Introduction : Object, Extent & Scope

Introduction

Generally, laws can be divided into two categories: (1) Substantive Laws and (2) Procedural
Law.` Substantive laws create, define and confer substantive legal rights and duties whereas
procedural laws lay down mechanism and manner in which such rights may be enforced and
recognized in the courts of laws Indian Penal Code, Indian Contract Act, Transfer of Property
Act etc are instances of substantive laws while Code of Civil Procedure, Code of Criminal
Procedure, Indian Evidence Act are instances of procedural laws. The efficacy of substantive
laws depends on the quality of procedural laws. Unless the procedure for enforcing a right is
simple, effective, expeditious and inexpensive, substantive laws will fail their purpose.

Object of the Code

Code of Civil Procedure is a consolidated code which lays down all the laws relating to
procedure to be adopted by civil courts. The Preamble of the Code states that it is to
consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature.
Supreme Court in Salem Advocate Bar Association (II) v. Union of India, AIR 2005 SC 3353
observed that the procedure is designed to facilitate justice and it is not a penal enactment
for punishment and penalties. The laws of procedure should be so construed as to render
justice wherever reasonably possible.

The Code also deals with certain substantive rights but the essential object is to consolidate
the law relating to civil procedure. In Prem Lal Nahata v. Chandi Prasad Sikaria, AIR 2007
SC 1247, Supreme Court held that no doubt that court also deals with certain substantive
rights but its essential object is to consolidate the law relating to civil procedure. Supreme
Court in Saiyad Mohd. Bakar v. Abdulhabib Hasan, (1998) 4 SCC 370 held that a procedural
law is always in aid of justice, not in contradiction or to defeat the object which is sought to
be achieved. It is always subservient to substantive law.

Approach of the courts while interpreting the Code

The Supreme Court in Sangram Singh v. Election Tribunal, AIR 1955 SC 425 has held that
the Code is designed to facilitate justice and hence too technical construction of provisions
should not be made. Provisions should be construed liberally and technical objections
should not be taken up. In Jai Jai Ram Manohar Lal v. National Building Material Supply,
(1969) 1 SCC 869 Supreme Court held that rules of procedure should be liberally construed
so as to render the enforcement of substantive rights effective. A hyper technical view
should not be adopted while interpreting the Code. In Ashok Kumar Kalra v. Sudhir Agnihotri
(2020) 2 SCC 394 Supreme Court held that procedural laws should not be interpreted to
defeat justice. When courts set out to do justice, they should not lose sight of the end goals
amidt technicalities.

Extent, applicability and commencement

The Code extends to the whole of India, except the State of Nagaland and the Tribal
areas. The Jammu and Kashmir Reorganization Act, 2019 was passed by both houses of
Parliament and received the assent of the President on 9th August, 2019. The Central
Government by a gazette notification appointed 31st October 2019 as the date on which this
Act came into force. The Act bifurcated the State of Jammu and Kashmir into Union Territory
of Ladakh and Union Territory of Jammu and Kashmir. Section 95(1) of the Act provides that
All Central laws in Table -1 of the Fifth Schedule to the Act, on and from the appointed day,
shall apply in the manner as provided therein, to the Union Territory of Jammu and Kashmir
and Union territory of Ladakh. Fifth Schedule, Table 1, S.No. 8 pertain to Code of Civil
Procedure. It provides that Section 1(3)(a) shall be omitted.

Supreme Court in Westarly Dkhar v. Sehekaya Lyngdoh, (2015) 4 SCC 292 has held
that in the areas to which the Code does not extend the courts in such areas shall be guided
by spirit of the Code.

It applies to proceedings in a Civil Courts in India except that specific provisions in

any special or local law which have been saved by Sections 4 and 5 of the Code.

Commencement: The Code of Civil Procedure, 1908 received the assent of the Governor
General on the 21st March, 1908 and came into force on the 1st January, 1909.

The Code of Civil Procedure (Amendment) Act, 1976 came into force on 1st February, 1977.
The Code of Civil Procedure (Amendment) Act), 1999 and The Code of Civil Procedure
(Amendment) Act, 2002 came into force on 1st July, 2002.

Scope of the Code: Code is exhaustive on the matters specifically dealt in it. However, the
legislature is incapable of contemplating all possible circumstances that may arise in civil
litigation therefore, with regard to those circumstances the court has inherent powers to act
according to principles of justice, equity and good conscience. Such inherent powers of the
court are saved under Section 151 of the Code [Mahohar Lal v. Seth Hiralal, AIR 1962 SC
527].

