Civil Procedure Code,

1908
Definition Clauses
Amit Pratap Singh
Assistant Professor in Business Laws
 Decree-Holder: Section 2(3)

• Decree-holder means any person in whose

favour a decree has been passed or an order
capable of execution has been made.

• A transferee is not a decree-holder unless he has

been recognised by the court.
 Foreign Court: Section 2(5)

• Foreign Court means a Court situate outside India and

not established or continued by the authority of the
Central Government.
 Foreign Judgment: Section 2(6)

• Foreign judgment means the judgment of a foreign

court
 Judge: Section 2(8)

• Judge means the presiding officer of a Civil Court

• No judge can act in any matter in which he has any pecuniary

interest, nor where he has any interest, though not a pecuniary
one, sufficient to create a real bias.

• An arbitrator is neither a judge nor a court.

 Judge: Section 2(8)

• The word court is generic term and embraces a judge but the vice
versa is not true.

• While the word court and judge are frequently used

interchangeably, they are not stricto sensu synonyms for the
simple reason that a judge by himself does not constitute a court,
being only an essential part of the court.
 Judgment-Debtor: Section 2(10)

• Judgment-debtor means any person against whom a

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

• A surety of a judgment-debtor is not himself a

judgment-debtor
 Judgment-Debtor: Section 2(10)

• The word judgment-debtor as used in this rule has been

held not to include the legal representative of a deceased
judgment-debtor.
 Legal Representative: Section 2(11)

• 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.
 Legal Representative: Section 2(11)

• It is not confined to legal heirs only.

• It stipulates a person who may, or may not be an heir if he is

competent to inherit the property of the deceased, but he should
represent the estate of the deceased person.
 Legal Representative: Section 2(11)

• The decision as to who is the legal representative for the purpose

of proceedings is necessarily limited for the purpose of carrying
on the proceedings and cannot have the effect of conferring of any
right of heirship to the estate of the deceased.

• It is true that all legal heirs are ordinarily also legal

representatives but the converse is not true.

• All legal representatives are not necessarily legal heirs at will.

 Legal Representative: Section 2(11)

• A mere trespasser, however, cannot be said to be the legal

representative of the deceased as he holds adversely to him and
does not intermeddle with the intention of representing the
estate.
 Mesne Profits: Section 2(12)

• Mesne 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 by the person in wrongful possession.
 Mesne Profits: Section 2(12)

• The main object of awarding mesne profits is to compensate the

person entitled to be in possession of the property.

• The very foundation of a cause of action for mesne profits is the

wrongful possession of the Defendant

• For entitling him to grant of mesne profits, the plaintiff must lead
evidence to prove what would be the compensation the defendant
might have received with due diligence for his wrongful possession.
 Mesne Profits: Section 2(12)

• The Apex Court in the case of Fateh Chand v. Balkrishna Dass,

AIR 1963 SC 1405 observed that the normal measure of mesne
profits is the value of the user of the land to the person in
wrongful possession.

• The possession of a co-sharer can never be wrongful within the

meaning of s 2 (12) as he has a right and interest in every inch of
the undivided property. Therefore, one co-sharer cannot claim
mesne profits against the other, on the ground that the latter was
in wrongful possession.
 PLAINT

• The expression “plaint” has not been defined in the code. It is a

pleading of the plaintiff

• Order VII of the Code , Section 26

• Pleading of the Plaintiff

 PETITION

• A petition is fundamentally solicitation to court.

•  A formal court request

• Smt. Baby Deb vs Ajit Deb on 12 October, 2007, Gauhati High Court
• Order VII, Rule 1 prescribes what a plaint should contain, but no section or
order or Rule of CPG prescribes as to what a petition should contain. On the
other hand, CPC does not say that the ingredients required for plaint are the
ingredients for petition. Therefore, a petition is completely different from
the plaint.

• The legislature has deliberately used the word "petition" in Hindu Marriage Act
 and in Special Marriage Act, instead of the word 'Plaint'
• A pro forma of matrimonial petition as prescribed in the Act must contain some
mandatory statements, such as, there is no collusion or connivance between the
parties with respect to the subject-matter of the petition etc.
• but the CPC does not provide for any such statutory requirement while
presenting a plaint for a suit and this is the basic different between a petition in
a matrimonial proceeding and a plaint in a suit of CPC.
• Therefore, a petition for a divorce, in no way, is a plaint in nature as the learned
trial Court has decided.
• Bharat Singh & Ors vs State Of Haryana & Ors on 13 September, 1988 (1988
SCR Supl. (2)1050)

