The Code of Civil Procedure, 1908 1

The Code of Civil

Procedure 1908
(Study Material)

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 The Code of Civil Procedure, 1908 2

CODE OF CIVIL PROCEDURE, 1908

(Section 2 to 11)

DEFINITIONS
Decree [Section 2(2)]
Section 2(2) of the Code defines decree'. It means the formal expression of
adjudication which, so for 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 either be preliminary or final.
Essentials of Decree: In order that the decision of a court may be decree, the
following elements must be present:
• There must be 'adjudication'
• Such adjudication must be done in a suit
• Rights of parties in controversy
• Conclusive determination
• Formal expression

1. There must be 'adjudication': For a decision of a court to be a decree, there

must be an adjudication, i.e., a judicial determination of the matter in dispute.
Thus, a decision on the matter of administrative nature or order dismissing a suit
for default of appearance of parties cannot be termed as decree as it does not
judicially deal with matter in dispute. Supreme Court in Deep Chand v. Land
Acquisition Officer, AIR 1994 SC 1901 held that a decision on a matter of
administrative nature is not a decree.

2. Such adjudication must be done in a suit: It is necessary for the decree that
adjudication must be in a 'suit'. The expression suit is not defined in the Code.
In Hansraj Gupta v. Official Liquidator of Dehradun-Mussoorie Electric
Tramway Co. Ltd., (1933) the court defined "suit' as a civil proceeding
instituted by presentation of a plaint. Thus, rejection of an application for leave
to sue in forma pauperis is not decree as there is a no plaint till application is
granted. However, under certain enactments provisions have been made to treat
application as decree. In such circumstances, since there is a specific provision
in this regard, adjudication made on an application will also be considered as
'decree'. They are also called statutory suits. For example, proceedings under
Indian Succession Act, Hindu Marriage Act, Guardians and Wards Act, etc.

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 The Code of Civil Procedure, 1908 3

3. Rights of parties in controversy: The adjudication must determine the rights

of the parties in controversy with regard to all or any of the matters in
controversy in a suit. The word 'rights means substantive rights of the parties
and not merely procedural rights. Thus, rights relating to status, limitation,
jurisdiction, frame of suit, accounts, etc. are 'rights of parties' under Section 2
(2) of the Code. The team 'parties' means parties to the suit, i.e., plaintiff and the
defendant. Thus, an order on the application by a third party who is a stranger to
the suit is not a decree. Therefore, an order dismissing an appeal for default,
dismissing a suit when summons not served, dismissal of application for non-
prosecution etc. are not decrees because they do not determine the rights of the
parties in controversy.

Matters in Controversy; It means the subject matter of the suit with reference to
which some relief is sought. It would include any question relating to the
character and status of a party suing and to other preliminary matters which
necessitate adjudication before a suit is inquired into.

4. Conclusive determination: Such determination must be of conclusive

nature, i.e., final as regard the court which passes it. Thus, an interlocutory
order which does not decide the rights of the parties finally is not a decree. The
crucial point which requires to be decided in such a case is whether the decision
is final and conclusive in essence and substance.

5. Formal expression: There must be formal expression of such adjudication.

All the requirements of form must be complied with as given in the manner
provided under Rule 6, 6A and 7 of Order 20 of C.P.C. The decree follows the
judgment and must be drawn up separately.
In Shiv Shakti Coop. Housing Society v. Swaraj Developers, (2003) Supreme
Court held that the courts should take into consideration pleadings of the parties
and the proceedings leading up to the passing of the decree.

Deemed Decree
The term 'deemed' is generally used to create a statutory fiction for the purpose
of extending the meaning which it does not expressly cover. Supreme Court in
State of Maharashtra v. Lalji Rishi, (2000) observed that whenever the
legislature uses the word 'deemed' it implies that the legislature conferred a
particular status on a particular person or thing.
Under the Code, the definition of 'decree' under Section 2(2) provides that
following orders of the court shall be deemed to be decree.
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 The Code of Civil Procedure, 1908 4

Deemed Decree includes

• Rejection of plaint under Order 7 Rule 11
• Determination of questions under Section 144 (Restitution)

What are not decrees: Section 2(2) further clarifies that following orders are
not decrees within the meaning of "decree' under Section 2(2):
(a) An order of dismissal or default.
(b) An adjudication from which an appeal lies as an appeal from order which is
specified under Section 104 and Order 43 Rule 1 of the Code.

