District Court

Set Up of Civil Courts

[ Consisting of courts of District Judge, Additional District Judge, Civil Judge

Senior Division, Civil Judge Junior Division,]

Sub - Divisional Courts

[Consisting of courts of Additional District Judge, Civil Judge Senior

Division & Civil Judge Junior Division]

 Courts of Civil Judge Senior Division and Civil Judge Junior Division
are the Trial Courts.

 Courts of District Judge and Additional District Judge are the

appellate Courts.
Some Terms/Concepts Associated with Civil Court Matters :

Plaint - Plaint is written statement of plaintiff’s claim. Through plaint, plaintiff describes his
cause of action and other necessary particulars to seek remedy from court for redressed of his
grievance.

Plaintiff – Person who brings a suit in a civil court.

Defendant - The party against whom relief or recovery is sought in a suit.

Proforma defendant - who typically has no direct responsibility for the harm alleged, but shares
an interest with other defendants.

Title Suit(T.S.) - Suit filed before civil court for declaration of title of a property.

Title appeal (T.A.) – Appeal filed challenging order passed in Title suit.

Decree
In a civil suit several facts might be alleged and the court may be required to rule on several
claims. In simple terms, a decree is the ruling of the court regarding the claims of the parties of
the suit. For example, in a suit between A and B, A may claim that a particular property P
belongs A. After hearing all the arguments, the court will rule in the favor of either A or B. The
final decision of the court regarding this claim i.e. whether the property belongs to A or B, is a
decree.

As per Section 2(2), of Civil Procedure Code (CPC) a decree is 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. It can be final or
preliminary.

From the above definition we can see the following essential elements of a decree -

1. There must be an adjudication - Adjudication means Judicial Determination of the matter in

dispute. In other words, the court must have applied its mind on the facts of the case to resolve
the matter in dispute. For example, dismissing a suit because of default in appearance of the
plaintiff is not a decree. But dismissing a suit on merits of the case would be a decree.

2. There must be a suit - Decree can only be given in relation to a suit. Although CPC does not
define what suit means, in Hansraj vs Dehradun Mussoorie Tramways Co. Ltd. AIR 1933, the
Privy Council defined the term suit as "a civil proceeding instituted by the presentation of a
plaint".
3. Rights of the parties - The adjudication must be about any or all of the matters in
controversy in the suit. The word right means substantive rights and not merely procedural
rights. For example, an order refusing leave to sue in forma pauperis (i.e. an order rejecting the
application of a poor plaintiff to waive court costs) is not a decree because it does not
determine the right of the party in regards to the matters alleged in the suit.

4. Conclusive Determination - The determination of the right must be conclusive. This means
that the court will not entertain any argument to change the decision. I.e. as far as the court is
concerned, the matter in issue stands resolved. For example, an order striking out defence of a
tenant under a relevant Rent Act, or an order refusing an adjournment is not a decree as they
do not determine the right of a party conclusively. On the other hand, out of several properties
in issue in a suit, the court may make a conclusive determination about the ownership of a
particular property. Such a conclusive determination would be a decree even though it does not
dispose off the suit completely.

5. Formal expression - To be a decree, the court must formally express its decision in the
manner provided by law. A mere comment of the judge cannot be a decree.

Examples of decisions which are Decrees - Dismissal of appeal as time barred, Dismissal of a
suit or appeal for want of evidence or proof, Order holding appeal to be not maintainable.

Examples of decisions which are not Decrees - Dismissal of appeal for default, order of
remand, order granting interim relief.

Kinds of Decree

Preliminary - Where an adjudication decides the rights of the parties with regard to all or any
of the matters in controversy in the suit but does not completely dispose of the suit, it is a
preliminary decree. It is passed when the court needs to adjudicate upon some matters before
proceeding to adjudicate upon the rest.

Final - When the decree disposes of the suit completely, so far as the court passing it is
concerned, it is a final decree. A final decree settles all the issues and controversies in the suit.

