Q. Define Decree, Judgment and Order and distinguish between them. Write a note on “mesne profit”.

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-
a. any adjudication from which an appeal lies as an appeal from an order, or
b. 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
a. There must be formal expression of an adjudication;
b. The adjudication must have been given in a suit before the court;
c. The adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the
suit;
d. Such adjudication must be conclusive.
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.
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.
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.
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.

Order V. Decree BASIS FOR DECREE ORDER

COMPARISON

Meaning A decree is the official An order is the official

proclamation of the announcement of the decision
adjudication by the judge taken by the court, defining the
explaining the rights of the relationship of the parties, in
parties concerned with respect the proceedings.
to the suit.

Pass It is passed in a suit initiated by It can be passed in a suit

the presentation of a plaint. initiated by presentation of
plaint, application or petition.

Deals with Substantive legal rights of the Procedural legal rights of the
parties parties

Defined in Section 2 (2) of the Code of Section 2 (14) of the Code of

Civil Procedure Act, 1908. Civil Procedure Act, 1908.

Ascertainment of rights It clearly ascertains the rights of It may or may not clearly
the parties concerned. ascertains the rights of the
parties concerned.

Number There is only one decree in a There can be many orders in a

suit. suit.

Type It can be preliminary, final or It is always final.

partly preliminary and partly
final.