Classes of Degree
The Code recognizes following classes of decrees under Section 2(2)-
• Preliminary decree
• Final decree
• Partly preliminary and partly final decree

Preliminary decree
Explanation to Section 2(2) of the Code provides that where adjudication
decides the rights of the parties with regard to all or any of the matters in
controversy in the suit but it does not completely dispose of the suit, it is a
preliminary decree. A preliminary decree is passed in those cases in which the
court has first to adjudicate upon the rights of the parties and has then to stay its
hands for the time being until it is in a position to pass a final decree in the suit.
In Paras Nath Rai v. State of Bihar, (2012) 12 SC 642 Supreme Court held that
a preliminary decree is only a state of working out the rights of the parties
which are to be finally adjudicated by a final decree and till them, the suit
continues.
Supreme Court in Shankar v. Chandrakant, (1995) 3 SCC 413 held that
preliminary decree is one which declares the rights and liabilities of parties
leaving the actual result to be worked out in further proceedings. For example in
case of partition, the first step is to determine the shares of coparceners and it
amounts to preliminary decree. The suit is not completely disposed of and the
court will proceed further to determine division of the property and its
distribution as per metes and bounds.

Supreme Court in N.M. Verappa v. Canara Bank, AIR 1998 SC 1101

observed that the above list is not exhaustive. It means the court may pass a
preliminary decree in cases not expressly provided under the Code

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 The Code of Civil Procedure, 1908 5

Number of preliminary decrees in a suit: There is a conflict of opinion as to

whether there can be more than one preliminary decree in the same suit.

In Bharat Inder v. Yakub Hasan, (1913) the High Courts have taken the view
that there can only be one preliminary decree in a suit while other High Courts
in Kasi v. R. Chettiar, (1947) have held that there can be more than one
preliminary decree.

As regards partition suits, the debate is concluded by pronouncement of the

Supreme Court in Phoolchand v. Gopal Lal, (1967) wherein it had been held
that there is nothing in the Code which prohibits passing of more than one
preliminary decree, if circumstances justify the same.

Appeal from preliminary decree: An appeal against a preliminary decree can

be preferred under Section 96 of the Code. However, Section 97 provides that if
such appeal is not made, the person shall be excluded from disputing its
correctness in any appeal preferred against final decree. In Sital Prasad Saxena
v. Kishori Lal, (1967) held that the object of Section 97 is to prevent the
preliminary questions being asked at the later stage when the suit has been
completely decided. Final decree is dependent on preliminary decree. So if in
appeal against the preliminary decree, the preliminary decree is set aside, the
final decree falls.

Final Decree
A final decree, as per Explanation to Section 2(2), is the decree which
completely disposes of the suit and finally settles all questions in controversy
between parties. It can become final in following ways:
1. Where decree completely disposes of the suit.
2. Where within prescribed period, no appeal is filed against the decree.
The term 'final decree' used in this section is in the first sense i.e. completely
disposes of the suit and settles all questions in controversy. There is nothing left
to be decided. In Shankar v. Chandrakant, (1995) Supreme Court held that it
is a settled law that more than one final decree can be passed. For example, a
decree passed for a sum representing past and future mesne profit at a particular
rate without further inquiry is final decree.

More than one final decree: Generally, there is only one final decree in a suit.
However, if two or more causes of action are joined then there can be more than

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 The Code of Civil Procedure, 1908 6

one final decree. Supreme Court has clarified in Shankar v. Chandrakant,

(1995) that there can be more than one final decree.

Partly preliminary and partly final

Such kinds of decrees are passed in certain cases for example suit for possession
and mesne profits. In such cases the court directs the possession of land and
orders enquiry into the profits. The first part of the decree is final whereas the
second part is preliminary. Since the decree is one it is partly preliminary and
partly final.