Application to set aside the ex parte decree - As per Order 9, Rule 13, a defendant may apply
before the court that passed the decree to set it aside. If he satisfies the court that the
summons was not duly served or he was prevented by any other sufficient cause from
attending the hearing, the court shall make an order setting aside the decree. For example,
bona fide mistake as to the date or hearing, late arrival of train, etc. are sufficient causes for
absence of the defendant. Such an application for setting aside may be made within 30 days
from the date of decree as per Section 123 of Limitation Act.
Order
As per Section 2 (14), The formal expression of any decision of a civil court which is not a
Decree is Order. In a suit, a court may take certain decisions on objective considerations and
those decisions must contain a discussion of the matters at issue in the suit and the reasons
which led the court to pass the order. However, if those decisions fall short of a decree, they
are orders.

Thus, there are several common elements between an order and a decree - both related to
matter in controversy, both are decisions given by the court, both are adjudications, both are
formal expressions. However, there are substantial differences between them -

Decree - S. 2(2) Order S. 2(14)

Can only be passed in a suit originated by the

Can be passed in a suit originated by the presentation of a
presentation of a plaint.

Contains Conclusive Determination of a right May or may not finally determine a right.
May be final, preliminary, or partly preliminary -
Cannot be a preliminary order.
partly final.
In general, there can only be one decree or at the
There can be any number of orders in a suit.
most one preliminary and one final decree in a suit.

Every decree is appealable unless an appeal is

Only those orders which are specified as appealable in the
expressly barred.

A second appeal may lie against a decree to a High

There is no second appeal for orders.
Court on certain grounds.

Memorandum of appeal – A Memorandum of Appeal contains the name of the court, tribunal
or authority before whom it is presented, the name and full particulars of the parties to appeal,
the particulars of order or judgment of the court, tribunal or authority whose order is appealed
and the set of grounds whereupon the decision of the court, tribunal or authority below is
challenged. Grounds of appeal are the grounds only whereon the decision is challenged and
forms part of a Memorandum of Appeal.
Execution of a Decree

As per Section 38, a decree may be executed either by the court which passed it or the court to
which it is sent for execution. While executing a decree, several questions and objections may
arise as to the manner of execution. It would be impractical to institute new suits to resolves
such matters. Thus, Section 47 lays down the general principal that any questions that arise in
relation to the execution of the decree should be resolved in execution proceeding itself and
not by a separate suit.

What is meant by execution, discharge and satisfaction of a decree -

This expression has not been defined in the code. However, the following questions are held to
be relating to the execution, discharge and satisfaction of the decree -
whether a decree is executable, whether a property is liable to be solde in execution of a
decree, whether the decree is fully satisfied, whether the execution of the decree was
postponed.

The following questions have been held as not related - whether the decree is fraudulent or
collusive, whether the decree has become inexecutable because of a compromise between the
parties, a question about the territorial or pecuniary jurisdiction of the court passing the
decree.

Appeal and Revision

Any determination made under an application under Section 47 is not considered a decree and
is therefore not appealable under Section 96 or Section 100. Since it is no more a decree, a
revision application under Section 115 is therefore maintainable provided the conditions
stipulated in Section 115 are satisfied.

Judgment-debtor - "judgment-debtor" means any person against whom a decree has been
passed or an order capable of execution has been made.

Decree-holder - "decree-holder" means any person in whose favour a decree has been passed
or an order capable of execution has been made.

Interlocutory order - Interlocutory order only settles intervening matter relating to the cause.
Such orders are made to secure some end and purpose necessary and essential to the progress
of case and generally collateral to the issues to be settled by the court in the final judgement.
These orders are also of different natures, such as:
1. Interim Sale: Interim sale of any movable property may be ordered, if it is subject to natural
decay, such as vegetable etc.
2. Detention Preservation , Inspection, etc of subject matter of suit

The court may order for:

i. Detention, preservation or inspection of property or documents.

ii. Authorize any person to enter into any land or building, which is in the possession of
other party, for the purposes of detention, preservation or inspection etc.
iii. To authorize any person to take samples.

