Civil Procedure Code: A Comprehensive Guide to Legal Terms and Procedures | Study notes Law

CIVIL PROCEDURE CODE

Petitioner- the person who is filing a petition in the higher court. E.g., the writ petition

Plaintiff- the person, who filed the case in the first place in the lower court against the person.

The injunction- the court stops a person from committing an action that may affect the other person.

Stay – when the higher court stops the lower court’s order.

C.P.C, 1908 applies to the whole of India, excluding the state of Nagaland and tribal areas.

Here tribal areas means- those areas, which immediately before the 21 st day of January 1972 were

included in the tribal areas of Assam according to the 20th paragraph of the sixth schedule of the

Indian constitution.

Decree 2 (2) – the settling down of the dispute of the parties by the court in the court of law

Formal expression - Format is in order 20 rules 6, 7.

Adjudication (to decide something judicially) – to deal judicially or application of judicial mind.

Dismissal of the suit is a decree (because the court heard the arguments and applied the judicial

mind).

Conclusively determination- determination must be conclusive. (Interlocutory order is not a decree).

Rights of the parties in controversy- Substantive rights have been acquired. – The suit ends at the

decree.

Dismissal of the suit in default is not a decree.

Matter in controversy- it refers to the subject matter of the suit to the reference of the relief sought. It

would cover any question relating to the character and status of a party.

SUIT – Civil proceeding constituted by the presentation of the plaint. If there is no civil suit, there is no

decree. However, under certain enactments indication is treated as a suit. Examples- Indian succession

act, Hindu marriage act, land acquisition act. Therefore, the decision there is called a decree.

Deemed decree 2 (2) – Rejection of plaint, application of section 144 will be deemed as a decree (speaks

about restitution). However, it shall not include any adjudication from which an appeal lies as an appeal

from an order. (Any order for dismissal for default)

Order 41 rule (5) – Stay of proceedings and execution. (An appeal shall not operate as a stay unless the

appellate court orders a stay.)

Order 43 - list of orders from which an appeal can be made. Section 104 – orders from the sections from

which an appeal can be made.

Final decree Preliminary decree Partly preliminary partly final

decree

Decides the rights of the parties

and ends the suit.

Decides the rights of the parties

but does not end the suit. Some

enquiries are left to be made.

Possession

Mean profit

Q. Can there be more than one preliminary decree?

Answer - No, more than one preliminary decree can be passed. There is nothing in the code, which

prohibits more than one preliminary decree. Case law – Phoolchand VS Gopal lal.

Q. Can the preliminary decree be challenged in the final decree?

Answer- No, the preliminary decree cannot be challenged in the final decree.

Q. Can there be an appeal from a preliminary decree?

Answer- Yes

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Petitioner - the person who is filing a petition in the higher court. E.g., the writ petition Plaintiff - the person, who filed the case in the first place in the lower court against the person. The injunction - the court stops a person from committing an action that may affect the other person. Stay – when the higher court stops the lower court’s order.  C.P.C, 1908 applies to the whole of India, excluding the state of Nagaland and tribal areas.  Here tribal areas means- those areas, which immediately before the 21st^ day of January 1972 were included in the tribal areas of Assam according to the 20th^ paragraph of the sixth schedule of the Indian constitution. Decree 2 (2) – the settling down of the dispute of the parties by the court in the court of law  Formal expression - Format is in order 20 rules 6, 7.  Adjudication (to decide something judicially) – to deal judicially or application of judicial mind.  Dismissal of the suit is a decree (because the court heard the arguments and applied the judicial mind).  Conclusively determination- determination must be conclusive. (Interlocutory order is not a decree).  Rights of the parties in controversy- Substantive rights have been acquired. – The suit ends at the decree.  Dismissal of the suit in default is not a decree.  Matter in controversy- it refers to the subject matter of the suit to the reference of the relief sought. It would cover any question relating to the character and status of a party. SUIT – Civil proceeding constituted by the presentation of the plaint. If there is no civil suit, there is no decree. However, under certain enactments indication is treated as a suit. Examples- Indian succession act, Hindu marriage act, land acquisition act. Therefore, the decision there is called a decree. Deemed decree 2 (2) – Rejection of plaint, application of section 144 will be deemed as a decree (speaks about restitution). However, it shall not include any adjudication from which an appeal lies as an appeal from an order. (Any order for dismissal for default) Order 41 rule (5) – Stay of proceedings and execution. (An appeal shall not operate as a stay unless the appellate court orders a stay.) Order 43 - list of orders from which an appeal can be made. Section 104 – orders from the sections from which an appeal can be made. Final decree Preliminary decree Partly preliminary partly final decree Decides the rights of the parties and ends the suit. Decides the rights of the parties but does not end the suit. Some enquiries are left to be made. Possession Mean profit Q. Can there be more than one preliminary decree? Answer - No, more than one preliminary decree can be passed. There is nothing in the code, which prohibits more than one preliminary decree. Case law – Phoolchand VS Gopal lal. Q. Can the preliminary decree be challenged in the final decree? Answer- No, the preliminary decree cannot be challenged in the final decree. Q. Can there be an appeal from a preliminary decree? Answer- Yes

Section 97 – Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal, which may be preferred from the final decree. Appeal on preliminary if quashed by the higher court will fail the final decree by the lower court. Null and void decree – when the court does not have the jurisdiction to pass the decree. Section 2 (14) – “order” means the formal expression of any decision of a CIVIL COURT which is not a decree. Section 2 (9) – “Judgement” means the statement given by the judge on the grounds of a decree or order. FINAL DECREE  A decree, that completely disposes of the suit, is called a final decree.  In Shankar Balvant Lokhande VS. Chandra Kant Shankar Lokhande held that the preliminary decree declares the rights and liabilities of the parties by leaving the actual decree to be figured out in further proceedings. The resultant of the inquiries conducted under the preliminary decree that rightly determines the parties’ rights is the final decree. In simple words, it can be concluded that the final decree is one, which completely disposes of the suit and finally settles all questions in the controversy between the parties and nothing remains to be decided thereafter.  What is executable is the final decree. PARTLY PRELIMINARY PARTLY FINAL DECREE  These are those decrees where a final decision has been passed in respect of a part of the suit and another part is left for further adjudication. For example, in a suit of possession of immovable property with mesne profit, the decree of the court regarding the possession is the final decree. Whereas the decree about mesne profit is preliminary. ORDER  Order is defined under section 2 (14) order means the formal expression of any decision of a civil code, which is not a decree. It can be said that there are 3 ingredients of order (a.) it is a formal expression, (b.) of decision (c.) which is not a decree. THE FOLLOWING POINTS DIFFERENTIATE DECREE FROM ORDER DECREE ORDER

Decree is defined as U/S 2(2).
Decree deals with substantive legal rights.
As a general rule there can be 1 decree in a suit.
Decree can be preliminary, final or partly preliminary and partly final.
It is normally appealable, except in a few conditions.
Decrees are passed in a suit, which is instituted by the presentation of a plaint.
Decree concludes the suit.
1. Order is defined as U/S 2(14).
2. Orders deal with procedural legal rights.
3. There can be many orders in a suit.
4. Orders are always final.
5. Orders are generally not appealable but can be appealed in conditions mentioned in U/S 104 or order 43.
6. Order can be passed in a suit initiated by the presentation of a plaint, application or petition.
7. Order may or may not conclude the suit, JUDGEMENT

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