Difference between preliminary and final decree

Supreme Court in Renu Devi v. Mahendra Singh, (2003) observed that a
preliminary decree is one which declares the rights and liabilities of the parties
leaving the actual result to be worked out in further proceedings. As a result of
further enquiry pursuant to preliminary decree the rights of the parties are
finally decided and the decree passed is called final decree.

Preliminary Decree Final decree

1. A preliminary decree does not 1. Final decree disposes of the suit and
completely dispose of the suit. nothing is left to be decided thereafter.

2. It is not dependent on final decree. 2. It is dependent on preliminary

decree. If preliminary decree is set
aside the final decree cannot survive.

Foreign Court & Foreign Judgment [Sections 2(5) & 2(6)]

Section 2(5) of the Code defines 'Foreign Court'. It means a court situated
outside India and not established or continued by the authority of the Central
Government.
Section 2(6) of the Code defines "Foreign Judgment". It means the judgment of
the foreign court.
The crucial date for determination whether a judgment is a foreign judgment or
not is the date of the judgment and not the date when it is sought to be enforced
or executed.

Legal Representatives [Section 2 (11)]

Section 2 (11) of Code of Civil Procedure defines legal representative to mean a
person:

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 The Code of Civil Procedure, 1908 7

(a) who in law represents the estate of the deceased person

(b) Any person who intermeddles with the estate of the deceased, and
(c) Where a party sues or is sued in a representative character, the person
on whom the estate devolves on the death of the person so suing or sued.

The examples of legal representatives are executors, administrators,

reversioners, Hindu coparceners, residuary legatees, etc. But a trespasser is not
a legal representative as he does not intermeddle with the intention of
representing the estate of the deceased. Similarly, a succeeding trustee, official
assignee or receiver is not a legal representative. Such legal representatives can
be made a party to the suit on the death of either plaintiff of defendant.
Furthermore, where the judgment debtor dies before decree is satisfied, the
holder of decree may apply to the court passing the decree to execute the same
against legal representative of the deceased to the extent of his share in the
property of the deceased.

Judgment [Section 2(9)]

Section 2(9) of the Code defines 'judgment'. According to it judgment means a
statement given by the judge on the grounds of decree or order. In other words,
judgment contains the set of reasoning, application of law to the facts and the
determination of such rights. It must reflect the applicability of judicial mind.
Order 20 Rule 1 lays down that the court after the case has been heard shall
pronounce the judgment. The court may pronounce the judgment at once or may
fix a future date for pronouncing a judgment. Ordinarily, if a future date is fixed
for pronouncing judgment, it shall not be more than thirty days from the date on
which the hearing was concluded. Rule 4 further provides that judgment of
Small Causes Court shall contain points of determination and the decision and
judgment of courts other than Small Causes Court shall contain the following:
• Concise statement of the case
• Points for determination
• Decision and reasons for such decision

Supreme Court in Balraj Taneja v. Sunil Madan, (1999) observed that the
process of reasoning by which the court came to the conclusion of the case
should be clearly reflected in a judgment.

Judgment and decree A comparison: Judgment contemplates a stage prior to

the passing of decree. After the pronouncement of judgment, the decree shall

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 The Code of Civil Procedure, 1908 8

follow. This position of law is clearly reflected in Order 20 Rule 6 and 6A and
7. Rule 6 provides that the decree shall agree with the judgment. It clearly
shows that judgment comes first in point of time. Further, Rule 6A and 7
provides that decree shall be drawn up within fifteen days from the date on
which the judgment is pronounced and the decree shall bear the date of the
judgment respectively. These provisions clearly show that the decree follow the
judgment and not vice versa. Judgment reflects the justification of the court in
passing the decree in question. Decree, on the other hand is the crystallization of
rights in the controversy between the parties as declared by the court on the
basis of judgment.

Mesne Profits [Section 2 (12)]

Section 2 (12) of Code of Civil Procedure defines Mesne Profit' to mean profits
which the person in wrongful possession of the property actually received or
might have received with ordinary diligence or have received together with
interest on such profits. However, such profit shall not include profits arising
due to improvements made by the person in wrongful possession. Mesne profits
can be claimed with regard to immovable property only. For example, X' is in
wrongful possession of 'Y's' property. By being in such possession, he receives
profits. Such profits are called mesne profits.

