Pi eS ae Ms The Code of Civil Procedure, 1908 (C.P.C.) Introduction MEMORY TIP Law may be classified as Substantive law is the end. Procedural law is a means to achieve the ends of justice. 1. Substantive law; and 2. Adjective or procedural law Substantive law determines the rights and liabilities of the parties, confers legal status, imposes and defines the nature and extent of legal duties. Procedural law, on the other hand, prescribes the practice, procedure and machinery for determining, enforcement or recognition of the legal rights and liabilities by a court of law. Procedural laws are subordinate to the substantive laws. Code of Civil Procedure, is a branch of procedural law dealing with civil matters. It lays down the procedure to be followed in civil courts in deciding the cases. In this chapter we will examine the legal terms such as decree, order, judgement, appeal, reference, review, revision, resjudicata, res subjudice and also the hierarchy of civil courts, their jurisdiction and matters incidental thereto. Objectives By the end of this chapter, you should be able to understand~ + The meaning, aim, scope and scheme ofthe Civil Procedure Code + Definitions of some important terms as given in the Code. + The structure and jurisdiction of Civil Courts + The ‘Doctrines of Res Sub Judice’ and the ‘Doctrine of Res Judicata’[section 10 and 11] + the idea of place of suing [Section 15 to 20] + The concepts of Set-off, Equitable set-off and Counter Claim + The reliefs available under the Code such as temporary injunction, interlocutory orders. * The procedure ofa law suit with particular reference to * Institution of suit + Misjoinder of parties, cause of action, misjoinder of cause of actionCT Tee} KPa aes Meaning, Scope and Applicability “Civil Procedure” means, body of law concerned with the methods, procedures and practices used in civil litigation. — Black's Law Dictionary. The words, ‘civil’ and ‘procedure’ are words of classification. The word, ‘civil law’ would denote the whole lawof the State governing the relations among its citizens inter se or between the State and its subjects. ‘Law of procedure’ may thus be defined as that branch of law which governs the process of litigation. The Code of Civil Procedure was first codified in 1859. An eamest attempt to consolidate the laws relating to civil procedure resulted in the legislation of the ‘Code of 1859", The subsequent Code of 1908 aimed at consolidating and amending the laws relating to the procedure of the Courts of Civil judicature. Since then it has been amended from time to time without affecting the basic features of the Code. The objects behind such amendments were to ensure more expeditious disposal of civil suits and proceedings consistent with the accepted principles of natural justice and to simplify the proce- dure to a certain extent. The Civil Procedure Code, 1908 is aimed at consolidating and amending the laws relating to the procedures of the courts of civil judicature. To consolidate means, to collate all the laws relating to a particular subject under one Code and make it up-to-date, so that it can be applied to the cir- cumstances. The Code does not affect any special or local laws which prescribe any special form of procedure. Applicability The Code of Civil Procedure, 1908 applies to all proceedings in a civil court. The ‘Code’ is concerned almost wholly from the very institution of a suit in a civil court, the progress of its trial, ending with orders or a decree and its further stages, such as appeal, reference, review, revision till the execution of such decree / order. Scheme of the Code The Code of Civil Procedure, 1908 is effectively divided into two parts: (a) Part I- Body containing the principles spread in 158 Sections: and (b) Part II- Schedule I containing 51 Orders along with the Rules framed there under. The Sections lay down the general principles of jurisdiction. The Orders and the Rules framed there under prescribe the method, manner and mode in which such jurisdiction is to be exercised id 2 e 05, Chapter 8: The Code of Civil Procedure, 1908 (C.P.C.)et ee va ‘CIVIL PROCEDURE CODE = CIVIL The Code of Civil Procedure, 1908 is divided into two parts: 158 SECTIONS 51 ORDERS ALONG WITH THE PART - 1 -SUBSTANTIVE LAW | PART - II- PROCEDURAL LAW - | Some Important Definitions Decree A decree is the ruling of the court regarding the claims of the parties of the suit. For example, in a suit between A and B, A may claim that a particular property P belongs him. After hearing all the argu- ments, the court will rule in the favour of either A or B. The final decision of the court regarding this claim i.e. whether the property belongs to A or B isa decree. As per Section 2(2), a decree is the formal expression of an adjudication which, so far as regards the Court expressingit, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. f may be final or preliminary. A decree is preliminary when further proceedings have to be taken up before the suit can be completely disposed of. Itis final when such adjudication completely disposes of the suit. The following are the essential elements of a decree — There must be a suit. een There must be adjudication. There must exist substantive Rights of the parties. 4. There must be a Conclusive Determination of the Rights The court must make a Formal expression in the manner provided by law forit to bea decree. The term decree does not include the following — + Any adjudication from which an appeal lies as an appeal from an order. + Any order or decision of the dismissal of the suit for default. General and Commercial L: