.
 Interlocutory orders – Interlocutory order only settles an intervening matter relating to
the cause. Such orders are made to secure some end and purpose necessary which are
essential for the progress of case. In simple terms, a temporary order issued during the
course of litigation is called Interlocutory order. Also known as the Interim order, is the
decision of the court which does not deal with the finality of the case but rather settles a
subordinate issue relating to the main subject matter.
Difference between Judgment, Order and Decree

Judgment Decree

1. Judgment is defined under Section 2(9) of 1. Decree is defined under Section 2(2) of Civil
the Civil Procedure code, 1908. Procedure code, 1908
2. Decree is an adjudication conclusively
2. Judgment means statement given by a Judge determining the rights of the parties with
of the grounds of decree or order. regards to all or any of the matter in the
controversy.

3. It is not necessary that there should be a 3. It is necessary that there must be formal
formal expression of order in the judgment expression of the decree
4. Judgment states preciously the relief 4. Decree must determinate the rights of the
granted. parties

5. Judgment contains the grounds of decree. 5. Decree follows the judgment.

6. Judgment may be passed in civil suits as well 6. Decree is passed in a civil suit.
as in criminal cases.
7. Judgment is not capable of execution. 7. Decree is capable of execution.

Difference between Decree and Order

DECREE ORDER
1. Section 2(2) of the Code of Civil Procedure 1. Section 2(14) of the CPC defines “Order”
defines “Decree”
 2. “Decree” means the formal expression of 2. According to Section 2(14) of the said
an adjudication which, so far as regards the Code, “order” means the formal expression
Court expressing it, conclusively of any decision of a Civil Court which is
determines the rights of the parties with not a decree.
regard to all or any of the matters in
controversy in the suit and may be either
preliminary or final.
3. Decree can only be passed in a suit which 3. An order may originate from a suit by
commenced by presentation of a plaint. presentation of a plaint or may arise from a
proceeding commenced by a petition or an
application.
4. Decree may be preliminary or final or 4. An order cannot be a preliminary order.
partly preliminary and partly final.
5. Every decree is appealable 5. Every order is not appealable

Legal Representative [section 2(11)]

As per Section 2(11) of the C.P.C, a legal representative is a person in law who represents the
estate of a deceased person. This includes anyone who interferes with the estate of a deceased
person, as well as the person to whom the estate devolves upon the death of the party. This person
is also capable of suing or being sued in a representative capacity. This definition is inclusive and
broad in scope; it encompasses legal heirs and individuals who may or may not be heirs but are
eligible to inherit and represent the deceased's estate.

In other words, it refers to all individuals and heirs who hold assets but do not
own them, such as an executor or administrator of an estate or a court-appointed guardian of a
minor or incompetent person. A legal representative is a person who acts in the place of another
and represents their interests. A person who is in charge of another's legal affairs. All of these
people are covered by the legal representatives' expression. The deceased's estate may be
represented by anyone in good faith who is not involved in any fraud or collusion.

The Supreme Court held in Andhra Banks Ltd. v. R. Srinivasan

and ors. (1962 AIR 232) that a legal representative is a "person representing the estate of the
deceased" in law. However, the estate does not necessarily mean the entire estate. A legatee who
receives only a portion of the deceased's estate under a will can be said to represent the deceased's
estate and thus be a legal representative under section 2(11) C.P.C.

Mesne Profits [section 2(12)]

Section 2 (12) of the Code of Civil Procedure, 1908 provides that: Mesne Profits of property means
those profits which the person in wrongful possession of such property actually received or might
with the ordinary diligence have received therefrom, together with interest on such profits but shall
not include profits due to improvement made by the person in wrongful possession.

From the analysis of the above stated definition one can conclude that Mesne Profits are the profits,
which the person in unlawful possession actually earned or might have earned with the ordinary
diligence. According to Section 2 (12) of the Code of Civil Procedure, 1908 a person becomes
entitled to Mesne Profits only when he/she has right to obtain possession but another person whose
occupation is unauthorized keeps him/her deprived of that possession. The first and foremost
condition for awarding Mesne Profits is unlawful possession of the occupant of the property.