Appeal It is normally appealable except It can be appealable or non-

if it is specifically barred by appealable.
law.
Judgment v. Decree
As to Execution: It is the decree or order which is capable of execution and not the Judgment.
Form: Decree and order always follow the Judgment while the Judgment contains the grounds of both
Superiority: Judgment is superior in form and if decree or order is not in accordance with it, they may be altered.
Appeal: It is the decree or orders which is appealable and not the judgment.
Kinds: Decree and order has different kinds but that is not a case with the judgment.
MESNE PROFIT
Section 2(12) states that "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.
The owner of property or any other person who is entitled to have possession of property has a right to the possession of his
property and when such person is deprived of such a right by any other person, then he is entitled not only to receive back
possession of that property but also to damages for wrongful possession from that person.
The mesne profits are compensation, which is penal in nature. A decree for mesne profits is to compensate the person who has
been kept out of possession even though he was entitled to possession thereof.
Against whom Mesne profits can be claimed?
The mesne profits can be claimed with regard to immoveable property only. Generally, person in wrongful possession and
enjoyment of immoveable property is liable for mesne profits. (Lucy V. Mariappa, AI R 1979 SC).
A decree for mesne profit can be passed against a trespasser or a person against whom a decree for possession is passed, or
against a mortgagee in possession of property even after a decree for redemption is passed or against a tenant holding over at
will after a notice to quit has been served him.
To ascertain and provide mesne profits it 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. Since interest is an integral
part of mesne profits, it has to be allowed in the computation of mesne profits itself. (Mahant narayan Dasjee V. Tirupathi
Devasthanam, AIR 1965 SC)
Q. “Civil Procedure is an adjective law”- Discuss. Discuss the difference between “adversary procedure” and
“inquisitorial procedure”
Classification of law can be broadly distinguished on its substantive and adjective aspects. The substantive law qualifies as the
legal framework which deals with the defining of the legal status, establishment of the rights and duties of citizens and its
extent. However, the adjective law deals with the procedure involved in establishing these rights. The Civil Procedural Code,
1908 falls into this category of adjective law.
CPC is a collated code incorporating the various laws in its sphere but it is not exhaustive within it. Courts are to be guided by
principles of equity and justice while dealing with scenarios for which the existing code may not be enough. Thus, the court’s
ability to take such decisions is deemed necessary in its objective of preventing any miscarriage of justice. Various judgments
in this regard can be to ascertain the aforementioned purpose of the code such as Sangram Singh v. Election Tribunal wherein
the apex court discussed about the need for a more liberal understanding of CPC for justice to be delivered in its most apt
manner.
Only through these adjective laws, the concept of fair trial and natural justice can be executed in reality and without these ideas
in context; the court trial is deemed to be invalid and null.
Civil Procedural Code has been very important in the legal framework owing to its various procedural aspects as well as its
objective of pursuing of an efficient justice system through fair trial, free provision of legal aid and speedy justice among other
ideals. It can be concluded that these ideals are being properly followed through the innumerable efforts in the Code towards
the objective of natural justice. The Code engendered various innovative measures to achieve its goal of speedy trials like that
of arbitration and measures of settlement which helps reduce the backlog of cases and provides fair trial to people in a more
efficient manner. Not only these, there are other forms of efforts being taken for fair trial to be followed in Indian Judicial
process such as Open and Public trial. All the principles of appeal and review of decisions have been properly enshrined in the
framework to create a robust system that is largely unfailing. The principles of natural justice have constantly been referred to
and every amendment that have taken place clearly has been through such understanding.
Adversary Procedure V. Inquisitorial Procedure
Adversarial and inquisitorial systems of justice represent two different means of conducting trials with adversarial systems used
in common law jurisdictions such as England and the inquisitorial system being prevalent in mainland Europe.
The adversarial system is based on the opposing sides acting as adversaries who compete to convince the judge and jury that
their version of the facts is the most convincing. The lawyers are given free choice in terms of which issues are presented, what
evidence to adduce in support of their submissions and what witnesses to call. The judge presides over the trial and rules on
disputed issues of procedure and evidence, asking questions of the witness only to clarify evidence, and concludes the trial by
summing-up the facts for the jury and advising them of the relevant law. It is not open to the judge in an adversarial system to
enquire beyond the facts and evidence that are presented by the opposing lawyers; his role is largely passive; he is an impartial
referee who advises the jury on matters of law. Page 2 of 77 Compiled by E-academics committee
This differs dramatically to the role of the judge in an inquisitorial system which is based, as the name suggests, on an inquiry
into the case thus the judge is not limited to hearing the submissions of the parties but can direct the lawyers to address specific
points or to call particular witnesses. The title of the presiding judge as ‘juge d'instruction’ which translates as ‘investigating
magistrate’ in the French criminal justice system gives in indication of the role of the judge in directing proceedings. Unlike the
adversarial system, the role of the inquisitorial system is not to determine guilt or innocence of one particular person but to find