Scheme of the Code: The Code is divided into two parts (1) Body of the Code and (ii) Rules.
The body of the Code consists of 158 Sections. It contains the provisions of substantive
nature. Rules contain 51 Orders and 1 Schedule and it is procedural in nature which indicate
the mode in which substantive provisions are to be applied.
Definitions
Decree

Section 2(2) of the Code defines 'decree'. It means the formal expression of 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 either be
preliminary or final.

Essentials of Decree

In order that the decision of a court may be decree, the following elements must be present:

 There must be 'adjudication'

 Such adjudication must be done in a suit

 Rights of parties in controversy

 Conclusive determination
  Formal expression

1. There must be 'adjudication': For a decision of a court to be a decree, there must be an

adjudication, ie, a judicial determination of the matter in dispute. Thus, a decision on the
matter of administrative nature or order dismissing a suit for default of appearance of parties
cannot be termed as decree as it does not judicially deal with matter in dispute. Supreme
Court in Deep Chand v. Land Acquisition Officer, AIR 1994 SC 1901, held that a decision on
a matter of administrative nature is not a decree.

2. Such adjudication must be done in a suit: It is necessary for the decree that adjudication
must be in a 'suit'. The expression 'suit' is not defined in the Code. In Hansraj Gupta v.
Official Liquidator of Dehradun-Mussorie Electric Tramway Co. Ltd., AIR 1933 PC 63, the
court defined 'suit' as a civil proceeding instituted by presentation of a plaint. Thus, rejection
of an application for leave to sue in forma pauperis is not decree as there is a no plaint till
application is granted. However, under certain enactments provisions have been made to
treat application as decree. In such circumstances, since there is a specific provision in this
regard, adjudication made on an application will also be considered as 'decree'. They are
also called statutory suits. For example, proceedings under Indian Succession Act, Hindu
Marriage Act, Guardians and Wards Act, etc.

3. Rights of parties in controversy: The adjudication must determine the rights of the parties
in controversy with regard to all or any of the matters in controversy in a suit. The word
'rights' means substantive rights of the parties and not merely procedural rights. Thus, rights
relating to status, limitation, jurisdiction, frame of suit, accounts, etc. are rights of parties'
under Section 2 (2) of the Code. The term "parties' means parties to the suit, ie., plaintiff and
the defendant. Thus, an order on the application by a third party who is a stranger to the suit
is not a decree. Therefore, an order dismissing an appeal for default, dismissing a suit when
summons not served, dismissal of application for non-prosecution etc. are not decrees
because they do not determine the rights of the parties in controversy.

Matters in Controversy: It means the subject-matter of the suit with reference to which some
relief is sought. It would include any question relating to the character and status of a party
suing and to other preliminary matters which necessitate adjudication before a suit is
inquired into

4. Conclusive determination: Such determination must be of conclusive nature, ie., final as

regard the court which passes it. Thus, an interlocutory order which does not decide the
rights of the parties finally is not a decree. The crucial point which requires to be decided in
such a case is whether the decision is final and conclusive in essence and substance. In R.
Rathinavel Chettiar v. V. Sivaraman, (1999) 4 SCC 89 Supreme Court held that on passing a
decree, rights of the parties are crystallised and unless the decree is reversed, recalled,
modified or set aside, parties cannot be divested of their rights under the decree.

5. Formal expression: There must be formal expression of such adjudication. All the
requirements of form must be complied with as given in the manner provided under Rule 6,
6A and 7 of Order 20 of C.P.C.. The decree follows the judgment and must be drawn up
separately.

In Shiv Shakti Coop. Housing Society v. Swaraj Developers, (2003) 6 SCC 659 Supreme
Court held that the courts should take into consideration pleadings of the parties and the
proceedings leading up to the passing of the decree.
Deemed decree

The term 'deemed' is generally used to create a statutory fiction for the purpose of extending
the meaning which it does not expressly cover. Supreme Court in State of Maharashtra v.
Lalji Rishi, AIR 2000 SC 937 observed that whenever the legislature uses the word 'deemed'
it implies that the legislature conferred a particular status on a particular person or thing

Under the Code, the definition of 'decree' under Section 2(2) provides that following orders of
the court shall be deemed to be decree:

Deemed Decree

Deemed decree

Determination of
rejection of plaint
question under
under order 7 rule
section
11
144(restitution)

What are not decrees: Section 2(2) further clarifies that following orders are not decrees
within the meaning of 'decree' under Section 2(2):

(a) An order of dismissal or default.

