Law relating to Civil Procedure: formula sheet

Key formulas

Decree (Section 2(2))

Decree = formal expression of adjudication + conclusively determines rights of parties on all or any matters in controversy in the suit

Includes rejection of a plaint and determination of a question within section 144. Excludes appealable-as-order adjudications and dismissal for default.

Preliminary vs final decree

Preliminary: further proceedings needed. Final: suit completely disposed of.

A decree can be partly preliminary and partly final.

Order (Section 2(14))

Order = formal expression of any decision of a Civil Court which is not a decree

It is a residuary definition.

Judgment (Section 2(9))

Judgment = statement given by the Judge of the grounds of a decree or order

It is the reasoning, not the operative part.

Mesne profits (Section 2(12))

Mesne profits = profits actually received or receivable with ordinary diligence by the person in wrongful possession + interest − profits due to his improvements

The test is wrongful possession.

Legal representative (Section 2(11))

Person who in law represents the estate of a deceased person, including an intermeddler and the person on whom the estate devolves in a representative suit

Section 50 limits liability to the deceased's property that came to his hands and was not duly disposed of.

Revenue Court (Section 5(2))

Court with jurisdiction under local law over rent, revenue or profits of agricultural land, excluding a Civil Court with original jurisdiction under the Code

Under Section 5(1) the State Government may notify non-application or modified application of portions of the Code.

Section 9: general rule

Civil courts try all suits of a civil nature, except those expressly or impliedly barred

A suit on a contested right to property or office is civil, even if it turns on religious rites (Explanation I).

Section 6: pecuniary limit

No court can try a suit whose value exceeds the pecuniary limits of its ordinary jurisdiction

Unless the law expressly provides otherwise.

Section 16: immovable property

Suit is filed where the property is situate

Proviso: if relief can be had by the defendant's personal obedience, the suit may also be filed where the defendant resides, carries on business or works for gain. 'Property' means property in India.

Sections 17 and 18

Property in several courts' limits: sue in any one of them, if the entire claim is within its value limits. Uncertain limits: the court may record a statement and proceed

Under Section 18(2), an objection on appeal fails unless there was no reasonable ground for uncertainty and a failure of justice resulted.

Section 10: res sub judice

No trial of a later suit if the matter in issue is directly and substantially in issue in a previously instituted pending suit, between the same parties or those claiming under them, litigating under the same title, in a court with jurisdiction to grant the relief

Pendency of a suit in a foreign court does not stop Indian courts from trying a suit on the same cause of action (Explanation).

Section 11: res judicata

No court shall try a suit or issue where the matter directly and substantially in issue was directly and substantially in issue in a former suit, between the same parties or those claiming under them, litigating under the same title, in a court competent to try the later suit, and heard and finally decided

Former suit means a suit decided earlier, even if filed later (Explanation I).

Section 11 Explanation IV: constructive res judicata

A matter that might and ought to have been made a ground of defence or attack is deemed directly and substantially in issue

Explanation V: a relief claimed but not expressly granted is deemed refused.

Section 63

Property attached under decrees of several courts: the court of highest grade deals with it; if equal grade, the court whose decree first attached it

Applies to property not in the custody of any court.

Institution of suit

Suit instituted by presentation of a plaint (or other prescribed manner); facts in the plaint proved by affidavit

Section 26(1) and (2). The affidavit form is under Order VI Rule 15A, and the proviso applies to commercial disputes of a specified value.

Court of institution

Lowest grade court competent to try the suit

Section 15. Competence depends on the nature and value of the suit.

Transfer where several courts have jurisdiction

Defendant applies after notice to other parties, at the earliest opportunity and before issues are settled

Section 22. The court decides after hearing objections which court will proceed.

Summons date

Summons to appear on a day not beyond 30 days from the date of institution

Section 27. It applies where the suit has been duly instituted.