In Phiraya Lal alias Piara Lal Vs Jia Rani AIR 1973 Del 186, Hon'ble High Court while
defining the term Mesne Profits observed that, when damages are claimed in respect of wrongful
occupation of immovable property on the basis of the loss caused by the wrongful possession of
the trespasser to the person entitled to the possession of the immovable property, these damages
are called Mesne Profits. The Section further provides that Mesne Profits also include interest on
such profits. However it explicitly excludes any profit earned due to improvement in the property
made by the person in unlawful possession of such property.
Inherent power of the Court (S.151)

Meaning of ‘inherent’ is existing in something as a permanent, absolute, inseparable, essential or

characteristic attribute. Inherent powers of courts are those powers which may be applied by the
court to perform full and complete justice between the parties before it. It is the duty of the Courts
to serve justice in every case, whether given in this code or not, brings with it the important power
to do justice in the absence of a definite or separate provision. This power is said to be the inherent
power that is maintained by the court, though not conferred. Section 151 of the Civil Procedure
Code deals with the inherent powers of the court.

Provisions of Section 148 to 153B of CPC

The law relating to inherent powers of Court is mentioned in Section 148 to Section 153A of the
Civil Procedure Code, which deals with the exercise of powers in different situations. Following
are the provisions of Inherent powers of Courts:

 Section 148 and Section 149 deals with grant or enlargement of time;

 Section 150 deals with the transfer of business;

 Section 151 protects the inherent powers of the courts; and

 Section 152, 153 and Section 153A deal with amendments in judgments, decrees or
orders or in separate proceedings.

Enlargement of time
Section 148 of the CPC states that where any term is fixed or awarded by the Court for the doing
of any act provided by CPC, it is the discretionary power of the Court that the Court may enlarge
such period from time to time, even though the term originally fixed or awarded may have
departed.

In simple words, when a term is fixed by provision for the doing of any act, the Court has the
power to extend such period up to 30 days. This power is exercisable in the deficiency of any
specific provision to the contrary which reduces or rejects or withholds the period. The power is
limited to the extension of the time fixed by it and is of a discretionary nature.

Payment of court fees

According to Section 149 of CPC, “Where the entire or a portion of any fee commanded for any
certificate by the law for the time being in force relating to court-fees has not been met, the Court
may, in its discretion, at any step, permit the person by whom such fee is payable, to pay the whole
or part as the case may be, of such court-fee; and upon such payment, the document, in regard of
which such fee is payable, shall have the same force and result as if such fee had been paid in the
initial situation.”

It permits the court to allow a party to make up for the lack of court fees due on a complaint or
notice of appeal etc., even after the expiry of the limitation period for filing of the lawsuit or appeal,
etc. Payment of the expected court fee is compulsory for any document imputable with court-fee
to be presented in the court. If the necessary court fee is paid within the time set by the court, it
cannot be negotiated as time-barred. Such payment made within the time fixed by the court
retrospectively validates a faulty document. The power of the court is discretionary and must be
exercised only in the importance of justice.

Transfer of business
According to Section 150 of CPC, “Save as otherwise granted, where the business of any Court is
assigned to any other Court, the Court to which the business is so assigned shall have the same
authority and shall make the same duties as those sequentially presented and forced by or under
this Code upon the Court from which the business was so assigned.”

For example- When the business of a court A is transferred to any other court B, the court B will
exercise the same power or perform the same duties given or commanded by CPC upon the transfer
court.
Section 151 of CPC
Section 151 deals with “Saving of inherent powers of Court.” This Section states that ‘Nothing in
CPC shall be considered to restrict or otherwise affect the inherent power of the Court to make
such orders as may be important for the ends of justice or to limit abuse of the method of the
Court.’ It is not obligatory for the court to wait for the law made by parliament or order from the
higher judiciary. Court has discretionary or inherent power to make such an order which is not
given in terms of laws for the security of justice or to check misuse of the method of the Court.