(b) An adjudication from which an appeal lies as an appeal from order which is specified
under Section 104 and Order 43 Rule 1 of the Code.

Classes of decree
 Classes of
decree

Partly
Preliminary
Final decree preliminary
decree
partly final

Preliminary decree

Explanation to Section 2(2) of the Code provides that where adjudication decides the rights
of the parties with regard to all or any of the matters in controversy in the suit but it does not
completely dispose of the suit, it is a preliminary decree. A preliminary decree is passed in
those cases in which the court has first to adjudicate upon the rights of the parties and has
then to stay its hands for the time being until it is in a position to pass a final decree in the
suit. In Paras Nath Rai v. State of Bihar, (2012) 12 SC 642 Supreme Court held that a
preliminary decree is only a state of working out the rights of the parties which are to be
finally adjudicated by a final decree and till them, the suit continues.

Supreme Court in Shankar v. Chandrakant, (1995) 3 SCC 413 held that preliminary decree
is one which declares the rights and liabilities of parties leaving the actual result to be
worked out in further proceedings. For example in case of partition, the first step is to
determine the shares of coparceners and it amounts to preliminary decree. The suit is not
completely disposed of and the court will proceed further to determine division of the
property and its distribution as per metes and bounds.

Suits in which preliminary decree in passed: The Code provides for passing of preliminary
decree in following suits:

1. Suit for possession and mesne profits (Order 20, Rule 12)

2. Administrative suits (Order 20, Rule 13)

3. Suits for pre-emption (Order 20, R. 14)

4 Suits for dissolution of partnership (Order 20, Rule 15)

5. Suit for accounts between principal and agent (Order 20, Rule 16)

6 Suit for partition and separate possession (Order 20, Rule 18)
7. Suit for foreclosure of mortgage (Order 34, Rule)

8. Suit for sale of mortgaged property (Order 34, Rule)

9 Suit for redemption of mortgage (Order 34, Rule 7)

Supreme Court in N.M. Verappa v Canara Bank, AIR 1998 SC 1101 observed that the
above list is not exhaustive. It means the court may pass a preliminary decree in cases not
expressly provided under the Code.

Number of preliminary decree in a suit: There is a conflict of opinion as to whether there can
be more than one preliminary decree in the same suit. Some High Courts have taken the
view that there can only be one preliminary decree in a suit [Bharat Inder v. Yakub Hasan,
ILR (1913) 34 All 159] while other High Courts have held that there can be more than one
preliminary decree (Kasi v. R. Chettiar, (1947) 2 MLJ 523].

As regards partition suits, the debate is concluded by pronouncement of the Supreme Court
in Phoolchand v. Gopal Lal, AIR 1967 SC 1470, wherein it had been held that there is
nothing in the Code which prohibits passing of more than one preliminary decree, if
circumstances justify the same. Court observed that in a partition suit if the event transpires
after the preliminary decree which necessiates a change in shares, the court can and should
do so.

Appeal from preliminary decree: An appeal against a preliminary decree can be preferred
under Section 96 of the Code. However, Section 97 provides that if such appeal is not made,
the person shall be excluded from disputing its correctness in any appeal preferred against
final decree. The object of Section 97 is to prevent the preliminary questions being asked at
the later stage when the suit has been completely decided. Final decree is dependent on
preliminary decree. So if in appeal against the preliminary decree, the preliminary decree is
set aside, the final decree falls (Sital Prasad Saxena v. Kishori Lal, AIR 1967 SC 1236].

Final decree

A final decree, as per Explanation to Section 2(2), is the decree which completely disposes
of the suit and finally settles all questions in controversy between parties. It can become final
in following ways:

1. Where decree completely disposes of the suit.

2. Where within prescribed period, no appeal is filed against the decree.

The term 'final decree' used in this section is in the first sense ie completely disposes of the
suit and settles all questions in controversy. There is nothing left to be decided. In Shankar &
Chandrakant, (1995) 3SCC 413 Supreme Court held that it is a settled law that more than
one final decree can be passed. For example, a decree passed for a sum representing past
and future meme profit at a particular rate without farther inquiry is final decree.

It may be noted that a decree to which a condition is attached, upon fulfilment of which the
decree holder is to enjoy the fruits of decree, does not because of that, becomes preliminary
decree. It remains a final decree.
More than one final decree: Generally, there is only one final decree in a suit. However, if
two or more causes of action are joined then there can be more than one final decree.
Supreme Court has clarified Shankar v. Chandrakant, (1995) 3 SCC 413 that there can be
more than one final decree.