Service in another State

Summons sent to the court and in the manner prescribed by rules in force in that State

Section 28(1). The receiving court proceeds as if it had issued the summons and returns it with its record (Section 28(2)).

Notice to Government

Two months' written notice before suit; plaint must state that notice was delivered or left

Section 80(1). Notice goes to a Secretary (Central), the General Manager (railway) or a Secretary or Collector (State).

Urgent relief against Government

Suit may be filed with leave of the court without notice, but no relief until the Government has a chance to show cause

Section 80(2). If no urgent relief is needed, the plaint is returned for presentation after notice.

Defect in notice

No dismissal for error or defect if the plaintiff is identifiable, notice was delivered to the right authority, and the cause and relief are substantially indicated

Section 80(3).

Stay of suit

No trial where the matter in issue is directly and substantially in issue in an earlier pending suit between the same parties under the same title

Section 10. The earlier court must be able to grant the relief. A pending foreign suit does not bar an Indian suit.

Misjoinder and non-joinder

No reversal in appeal for misjoinder or non-joinder not affecting merits or jurisdiction; except non-joinder of a necessary party

Section 99 and its proviso.

Section 94 interim orders

Arrest before judgment | Attachment before judgment / security | Temporary injunction | Receiver | Other interlocutory orders

The Court may make these only if so prescribed (by the rules), to prevent the ends of justice from being defeated.

Compensation for wrongful interim relief (Section 95)

Insufficient grounds for the order OR suit fails with no reasonable or probable grounds → compensation ≤ ₹50,000

The Court cannot exceed its pecuniary jurisdiction. Compensation covers expense or injury, including injury to reputation. The order bars a separate suit.

Examination order of a witness

Examination-in-chief → Cross-examination → Re-examination

Examination-in-chief is by the party calling the witness; cross-examination by the opposite side.

Transfer and withdrawal (Section 24)

High Court or District Court may, at any stage, transfer or withdraw a suit, appeal or proceeding

It can act on a party's application after notice, or on its own motion without notice. A suit can be transferred from a Court that has no jurisdiction to try it.

Exemption from arrest (Section 135)

Parties, pleaders, agents and witnesses attending a tribunal are exempt from arrest under civil process

Exemption applies while going to, attending and returning, but a judgment-debtor cannot claim it against immediate execution or when showing cause why he should not be committed to prison.

Judgment and decree

Judgment = reasons | Decree = formal expression of the adjudication

The decree follows the judgment and is the basis of execution.

Modes of execution (Section 51)

Delivery of property | Attachment and sale (or sale without attachment) | Arrest and detention | Receiver | Any other manner the relief requires

Court acts on the decree-holder's application and subject to prescribed conditions and limitations.

Grounds for detention on a money decree (Section 51 proviso)

Show-cause opportunity + written reasons + any one of: (a) likely to abscond or dishonest transfer/concealment to obstruct or delay; (b) has or had means and refuses or neglects to pay; (c) fiduciary capacity to account

Means are calculated leaving out property exempt from attachment.

Precept (Section 46)

Attachment under a precept lasts at most 2 months unless extended or the decree is transferred and sale is applied for

Extension is by order of the court that passed the decree. The precept is issued on the decree-holder's application.

Arrest rules (Section 55)

Any hour, any day; no dwelling-house entered after sunset and before sunrise; release at once if money decree amount and arrest costs are paid

Detention is in the civil prison of the district, or another place the State Government appoints. Outer door can be broken open only if the house is the judgment-debtor's occupancy and he refuses or prevents access.

Women (Section 56)

No arrest or detention in civil prison of a woman in execution of a money decree

Applies to money decrees only.

Court for property attached under several decrees (Section 63)

Court of highest grade; if equal grade, the court under whose decree the property was first attached

Applies to property not in the custody of any Court.

Rateable distribution (Section 73)

Assets after costs of realization are shared rateably among money-decree holders who applied before the assets were received

Same judgment-debtor, decrees unsatisfied. Rights of Government are not affected.

