Civil Procedure Code, 1908 Question-Answers

Quick Question-Answers on the Civil Procedure Code, 1908 for enhancing the conceptual clarity. It will be helpful for Judicial Services Examination. 

In the case of the CPC, it outlines the procedural rules that must be followed by parties to a civil dispute, such as the mode of filing a suit, the procedure for service of summons, the conduct of trials, and the methods of executing judgments. Thus, the CPC is a procedural law that governs the procedures to be followed in civil courts in India.

2. Is the rejection of a plaint decree? Give reasons for your answer.

Ans. The rejection of a plaint is not a decree. A decree is a formal expression of an adjudication that conclusively determines the rights of the parties to a suit. On the other hand, the rejection of a plaint occurs at the initial stage of a suit and does not conclusively determine the rights of the parties.

When a plaint is rejected, the suit is not allowed to proceed and is terminated at the very threshold. The rejection of a plaint takes place when the plaint does not comply with the procedural requirements laid down in the law. For example, a plaint may be rejected if it does not disclose a cause of action, or if it is not properly stamped.

The rejection of a plaint is an interlocutory order, which means that it is an order passed during the pendency of a suit that does not finally dispose of the rights of the parties. The rejection of a plaint can be appealed against by the plaintiff, and if the appeal is successful, the suit may proceed.

In conclusion, the rejection of a plaint is not a decree, as it does not conclusively determine the rights of the parties, but rather terminates the suit at the threshold stage due to non-compliance with procedural requirements.

3. Is an order rejecting a plaint for non-payment of deficit court-fee, a decree? Refer to case law, if any, on the point.

Ans. An order rejecting a plaint for non-payment of deficit court fee is not a decree as it does not finally determine the rights of the parties to the suit. The court fee is a necessary prerequisite for the institution of a suit and its non-payment is a defect in the plaint that can be cured by the plaintiff by paying the deficit court fee.

This position was taken by the Bombay High Court in the case of Balkrishna Baldeo Chavan v. Rajaram Shripad Joshi (AIR 1957 Bom 281). In this case, the plaintiff had paid only a part of the court fee payable on the plaint, and the court ordered him to pay the deficit court fee within a specified time. The plaintiff failed to pay the deficit court fee, and the court rejected the plaint. The plaintiff appealed against the order, contending that it was a decree.

The Bombay High Court held that the order rejecting the plaint for non-payment of deficit court fee was not a decree. The court observed that the rejection of a plaint on the ground of non-payment of court fee was not a decision on the merits of the case, and did not finally determine the rights of the parties. It merely indicated that the plaint could not be entertained until the requisite court fee was paid.

Therefore, it can be concluded that an order rejecting a plaint for non-payment of deficit court fee is not a decree, as it does not finally determine the rights of the parties, but merely indicates a defect in the plaint that can be cured by the plaintiff by paying the requisite court fee.

4. Is an order returning a plaint to be presented to the proper court a decree?

Ans. An order returning a plaint to be presented to the proper court is not a decree. A decree is a formal expression of an adjudication that conclusively determines the rights of the parties to a suit. On the other hand, an order returning a plaint merely indicates that the plaint has been filed in a court that does not have jurisdiction to entertain it and needs to be presented to the appropriate court having jurisdiction.

This position was taken by the Madras High Court in the case of Palaniappa Chettiar v. Subramaniam Chettiar (AIR 1957 Mad 337). In this case, the plaintiff had filed a suit in a court that did not have jurisdiction to entertain it, and the court returned the plaint for presentation to the appropriate court. The plaintiff contended that the order was a decree and was appealable.

The Madras High Court held that the order returning the plaint was not a decree, as it did not finally determine the rights of the parties. The court observed that the order was merely an administrative act indicating that the plaint had been presented to a court that did not have jurisdiction to entertain it and needed to be presented to the appropriate court. Therefore, the order was not appealable under the provisions of the Civil Procedure Code.

In conclusion, an order returning a plaint to be presented to the proper court is not a decree, as it does not finally determine the rights of the parties, but merely indicates that the plaint needs to be presented to the appropriate court having jurisdiction.

5. Is an order of dismissal of suit for default a decree, Give reasons for your answer.

Ans. No, dismissal of a suit in default is not considered a decree under the Civil Procedure Code, 1908.

According to Section 2(2) of the Civil Procedure Code, 1908, a decree is defined as the formal expression of an 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.

Dismissal of a suit in default means that the plaintiff did not appear in court to prosecute the case, and as a result, the court dismissed the suit. This dismissal does not conclusively determine the rights of the parties with regard to the matters in controversy in the suit. Therefore, it does not fall under the definition of a decree under the Civil Procedure Code.

