The Code of Civil Procedure is essentially and exclusively a Code relating to the procedure of the Courts of the Civil judicature. It is entitled as “An Act to consolidate and amend the laws relating to the Procedure of the Courts of Civil Judicature”.
The preamble to the Act says: “Whereas it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; It is hereby enacted as follows.”
B. Short title, commencement and extent of the Code [Section 1]
Section 1(1) of the CPC which deals with Short title, commencement and extent of the Code cited this Act as the Code of Civil Procedure, 1908. It comes into force on the first day of January, 1909 [S.1(2)].
It extends to the whole of India except-
(a) the State of Jammu and Kashmir;
(b) the State of Nagaland and the tribal areas. [S.3]
Section 1(3) CPC provides that the State Government concerned may, by notification in the Official Gazette, extend the provisions of this Code or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications as may be specified in the notification.
Explanation to Section 1(3) of the CPC states that in this clause, “tribal areas” means the territories which, immediately before the 21st day of January, 1972, were included in the tribal areas of Assam as referred to in paragraph 20 of the Sixth Schedule to the Constitution.
Section 1 (4) of the CPC states that in relation to the Amindivi Islands, and the East Godavari, West Godavari and Visakhapatnam Agencies in the State of Andhra Pradesh and the Union territory of Lakshadweep, the application of this Code shall be without prejudice to the application of any rule or regulation for the time being in force in such Islands, Agencies or such Union territory, as the case may be, relating to the application of this Code.
C. Definitions [Section 2]
The Code of Civil Procedure, 1908 (Code) was enacted to consolidate and amend the laws relating to the procedure of the Courts of Civil Jurisdiction.
According to definition clause in this Act, unless there is anything repugnant in the subject or context Section 2 (1) of the CPC defines “Code” includes rules contained in the Schedule appended thereto.
“Decree” means 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 and may be either preliminary or final. [S. 2 (2)]
It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include –
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation to Section 2 (2) states that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.
“Decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made.
“District” means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a “District Court”), and includes the local limits of the ordinary original civil jurisdiction of a High Court;
5. Foreign Court
“Foreign Court” means a Court situate outside India and not established or continued by the authority of the Central Government.
6. Foreign Judgment
“Foreign Judgment” means the judgment of a foreign Court.
7. Government Pleader
“Government Pleader” includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader.
7A. High Court
“High Court” in relation to the Andaman and Nicobar Islands, means the High Court in Calcutta.
“India”, except in sections 1, 29, 43, 44, 44A, 78, 79, 82, 83 and 87A, means the territory of India excluding the State of Jammu and Kashmir.
“Judge” means the presiding officer of a Civil Court.
“Judgment” means the statement given by the Judge of the grounds of a decree or order.
“Judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made.
11. Legal Representatives
“Legal Representatives” means a person who in law represents the estate of a deceased person, and includes any person who inter-meddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
12. Mesne Profits
“Mesne Profits” of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.
13. Movable Property
“Movable property” includes growing crops.
“Order” means the formal expression of any decision of a Civil Court which is not a decree.
“Pleader” means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court.
“Prescribed” means prescribed by rules :
17. Public Officer
“Public Officer” means a person failing under any of the following descriptions, namely :-
(a) every Judge;
(b) every member of an All-India Service;
(c) every commissioned or gazetted officer in the military 8[naval or air] forces of the Union while serving under the Government;
(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the Court, and every person especially authorised by a Court of Justice to perform any of such duties;
(e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
(f) every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;
(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report on, any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; and
(h) every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty;
“Rules” means rules and forms contained in the First Schedule or made under section 122 or section 125;
19. Share in a Corporation
“Share in a corporation” shall be deemed to include stock, debenture stock, debentures or bonds and (20) “signed”, save in the case of a judgment or decree, includes stamped.
D. Subordination of Courts [Section 3]
For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court.
E. Subordination of Courts [Section 4]
Section 4 (1) states that in the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.
Section 4 (2) states that in particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.
F. Application of the Code to Revenue Courts [Section 5]
Section 5 (1) states that where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the State Government may, by notification in the Official Gazette, declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the State Government may prescribe.
“Revenue Court” in sub-section (1) means a Court having jurisdiction under any local law to entertain suits or otter proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature. [Section 5 (2)]
G. Pecuniary Jurisdiction [Section 6]
Section 6 states that save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.
H. Provincial Small Cause Courts [Section 7]
Section 7 states that the following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887) or under the Berar Small Cause Courts Law, 1905, or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act or Law, or to Courts in any part of India to which the said Act does not extend exercising a corresponding jurisdiction that is to in say,-
(a) so much of the body of the Code as relates to-
(i) suits excepted from the cognizance of a Court of Small Causes;
(ii) the execution of decrees in such suits;
(iii) the execution of decrees against immovable property; and
(b) the following sections, that is to say,- section 9, sections 91 and 92, sections 94 and 95 so far as they authorize or relate to-
(i) orders for the attachment of immovable property;
(iii) the appointment of a receiver of immovable property, or
(iv) the interlocutory orders referred to in clause (e) of section 94], and sections 96 to 112 and 115.
I. Presidency Small Cause Courts [Section 8]
Section 8 states that save as provided in sections 24, 38 to 41, 75, clauses (a), (b) and (c), 76, 19[77, 157 and 158], and by the Presidency Small Cause Courts Act, 1882, (15 of 1882) the provisions in the body of this Code shall not extend to any suit or proceeding in any Courts of Small Causes established in the towns of Calcutta, Madras and Bombay :
(1) the High Courts of Judicature at Fort William, Madras and Bombay, as the case may be, may from time to time, by notification in the Official Gazette, direct 21 that any such provisions not inconsistent with the express provisions of the Presidency Small Cause Courts Act, 1882, (15 of 1882) and with such modifications and adaptations as may be specified in the notification, shall extend to suits or proceedings or any class of suits or proceedings in such Court;
(2) all rules heretofore made by any of the said High Courts under section 9 of the Presidency Small Cause Courts Act, 1882 (15 of 1882) shall he deemed to have been validly made.
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