the truth. As such, the judge, as investigating magistrate, conducts an inquiry that involves the questioning of witnesses and
suspects, the issue of search warrants and an examination of the evidence with the aim of discovering both incriminating and
exculpatory evidence. The prosecution and defence lawyers will keep a close eye on the judge’s investigation and can request
that he considers specific evidence or takes a particular course of action but the ultimate responsibility for the line of inquiry
remains that of the judge. If, at the conclusion of the investigation, the judge decides that there is a case against a particular
suspect, the matter will proceed to trial which will take an adversarial format.
An inquisitorial system involves a preliminary investigation conducted by an investigating magistrate as a means of seeking the
truth. It is accepted that the adversarial system does not do this:
A trial does not involve the pursuit of truth by any means. the judge’s role in that system is to hold the balance between the
contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks himself to
remedy the deficiencies of the case on either side (R v Whithorn (1983) 152 CLR 657 per Dawson J at 682).
Q. What do u understand by the phrase “Suite of Civil Nature”? “Cognizance is expressly or impliedly barred” –
Explain this phrase.
Introduction: A litigant having a grievance of a civil nature has a right to institute a civil suit in a civil Court competent to hear
and decide the matter unless its cognizance is either expressly or impliedly barred by any statute.(Abdul Wahid Khan Vs
Bhawani, AIR 1966 S.C.) It is a fundamental principle of English law that whenever there is a right, there is a remedy. (Ubi jus
ibi remidium)
The word "civil" relates to the community or to the policy and government of the citizens and subjects of a State. The word
"civil" indicates a state of society reduced to order and regular government; as against "criminal" it pertains to private rights
and remedies of men and also used in contradistinction to military, ecclesiastical, natural, or foreign.
Generally, civil action is an action wherein an issue is presented for trial, formed by averments of complaint and denials of
answer; or replication to new matter; or an adversary proceeding for declaration, enforcement, or protection of a right or
redressal or prevention of a wrong. It is a personal action which is instituted to compel payment, or doing of some other thing
which is purely civil.
Civil proceeding includes, at least, all proceedings affecting civil rights which are not criminal. It is a proceeding in which
some rights to property or other civil rights are involved, no matter whether the jurisdiction of the court is ordinary, special or
extraordinary. If the proceeding is in aid of establishing a civil right or for disputing one, it would be a civil proceeding.
Meaning: According to Section 9 a Civil Court has jurisdiction to try a suit, when the following two conditions are satisfied:
i. the suit is of a Civil nature, and
ii. the cognizance of such a suit is neither expressly nor impliedly barred.
The word "civil" has not been defined in the Code. The word "civil" means "pertaining to the private rights and remedies
of a citizen as distinguished from Criminal, political, etc." The expression "Civil Nature" is wider than the expression
"Civil Proceedings". (P.M.A. Metropolitan V M.M. Marthoma,AIR 1995 SC) Thus a suit is of a civil nature if the private
question therein relates to the determination of a civil right and enforcement thereof. It is not the status of parties to the
“suit, but the subject matter of it which determines whether or not the suit is one of a civil nature. The expression is "suit of
a civil nature will cover private rights and obligations of a citizen. Political and religious questions are not covered by that
expression."
Explanation- 1 of 8.9 says that a suit in which the right to property or to an office is contested is a suit of a Civil Nature,
notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Illustrations of suits of a civil nature: The followings are the illustrations of the suits of a 'Civil Nature'- Suits relating to
right to property, right to worship, taking out of religious procession, right to share in offerings, suits for damages for civil
wrong, for breach of contract, for a specific relief, for restitution of conjugal rights, for dissolution of marriage, for rent. for
or on accounts; etc., etc.
But the following are not suits of a civil nature:-
Suits involving principally caste questions, purely religious rights or ceremonies, for upholding mere dignity or honour or
for recovery of voluntarily payments or offerings.
Cognizance not barred: Court 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." (Section 9) The cognizance of a suit may be barred either expressly or impliedly.
Suits expressly barred: A suit is said to be "expressly barred" when it is barred by any enactment for the time being in
force (Umrao Singh V Bhagwan Singh, AIR 1956 SC) by a competent Legislature, while keeping itself within the field of
legislation and without contravening any provision of the constitution. Every presumption should be made in favour of the
jurisdiction of the Civil Court and the provisions of the exclusion of the jurisdiction of a Court must be strictly construed.
(Abdul V Bhawani AIR 1966 SC) It is well settled that a civil court has inherent power to decide its own jurisdiction.
(Bhatia Coop. Housing Society V D. C. Patel, AIR 1953 SC)
The matters falling within the exclusive jurisdiction of the Revenue Courts or under the Criminal Procedure Code or the
matters dealt with by special tribunals, under the relevant statutes; eg., Bar Council, Medical Council, University, Club etc.,
are expressly barred from the cognizance of a civil court.
b. Suits impliedly barred: A suit is said to be "impliedly barred" when it is barred by general principle of law. Where an
Act creates an obligation and enforces the performance in a specified manner, that performance cannot be enforced in any
other manner, e.g., certain suits of a civil nature are barred from the cognizance of a Civil Court on the grounds of public
policy. (Premier Automobiles V K. S. Wadke, AIR 1975 SC) Thus, no suit shall lie for recovery of costs incurred in
Criminal prosecution or for enforcement of a right upon a contract hit by Section 23 of Indian Contract Act, 1872 or against