3. Deposit of Money: If the subject matter of suit is money, or movable Property, the court may
order the person holding the money in dispute to be deposited in the court.

Written statement— In terms of Order VIII Rule 1 of CPC the defendant shall, within thirty days
from the date of service of summons present a written statement of his defence. However,
Court may allow, under circumstances, delayed submission but in no case later than 120 days
from the date of service of summon.

Presumptive value: Both WBEA Act. and WBLR Act. lay down presumptive value of finally
published RS R-O-R and LR R-O-R respectively. The provisions are as follows –

Sec. 44(4) of the WBEA Act : Every entry in the record-of-rights finally published under
subsection (2) including an entry revised under sub-section (2a) , made under section 42A, or
corrected under section 45 or section 45A shall, subject to any modification by an order on
appeal under sub-section (3), be presumed to be correct.

Sec. 51A(9) of the WBLR Act : Every entry in the record-of-rights finally published under sub-
section (2) including an entry revised under sub-section (4) or corrected under section 51B 2 [or
section 51BB] shall, subject to any by an order on appeal under sub-section (5) be presumed to
be correct.

State Interest – Involvement of state interest in a civil suit means involvement of vesting of
land/estate, Barga, Patta, land settled under Homestead Act. and interest of people belonging
to tribal community.
Regarding Jurisdictional Bar of Court of Law :

Sec. No. 57B(2) of W.B.E.A. Act, 1953 : No Civil Court shall entertain any suit or application
concerning any land or real estate, or any right in such estate, if it relates to---

(a) alteration of any entry in the record-of-rights finally published, revised, made, corrected
or modified under any of the provisions of Chapter V,
(b) a dispute involving determination of the question, either expressly or by implication,
whether a raiyat or an intermediary, is or is not entitled to retain under the provisions
of this Act such land or estate or right in such estate, as the case may be, or
(c) any matter which under any of the provisions of this Act is to be, or has already been,
enquired into, decided, dealt with or determined by the State Government of any
authority specified therein,
and any such suit or application which is pending before a Civil Court, immediately before the
commencement of the West Bengal Estates Acquisition (Second Amendment) Act, 1973 (West
Ben. Act XXXIII of 1973), shall abate so far as it relates to all or any of the matters referred to in
clause (a), clause (b) or clause (c).

Sec. No. 51C of W.B.L.R. Act, 1955 : (1) When an order has been made under sub-section (1) of
section 51 directing revision or preparation of a record-of-rights, no Civil Court shall entertain
any suit or application for the determination of revenue or the incidents of any tenancy to
which the record-of-rights relates, and if any suit or application in which any of the aforesaid
matters is in issue, is pending before a Civil Court on the date of such order, it shall be stayed
and it shall, on the expiry of the period prescribed for an appeal under sub-section (5) of section
51A or when such an appeal has been filed under that sub-section, as the case may be, on the
disposal of such appeal, abate so far as it relates to any of the aforesaid matters.
(2) No Civil Court shall entertain any suit or application
concerning any land if it relates to alteration of any entry in the record-of-rights finally
published, revised, corrected or modified under any of the provisions in this Chapter.
Explanation. – In this section ‘suit’ includes an appeal.

Sec. No. 61 of W.B.L.R. Act, 1955 : (1) Notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908) or any other law for the time being in force or in any decree,
judgment, decision or award of any court, tribunal or authority, no court shall have jurisdiction
to determine any question relating to any land or connected with any matter which is required
to be or which has been enquired into or decided by any Revenue Officer or prescribed
authority or any officer or authority under the provisions of this Act.
(2) Any Revenue Officer or prescribed authority or other
officer or authority empowered under the provisions of this Act shall have exclusive jurisdiction
to enquire into and decide any question relating to any land in connection with any matter
which is required to be enquired into or decided by any prescribed authority or other officer or
authority under the provisions of this Act.
(3) Nothing in sub-section (1) and sub-section (2) shall be
deemed to affect any right which the parties to any dispute may otherwise have against each
other.

