Brief Note on
CODE OF CIVIL PROCEDURE, 1908
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Code of Civil Procedure 1908
The Code of Civil Procedure is a comprehensive set of laws in India that
governs the process of civil litigation. Enacted in 1908, the Code of Civil
Procedure provides a detailed framework for the conduct of civil suits in the
courts, ensuring a structured, fair, and systematic process of resolving
disputes between individuals or entities. The code outlines the procedures for
filing suits, the conduct of trials, the enforcement of judgments, and the
appeals process.
The Code of Civil Procedure is a comprehensive body of laws in India
that governs the procedure for civil litigation. It provides the framework for
the conduct of civil cases in courts and includes rules on how civil suits
should be filed, conducted, and decided. The main purpose of the Code of Civil
Procedure is to ensure that civil cases are adjudicated fairly and in an orderly
manner. It aims to provide accessible justice to parties involved in disputes
over property, contracts, or personal rights. The Code of Civil Procedure is
divided into several parts and includes provisions related to the jurisdiction
of courts, the institution of suits, the procedures for evidence, and the powers
and responsibilities of the parties and the judges.
The Code of Civil Procedure is essential to maintaining consistency in
the administration of justice, making sure that everyone has a clear
understanding of the steps involved in civil litigation and that their rights are
protected during the process. Following is a summary of key concepts and
important provisions of the Code of Civil Procedure, 1908. The Code of Civil
Procedure lays down the process for the administration of civil law in India.
Purpose and Scope:
The Code of Civil Procedure governs the civil legal procedures followed in
Indian courts. It provides the framework for the resolution of civil disputes
(i.e., non-criminal disputes), such as property disputes, contract disputes,
and family matters. Code of Civil Procedure deals with civil suits, execution
of decrees, appeals, and other aspects of civil litigation.
Structure of Code of Civil Procedure:
The Code of Civil Procedure is divided into parts that cover:
Preliminary (Section 1 to 3): Deals with the scope, jurisdiction, and the
application of the Code of Civil Procedure.
Parties to a Suit (Section 4 to 35): Addresses the rules concerning the
parties involved in a lawsuit (plaintiff, defendant, etc.), including who may
sue and be sued.
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Pleadings (Section 26 to 34): Deals with the documents that set out the
claims and defences (like the plaint, written statement, etc.).
Suit Procedure (Order 1 to Order 7): Explains the process of filing a suit
and conducting trials.
Judgments and Decrees (Section 33 to 36, Order 20): Deals with how
decisions are delivered and the consequences of a court ruling.
Execution of Decrees (Order 21): Governs how a judgment or decree is
implemented.
Appeals (Section 96 to 112): Outlines the process of appealing against
decisions made by lower courts.
Miscellaneous (Order 42 to Order 51, Sections 115 to 158): Covers various
aspects like review, revision, and transfer of cases.
Key Definition and Terms in Code of Civil Procedure:
Civil Court: A court dealing with non-criminal matters.
Plaintiff: The party initiating the lawsuit.
Defendant: The party defending against the lawsuit.
Suit: A legal action initiated by one party against another.
Pleading: Written documents filed by the parties (plaint, written
statement, etc.).
Decree: A formal order by the court that settles the dispute (different
types: preliminary, final, consent).
Judgment: The reasoned decision of the court explaining its verdict or the
statement made by the judge regarding the decision of the case.
Execution: The enforcement of a decree, e.g., by attachment or sale of
property.
Appeal: A process by which the decision of a lower court is challenged in
a higher court.
Revision: A process of reviewing a decision of a subordinate court by a
superior court.
Jurisdiction of Courts (Section 9–21)
Jurisdiction defines the power of a court to hear and decide cases.
Territorial Jurisdiction: Depends on where the defendant resides or
where the cause of action arises.
Pecuniary Jurisdiction: Relates to the monetary value of the subject
matter of the suit.
Subject Matter Jurisdiction: Refers to the court’s authority to deal with
certain types of cases.
Place of suing (Section 15–20): Determines where a suit can be filed based
on where the defendant resides or where the cause of action occurred.
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Institution of a Suit (Order 1 – Parties to the Suit)
A civil suit begins when the plaintiff files a plaint before the court. The
plaintiff must prove the cause of action and the facts supporting their
case.
Joinder of Parties (Order 1): Specifies how multiple parties can be joined
in a single suit, either as plaintiffs or defendants.
Pleadings: The formal written statement of the plaintiff and the defendant
stating their case, defences, and counterclaims.
Process of Service of Summons (Order 5)
A summons is a legal document issued by the court to notify the defendant
about the filing of the suit.
Methods of Service:
By personal delivery to the defendant.
By sending by registered post or other prescribed means.
If the defendant cannot be found, a substituted service may be
allowed.
Written Statement, Counterclaim and Set-off (Order 8)
Written Statement: A reply given by the defendant to the plaintiff’s plaint.
It details the defence and objections to the claim made.