6. Is the determination of a question under Section 144 (Application for Restitution) a decree? Give reasons in support of your answer.

Ans. No, the determination of a question under Section 144 of the Civil Procedure Code (CPC), which deals with applications for restitution, is not a decree.

Section 144 of the CPC provides for the restitution of property or rights that have been lost by a party as a result of the execution of a decree that is subsequently set aside or modified. An application for restitution is made to the court that passed the original decree, and the court may determine any question arising in relation to the restitution of the property or rights.

However, the determination of a question under Section 144 of the CPC is not a decree because it does not finally determine the rights of the parties with respect to the suit. The determination of a question under Section 144 is limited to the issue of restitution and does not address the underlying merits of the case.

The Supreme Court of India in the case of Anvar v. PK Basheer (2014) held that an order passed under Section 144 of the CPC is not a decree. The court observed that an order of restitution is essentially an execution proceeding and does not finally determine the rights of the parties. The court further stated that the determination of a question under Section 144 is an ancillary or subsidiary proceeding that arises after the final adjudication of the suit.

In conclusion, the determination of a question under Section 144 of the CPC is not a decree as it does not finally determine the rights of the parties with respect to the suit but is an ancillary or subsidiary proceeding that arises after the final adjudication of the suit.

7. Is an order rejecting a memorandum of appeal as barred by limitation, a decree?

Ans. No, an order rejecting a memorandum of appeal as barred by limitation is not a decree.

A memorandum of appeal is a document filed by an appellant challenging the decision of a lower court or tribunal. The appeal must be filed within a specified time limit, failing which it may be rejected as barred by limitation. If an appeal is rejected as barred by limitation, it means that the appellant has failed to file the appeal within the prescribed time limit.

However, the rejection of an appeal as barred by limitation is not a decree because it does not finally determine the rights of the parties to the appeal. It merely indicates that the appellant has failed to comply with the procedural requirement of filing the appeal within the specified time limit. The order rejecting the memorandum of appeal does not decide the substantive issues in the appeal and does not determine the rights of the parties in relation to the subject matter of the appeal.

The Supreme Court of India in the case of Hukumdev Narain Yadav v. Lalit Narain Mishra (AIR 1974 SC 819) held that an order rejecting a memorandum of appeal as barred by limitation is not a decree. The court observed that the order rejecting the memorandum of appeal does not decide the merits of the case and does not finally determine the rights of the parties with respect to the appeal.

In conclusion, an order rejecting a memorandum of appeal as barred by limitation is not a decree because it does not finally determine the rights of the parties with respect to the appeal, but merely indicates that the appellant has failed to comply with the procedural requirement of filing the appeal within the specified time limit.

8. Is the following order a decree? Give reasons: “An order imposing cost”.

Ans. No, an order imposing costs is not a decree.

In civil litigation, costs are awarded to the successful party as a form of compensation for the expenses incurred in the litigation. An order imposing costs is made by the court to require one party to pay the costs incurred by the other party in the litigation.

However, an order imposing costs does not finally determine the rights of the parties with respect to the subject matter of the litigation. It is a procedural order that is incidental to the litigation and does not address the substantive issues involved in the case.

The Supreme Court of India in the case of Usha Balasaheb Swami v. Kiran Appaso Swami (2018) held that an order imposing costs is not a decree. The court observed that the order imposing costs does not determine the rights of the parties with respect to the subject matter of the litigation but only regulates the procedure of the litigation.

In conclusion, an order imposing costs is not a decree as it does not finally determine the rights of the parties with respect to the subject matter of the litigation, but only regulates the procedure of the litigation.

9. Examine whether the decree is preliminary or final in the following case: – A sues B for recovery of possession of certain land and for mesne profits and a decree is passed in A’s favour.

Ans. In the given case, a decree is passed in A's favour for the recovery of possession of certain land and for mesne profits. The decree passed in this case is a final decree.

A final decree is one that finally determines the rights of the parties with respect to the subject matter of the litigation. In the present case, the decree passed in A's favour finally determines the rights of the parties with respect to the land in question and the amount of mesne profits owed to A.

The fact that the decree is passed for both the recovery of possession of certain land and for mesne profits is not relevant to the question of whether the decree is preliminary or final. As long as the decree finally determines the rights of the parties with respect to the subject matter of the litigation, it is considered a final decree.

It is also important to note that a preliminary decree is one that declares the rights of the parties but leaves the actual determination of the suit to be decided in further proceedings. In the given case, since the decree passed in A's favour finally determines the rights of the parties with respect to the subject matter of the litigation, it cannot be considered a preliminary decree.