Sec. No. 14X of W.B.L.R. Act, 1955 : No Civil Court shall have jurisdiction to decide or deal with
any question or to determine any matter which is by or under this Chapter required to be
decided or dealt with or to be determined by the Revenue Officer or other authority specified
therein and no orders passed or proceedings commenced under the provision of this Chapter
shall be called in question in any Civil Court.

Sec .21 of WBLR Act. – (1) No order or other proceedings whatsoever under this chapter shall
be questioned in nay Civil court and no Civil court shall entertain any suit or proceeding in
respect of any matter mentioned in 1 [ sections 17,18,19B and 20B]
(2) On the appointment of officers or authorities under theis chapter
all proceedings pending before any Bhagchas Conciliation Board established under the West
Bengal Bargadars Act, 1950 , shall stand transferred to the officer or authority having
jurisdiction over the area in which the land, to which the proceedings relate, is situated.
(3) If any question as to whether a person is or is not a bargadar arises
2
in the course of any [ suit, case, appeal or other] proceedings before any Civil or Criminal
Court, the Court shall refer it to the officer or authority mentioned in sub-section (1) of section
18 3[ for decision and such Court shall dispose of the suit , case, appeal or other proceedings in
accordance with the decision communicated to it by the officer or authority mentioned in sub-
section (1) of section 18 to whom the question was referred]
2
[(4) On a reference being made under sub-section (3) of this section to
the officer or authority mentioned in sub-section (1) of section 18 for decision, such officer or
authority shall personally make such enquiry as may be prescribed, shall arrive at a decision
after giving all the parties to the suit, case, appeal or other proceedings an opportunity of being
heard and shall communicate his or its decision in the prescribed manner to the Court which
made the reference. After communication of his or its decision to the referring Court such
decision shall not be altered or revised except in an appeal under section 19.]
Some Relevant Provisions of Civil Procedure code:

Sec.9 : Courts to try all civil suits unless barred— The Courts shall (subject to the provisions
herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.

Sec 47. Questions to be determined by the Court executing decree -

(1) All questions arising between the parties to the suit in which the decree was passed, or their
representatives, and relating to the execution, discharge or satisfaction of the decree, shall be
determined by the Court executing the decree and not by a separate suit.
(3) Where a question arises as to whether any person is or is not the representative of a party,
such question shall, for the purposes of this section, be determined by the Court.
Explanation I. For the purposes of this section, a plaintiff whose suit has been dismissed and a
defendant against whom a suit has been dismissed are parties to the suit.
Explanation II. (a) For the purposes of this section, a purchaser of property at a sale in execution
of a decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) all questions relating to the delivery of possession of such property to such purchaser or his
representative shall be deemed to be questions relating to the execution, discharge or
satisfaction of the decree within the meaning of this section.

The objective of this section is to provide cheap and fast remedy for the resolution of any
questions arising at the time of execution. Institution of new suits would only increase the
number of suits and would also be a burden on the parties.

The scope of this section is very wide. It confers exclusive jurisdiction to the court executing the
decree in all the matters regarding the execution. It does not matter whether the matter has
arisen before or after the execution of the decree. Thus, this section should be construed
liberally.

Sec. 80(1): Notice— Save as otherwise provided in sub-section (2), no suits shall be instituted
against the Government (including the Government of the State of Jammu & Kashmir) or
against a public officer in respect of any act purporting to be done by such officer in his official
capacity, until the expiration of two months next after notice in writing has been delivered to,
or left at the office of— ( )

Sec. 80(2): ) A suit to obtain an urgent or immediate relief against the Government (including
the Government of the State of Jammu & Kashmir) or any public officer in respect of any act
purporting to be done by such public officer in his official capacity, may be instituted, with the
leave of the Court, without serving any notice as required by sub-section (1); but the Court shall
not grant relief in the suit, whether interim or otherwise, except after giving to the Government
or public officer, as the case may be, a reasonable opportunity of showing cause in respect of
the relief prayed for in the suit : Provided that the Court shall, if it is satisfied, after hearing the
parties, that no urgent or immediate relief need be granted in the suit, return the plaint for
presentation to it after complying with the requirements of sub-section (1).