Partly preliminary and partly final

Such kinds of decrees are passed in certain cases for example suit for possession and
mesne profits. In such cases the court directs the possession of land and orders enquiry into
the profits. The first part of the decree is final whereas the second part is preliminary. Since
the decree is one it is partly preliminary and partly final. Similarly, if a suit is filed by one
partner against another for dissolution of partnership and for taking accounts, the court may
pass a preliminary decree declaring proportionate share of the parties and directing the
accounts to be taken. It may then pass a final decree later on directing payments of debt due
by the partnership and directing payment to the parties of the amount due to them on taking
the accounts.

Difference between preliminary and final decree

Supreme Court in Renu Devi v. Mahendra Singh, (2003) 10 SCC 200 observed that a
preliminary decree is one which declares the rights and liabilities of the parties leaving the
actual result to be worked out in further proceedings. As a result of further enquiry purusant
to preliminary decree the rights of the parties are finally decided and the decree passed is
called final decree.
Preliminary Decree Final decree

1. A preliminary decree does not completely 1. Final decree disposes of the suit and
dispose of the suit. nothing is left to be decided thereafter.

2. It is not dependent on the final decree. 2. It is dependent on a preliminary decree.

If preliminary decree is set aside the final
decree cannot survive.

Not decree:-
Dismissal of appeal as time barred is not a decree (Ratan Singh v. Vijay Singh, AIR
2001

Rejection of application for condonation of delay is not a decree.

Order admitting appeal is not a decree

Decree obtained by fraud is a nullity. It can be challenged in a collateral proceedings

.

Decree Holder

Section 2(3) provides that a 'decree holder' means any person in whose favour a
decree has been passed. Supreme Court in Raja Soap Factory v. Santharaj, AIR 1965 SC
1449 held that a decree holder need not be a party to the suit. If the decree confers upon
someone, any enforceable right, he is entitled to execute the same.

Legal Representatives

Section 2 (11) of Code of Civil Procedure defines legal representative to mean a person who
in lav represents the estate of the deceased person and includes:

(a) Any person who intermeddles with the estate of the deceased, and

(b) Where a party sues or is sued in a representative character, the person on whom the
estate devolves on the death of the person so suing or sued.

The examples of legal representatives are-executors, administrators, reversioners,

Hindu coparceners, residuary legatees, etc. But a trespasser is not a legal representative as
he does not intermeddle with the intention of representing the estate of the deceased.
Similarly, a succeeding trustee, official assignee or receiver is not a legal representative.
Such legal representatives can be made a party to the suit on the death of either plaintiff of
defendant [see Order 22 Rule 3 and Rule 4 of C.P.C.].

Furthermore, where the judgment debtor dies before decree is satisfied, the holder of
decree may apply to the court passing the decree to execute the same against legal
representative of the deceased to the extent of his share in the property of the deceased
[Section 50 C.P.C.].

In Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique, AIR

1989 SC 1589 Supreme Court held that the definition of legal representative' is inclusive in
character and its scope is wide and it is not confined to legal heirs only. It includes heirs as
well as persons who represent the estate of the deceased.

Mesne Profits

Section 2 (12) of Code of Civil Procedure defines 'Meme Profit' to mean profits which
the person in wrongful possession of the property actually received or might have received
with ordinary diligence or have received together with interest on such profits. However,
such profit shall not include profits arising due to improvements made by the person in
wrongful possession. Meme profits can be claimed with regard to immovable property only.
For example, 'X' is in wrongful possession of 'Y's' property. By being in such possession, he
receives profits. Such profits are called mesne profits.

Object

Every person is entitled to possess his property and when he is deprived of such right by
another person, he is not only entitled to restoration of possession of his property but also
damages for wrongful possession from that person. Thus, the object of awarding a decree
for mesne profits is to compensate the person who has been kept out of possession and
deprived of enjoyment of his property.
Against whom mesne profit can be claimed

A person in wrongful possession and enjoyment of immovable property is liable to pay

mesne profit. He can be a trespasser or a person against whom a decree for possession is
passed or against a mortgager in possession after a foreclosure decree is passed against
him, etc. If the plaintiff is dispossessed by several persons, every one of them would be
liable to pay mesme profit to the plaintiff even though he might not be in actual possession of
the property if it is proved that such dispossession was a concerted effort on every person's
part [Lucy Kochuvareed v. P. Mariappa Gounder, (1979) 3 SCC 150].