Therefore, in the given case, the decree passed in A's favour for the recovery of possession of certain land and for mesne profits is a final decree.

10. What sort of a preliminary or final decree is passed in a suit for redemption of a mortgage?

Ans. In a suit for redemption of a mortgage, a preliminary decree is usually passed first, followed by a final decree.

The preliminary decree in a suit for redemption of a mortgage declares the amount due to the mortgagee and directs the mortgagor to pay that amount within a specified time period. The preliminary decree also provides for the consequences of the mortgagor's failure to pay the amount due within the specified time period, which may include a direction for the mortgaged property to be sold to satisfy the debt.

Once the mortgagor has paid the amount due as per the preliminary decree, a final decree is passed. The final decree declares that the mortgage is redeemed and directs the mortgagee to deliver possession of the mortgaged property to the mortgagor.

In some cases, if the mortgagee fails to deliver possession of the mortgaged property as per the final decree, a separate suit for possession can be filed by the mortgagor.

It is important to note that the specific terms and conditions of the preliminary and final decree in a suit for redemption of a mortgage may vary depending on the facts and circumstances of each case, as well as the governing laws and regulations.

11. What is the distinction between an illegal decree and a void decree? Can a void decree be challenged in collateral proceedings?

Ans. The distinction between an illegal decree and a void decree is that an illegal decree is one that is passed without jurisdiction, whereas a void decree is one that is passed in contravention of a statutory provision or a fundamental principle of law.

An illegal decree is one that is passed by a court that lacks the jurisdiction to decide the matter. For example, if a family court passes a decree in a criminal case, it would be considered an illegal decree as the family court does not have the jurisdiction to decide criminal matters.

On the other hand, a void decree is one that is passed in violation of a statutory provision or a fundamental principle of law. For example, if a court passes a decree against a party without giving them an opportunity to be heard, it would be considered a void decree as it goes against the principle of natural justice.

To further illustrate this point, we can refer to the case of Shambhu Nath Mehra v. Khem Chand and Others (1966). In this case, the plaintiff filed a suit for specific performance of a contract, but the suit was dismissed on the ground that the contract was not enforceable under the Transfer of Property Act. The plaintiff then filed a second suit for damages, which was also dismissed as it was barred by the principle of res judicata.

The plaintiff then filed a third suit for specific performance, which was allowed by the court. The defendant filed an appeal against the decree passed in the third suit, arguing that it was barred by the principle of res judicata as the issue had already been decided in the first suit.

The court held that the decree passed in the first suit was an illegal decree as the court had no jurisdiction to decide the matter. However, the decree passed in the third suit was not barred by the principle of res judicata as the decree in the first suit was illegal and void ab initio.

This case highlights the distinction between an illegal decree and a void decree. The decree passed in the first suit was illegal as it was passed without jurisdiction, while the decree passed in the third suit was not barred by the principle of res judicata as the decree in the first suit was void ab initio.

Furthermore, this case also demonstrates that a void decree can be challenged in a collateral proceeding. The decree in the first suit was challenged in the third suit, which was a separate proceeding from the first suit. This shows that a party can challenge a void decree in a collateral proceeding, provided that they have valid grounds for doing so.

Both illegal and void decrees can be challenged in a court of law. However, there is a difference in the manner in which they can be challenged. An illegal decree can be challenged in any court, whereas a void decree can only be challenged in a direct proceeding before the court that passed the decree or in an appeal against that decree.

A void decree can also be challenged in collateral proceedings. A collateral proceeding is a legal proceeding that is separate from the original proceeding in which the decree was passed. For example, if a party who was not given notice of a suit becomes aware of a decree passed against them, they can file a separate suit to challenge the decree on the grounds of being void.

In conclusion, while both illegal and void decrees are defective, the difference lies in the reason for the defect. An illegal decree is passed without jurisdiction, while a void decree is passed in violation of a statutory provision or a fundamental principle of law. A void decree can be challenged in a direct proceeding or a collateral proceeding, whereas an illegal decree can only be challenged in a direct proceeding.

12. State power of Court to extend time for payment in a suit for redemption?

Ans. In a suit for redemption, the court has the power to extend the time for payment of the mortgage money by the mortgagor, even if the time for payment has expired. This power is provided for under Section 60 of the Transfer of Property Act, 1882.

Section 60 states that "At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee to deliver the mortgage-deed and to re-transfer the mortgaged property to him."

Furthermore, Section 61 of the Act provides that "If the mortgagee instead of re-transferring the property, as provided in Section 60, proceeds to bring a suit for foreclosure or sale, the mortgagor has a right to apply to the court to have the mortgage-deed delivered up to him and to have the property, if sold, conveyed to the purchaser, and the proceeds of the sale, if any, paid to him, after deducting the mortgage-money, the expenses of the suit and the costs allowed to the mortgagee."