The scope of exercising of Section 151 of CPC can be represented by some cases as follows:

 The court may recheck its orders and resolve errors;

 Issuance of provisional sanctions when the case is not included by order 39 or to place
alongside an ‘ex parte’ order;

 Illegal orders or orders passed without jurisdiction can be set-aside;

 Subsequent events in the case can be taken into consideration by the court;

 Power of Court to continue trial ‘in camera’ or prevent disclosure of its proceedings;

 The court can erase remarks made against a Judge; and

 The court can improve the suit and re-hear on merit or re-examine its order.

Ends of justice
In the case of Debendranath v Satya Bala Das, the meaning of “ends of justice” was explained.
It was held that “ends of justice” are solemn words, also there’s words that are not merely a polite
expression as per juristic methodology. These words also indicate that Justice is the pursuit and
end of all law. However, this expression is not vague and indeterminate notion of justice according
to laws of the land and statutes.
The Court is allowed to exercise these inherent powers in cases like- to recheck its own order and
correct its error, to pass injunction in case not included by Order 39, and an ex parte order against
the party, etc.

Abuse of process of the court

Section 151 of the CPC provides for the exercise of inherent powers to check the infringement of
the process of the court. Abuse of the powers of the court which happens in unfairness to the party
needs to get relief on the ground that the act of a court shall not prejudice anyone. When a party
practices fraud on the court or on a party to a proceeding, the remedies have to be provided on the
basis of inherent power.

The word ‘abuse’ is said to occur when a Court uses a method in doing something that it is never
expected to do is the perpetrator of the said abuse and there is a failure of justice. The injustice
done to the party must be given relief on the basis of the doctrine of actus curiae neminem gravabit
(an act of the court shall prejudice no one). A party to a case will become the perpetrator of the
abuse in cases when the said party does acts like obtaining benefits by functioning fraud on the
Court or a party to the proceedings, prompting the multiplicity of proceedings, etc.

Section 152 of CPC deals with the “Amendment of judgements, decrees, and order.” According to
Section 152 of CPC, the Court has the power to change (either by own actions or on the application
of any of the parties) written or arithmetical mistakes in judgments, decrees or orders or faults
arising from an unexpected lapse or imperfection.

Section 153 deals with the “General authority to amend.” This Section empowers the court to
amend any fault and error in any proceedings in suits and all required improvements shall be made
for the purpose of arranging raised issues or depending on such proceeding.

Section 152 and 153 of the CPC makes it clear that the court may set correct any blunders in their
experiences at any time.
Power to amend decree or order where an appeal is summarily dismissed and place of the trial to
be deemed to be open Court are defined under Section 153A and 153B of CPC,1908.

Limitation

The exercise of inherent powers carries with it certain barriers such as:

It can be applied only in the deficiency of particular provisions in the Code; and cannot be applied
in dispute with what has been expressly given in the code;

While operating the powers, the court has to follow the method shown by the legislature; Courts
can neither exercise jurisdiction nor entrust in them by law; To abide by the principle of Res
Judicata i.e., not to open the issues which have already been decided finally; To pick a mediator
to make an award afresh; Substantive rights of the parties shall not be taken away; To limit a party
from taking proceedings in a court of law; and To set apart an order which was valid at the moment
of its issuance.

Model Questions

1. What do you understand by the term procedural law and substantive law? Examine
and differentiate between the two.

2. What is the enforcement date of CPC?

3. Differentiate between Sections and Orders under CPC

4. Examine the essential features of Civil Procedure Amendment Act,2002

5. What do you understand by the term Decree? Explain in detail with its essential
elements. Can a decree be amended?
6. Explain Preliminary Decree and Final Decree with the help of relevant examples. Also
differentiate between the two. What are the contents of a Decree?

7. What do you understand by Partly Preliminary and Partly Final Decree?

8. Define the term “Judgment”. What are the essentials of judgment?

9. Define the term “Order” as provided under CPC. How is it different from Decree?

10. Differentiate Decree from judgment and order.

11. Define Decree Holder and Judgment Debtor.

12. Explain the term Legal Representative as defined under CPC

13. Examine the term Mesne Profit as defined under the CPC with help of relevant
examples.

14. Examine the concept of Inherent powers of the Court as provided under CPC.

15. What do you understand by the term abuse of process of the court