Test

The test to ascertain mesne profit is not what the plaintiff has lost by being out of possession
but what the defendant gained or might reasonably and with ordinary prudence have gained
by such wrongful possession. For example, when a person in wrongful possession plants
indigo on the land and it is proved that a prudent agriculturist would have planted wheat or
sugarcane, the mesne profit should be assessed on the basis of those more profitable crops
[Harry Kampson Grag v. Bhagu Miya, AIR 1930 PC 82].

Principles

The court shall be guided by following principles while deciding mesne profit.

1) Profit by a person in wrongful possession.

2) Restoration of status before dispossession of decree-holder.
3) Use to which a decree-holder would have put the property if himself was in
possession.

Deductions

Mesne profits should be net profits and the court may allow deductions to be made
from the gross profits of the defendant, such as land revenue, cess, cost of cultivation, etc.

Order

According to Section 2(14), an order means the formal expression of any decision which is
not a decree. Thus, the adjudication of a court of law may either be decree or an order but
cannot be both. There are same common elements in both of them such as both relate to
matters is controversy, both are decision of civil court and both are formal expression of a
decision.

Difference between decree and order

Decree Order

1. A decree can only be passed in a 2. A decree is an adjudication

suit which is commenced by a conclusively determining the rights
presentation of a plaint. of the parties with regard to all or
any of the matters in controversy.
 3. A decree may be preliminary, final application. For example, in an application
or partly preliminary and partly to sue as a pauper, the decision of court
final. rejecting| 1 such application is not a
decree but order as per Section 2(14).
4. Except in certain suits, where
decree, one preliminary and one 2. An order may or may not finally
final are passed, in every suit, determine such rights.
there can only be one decree.
3. There is no such classification in case
5. Every decree is appealable unless of an order.
otherwise expressly provided (as in
the case of consent decree which 4. In case of a suit or proceeding, a
is non-appealable). number of orders may be passed.
6. A second appeal lie to the High
court on certain grounds from the 5. Every order is not appealable unless
decree passed in First appeal shown as appealable under Section 104
(section 100) and Order 43 Rule 1
1. An order may be passed in a suit or
may be passed in a proceeding 6. No second appeal lies in case of
commenced by a petition! or an appealable orders [Section 104 (2)].

Judgment

Section 2(9) of the Code defines 'judgement'. According to it, judgment means a
statement given by the judge on the grounds of decree or order. In other words, judgment
contains the set of reasoning, application of law to the facts and the determination of such
rights. It must reflect the applicability of judicial mind.

Order 20 Rule 1 lays down that the court after the case has been heard shall
pronounce the judgment. The court may pronounce the judgment at once or may fix a future
date for pronouncing a judgment. Ordinarily, if a future date is fixed for pronouncing
judgment, it shall not be more than thirty days from the date on which the hearing was
concluded. In SJVNL v. M/s CCC HIM JV & Anr, (2021), Supreme Court observed that
timeline for pronouncement of judgment prescribed in Order XX of CPC does not apply to
the High Court. The Court held that it is true, that for the High Courts, no period for
pronouncement of judgment is contemplated either under the Code of Civil Procedure or the
Criminal Procedure Code, but as the pronouncement ement of the judgment is a part of
justice dispensation system, it has to be without delay.

Rule 4 further provides that judgment of Small Causes Court shall contain points of
determination and the decision and judgment of courts other than Small Causes Court shall
contain the following:-

Concise statement Points for Decision and reason

of the case determination for such decision
 Supreme Court in Balraj Taneja v. Sunil Madan, AIR 1999 SC 3381 observed that
the process of reasoning by which the court came to the conclusion of the case should be
clearly reflected in a judgment.

Judgment and decree- A comparison: Judgment contemplates a stage prior to the

passing of decree. After the pronouncement of judgment the decree shall follow. This
position of law is clearly reflected in Order 20 Rule 6 and 6A and 7. Rule 6 provides that the
decree shall agree with the judgment. It clearly shows that judgment comes first in point of
time. Further, Rule 6A and 7 provides that decree shall be drawn up within fifteen days from
the date on which the judgment is pronounced and the decree shall bear the date of the
judgment respectively. These provisions clearly show that the decree follow the judgment
and not vice versa. Judgment reflects the justification of the court in passing the decree in
question. Decree, on the other hand is the crystalisation of rights in the controversy between
the parties as declared by the court on the basis of judgment.