Important definitions under CPC

By | June 21, 2018
Important definitions under CPC

Section 2 of Civil Procedure Code provides definitions relating to the civil law. This article describes some of the important definitions described in CPC.

Introduction

The Civil procedure code was passed in the year 1908. The Law relating to the practices and procedures to be followed in the Civil Courts is regulated by the Code of Civil Procedure, 1908. The word Code means ‘a systematic collection of statutes, body of laws so arranged as to avoid inconsistency and overlapping.’

The main object of Civil Procedure Code is to consolidate and amend the laws relating to the procedure and practices followed in the Civil Courts in India. As such, it was enshrined in the preamble of the code that it was enacted to consolidate and amend the laws relating to the procedure to be followed in the civil courts having civil jurisdiction in India.

Section 2 of Civil Procedure Code provides definitions relating to the civil law. This article describes some of the important definitions described in the Code.

Important Definitions under CPC

1. Decree

Section 2(2) of the Code defines Decree as –

‘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. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-

  1. any adjudication from which an appeal lies as an appeal from an order, or
  2. Any order of dismissal for default.

Explanation

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.

General Explanation of Decree

In simple words, decree is the speaking part of the judgment. Generally, Judgment consists of Decree, orders etc which are basically adjudicatory in nature.

Decree is of two types: Preliminary and Final. Courts have the power to grant both Preliminary as well as Final decree, depending upon the stage of the adjudication. Preliminary decrees are granted when there is a scope for further investigation on that point but it is also important to decide the issue at hand. On the other hand as the name suggests, final decrees are the conclusive part of the adjudication. Both Preliminary and final decree can be appealed before higher courts.

Essentials of a decree

  1. There must be formal expression of an adjudication;
  2. The adjudication must have been given in a suit before the court;
  3. The adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit;
  4. Such adjudication must be conclusive.

2. Decree Holder

Section 2 (3) of the code defines Decree Holder as follows:

‘Decree Holder’, means any person in whose favor a decree has been passed or an order capable of execution has been made.

General Explanation of Decree holder

From the definition, it is clearly observed that a decree-holder need not be the plaintiff. A person who is not a party to the suit but an order capable of execution has been passed in his favour is also a decree-holder. Thus where a decree for specific performance is passed such a decree is capable of execution by the plaintiff as well as the defendant and therefore either of them can be decree-holder.

Satyawati v. Rajinder Singh and Anr. [(2013) 9 SCC 491]

A three-Judge Bench of the Supreme Court of India has observed that Decree Holders must enjoy the fruits of the decree obtained by them in an expeditious manner.

3. Judge

Section 2 (8) of the Code defines Judge as follows:

‘Judge’ means the presiding officer of a Civil Court.

General Explanation of Judge

According to the definition, it has defined the meaning of judge but it has not defined the term ‘court’, court means an assembly or judges or other persons acting as a tribunal in civil and criminal cases. It is a place where justice is judicially administered. When a statute provides that a particular matter will be determined by a court the presiding officer over the said court will be deemed to exercise jurisdiction as a court and not as a personal designate.

4. Judgment

Section 2 (9) of the Code defines the term Judgment as follows:

‘Judgment’ means the statement given by the Judge on the ground of a decree or order.

General Explanation of Judgment

A Judgment is a statement of the Judge based on the grounds of decree or order. An analysis of the whole grounds of the decree, when turned in a statement by a judge, is termed as Judgment. A judgment provides some rights and liabilities to the petitioner and the defendant. Every Judgment other than the court of small causes should contain the following:

  • A concise statement of the case.
  • The points for determination.
  • The decision thereon.
  • The reason for such decision.

5. Judgment Debtor

Section 2 (10) of the Code defines the term Judgment Debtor as follows:

‘Judgment Debtor’ means any person against whom a decree has been passed or an order capable of execution has been made.

General Explanation of Judgment Debtor

A party against which an unsatisfied court decision is awarded; a person who is obligated to satisfy the court decision. The term judgment debtor describes a party against which a court has made a monetary award. If a court renders a judgment involving money damages, the losing party must satisfy the amount of the award, which is called the Judgment debt. The losing party is called the Judgment Debtor. In other words, the losing defendant in a lawsuit who owes the amount of the judgment to the winning party is Judgment Debtor.

6. Order

Section 2 (14) of the Code defines the term Order as follows:

‘Order’ means the formal expression of any decision of a Civil Court which is not a decree.