Sec.96 : Appeal from original decree— (1) Save where otherwise expressly provided in the
body of this Code or by any other law for the time being in force, an appeal shall lie from every
decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals
from the decisions of such Court. (2) An appeal may lie from an original decree passed ex
parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4)
No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognizable by Courts of Small Cause, when the amount or value of the subject-matter of the
original suit does not exceed three thousand rupees.

Sec.114 Review : Subject as aforesaid, any person considering himself aggrieved— (a) by a
decree or order from which an appeal is allowed by this Code, but from which no appeal has
been preferred, (b) by a decree or order from which no appeal is allowed by this Court, or (c) by
a decision on a reference from a Court of Small Causes, may apply for a review of judgment to
the Court which passed the decree or made the order, and the Court may make such order
thereon as it thinks fit.

ORDER XLVII- REVIEW

Rule1 . Application for review of judgment— (1) Any person considering himself aggrieved— (a)
by a decree or order from which an appeal is allowed, but from which no appeal has been
preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a
reference from a Court of Small Causes, and who, from the discovery of new and important
matter or evidence which, after the exercise of due diligence was not within his knowledge or
could not be produced by him at the time when the decree was passed or order made, or on
account of some mistake or error apparent on the face of the record of for any other sufficient
reason, desires to obtain a review of the decree passed or order made against him, may apply
for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment
notwithstanding the pendency of an appeal by some other party except where the ground of
such appeal is common to the applicant and the appellant, or when, being respondent, he can
present to the Appellate Court the case on which he applies for the review. [Explanation—The
fact that the decision on a question of law on which the judgment of the Court is based has
been reversed or modified by the subsequent decision of a superior Court in any other case,
shall not be a ground for the review of such judgment.]

Sec.115 : Revision.— The High Court, in cases arising out of original suits or other proceedings
of the value exceeding one lakh rupees, and the District Court, in any other case, including a
case arising out of an original suit or other proceedings instituted before the commencement of
the Code of Civil Procedure (Orissa Amendment) Act, 1991, may call for the record of any case
which has been decided by any Court subordinate to the High Court or the District Court, as the
case may be, and in which no appeal lies thereto, and if such subordinate Court appears— (a)
to have exercised a jurisdiction not vested in it by law; or (b) to have failed to exercise a
jurisdiction so vested; or (c) to have acted in the exercise of its jurisdiction illegally or with
material irregularity, the High Court or the District Court, as the case may be, may make such
order in the case as it thinks fit; Provided that in respect of cases arising out of original suits or
other proceedings of any valuation decided by the District Court, the High Court alone shall be
competent to make an order under this section: Provided further that the High Court or the
District Court shall not, under this section, vary or reverse any order, including an order
deciding an issue, made in the course of a suit or other proceedings, except where,— (i) the
order, if so varied or reversed, would finally dispose of the suit or other proceedings; or (ii) the
order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the
party against whom it was made.

Regarding Preparation of Statement of Facts:-

Three types of suits, as follows, we may face :

1) Suits involving state interest.

2) Suits not involving state interest but plaint contains paras against any
action/inaction of the state.
3) None of the above where state has been made a proforma defendant.

The following points are required to be kept in mind in preparing statements of facts for
defending suits involving state interest :
1) A brief history of the case should precede the parawise statements of facts.
2) If no notice was served u/s 80(1) of CPC before instituting the suit that should be
mentioned at the very outset and also as a separate comment.
3) Paras with formal statements may be replied as `no comment’ or `need not be replied
as formal in nature’.
4) If total and sufficient information is/are not available, while denying a para of the plaint,
`not admitted’ is to be preferred to `denied’.
5) Denial should be specific and not evasive.
6) State the relevant provisions of jurisdictional bar alongwith provision of sec 9 of CPC
while replying the concerned paras and also add it as a comment.
7) If in any para framing/correction of R-O-R is assailed, mention the appropriate remedial
measure quoting the relevant provision as well as the forum.
8) State the appropriate statutory provisions providing presumptive value of the R-O-R.
9) Any other law point as required.
10) Reference may be made of any appropriate case law/citation.
11) Attach copy of R-O-R or plot information if the same is consistent with content of the
Statements of facts. If not make necessary correction in R-O-R, if permissible .
12) In all cases involving state interest attach a proposal of filing written statement with the
Statement of facts.