Object: Every person is entitled to possess his property and when he is

deprived of such right by another person, he is not only entitled to restoration of
possession of his property but also damages for wrongful possession from that
person. Thus, the object of awarding a decree for mesne profits is to compensate
the person who has been kept out of possession and deprived of enjoyment of
his property.

Against whom mesne profit can be claimed?: A person in wrongful

possession and enjoyment of immovable property is liable to pay mane profit.
He can be trespasser or a person against whom a decree for possession is passed
or against a mortgager in possession after a foreclosure decree is passed against
him, etc. In Lucy Kochuvareed v. P. Mariappa Gounder, (1979) it was held
that If the plaintiff is dispossessed by several persons, every one of them would
be liable to pay mesne profit to the plaintiff even though he might not be in
actual possession of the property if it is proved that such dispossession was a
concerted effort on every person's part.

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 The Code of Civil Procedure, 1908 9

Test: The test to ascertain mesne profit is not what the plaintiff has lost by
being out of possession but what the defendant gained or might reasonably and
with ordinary prudence have gained by such wrongful possession. For example,
in Harry Kampson Grag v. Bhagu Miya, (1930) it was held that when a
person in wrongful possession plants indigo on the land and it is proved that a
prudent agriculturist would have planted wheat or sugarcane, the mesne profit
should be assessed on the basis of those more profitable crops.
Principles: The court shall be guided by following principles while deciding
mesne profit:
• Profit by a person in wrongful possession.
• Restoration of status before dispossession of decree-holder.
• Use to which a decree-holder would have put the property if himself was
in possession.
Deductions: Mesne profits should be net profits and the court may allow
deductions to be made from the gross profits of the defendant, such as land
revenue, cost of cultivation, etc.

Order [Section 2(14)]

According to Section 2(14), an order means the formal expression of any
decision of a civil court which is not a decree. Thus, the adjudication of a court
of law may either be decree or an order but cannot be both. There are same
common elements in both of them such as both relate to matters is controversy,
both are decision of civil court and both are formal expression of a decision.

Difference between decree and order

Decree Order
1. A decree can only be passed in a 1. An order may be passed in a suit or
suit which commenced by a may be passed in a proceeding
presentation of a plaint. commenced by a petition or an
application. For example, in an
application to sue as a pauper, the
decision of court rejecting such
application is not a decree but order as
per Section 2(14)
2. A decree is an adjudication 2. An order may or may not finally
conclusively determining the rights of determine such rights.
the parties with regard to all or any of
the matters in controversy.

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 The Code of Civil Procedure, 1908 10

3. A decree may be preliminary, final 3. There is no such classification in

or partly preliminary and partly final. case of an order.
4. Except in certain suits, where 4. In case of a suit or proceeding, a
decree, one preliminary and one final number of orders may be passed.
are passed, in every suit, there can
only be one decree.
5. Every decree is appealable unless 5. Every order is not appealable unless
otherwise expressly provided (as in the shown as appealable under Section
case of consent decree which is non- 104 and Order 43 Rule 1.
appealable)
6. A second appeal lie to the High 6. No second appeal lies in case of
Court on certain grounds from the appealable orders [Section 104 (2))
decree passed in First Appeal. [Section
100]

Public Officer: Section 2(17). Public officer means a person falling under any
of the following descriptions, namely:
(a) every Judge;
(b) every member of [an All India Service];
(c) every commissioned or gazette officer in the military, [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

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 The Code of Civil Procedure, 1908 11

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.

The definition very nearly corresponds to that of a public servant in the Indian
Penal Code 1860, but a person may be a public servant and not a public
officer,e.g., a municipal commissioner and engineer. The following have been
held to be public officers:
• a collector and agent for the court of wards;
• the Official Trustee of Bengal;
• an officer of the Indian Staff Corps;
• an officer in the Indian Army;
• an Official Assignee;
• the Administrator-General of Bengal;
• a cantonment committee;
• a receiver in insolvency;
• a receiver appointed in a suit;
• a Wakf Commissioner of Bengal;
• a village panchayat for a limited purpose,
• a manager of the estate of a deceased in an administration suit,
• but a liquidator appointed by registrar of a co-operative society is not a
public officer.
• A public officer on deputation to other work does not cease to be a public
officer.
• The commissioner of the corporation under the Calcutta Municipal Act
33 of 1951, is a public officer, and so also an officer constituting the
Board under s 18 of the Bihar Land Reforms Act, 1950.
• A sarpanch of a mandal panchayat is not a public officer.