any Judge for acts done in the course of his duties. A Civil court has no jurisdiction to adjudicate upon disputes of political
nature.
DEFINITIONS
Interpretation Clause: Some of the important words as they have been defined U/s 2 of the Code are as under:
Section -2: In this Act, unless there is anything repugnant in the subject or context-
Section–2 (1) “Code” includes rules.
Section-2(2) "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:-
a) any adjudication from which an appeal lies as an appeal from an order, or
b) any order for dismissal for default.
Explanation: A decree is preliminary where 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 [Section-2 (2)] and Order [Section-2 (14)]
Essential Elements of a decree: The decision of a Court can be termed as a "decree" upon the satisfaction of the following
elements:-
I. There must be an adjudication.
II. Such adjudication must have been given in a suit .
III. It must have determined the rights of the parties with regard to all or any of the matter in controversy in the suit.
IV. Such determination must be of a conclusive nature, and
V. There must be formal expression of such adjudication.
a) An Adjudication: Adjudication means "the judicial determination of the matter in dispute". If there is no judicial
determination of any matter in dispute or such judicial determination is not by a Court, it is not a decree; e.g., an order of
dismissal of a suit in default for non-appearance of parties, or of dismissal of an appeal for want of prosecution are not
decrees because they do not judicially deal with the matter in dispute.
b) In a Suit: Suit means a Civil proceeding instituted by the presentation of a Plaint. Thus, every suit is instituted by the
presentation of Plaint. Where there is no Civil suit, there is no decree; e.g., Rejection of an application for leave to sue in
forma pauper is not a decree, because there cannot be a plaint in such case until the application is granted.
Exception: But where in an enactment specific provisions have been made to treat the applications as suits, then they are
statutory suits and the decision given thereunder are, therefore, decrees; e.g., proceeding under the Indian Succession Act,
the Hindu Marriage Act, the Land Acquisition Act, the Arbitration Act, etc.
c) Rights of the parties: The adjudication must have determined the rights i.e., the substantive rights and not merely
procedural rights of the parties with regard to all or any of the matter in controversy in the suit.
"Rights of the parties" under section 2(2).
The rights of the parties inter se (between the parties) relating to status, limitation, jurisdictions, frame of suit. accounts, etc.
"Rights in matters in procedure" are not included in section 2(2); e.g., An order of dismissal for non-prosecution of an
application for execution, or refusing leave to sue in forma pauperis, or a mere right to sue, are not decrees as they do not
determine the rights of the parties.
d) Conclusive Determination: The determination must be final and conclusive as regards the Court, which passes it. An
interlocutory order which does not finally decide the rights of the parties is not a decree; e.g., An order refusing an
adjournment, or of striking out defence of a tenant under the relevant Rent Act, or an order passed by the appellate Court
under Order 41, rule 23 to decide some issues and remitting other issues to the trial Court for determination are not decrees
because they do not decide the rights of the parties conclusively. But, An order dismissing an appeal summarily under
Order-41, or holding it to be not maintainable, or dismissal of a suit for want of evidence or proof are decrees, because they
conclusively decide the rights of the parties to the suit.
e) Formal Expression: There must be a formal expression of such adjudication. The formal expression must be deliberate
and given in the manner provided by law.
 Classes/ Types of Decrees
Decree
Preliminary Decree Final Decree Partly Preliminary & Partly Final Decree
I. Preliminary Decree: 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.
A preliminary decree is only a stage in working out the rights of the parties, which are to be finally adjudicated by a final
decree.
Provisions in the Code for passing of the Preliminary Decrees:
a. Suits for possession and mesne profit; Order 20 Rule 12
b. Administrative Suits; Order 20 Rule 13
c. Suits for ,Pre-emption; Order 20 Rule 14
d. Suits for dissolution of Partnership; Order 20 Rule 15
e. Suits for accounts between principal and agent; Order 20 Rule 16
f. Suits for partition and separate possession; Order 20 Rule 18
g. Suits for foreclosure of a mortgage; Order 34 Rules 2-3
Besides above the Court has a power to pass a preliminary decree in cases not expressly provided in the Code.
In Phool Chand Vs Gopal Lal A.I.R. 1967, S.C. 1470, the Apex Court has decided that "C.P.C. does not prohibits passing
of more than one preliminary decree, if circumstances justify the same and it may be necessary to do so".
II. Final Decree : A decree may be final in two ways.
a) When no appeal is filled against the decree within the prescribed period or the matter has been decided by the decree of
the highest Court;
b) When the decree so far as regards the Court passing it, completely dispose of the suit.
"A final decree is one which completely disposes of the suit and finally settles all the questions in controversy between the
patties and nothing further remains to be decided thereafter.
Under the special circumstances, more than one final decrees can be passed in the same suit, e.g. Where two or more causes
of actions are joined together, there can be more than one final decree.
III. Partly Preliminary and Partly Final Decree: For example, in a suit for possession of immoveable property with
menses profits, the Court) decrees possession of the property, and b) directs an enquiry into the mesne profits. The former
part of the decree is finally while the later part is only preliminary because the Final Decree for mesne profits can be drawn
only after enquiry and ascertainment of the due amount. In such a case, even though the decree is only one, it is Partly
Preliminary and Partly Final.
Order: Section -2 (14) An order means the formal expression of any decision of a Civil Court which is not a decree. The
adjudication of a court of law may be either Decree or Order; and cannot be both.
 Difference Between Decree and Order

Basic of Distinction Decree Order

1. Origin A decree can only be passed in An order may originate from a
a suit which commenced by suit, by presentation of a plaint
presentation of plaint. or may arise from a proceeding
commenced by a petition or an
application.
2. Determination of Rights A decree is an adjudication A decree may be Preliminary or
conclusively determining the Partly Preliminary or Partly
rights of the parties with regard Final.
to all or any of the matters in
controversy.
3. Type of Decree Decree may be Preliminary or There cannot be a Preliminary
Party Preliminary or Party Final Order.
4. No. of Order/ Decree In every suit, there can be only In case of suit or proceeding
one decree, except in certain number of order may be
suits, where two decrees, one passed.
Preliminary and one Final are
passed.
5. Appeal From Every decree is appealable Every order is not appealable.
unless otherwise expressly Only those orders are
provided. appealable as specified in the
Code i.e. Section 104 & Order
43 Rule 1.
6. Second Appeal A second appeal lies to the High No Second appeal lies in case
Court on Certain grounds from of appealable orders [Sec.
the decree passed in First 104(2)].
Appeal (Sec. 100). Thus there
maybe two appeals.

2(3) "Decree-Holder" means any person in whose favour a decree has been passed or an order capable of execution has
been made.
2(5) "Foreign Court" means a Court situate outside India and not established or continued by the authority of the Central
Government;
2(6) "Foreign Judgment" means the judgment of a foreign Court;
2(8) "Judge" means the presiding officer of a Civil Court;
2(9) "Judgment" means the statement given by the Judge on the grounds of a decree or order.
2(10) "Judgment-Debtor" means any person against whom a decree has been passed or an order capable of execution has
been made.
2(11) "Legal Representative" means a person who in law represents the estate of a deceased person, and includes any
person who intermediates 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.
2(12) "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;
The owner of property or any other person who is entitled to have possession of property has a right to the possession of his
property and when such person is deprived of such a right by any other person, person, then he is entitled not only to
receive back possession of that property but also to damages for wrongful possession from that person.
"Mesne Profits" of property means those profits which the person in wrongful possession of such property actually received
therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in
wrongful possession. The mesne profits are compensation, which is penal in nature. A decree for mesne profits is to
compensate the person who has been kept out of possession even though he was entitled to possession thereof.
Against whom Mesne profits can be claimed?
The mesne profits can be claimed with regard to immoveable property only. Generally, person in wrongful possession and
enjoyment of immoveable property is liable for mesne profits. A decree for mesne profit can be passed against a tresspasser
or a person against whom a decree for possession is passed, or against a mortgagee in possession of property even after a
decree for redemption is passed or against a tenant holding over at will after a notice to quit has been served him. To
ascertain and provide mesne profits it 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. Since interest is an
integral part of mesne profits, it has to be allowed in the computation of mesne profits itself.
2(14) "order" means the formal expression of any decision of a Civil Court which is not a decree;
2(16) "prescribed" means prescribed by rules;
2(18) "rules" means rules and forms contained .in the First Schedule or made under section 122 or section 125.
SUITS OF CIVIL NATURE
Meaning: 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.
Consent of Parties: It is well settled principle of law that consent cannot confer nor take away jurisdiction of a Court. If
the Court has no inherent jurisdiction, neither acquiescence nor waiver nor estoppels can create its But if two or more
Courts have jurisdiction to try the suit, the parties may agree among them that the suit should be brought in one of those
Courts and not in other, since there is no inherent lack of jurisdiction in the Court.
The defect of jurisdiction cannot be cured by consent of parties and the judgment or order passed by a Court, however
precisely certain and technically correct, is null and void6 and its invalidity could be setup whenever and wherever it is
sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. “A defect of
jurisdiction strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent
of parties."
Lack of and illegal exercise of jurisdiction: "A Court has jurisdiction to decide wrong as well as right. If it decides
wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not
taken, the decision, however wrong, cannot be disturbed.” A decree passed in the inherent lack of jurisdiction, is a nullity,
and that nullity can be set up in any collateral proceedings. But in case, the Court has jurisdiction but it is irregularly
exercised, the error can be remedied with the help of procedures prescribed by law for setting that error right i.e. in appeal
or revision and when there is no such remedy or not availed of, the decision is final. Where the party aggrieved does not
take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on
the basis of being a nullity.
Decision as to jurisdiction: Whenever the jurisdiction of the Court is challenged, the Court has inherent jurisdiction to
decide the said question. The allegations made in plaint decide the forum and e jurisdiction does not depend upon the
defence taken by the defendants in the Written Statement.
Kinds of jurisdiction: Jurisdiction of a Court may be classified into the following four categories.
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 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.
Suit of Civil Nature
Introduction: A litigant having a grievance of a civil nature has a right to institute a civil suit in a civil Court competent to
hear and decide the matter unless its cognizance is either expressly or impliedly barred by any statute. It is a fundamental
principle of English law that whenever there is a right, there is a remedy.
The word "civil" relates to the community or to the policy and government of the citizens and subjects of a State. The word
"civil" indicates a state of society reduced to order and regular government; as against "criminal" it pertains to private rights
and remedies of men and also used in contradistinction to military, ecclesiastical, natural, or foreign.
Generally, civil action is an action wherein an issue is presented for trial, formed by averments of complaint and denials of
answer; or replication to new matter; or an adversary proceeding for declaration, enforcement, or protection of a right or
redressal or prevention of a wrong. It is a personal action which is instituted to compel payment, or doing of some other
thing which is purely civil.
Civil proceeding includes, at least, all proceedings affecting civil rights which are not criminal. It is a proceeding in which
some rights to property or other civil rights are involved, no matter whether the jurisdiction of the court is ordinary, special
or extraordinary. If the proceeding is in aid of establishing a civil right or for disputing one, it would be a civil proceeding.
Meaning: According to S.9 a Civil Court has jurisdiction to try a suit, when the following two conditions are satisfied:
i. the suit is of a Civil nature, and
ii. the cognizance of such a suit is neither expressly nor impliedly barred.
The word "civil" has not been defined in the Code. The word "civil" means "pertaining to the private rights and remedies of
a citizen as distinguished from Criminal, political, etc." The expression "Civil Nature" is wider than the expression "Civil
Proceedings". Thus a suit is of a civil nature if the private question therein relates to the determination of a civil right and
enforcement thereof. It is not the status of parties to the “suit, but the subject matter of it which determines whether or not
the suit is one of a civil nature. The expression is "suit of a civil nature will cover private rights and obligations of a citizen.
Political and religious questions are not covered by that expression."
Explanation- 1 of 8.9 says that a suit in which the right to property or to an office is contested is a suit of a Civil Nature,
notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Illustrations of suits of a civil nature: The followings are the illustrations of the suits of a 'Civil Nature'-
Suits relating to right to property, right to worship, taking out of religious procession, right to share in offerings, suits for
damages for civil wrong, for breach of contract, for a specific relief, for restitution of conjugal rights, for dissolution of
marriage, for rent. for or on accounts; etc., etc.
But the following are not suits of a civil nature:- Suits involving principally caste questions, purely religious rights or
ceremonies, for upholding mere dignity or honour or for recovery of voluntarily payments or offerings.
Cognizance not barred: Court 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."17 The cognizance of a suit may be barred either
expressly or impliedly.
a. Suits expressly barred: A suit is said to be "expressly barred" when it is barred by any enactment for the time being in
force18 by a competent Legislature, while keeping itself within the field of legislation and without contravening any
provision of the constitution. Every presumption should be made in favour of the jurisdiction of the Civil Court and the
provisions of the exclusion of the jurisdiction of a Court must be strictly construed. It is well settled that a civil court has
inherent power to decide its own jurisdiction. The matters falling within the exclusive jurisdiction of the Revenue Courts or
under the Criminal Procedure Code or the matters dealt with by special tribunals, under the relevant statutes; eg., Bar
Council, Medical Council, University, Club etc., are expressly barred from the cognizance of a civil court.
b. Suits impliedly barred: A suit is said to be "impliedly barred" when it is barred by general principle of law. Where an
Act creates an obligation and enforces the performance in a specified manner, that performance cannot be enforced in any
other manner, e.g., certain suits of a civil nature are barred from the cognizance of a Civil Court on the grounds of public
policy. Thus, no suit shall lie for recovery of costs incurred in Criminal prosecution or for enforcement of a right upon a
contract hit by Section 23 of Indian Contract Act, 1872 or against any Judge for acts done in the course of his duties. A
Civil court has no jurisdiction to adjudicate upon disputes of political nature.
RES SUB JUDICE AND RES-JUDICATA
Res Sub Judice (Stay of Suit)
Section-10: Provides 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 having jurisdiction
to grant the relief claimed, or in any other Court beyond the limits of established or constituted by the Central Government
and having like jurisdiction or before he Supreme Court.”
Explanation: The pendency of a suit in a foreign Court does not preclude the Courts in from trying a suit founded on the
same cause of action.
Object: The object of S.1 0 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits
between the same 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.
Conditions: This section will apply where the following conditions are satisfied:
1) Presence of Two Suits: Where there are two suits, one previously instituted and the other subsequently instituted.
2) Matter in Issue: The matter in issue in the subsequent suit must be directly and substantially in issue in the previous
suit.
3) Same Parties: Both the suits must be between the same parties or between their representatives
4) Pendency of Suit: The previously instituted suit must be pending:-
a. in the same Court in which the subsequent suit is brought, or
b. in any other Court in India, or
c. in any Court beyond the limits of India established or empowered by the Central Government, or
d. before the Supreme Court.
e. Jurisdiction: The Court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the
subsequent suit.
f. Same Title: Such parties must be litigating under the same title in both the suits.
Provisions are Mandatory: The provisions contained in section-10 are mandatory and no discretion is left with the Court.
The order staying proceedings in the subsequent suit can be made at any stage.
A suit pending in a Foreign Court: 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.23
Inherent power to stay: A civil court has inherent power U/s 151 to stay a suit in the ends of justice or to consolidate
different suits between the same parties containing the same matter in issue substantially.
Decree passed in contravention of S.10: It is the trial and not the institution of the subsequent suit which is barred under
this section and therefore, a decree passed in contravention of S.10 is not a nullity, and the same can be executed.
Consent of parties: The provision of Section 10 is a rule of procedure which can be waived by a party and where the
parties waive their right and expressly ask the Court to proceed with the subsequent suit, they cannot afterwards challenge
the validity of the proceedings.
Res-Judicata
(A case or suit already decided)
(The rule of Conclusiveness of judgment)
Meaning: "Res-judicata" consists of two Latin Words, 'Res' means a thing or a matter or a question and 'Judicata' means
adjudicated, adjudged or decided. Therefore, the expression 'Res-judicata'' means "a thing or matter already adjudged or
adjudicated or decided". Res-judicata means "a final judicial decision pronounced by a judicial tribunal having competent
jurisdiction over the cause or matter in litigation, and over the parties thereto."
The principal of Res judicata is based on the need of giving finality to judicial decisions. When a matter whether on a
question of fact or a question of Law-has been decided between two parties in one suit or proceeding and the decision is
final, either because no appeal was taken to a higher Court or because the appeal was dismissed or no appeal lies, neither
party will be allowed in a future suit or proceeding between the same parties to canvass the matter again.
Section 11: "No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and
substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim,
litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been
subsequently raised and has been heard and finally decided by such court.
Explanation-I: The expression "Former Suit" shall denote a suit which has been decided prior to the suit in question
whether or not it was instituted prior thereto.
Explanation-II: For the purposes of this section the competence of Court shall be determined irrespective of any provisions
as to a right of appeal from the decision of such court.
Explanation-III: The mater above referred to must in the former suit 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 suit.
Explanation-V: Any relief claimed in the plaint, which is not expressly granted by the degree, shall, for the purposes of this
section be deemed to have been refused.
Explanation- VI: Where persons litigate bona fide 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, for the purpose of this section, be deemed to claim under
the persons so litigating.
Explanation-VII: The provisions of this section shall apply to a proceeding for the execution of a decree and references in
this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution
of the decree" question arising in such proceeding and a former proceeding for the execution of that 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 a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent
to try such subsequent suit in which such issue has been subsequently raised,"
Object :
The doctrine of Res Judicata is based upon the following four maxims
a. Nemo debet lis vexari pro una et eadem causa: no man should be vexed twice over for the: same cause;
b. Interest republicae ut sit finis Iitium: it is in the interest of the State that there should be an end to a litigation;
c. Res judicata pro veritate occipitur: an judicial decision must be accepted as correct.
d. Res judicata pro veritate habetur: an adjudicated matter shall be deemed correct.
Important Terms: To understand the doctrine of Res-judicata, it is essential to know the meaning of the following terms-
Matters in Issue: The expression 'matter in issue' means the right litigated between the parties. The matters in issue may
be:
Actually in issue
Matters directly and Constructively in issue
Substantially in issue
Matters in issue :
Matters collaterally and incidentally in issue
Directly and substantially in issue: "A matter is 'directly and substantially in issue' if it is necessary to decide it in order to
adjudicate the principal issue and if the judgment is based upon at decision."
Directly: A matter cannot be said to be directly in issue if the judgment stands whether the fact exists or does not exist.
Substantially: means essentially, materially or in a substantial manner. A matter can be said to be substantially in issue if it
is of importance for the decision of a case. In order that a matter decided in a former suit may operate as res judicata in a
subsequent suit, it must have been directly and subsequently in issue in the former suit.
Illustration: A sues B for rent due. The defence of B is that no rent is due. Here the claim to rent is the matter in respect of
which the relief is claimed. The claim of the rent is, therefore a matter, directly and substantially in issue.
Actually in issue: Expl. III
A matter is actually in issue when it is in issue directly and substantially and a competent Court decides it on merit. A