Resistance to execution (Section 74)

Detention up to 30 days of the judgment-debtor or his person, plus possession to the decree-holder or purchaser

For immovable property, where the resistance or obstruction was without just cause.

Second appeal – section 100(1)

Appeal lies to the High Court from every decree passed in appeal by a court subordinate to it, if the High Court is satisfied that the case involves a substantial question of law

This is subject to anything expressly provided in the Code or any other law in force. It is the only ground for second appeal (section 101).

Ex parte appellate decree – section 100(2)

A second appeal may lie from an appellate decree passed ex parte

An ex parte appellate decree does not bar a second appeal.

Memorandum of appeal – section 100(3)

Memorandum must precisely state the substantial question of law involved

Vague grounds weaken the appeal.

Formulation and hearing – section 100(4) and (5)

High Court shall formulate the question; appeal is heard on that question; respondent may argue that no such question is involved

The proviso lets the court, for reasons recorded, hear the appeal on another substantial question of law it did not formulate.

Power to decide facts – section 103

If the evidence on record is sufficient, the High Court may determine an issue necessary for disposal that was (a) not determined by the lower courts, or (b) wrongly determined because of a decision on a question of law as in section 100

This is a limited exception to the rule that second appeal is not on facts.

Procedure – section 108

Rules for appeals from original decrees apply, so far as may be, to (a) appeals from appellate decrees and (b) appeals from orders under the Code or a special or local law with no different procedure

Detailed procedure is in Order 41 and Order 43.

Review – section 114

A person aggrieved by (a) a decree or order appealable but not appealed, (b) a decree or order from which no appeal is allowed, or (c) a decision on a reference from a Court of Small Causes, may apply for review to the court that passed it

Subject to the conditions in section 114 and Order 47. The court makes such order as it thinks fit.

Revision – section 115

High Court may call for the record of a case decided by a subordinate court in which no appeal lies, where the court appears to have exercised a jurisdiction not vested in it, failed to exercise one vested in it, or acted illegally or with material irregularity

The High Court should not vary or reverse an order unless it would have finally disposed of the suit or proceeding if made in the applicant's favour, or would cause failure of justice or irreparable injury.

High Court rules – sections 122, 129, 130

s.122: rules on own and subordinate civil courts' procedure, after previous publication, may alter the First Schedule. s.129: own procedure in original civil jurisdiction, not inconsistent with Letters Patent. s.130: other High Courts, with State Government's previous approval, on matters other than procedure

Section 129 does not apply to the court of a Judicial Commissioner.

Section 79 - parties in suits by or against Government

Central Government: Union of India | State Government: the State

The authority to be named as plaintiff or defendant is fixed by this section.

Section 88 - interpleader conditions

Two or more adverse claimants + same debt, money or property + stakeholder claims no interest except charges or costs + stakeholder is ready to pay or deliver

Proviso: no interpleader suit where a pending suit can properly decide the rights of all parties.

Section 151 - inherent powers

Code does not limit the court's inherent power to make orders necessary for the ends of justice or to prevent abuse of process

A saving of power. Use it only where the Code gives no express provision.

Section 35A - compensatory costs

Objection taken + claim or defence false or vexatious to the party's knowledge + claim or defence later disallowed, abandoned or withdrawn + court records reasons

Court may order costs by way of compensation. Ceiling: not more than ₹3,000 or the limit of the court's pecuniary jurisdiction, whichever is less (sub-section (2)).

Section 35A - scope and effect

Applies to suits and proceedings including execution; excludes appeal and revision

Order does not exempt the person from criminal liability (sub-section (3)). The amount is taken into account in a later suit for damages on the same claim or defence (sub-section (4)).

Section 86 - foreign States

Suit against a foreign State needs consent of Central Government certified in writing by a Secretary

Consent is also needed to execute a decree against its property. Rulers, ambassadors, envoys and High Commissioners are covered. They cannot be arrested under the Code.