Section 3: Subordination of Courts: 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.

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 The Code of Civil Procedure, 1908 12

Suits of Civil Nature [Section 9]

Jurisdiction of Courts
A person having a grievance of civil nature has a right to institute a civil suit in
a competent civil court unless its cognizance is expressly or impliedly barred.
This is based on the fundamental maxim ubi jus ibi remedium. i.e. where there
is a right there is a remedy.

Meaning of jurisdiction: Jurisdiction means power of a Court to hear and

decide a case. Jurisdiction of a Court means the power or the extent of the
authority of a Court to hear and determine a cause, to adjudicate and exercise
any judicial power in relation to it. The Jurisdiction of a Court means the extent
of the authority of a Court to administer justice prescribed with reference to the
subject matter, pecuniary value or local limits.

Defect of jurisdiction: Defect of jurisdiction goes to the root of the decree or

order. A decree passed without jurisdiction is a nullity. Supreme Court in Kiran
Singh v. Chaman Paswan, (1954) held that a decree passed without
jurisdiction is a nullity. A defect of jurisdiction strikes at the very authority of
the court and it cannot be cured even by the consent of the parties.

Supreme Court in Abdulla Bin Ali v. Galappa, (1985) held that the jurisdiction
of the court has to be decided on the allegations made by the plaintiff in the
plaint and not on the allegations made by the defendant in the written statement.
Decision as to jurisdiction: In M.S. Hasnuddin v. State of Maharashtra,
(1979) Supreme Court held that every court or tribunal is not only entitled but
bound to determine whether the matter in which it is asked to exercise its
jurisdiction comes within its jurisdiction or not.

Kinds of Jurisdiction: Jurisdiction of a Court may be classified into the

following four categories

i. Territorial jurisdiction or Local jurisdiction: Each Court has vested power

to exercise jurisdiction within its own territorial or local limits beyond which it
cannot go.

ii. Pecuniary jurisdiction: The term 'Pecuniary jurisdiction' connotes the value
of the subject matter of the suit. The High Courts and District Courts have no

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 The Code of Civil Procedure, 1908 13

pecuniary limitation but the other Courts have no such unlimited pecuniary
jurisdiction. The Court of Civil Judge (Jr. Div.) in the State of Uttar Pradesh can
entertain the suits where the value of the subject matter does not exceed Rs.
25,000/-.

iii. Jurisdiction as to subject matter of dispute: The different Courts have

power to decide different kinds of suit, like the Family Courts have jurisdiction
to decide the suits/disputes relating to the matrimonial matters.

iv. Original and appellate jurisdiction: In its original jurisdiction, a Court

entertains and adjudicates suits while in its appellate jurisdiction a Court
decides appeals.

Jurisdiction of Civil Courts

Section 9 of the Code lays down that the Court shall have jurisdiction to try all
suits of civil nature excepting the suits of which their cognizance is either
expressly or impliedly barred.
This provision shows that every person has an inherent right to institute a suit of
civil nature in case of any grievance.
A suit for its maintainability requires no authority of law and it is enough that
no statute bars it.
A civil court has a jurisdiction to try a suit if following two conditions are
fulfilled: -
• It should be a suit of civil nature; and
• The cognizance of such suit should not be expressly or impliedly barred.
In Shiv Kumar v. MCD, (1993) Supreme Court held that where statutory
enactments only create rights and liabilities without providing for remedies, any
person having a grievance can approach the ordinary civil court on the principle
of law that where there is right there is remedy.

What is a suit of civil nature?

The term 'civil nature' has not been defined in the Code. The suit is of a civil
nature if the principal question relates to the determination of civil rights and
enforcement.
Civil rights mean private rights and remedies as distinguished from criminal,
political etc. Social Subject matter of suit and not the status of parties determine
whether the suit is of civil nature or not.