Counterclaim: The defendant can raise a claim against the plaintiff within
the same suit.
Set-off: A defendant may claim to reduce the plaintiff’s claim by deducting
an amount owed to them by the plaintiff.
Appearance of Parties (Order 9)
Ex Parte Proceeding: If the defendant does not appear in court after being
served a summons, the court may proceed ex parte, i.e., based on the
plaintiff’s evidence only.
Adjournment: If a party is not ready for trial, the court may adjourn the
matter to a later date.
Issue of Trial (Order 14)
The court frames issues to determine what questions need to be decided.
These issues are framed based on the pleadings and the facts involved.
Burden of Proof: The burden is generally on the plaintiff to prove their
case, but the defendant can raise a defence and provide evidence as well.
Judgment and Decree (Section 33-37, Order 20)
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Judgment: The court gives its decision based on the facts, law, and
arguments presented.
Decree: The final order or decision in a civil case, which can either be:
Preliminary Decree: A decree that requires further proceedings for its
finalization.
Final Decree: A conclusive order that resolves the case completely.
Execution of Decrees (Section 36-74, Order 21)
Execution: The process by which a party enforces the decree passed by
the court.
Attachment: The court may order the defendant’s property to be seized
in order to satisfy the decree.
Sale of Property: The court may order the sale of the defendant's
property to raise funds for the payment of the decree.
Appeals (Sections 96–112)
A party aggrieved by a judgment or order can file an appeal in a higher
court.
o Appeal from original decree: Appeals from the original court's decree
are heard by an appellate court.
o Appeal from Orders: Some orders can also be appealed under specific
circumstances.
Reference, Review and Revision (Section 113–115)
Reference: A lower court may refer a case to a higher court for its opinion.
Review: A party can request the same court to review its own judgment if
there’s a significant error or new evidence.
Revision: A higher court can revise an order or judgment passed by a lower
court.
Special Procedures (Order 37)
Summary Suit (Order 37): A simplified process for cases involving
commercial transactions or money recovery, allowing for swift decisions
without a full trial.
Interlocutory Applications: Temporary orders or reliefs that can be granted
during the pendency of the main suit, such as injunctions, temporary
restraining orders, etc.
Limitation and Res Judicata
Limitation (Section 3): Legal actions must be initiated within a specific
time frame. If the time expires, the claim is barred by limitation. Therefore,
The Code of Civil Procedure is often used in conjunction with the
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Limitation Act, which prescribes time limits for filing various types of
suits. If a suit is not filed within the prescribed time, it is barred by
limitation.
Res Judicata (Section 11): Once a court has decided on a matter, the same
matter cannot be brought before another court if it has been conclusively
decided previously.
Costs of Proceedings (Section 35-35B)
The court can order the losing party to pay the costs incurred by the
winning party in the litigation. These may include legal fees,
administrative charges, etc.
Amendments and Further Proceedings (Order 6, Order 22)
Amendment of Pleadings: The court allows amendments to the plaint,
written statements, or other pleadings if necessary to ensure justice.
Substitution of Parties: In case of death or disability of a party, the court
may allow a substitution of parties to continue the case.
Summary of Key Provisions
Order 39 – Temporary Injunctions: The court may issue temporary
injunctions to preserve the rights of the parties during the proceedings.
Order 40 – Receiver: The court may appoint a receiver to take possession
of a property in dispute.
Order 41 – Appeal from Appellate Decrees: Deals with the appeal process
when a case is heard by an appellate court.
Steps in a Civil Suit
Filing a Suit (Plaint): The person who wishes to initiate a suit files a plaint
(a formal document stating the cause of action).
Summons to Defendant: The defendant is served with a summons (a
notice) to appear in court.
Written Statement: The defendant submits a written statement of defence.
Framing of Issues: The court determines the specific questions of law or
fact that need to be addressed.
Trial: Both parties present their evidence and arguments.
Judgment: The judge delivers a decision based on the arguments and
evidence presented.
Decree and Execution: After the judgment, a decree is issued, and the
court ensures it is enforced if necessary.
Amendments and Changes
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The CPC has undergone various amendments, including significant changes
in recent years, to streamline procedures and make the system more efficient.
Conclusion
The Code of Civil Procedure, 1908 is a comprehensive procedural framework
governing civil proceedings in India. It emphasizes the orderly conduct of
litigation, fair trial, and the protection of legal rights through its provisions on
jurisdiction, suits, appeals, execution, and review. These concepts should
serve as a solid foundation for understanding the Code of Civil Procedure,
1908. You can expand on them by delving deeper into specific sections or case
laws for more detailed study, but this summary covers the most critical
aspects.
The Code of Civil Procedure (CPC) is essential for the smooth
functioning of civil cases in India. It provides an organized method of resolving
disputes, starting from the filing of a suit to the execution of a decree. It
ensures that parties have the opportunity to present their case fairly, appeals
can be made, and enforcement of judgments occurs systematically.