General Explanation of Order

The adjudication of a court which is not a decree is an order. As a general rule, an order of the court of law is founded on objective considerations and as such the judicial order must contain a discussion of the question at issue and the reason which prevailed with the court which led to the passing of the order. An order should be a formal expression of any decision. The decision should be pronounced by the civil court. An order generally originated from any suit, it generally arises from a proceeding commenced on an application. An order may or may not finally determine the rights of the parties. An order is passed from a single suit.

Orders are of two kinds, appealable orders and non-appealable orders.

7. Foreign Court

Section 2 (5) of the code which is substituted by Act 2 of 1951 defines the term Foreign Court as follows:

‘Foreign Court’ means a Court situated outside India and not established or continued by the authority of the Central Government.

General Explanation of Foreign Court

The court which is not regulated by the Indian Government and Indian government or court does not exercise its jurisdiction over there are Foreign Courts.

Lalji Raja vs. Firm Hansraj Nathuram [AIR 1971 SC 974 (976)]

The Bankura Court cannot be considered as a ‘foreign court’ within the meaning of that expression in the Code.

Essentials of a Foreign Court

  • It must be situated outside India.
  • It must not have been established or continued by the Central Government.

Thus courts in England, Scotland, Burma, Pakistan and those of the Privy Council are foreign courts.

8. Foreign Judgment

Section 2 (6) of the Code defines the term Foreign Judgment as follows:

‘Foreign Judgment’ means the judgment of a foreign Court.

General Explanation of Foreign Judgment

When a suit is filed in a foreign court and if the foreign court has jurisdiction to trial the suit, in that case the judgment rendered by foreign court is termed as Foreign Judgment. The judgment by a foreign court is binding on the parties. They cannot deny it.

9. Legal Representative

Section 2 (11) of the Code defines the term Legal Representative as follows:

‘Legal Representative’ means a person who in law represents the estate of a deceased person, and includes any person who intermeddles 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.

General Explanation of Legal Representative

When a person against whom a legal proceeding is going on dies in the middle of the proceeding. In that case, his legal representative represent him in the court but only to that extent for which he is accountable or that portion of the property which has come in his hand.

United India Insurance Co Ltd vs. Shyam Rao Metre and others [M.A.C.M.A. No. 2420 of 2012]

As the definition under section 2(11) of the code reads, it is nowhere described that a legal representative can only be that person who is dependent on the deceased. Any person related to the deceased can be a legal representative.

10. Mesne Profits

Section 2 (12) of the Code defines the term mesne profits as follows:

‘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.

General Explanation of Mesne Profits

The term ‘mesne profits’ relates to the damages or compensation recoverable from a person who has been in wrongful possession of a property owned by someone else. The mesne profits are nothing but a compensation that a person in unlawful possession of others property has to pay for such possession to the owner of the property.

According to the definition, mesne profit is the profit which the person who is in wrongful possession of a property has earned from that property.

Phiraya Lal alias Piara lal vs. Jia Rani [AIR 1973 DEL 186]

The Hon’ble Delhi high court while defining the term mesne profits observed that, “when damages are claimed in respect of wrongful possession of immovable property on the basis of the loss caused by the wrongful possession of the trespasser to the person entitled to the possession of immovable property; these damages are called as mesne profits”

11. Public Officer

Section 2 (17) of the Code define the term Public Officer as follows:

‘Public Officer’ means a person falling under any of the following descriptions, namely:-

  1. Every judge;
  2. Every member of an All India Services;
  3. Every commissioned or gazette officer in the military, naval or air forces of the Union while serving under the Government;
  4. 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 authorized by a Court of Justice to perform any of such duties;
  5. Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
  6. 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;
  7. 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
  8. Every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty.

Here I conclude this article by defining some of the important definitions mentioned under the Code of Civil Procedure. CPC defines a number of legal terms related to the civil matters. The Civil Procedure Code regulates every action in civil courts and the parties before it till the execution of the decree and order.

The Aim of the Procedural law is to implement the principal of Substantive Law. This Code ensures fair justice by enforcing the rights and liabilities.

Anusha Vijayvargiya
New Law College, BVDU, Pune

References

  • Bare Act- Code Of Civil Procedure- 1908
  • The Code OF Civil Procedure- D.N. Mathur – Third Edition 2015

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