In exercising its power to extend the time for payment, the court must take into consideration various factors, such as the conduct of the parties, the equities of the case, and the possibility of the mortgagee suffering any loss as a result of the extension. The court may also impose certain conditions, such as payment of interest or additional security for the mortgagee.

It is important to note that the power to extend the time for payment is discretionary, and the court may refuse to exercise this power if it deems it appropriate in the circumstances of the case.

In conclusion, the court has the power to extend the time for payment in a suit for redemption under Section 60 of the Transfer of Property Act, 1882. The court must exercise this power judiciously, taking into consideration the relevant factors and imposing appropriate conditions if necessary.

13. What kind of preliminary and final decree is passed in foreclosure suit?

Ans. In a foreclosure suit, a preliminary decree and a final decree are passed.

The preliminary decree determines the amount due to the mortgagee and fixes a date for payment by the mortgagor. The date fixed for payment should be not less than six months from the date of the preliminary decree, unless the court in its discretion, for reasons to be recorded, fixes a shorter period. The preliminary decree also directs that in default of payment by the mortgagor, the mortgaged property shall be sold.

The final decree is passed after the expiration of the time fixed for payment in the preliminary decree, and it orders that the mortgaged property be sold and the proceeds of the sale be applied in payment of the mortgage money and other costs.

It is important to note that in a foreclosure suit, the preliminary decree is a conditional decree, and the mortgagor has the right to redeem the property at any time before the sale of the mortgaged property takes place. If the mortgagor fails to pay the amount due within the time fixed in the preliminary decree, then the final decree for sale of the mortgaged property can be passed.

In conclusion, in a foreclosure suit, a preliminary decree is passed, which determines the amount due to the mortgagee and fixes a date for payment by the mortgagor, and a final decree is passed after the expiration of the time fixed for payment in the preliminary decree, which orders that the mortgaged property be sold and the proceeds of the sale be applied in payment of the mortgage money and other costs.

14. Examine whether the decree is preliminary or final in the following case— ‘X’ the mortgagee of house brings a suit against ‘Y, the mortgagor, for foreclosure of the mortgage and the decree is passed in favour of ‘X’.

Ans. In the given case, where 'X', the mortgagee of a house, brings a suit against 'Y', the mortgagor, for foreclosure of the mortgage and the decree is passed in favour of 'X', there will be a preliminary decree and a final decree.

The preliminary decree determines the amount due to the mortgagee 'X' and fixes a date for payment by the mortgagor 'Y'. The preliminary decree also directs that in default of payment by the mortgagor, the mortgaged property shall be sold. In this case, the preliminary decree will fix a date for payment of the mortgage money by 'Y' to 'X'.

The final decree will be passed after the expiration of the time fixed for payment in the preliminary decree. If 'Y' fails to pay the mortgage money within the time fixed in the preliminary decree, then the final decree for sale of the mortgaged property can be passed. The final decree will order the sale of the mortgaged property and the proceeds of the sale will be applied in payment of the mortgage money and other costs.

Therefore, in the given case, there will be a preliminary decree which determines the amount due to the mortgagee 'X' and fixes a date for payment by the mortgagor 'Y', and a final decree which orders the sale of the mortgaged property and the application of the sale proceeds towards payment of the mortgage money and other costs.

15. What is an order? What are the differences and similarities between an order and a decree?

Ans. An order is a decision made by a court that deals with a specific aspect of a case, such as the admission of evidence, the appointment of a receiver, or the grant of an injunction. An order is generally made during the pendency of a case and is not a final determination of the case itself.

On the other hand, a decree is a final determination of the rights of the parties in a case. It is a judgment that conclusively determines the issues in the case and puts an end to the litigation. A decree can be either preliminary or final.

The main differences between an order and a decree are:

1. Finality: An order is not a final determination of the case, while a decree is a final determination of the case.
2. Appellability: An order may or may not be appealable, while a decree is always appealable.
3. Execution: An order is generally not executable, while a decree is executable.
4. Conclusiveness: An order does not conclusively determine the rights of the parties, while a decree conclusively determines the rights of the parties.

However, there are also some similarities between an order and a decree.

1. Both are decisions made by a court.
2. Both are made in response to an application or petition filed by one of the parties to a case.
3. Both are recorded in writing and signed by the judge. 
4. Both have legal consequences and can affect the outcome of a case.

In summary, while an order is a decision made by a court that deals with a specific aspect of a case during the pendency of the case, a decree is a final determination of the rights of the parties in a case.

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