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 The Code of Civil Procedure, 1908 14

Explanation I of Section 9 lays down that a suit in which a right to property or

to an office is contested is a suit of civil nature notwithstanding that such right
may depend entirely on the decision of questions as to religious rites or
ceremonies.
Political or religious questions are not covered in the expression suits of civil
nature' A suit in which principal question relates to caste or religion is not a suit
of civil nature. But if the adjudication of matter incidentally involves the
determination relating to caste or political question then it does not cease to be a
suit of civil nature.

Explanation II of Section 9 [added by Amendment Act of 1976] lays down that

a suit relating to an office is maintainable whether or not any fees is attached to
the office or whether or not it is attached to a particular place.

Supreme Court in Most Rev. P.M.A. Metropolitan v. Moran Marthoma,

(1995) has held that no court can refuse to entertain a suit if it is of the
description mentioned in the Section 9.

Expressly and impliedly barred

Expressly barred: A suit is said to be expressly barred when it is barred by any

enactment for the time being in force. It is open to the legislature to bar
jurisdiction of civil courts with respect to a particular class of matters.
Matters falling within the exclusive jurisdiction of Election Tribunal, Income
Tax Tribunal, Motor Accidents Claim Tribunal, Revenue Courts etc. are
expressly barred from the cognizance of civil courts.

Impliedly barred: A suit is said to be impliedly barred when it is barred by

general principles of law. When a specific remedy is given in a statute, it
deprives the person from instituting a civil suit. Certain suits are also barred on
the basis of public policy.

In South Delhi Municipal Corporation v. Today Homes and Infrastructure

(P) Ltd., (2020) Supreme Court held that civil court's jurisdiction is barred by
necessary implication where right and liability is created by statute and that
statute provides machinery for enforcement of such right and where the statute
gives finality to the orders of the special tribunals then civil court's jurisdiction
must be held to be excluded if there is adequate remedy to do what civil courts
would normally do.
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 The Code of Civil Procedure, 1908 15

Presumption of jurisdiction: Every presumption is made in favour of

jurisdiction of the court. Provision of exclusion of jurisdiction of the courts
must be strictly construed. In Dhulabhai v. State of M.P., AIR 1969 SC 78,
Kamla Mills v. State of Bombay, (1965) it was held that in case of doubt as to
jurisdiction the courts will lean in favour of jurisdiction.

Even if the jurisdiction of the civil court is excluded the civil courts have
jurisdiction to:
➢ The question, whether the provisions of Acts and Rules made thereunder
had complied with;
➢ Whether the order is contrary to the law, mala fide, ultra vires perverse,
arbitrary or against the principles of natural justice;
➢ Whether the order is based on no evidence.
Following are the suits of civil nature
➢ Suits relating to rights to properties.
➢ Suits for damages for civil wrong
➢ Suits for breach of contract.
➢ Suits relating to right of worship.
➢ Suits respecting temple and other religious properties.
➢ Suits relating to religious or other procession.
➢ Suits relating to right of burial.
➢ Suit about right to specific relief.
➢ Suits for accounts.
➢ Suits for dissolution of marriage, restitution of conjugal rights.
➢ Suits relating to office
➢ Suits for contribution.
➢ Suits relating to partnership.
➢ Suits relating to right of franchise
➢ Suit for office and fee attached to religious office.
➢ Suit to enforce right of privacy based on custom
Following are not suits of civil nature:
➢ Suits involving mainly caste questions.
➢ Suits against public policy.
➢ Suits relating to purely religious rights or ceremonies.
➢ Suits relating to political questions.
➢ Suits for upholding mere dignity or honour.
➢ Suits for voluntary payment not based on agreement or prescription.
➢ Suits expressly barred by some enactment.
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 The Code of Civil Procedure, 1908 16

Stay of Suit [Res Subjudice (Section 10)]

Section 10 deals with stay of civil suit. The principle incorporated in section 10
is also called res subjudice.
Section 10 provides that 'No court shall proceed with the trial of any suit in
which the matter in issue is also directly and substantially in issue in a
previously instituted suit between the same parties, or between parties under
whom they or any of them claim litigating under the same title where such suit
is pending in the same or any other court in India having jurisdiction to grant
the relief claimed, or in any court beyond the limits of India established or
constituted by the Central Government and having like jurisdiction, or before
the Supreme Court.