Section 78 - commissions

Rules on commissions for examination of witnesses apply to commissions issued by courts in non-Code areas of India, Central Government courts abroad, and courts of other States or countries

Subject to prescribed conditions and limitations.

Quick revision

• Civil procedure law is the CPC, 1908. It governs how civil suits are conducted, not what rights exist.
• Section 9: civil courts try all suits of a civil nature unless cognizance is expressly or impliedly barred.
• A suit about the right to property or to an office is of a civil nature even if it depends on religious rites or ceremonies (Explanation I to section 9).
• Section 108: appeal provisions for original decrees apply, so far as may be, to appeals from appellate decrees and from orders under the Code or a special or local law with no different procedure.
• Section 42: a court executing a transferred decree has the same powers as if it had passed the decree itself.
• A transferee court cannot order execution at the instance of a transferee of the decree (section 42(4)(a)).
• Section 44A: a certified copy of a decree of a superior court of a reciprocating territory can be filed in a District Court and executed as if passed by it.
• Under section 44A, a certificate stating the extent of satisfaction or adjustment must be filed with the decree, and it is conclusive proof of that extent.
• A foreign decree under section 44A must be refused execution if it falls within any of the exceptions in clauses (a) to (f) of section 13.
• A reciprocating territory is one declared as such by the Central Government by notification in the Official Gazette.
• Under section 5, a State Government can modify or exclude parts of the Code for Revenue Courts by notification.

Common mistakes

• Calling every court decision a decree. Fix: Apply the conclusive-determination test. If it does not conclusively determine rights in the suit, it is an order.
• Treating a judgment and a decree as the same thing. Fix: Remember that the judgment gives the grounds, while the decree is the formal expression of the adjudication.
• Saying Section 10 bars the filing of the second suit. Fix: Section 10 stops the court from proceeding with the trial. It does not stop the plaint being filed. Use the word 'stay'.
• Applying Section 10 when the first suit was filed later. Fix: Section 10 needs the earlier-filed suit to be pending. The later-filed suit is the one stayed. For Section 11, the order of decision matters, not of filing (Explanation I).
• Saying Section 80 notice is needed in every suit against the Government. Fix: Add Section 80(2) for urgent relief with leave of the court, and Section 80(3) for defects that do not defeat the notice.
• Confusing Section 10 (stay of suit) with Section 22 (transfer). Fix: Section 10 is about two suits on the same matter between the same parties. Section 22 is about one suit that could be filed in several courts.
• Saying the Court can always grant interim orders under Section 94. Fix: State that the power is exercised where the rules prescribe it, and for the purpose of preventing the ends of justice from being defeated.
• Stating the Section 95 compensation cap as ₹1,000. Fix: Write 'not exceeding fifty thousand rupees', and add that the Court cannot exceed its own pecuniary jurisdiction.
• Saying the court can execute a decree on its own motion. Fix: State that Section 51 operates on the decree-holder's application.
• Saying a judgment-debtor can be detained simply because he has not paid. Fix: Mention the show-cause opportunity, written reasons and one of the listed grounds, such as means to pay with refusal or neglect.

Exam tips

• Write the definition with its exact key phrases first. Marks are usually given for the definition, the application and the conclusion.
• For decree versus order, present your answer in points: definition, number of decrees in a suit, appealability and examples. Always cite Section 2(2) and Section 2(14).
• Remember the inclusions and exclusions in the decree definition. Questions often test only these.
• For Section 5, state both the power of the State Government and the meaning of Revenue Court in Section 5(2).
• Link the legal representative definition to Section 50. It shows that you know how the term is used in execution.
• Start every answer with the provision in your own words. Cite Section 9, 10 or 11 by number.
• For res sub judice versus res judicata, give a two-column style answer in text: pending versus decided, stay versus bar, Section 10 versus Section 11.
• List the conditions as numbered points and tick each against the facts. Markers look for this.