• Pleadings under Civil Procedure Code and a writ petition or counter affidavit
are different
• In plaint or written statement facts are to be pleaded but in writ petition facts
and evidence in proof thereof is also to be pleaded. Point of law should be
substantiated by facts
• The facts must be pleaded and proved by evidence which must appear from
writ petition or counter affidavit
• If not so done Court will not entertain that point
• There is a distinction between a pleading under the Code of Civil Procedure
and a writ petition or a counter-affidavit.
• While in a pleading, that is, a plaint or a written statement, the facts and not
evidence are required to be pleaded, in a writ petition or in the counter-
affidavit not only the facts but also the evidence in proof of such facts have to
be pleaded and annexed to it.
 Application
• Shakti Bhog Food Industries Ltd. Vs.
The Central Bank of India & Anr.
    CIVIL APPEAL NO. 2515 OF 2020
• averments   in   the plaint or otherwise
 Public Officer: Section 2 (17)
• The definition very nearly corresponds to that of a public servant in
the Indian Penal Code 1860, but a person may be a public servant
and not a public officer, e.g., a municipal commissioner and
engineer.
• To serve means to perform function; do what is required for
 Affidavit
• An affidavit is a sworn statement of facts by a person

• Section 139 and Order XIX of Code of Civil Procedure, 1908 along with
Order XI of Supreme Court Rules

• Affidavit is treated as “evidence” within the meaning of Section 3 of The

Evidence Act, 1872

• Ltd. Vs Rashtriya Girni Kamgar Sangh, 1960 SCR(2) 841 - an Khandesh

Spg & Wvg Mills CO. affidavit cannot ordinarily be used as evidence in
absence of a specific order of the Court
 Affidavit
• Affidavits strictly conforming to the requirements of Order XIX
Rule 3

• Padmabati Dasi v. Rasik Lal Dhar [(1910) Indian Law Reporter 37

Calcutta 259] - Chief Justice Lawrence H. Jenkins and Woodroffe,
J

• State of Bombay v. Purushottam Jog Naik, AIR 1952 SC 317.

Vivian Bose, J
 Affidavit

• Filing of false affidavit is an offence of perjury under the

provisions of the Indian Penal Code.
• It is a criminal offence under Section 191, 193, 195, 199 of Indian
Penal Code, 1860
• Contempt of Court
• an application under section 340 Read with section 195 of Code of
Criminal Procedure, 1973 before the criminal or civil court for
giving false evidence.
 Appeal

• An appeal is a remedial concept determined as an individual’s

right to seek justice against an unjust decree/order via referring it
to a Superior Court

• Sections 96 to 99A; 107 to 108 & Order 41 of the  Code of Civil

Procedure, 1908 deal with appeals from original decrees known as
First appeals. 
 Appeal

• The Black’s Law Dictionary

• “the complaint to a superior court for an injustice done or error
committed by an inferior one, whose judgment or decision the
Court above is called upon to correct or reverse. It is the removal
of a cause from a Court of inferior jurisdiction to one of superior
jurisdiction, for the purpose of obtaining a review and retrial”.
 Appeal
• The right to appeal is a statutory & substantive one
• The statutory nature of an appeal implies that it has to be
specifically conferred by a statute along with the operative
appellate machinery as opposed to the right to institute a suit,
which is an inherent right
• This right could be waived off via an agreement, and if a party
accepts the benefits under a decree, it can be estopped from
challenging its legality.
• An appeal accrues to the law as found on the date of the
institution of the original suit.
 Caveat
• The caveat in Latin means “let a person be aware” and in law, it
may be understood as a notice given asking not to act in a certain
manner without informing the person who gave such a notice.
• Under the Civil Procedure Court, the provision of caveat is dealt
with in Section 148A.
• Nirmal Chand v. Girindra Narayan AIR 1978 Cal 492, the court
defined caveat as a warning given by an individual to the court
that no order or judgment shall be passed without giving notice
or without hearing the caveator.
 Caveat

• The person who files a caveat is called the Caveator and the person
who has instituted a suit or is likely to do so is called caveatee

• As the purpose of the caveat was to save the cost and convenience
of the court, in Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil
Kadeesa Umma AIR 1991 Ker 411, the court held that no caveat can
be lodged by a total stranger to the suit
 Caveat

• Deepak Khosla v. Union of India & Ors WP(C) No. 12787/2009,

Delhi HC, the court held that Section 148A of the code applies to
civil proceedings only and caveat cannot be made against
petitions made under the Criminal Procedure Code or petition
made under Article 226 of the Constitution of India
 Cause of Action

• "a fact or facts that enable a person to bring an action against

another.“

• Cause of action may be defined as ‘a bundle of essential facts, which

is necessary for the plaintiff to prove before he can succeed.’

• A cause of action is the foundation of a suit. It must be antecedent

to the institution of a suit and on the basis of it the suit must have
been filed.
 Cause of Action

• Every fact constituting the cause of action should be set out in clear
terms.
• A cause of action must include some act done by the defendant
since in the absence of such an act no cause of action can possibly
accrue.
• If a plaint does not disclose a cause of action, the Court will reject
that plaint.
 Cause of Action

• Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead) by LRs,

CIVIL APPEAL NO. 2960  OF 2019, SC
• If clever drafting
has created the illusion of a cause of action, as observed by this
Court in a catena of decisions, the Court must nip it in the bud at
the first hearing by examining the party searchingly under Order
10 of the CPC. 
 Cause of Action

• The cause of action is a
bundle of facts which taken with the law applicable
to them gives the Plaintiff the right to relief against the Defendant.
• Church   of   Christ   Charitable   Trust   and
Educational Charitable Society Vs. Ponniamman Educational Trust 
(2012) 8 SCC 706