For the cases where no state interest is involved but some of the paras are directed against
some action/inaction, defend the said paras, state the presumptive value of R-O-R and attach
copy of R-O-R/Plot information. Also state clearly that no state interest is involved.

Where no state interest is involved state such non-involvement of state interest and attach
copy of R-O-R/Plot information.
On Written Statement (W/S) and Memorandum of Appeal:-
 1) Before filing W/S or memo. Of appeal ensure that provisions of jurisdictional bar
and presumptive value, where applicable, have been incorporated in the same
because Ld. Court has to take into account the contents of W/S or memo. Of
appeal filed in the form of affidavit irrespective of whatever is pleaded orally in
the Court.
2) If appeal is time barred on limitation ground, with the draft memo of appeal also
prepare a draft Sec. 5 ( Limitation Act) application with details of procedural
delay ( such as delay for obtaining certified copy of the decree of the T.S.,
decision of the authority, vetting of the memo of appeal by appropriate authority
etc.) and also attach an appropriate case law.

Some tactics of dealing with cases where title of vested land has been declared by Civil Court
against the state :
1) If the party having title declared in his favour claim correction of R-O-R in his favour
filing certified copy of the order and decree passed in the T.S. and if an appeal does not
look badly time barred immediately send a proposal of filing appeal to the Dist.
Headquarter with a draft memo. Of appeal and sec. 5 petition .

2) If appeal is badly time barred and does not look promising, filing petition for correction
of R-O-R may not be responded as a stand.

3) If the party then moves before WBLRTT alleging the inaction of BLLRO and Ld. Tribunal
directs BLLRO to dispose of the petition for correction BLLRO has to try to find the
10(1)/10(2) possession certificate in cases of vesting under WBEA Act or 14T(3)
possession certificate in cases of vesting under WBLR Act. and if available may reject the
petition on the ground that the State is in possession of the subject land though title is
held by some other. Even if no possession certificate is available and the land is
appearing in Kh. No. 1 may reject the petition on the same ground as R-O-R states the
factum of possession and no field verification is required.

4) If the party then files T. Ex suit, BLLRO has to send a proposal to Dist. Headquarter for
filing objection against the execution u/s 47 of CPC on the ground that it is inexecutable
as Civil Court has declared title of vested land acting beyond statutory jurisdiction.

5) If the Title Appeal filed by the State has failed, send proposal of second appeal with
draft memo. highlighting the jurisdictional bar of Civil Court along with other points.
Case study
Case 1:-

In a T.S Ld. Civil court declared title of a land vested under WBEA Act in
favour of some individual who approached B.L & L.R.O to correct record in his
favour and under direction of Ld. LRTT B.L & L.R.O has to dispose of the
application for correction of record.

Possession of the land was taken over by the state u/s 10(1)/10(2) of the
Act. Title appeal is badly time barred.

How to deal with the matter and combat probable consequences?

Case 2:-

Ld Civil Court in a T.S has declared title of a land resumed u/s 6(3) of the
WBEA Act. Examine the orders enclosed carefully.

What will be the main law points of memo of appeal?

Case 3:-

Ld. Civil Court has ordered correction of LR R-O-R in respect of a piece of

land in a T.S in favour of some individual. Finding no response party moved a t.Exe
suit where Ld. Court has directed B.L & L.R.O to comply the order in T.S and file
compliance report. Examine the enclosed orders carefully.

How to deal with the issue?