matter is actually in issue when it is alleged by one party and denied or admitted by the other. (Expl. III)
Constructively in issue : Expl. IV
A matter can be said be constructively in issue when it "might and ought" to have been made a ground of defence or attack
in the former suit. A. matter is constructively in issue when it might and ought to have been made a ground of defence or
attack in the former suit. (Expl. IV)
Collaterally or incidentally in issue: "A matter is 'collaterally or incidentally in issue' if it is necessary to decide it in order
to grant relief to a plaintiff or to a defendant and the decision on such issue either way does not affect the final judgment. A
collateral or incidental issue means an issue which is ancillary to the direct and substantive issue. It refers to a matter in
respect of which no relief is claimed and yet it is put in issue to enable the Court to adjudicate upon the matter which is
directly and substantially in issue. Decisions on the matters collateral and incidental to the main issues in the case will not
operate as res-judicata.
Illustration: A sues B for the rent due: B pleads abatement of the rent on the ground that the actual area of the land is less
than that mentioned in the lease deed. The Court, however, finds the area greater than that shown in the lease deed. The
finding as to the excess area, being ancillary to the direct and substantial issue, is not res judicata.
It was held in re Gangabai Vs Chhabubai AIR 1982 SC 20 that in order to operate as res judicata the finding must be one
disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally
decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purposes of deciding the
matter which is directly in issue in the case cannot be made the basis of a plea of res judicata.
 The question whether a matter was directly and substantially in issue or merely collaterally or incidentally in issue must be
decided on the facts of each case.
In Vithal Yashwant v. Shikandarkhan, AIR 1963 SC 385 the Court held that "It is well settled that if the final decision in
any matter at issue between the parties is based by a Court on its decision on more than one point - each of which by itself
would be sufficient for the ultimate decision- the decision on each of these points operates as res judicata between the
parties."
Illustrations: A sues B (i) - for a declaration of title to certain lands; and (ii) - for the rent of those lands. B denies A's title
to the lands and also contend that no rent is due. In this case, there are two matters in respect of which relief is claimed, viz.
(i) - the title to the lands; and (ii) the claim for rent. Both these matters are, therefore, directly and substantially in issue.
Conditions to apply S.11: To constitute a matter as Res judicata U/s 11, the following conditions must be satisfied -
a. Matter in Issue : The matter directly and substantially in issue in the subsequent suit or issue must be the same matter
which was directly and substantially in issue either actually or constructively in the former suit.
b. Same Parties: The former suit must have been a suit between the same parties or between parties under whom they or
any of them claim.
c. Same Title: Such parties must have been litigating under the same title in the former suit.
d. Competent Court: The court which decides of the former suit must be a court competent to try the subsequent suit or
the suit in which such issue is subsequent raised.
e. Final decision of former suit: The matter directly and substantially in issue in the subsequent suit must have been heard
and finally decided by the court in the former suit.
Constructive Res-Judicata
(Prayer for the same relief in the subsequent suit)
The doctrine of constructive Res-judicata is provided in the Explanation IV of section 11 which explains that where the
parties have had an opportunity of controverting a matter, that should be taken to be the same thing as if the matter has been
actually controverted and decided. The object of Expl. IV is to compel the plaintiff or the defendant to take all the grounds
of attack or defence which were open to him. The rule of Constructive res judicata is an artificial form of res judicata, and
provides that if a plea could have been taken by a party in a proceeding between him and his opponent, he should not be
permitted to take that plea against the same party in a subsequent proceeding with reference to the same subject matter.
That clearly is opposed to consideration of Public Policy. Besides, if such a course is allowed to be adopted, the doctrine of
finality of judgments pronounced by Courts would also be materially affected.
In Forward Construction Co. Vs. Prabhat Mandai AIR 1986 S.C., the Court observed that "an adjudication is conclusive
and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have
litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every
matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence."
The principle underlying Expl. IV is that where the parties have had an opportunity of controverting a matter that should
be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has
been constructively in issue it cannot be said to have beer actually heard and decided. It could only be deemed to have been
heard and decided.
In Workmen, C.P. Trust Vs Board of Trustees AIR 1978 S.C. 1283, the Supreme Court held that "The principle of res
judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must
be deemed to have been necessarily decided by implication; then also the principle of res judicata on that issue is directly
applicable. When 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 in the eye of law, to avoid multiplicity of litigation and to bring about
finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided".
illustration’s
1. A files a suit against B for declaration that he is entitled to certain lands as heir of C. The suit is dismissed. The
subsequent suit, claiming the same property on the ground of adverse possession, is barred by constructive res judicata.
2. A files a suit against B to recover money on a pro-note. B contends that the promissory note was obtained from him by
undue influence. The objection is overruled and suit is decreed. B cannot challenge the promissory note on the ground of
coercion or fraud on subsequent suit, in as much as he ought to have taken that defence in the former suit.
3. As a mortgagor A sues B for redemption of certain property alleging that he has mortgaged it with possession to B. The
mortgage is not proved and the suit is dismissed. A files another suit against B for possession of the same property claiming
to be the owner thereof. The suit is not barred.
4. A sues B for a declaration that he is entitled to certain property as an heir of X. The suit is dismissed. A files another suit
for injunctions on the ground that he had become an owner of the property by adverse possession. This ground was
available to him even at the time of previous suit but was not taken at that time. The subsequent suit is barred.
Section 11 is not exhaustive
It has been held in Lal Chand Vs Radha Kishan A IRs. 1977 S C 789 by Chandrachud, J. that .........Section 11 is not
exhaustive and the principle which motivates that section can be extended to cases which do not fall strictly within the
letter of Law. The principle of res judicata is convinced in the larger public interest, which requires that all litigation must,
sooner than later, come to an end.
Waiver of Plea of res-judicata: The plea of res judicata is not one, which affects the jurisdiction of the Court. The
doctrine of res judicata belongs to the domain of procedure and the party may waive the plea of res judicata. Similarly, the
Court may decline to go into the question of res judicata on the ground that it has not been properly raised in the
proceedings or issues.
Res-judicata between co-defendants: A matter may operate as res-judicata between co- defendants and co- plaintiffs if
the following conditions are satisfied:
a. There must be conflict of interest between the co-defendants.
b. It must be necessary to decide that conflict in order to give relief to the plaintiff.
c. The question between the co- defendants must have been finally decided; and
d. The co- defendants were necessary or proper parties in the former suit.
Illustration: A sues B, C and D and in order to decide the claim of A, the Court has to interpret a will. The decision
regarding the construction of the will on rival claims of the defendants will operate as res-judicata in any subsequent suit by
any of the defendants against the rest.
Distinction between Res Sub – Judice (S.10) and Res- Judicata (S.11)
Res-judicata between different stages of the same proceedings:
The principle of res- judicata applies in between two stages in the same Litigation ". It is well settled that principle of res-
judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same
proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage
of that proceeding …..”