Explanation: The pendency of a suit in a foreign Court does not preclude the
Courts in India from trying a suit founded on the same cause of action.

Essential conditions
For the application of Section 10, the following conditions must be fulfilled
(1) There must be two suits, one previously instituted and the other
subsequently instituted.
(2) The matter in issue in both suits must be directly and substantially the same.
(3) Both the suits must be between the same parties or their representatives.
(4) The parties must be litigating under the same title in both the suits.
(5) The Court in which the previous suit is pending must have jurisdiction to
grant the relief claimed in the subsequent suit.
(6) The previously instituted suit must be pending in any of the following
Courts-
(a) In the same Court in which the subsequent suit is brought; or
(b) Any other Court in India; or
(c) Any Court beyond the limits of India, but established by the Central
Government; or
(d) Before the Supreme Court of India.
Pendency of a suit in a foreign court does not prevent the courts in India from
trying the suit founded on the same cause of action.

Object: In Pukhraj D. Jain v. G. Gopal, (2004) Supreme Court held that the
object of the Section 10 of the Code is to prevent Courts of concurrent
jurisdiction from simultaneously trying two parallel suits between the same

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 The Code of Civil Procedure, 1908 17

parties in respect of the same matter in issue. The section intends to prevent a
person from multiplicity of proceedings and to avoid a conflict of decisions.
The provision of Section 10 is mandatory. As soon as the essential elements are
fulfilled the court cannot proceed with the suit.
Section 10 does not bar institution of suits, but it bars trial of the suit.

In Indian Bank v. Maharashtra State Coop. Marketing Federation, (1998)

Supreme Court held that since this rule applies to the trial of the suit and not the
institution it does not preclude the courts from passing interim orders such as
grant of injunction, appointment of receiver etc. A previously instituted suit is a
suit instituted first in point of time.
A decree passed in contravention of Section 10 is not a nullity and it cannot be
disregarded at the stage of execution.

Test: In Radha Devi v. Deep Narayan, (2003) Supreme Court held that the
test for applicability of Section 10 is whether the decision in a previously
instituted suit would operate as res judicata in the subsequent suit. If it is so, the
subsequent suit must be stayed.

Res Judicata [Section 11]

Section 11 of the Code incorporates the doctrine of res judicata. It is also called
rule of conclusiveness.
'Red' means dispute or subject matter and 'Judicata' means decided. Thus, res
judicata means matter adjudicated. It means that once the matter is finally
decided by the court no one can reopen it in a subsequent litigation.
Supreme Court in Satyadhyan Ghosal v. Deorijin Debi, (1960) held that
principle of res judicata is based on the need of giving finality to judicial
decisions. Primarily it applies between past litigation and future litigation.
The doctrine of res-judicata is based on the following maxims:
Object
(1) Interest Republicac ut sit finis litium-It is in the interest of State that there
should be end of litigation.
(2) Nemo debt bis vexari pro una et eadem causa-No man ought to be vexed
twice for one and the same cause.
(3) Res-judicata pro veritate occipitur-A judicial decision must be accepted
as correct.
Essential conditions
For application of Section 11 following essential conditions are required:-

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 The Code of Civil Procedure, 1908 18

1) The matters directly and substantially in issue in the subsequent suit must be
the same, which was directly and substantially (either actually or
constructively) in issue in the former suit. [read explanation I, III, IV with
this condition)
2) The former suit must have been a suit between the same parties or between
parties under whom they or any of them claim. [read explanation VI with
this condition]
3) The parties must have been litigating under the same title in the former suit.
4) The Court which has decided the former suit must be competent to try the
subsequent suit. [read explanation II and IV with this condition]
5) The matters directly and substantially in issue in the subsequent suit must
have been heard and finally decided in the former suit.
For example, 'A' sues 'B' for damages for breach of contract. Suit is decided in
favour of 'B'. Here, 'A' cannot bring another suit for damages for breach of same
contract.

Explanations appended to Section 11

Section 11 incorporates following eight explanations: -
Explanation I: 'Former suit' means a suit which has been decided prior to the
suit in question, whether or not it was instituted prior thereto.
Explanation II: The competence of a Court shall be determined irrespective of
any provisions as to a right of appeal from the decision of such Court.
Explanation III: The matter in the former suit must have been alleged by one
party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV: Any matter which might and ought to have been made ground
of defence or attack in such former suit shall be deemed to have been a matter
directly and substantially in issue in such suit. [Constructive Res Judicata]
Explanation V: Any relief claimed in the plaint, which is not expressly granted
by the decree, shall be deemed to have been refused.
Explanation VI: Where persons litigate bonafide in respect of a public right or
of a private right, claimed in common for themselves and others, all persons
interested in such right shall be deemed to claim under the persons so litigating.
Explanation VII: The provisions of this section shall apply to a proceeding for
execution of a decree.
Explanation VIII: An issue heard and finally decided by a Court of limited
jurisdiction, competent to decide such issue, shall operate as res-judicata in
subsequent suit, notwithstanding that such Court of limited jurisdiction was not

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 The Code of Civil Procedure, 1908 19

competent to try such subsequent suit or the suit in which such issue has been
subsequently raised.

Matter in issue/ Directly and substantially in issue

"Matter in issue" means the rights litigated between the parties. Explanation III
makes amply clear that for a matter to be directly and substantially in issue it
must be alleged by one party and denied or admitted by another.
For example, 'A' sues 'B' for rents. "B' takes a defence that no rent is due. In this
case the claim for rent is matter directly and substantially in issue.

Matter constructively in issue/Constructive Res Judicata [Explanation IV]

Explanation IV states that any matter which might and ought to have been
made ground of defence or attack in such former suit shall be deemed to have
been a matter directly and substantially in issue in such suit
The principle underlying this provision is that if the parties had the opportunity
of controverting a matter that should be deemed to be a matter directly and
substantially in issue. It is also called artificial form of re judicata
Supreme Court in Workmen v. Board of Trustees, Cochin Port Trust, (1978)
held that where any matter which might and ought to have been made a ground
of defence or attack in a former proceeding but was not so made then such a
matter is deemed to have been constructively in issue to avoid multiplicity of
litigation.

In Forward Construction Co. v. Prabhat Mandal (Regd), (1986) Supreme

Court held that the words "might and ought' have wide amplitude. The word
'might' convey the idea of possibility of joining all grounds of attack or defence
and 'ought' to carry the idea of propriety of so joining. The test is whether the
parties had the opportunity of raising the plea and if they had, the matter will be
treated as actually raised and decided.
For example, 'A' sues "B' for recovery of money on a promissory note. "B"
alleges that promissory note was obtained by fraud. The contention is rejected
and suit is decided in favour of 'A'. Later in a subsequent suit "B" cannot
challenge the promissory note on the basis of undue influence or coercion etc.
Because he could have taken these grounds in a former suit. The latter suit is
barred by constructive res judicata.

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 The Code of Civil Procedure, 1908 20

Applicability of Res Judicata

Supreme Court in Daryao v. State of U.P., (1961) has held that doctrine of res
judicata is of universal application and it is a part of rule of law.
• Supreme Court in Sulochana Amma v. Narayana Nair, held that rule of res
judicata would apply to all judicial proceedings whether civil or criminal. It
equally applies to all quasi judicial proceedings of the tribunal's administrative
order.
• Supreme Court in State of U.P. v. Nawab Hussain, (1977) held that the
general principles of res judicate and constructive res judicata will be applicable
to writ petitions except Habeas Corpus.

Res judicata between co-defendants and co-plaintiffs

In Iftikar Ahmed v. Syed Meharban Ali, (1974) Supreme Court held that a
matter may be res judicata between co-plaintiffs and co-defendants also if the
following conditions are satisfied.
➢ There must be a conflict of interest between co-plaintiffs and co-
defendants,
➢ It must be necessary to decide such conflict in order to give relief to the
plaintiff,
➢ The questions between co-defendants and co-plaintiffs must be finally
decided;
➢ Co-defendants/plaintiffs were necessary or proper parties in the former
suit.

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