Res-judicata and Issue Estoppel:

Issue Estoppel: An issue or fact of law which has been determined in an earlier proceeding cannot be raised in a
subsequent proceeding. The court has few inherent power in the interest of finality not to allow a particular issue which has
already been litigated to be reopened. There is a distinction between 'issue estoppel' and 'res-judicata'. Res-judicata debars a
court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine
of issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the
same in the later proceeding.
Criminal Proceedings: The doctrine of res-judicata is of universal application, which applies even to criminal
proceedings. Once a person is acquitted or convicted by a competent criminal court, he cannot once again, be tried for the
same offence.
Writ Petitions: The General principle of res-judicata applies even to Writ petition filed under Article 32 of the
Constitution. This was held, first time, in re Sharma v Krishna Sinha AIR 1960 SC. It would not be open to a party to
ignore the judgment passed on a writ petition filed by a party under Article 226, which is considered on merits as a
contested matter and is dismissed, and again move the High Court under Article 226 or the Supreme Court under Article 32
on the same facts and for obtaining the same or 31 similar orders or writs.
Writ Petition and Constructive Res-Judicata: The question whether the rule of constructive res-judicata can be applied
to writ petitions, was first answered by the Hon'ble Supreme Court in Amolgamated Coalfields Ltd. v. Janapada Sabha AIR
1964 SC. It held that "In our opinion, constructive res-judicata which is a special and artificial form of res-judicata enacted
by Section 11 of the code should not generally be applied to writ petitions filed under Article 32 or Article 226." But in re
Devilal v S. T.O. AIR 1965 SC, the Court had decided that the principle of constructive res-judicata 32 33 also applies to
writ petitions. The principle of res-judicata (constructive res-judicata) is not applicable to the writ petition of Hebeas
Corpus.
Res-judicate and Estoppel: Res-judicata is really estoppel by verdict or estoppel by judgment (record). The rule of
constructive res-judicate is nothing else but a rule of estoppel. Even then, the doctrine of res-judicata differs in essentials
particulars from the doctrine of estoppel.
Distinction Between Res-judicata & Estoppel
1. Origin: It results from a decision of the Court. Estoppel flows from the act of parties.
2. Basis : The rule is based upon public policy, viz that there should be an end to litigation. It bars multiplicity of suits. It
proceeds upon the doctrine of equity; that he who by his conduct, has induced another to alter his position to his
disadvantage cannot turn round and take advantage of such alteration of the other's position.
3. Affects the jurisdiction : It ousts the jurisdiction of a court to try a case and precludes an enquiry in limine. In other
words, estoppel prevents multiplicity of representations.
4. Stop the Party: It prohibits a man averring the same thing twice in successive litigations. It is only a rule of evidence
and shuts the mouth of a party.
5. Binding effect on party/parties: This rule presumes conclusively the truth of the decision in the former suit. It binds
both the parties to a litigation. Estoppel prevents him from saying one thing at one time and the opposite at another. The
rule of estoppel prevents a party from denying what he has once called the truth. i.e. estoppel binds only that party who
made the previous statement or showed the previous conduct.
FOREIGN JUDGMENT
(A judgment of a Foreign Court)
Meaning: S.2(6) defines the foreign judgment as the "judgment of a foreign Court". The term foreign Court has been
defined in s. 2(5) as a Court situate outside India and not established or continued by the authority of the Central
Government. The examples of the foreign Courts are the Courts in England, Pakistan, Ceylon etc.
Object: The judgment of a foreign Court is enforced on the principle that where a Court of Competent Jurisdiction has
adjudicated upon a claim, a legal obligation arises to satisfy that claim. Section 13 embodies the principle of res-judicata in
foreign judgments. This provision embodies the principle of private International Law that a judgment delivered by a
foreign Court of competent jurisdiction can be enforced in India.
Example: A sues B in a foreign Court. The suit is dismissed. The judgment will operate as a bar to a fresh suit by A against
B in India on the same cause of action.
Conclusive Nature: Section 13 of the Code provides that a foreign judgment shall be conclusive as to any matter thereby
directly adjudicated upon between the same parties or between- parties under whom they or any of them claim litigating
under the same title except as specified in clauses (a) to (f) of Sec. 13.
When Foreign Judgment Not Binding: According to Section 13 under the following six cases, a foreign judgment shall
not be conclusive -
1) Foreign Judgment not by a Competent Court;
2) Foreign Judgment not on merits;
3) Foreign Judgment against International or Indian Law;
4) Foreign Judgment opposed to Natural Justice; Foreign Judgment obtained by fraud;
5) Foreign Judgment founded on a breach of Indian Law;
Foreign Judgment Not by Competent Court: A foreign judgment must be pronounced by a Court of competent
jurisdiction and must be by a Court competent both by the law of the State which has constituted it and in an International
sense and it must have directly adjudicated upon the 'matter' which pleaded as res judicata. Only the judgment and not the
reasons for the judgment is conclusive.
Foreign Judgment Not on Merits: A judgment is said to be given on merits when, after taking evidence and application of
mind, the Judges decide the case one-way or the other. The dismissal of suit for default of appearance or non-production of
the document by the plaintiff or passing of decree due to default of defendant in furnishing security are not on merits and
cannot be conclusive.
Foreign Judgment Against International or Indian Law: The mistake of International or Indian Law must be apparent
on the face of the proceedings. In Narsimha Rao V. Venkata Lakshmi (1991) 3 SCC, the Court held that "when a foreign
judgment is founded on a jurisdiction or on a ground not recognized by International or Indian Law, it is a judgment which
is in defiance of the law. Hence, it is not conclusive of the matter adjudicated therein and, therefore, not enforceable in this
country.
Foreign Judgment Opposed to Natural Justice: The judgment pronounced by a Foreign Court must be after the
observation of the judicial process, i.e., the Court rendering the Judgment must observe the minimum requirements of
Natural Justice. The judgment to be conclusive must be composed of impartial persons, act fairly, without bias, and in good
faith; it must give reasonable notice to the parties to the dispute and to afford each party adequate opportunity of presenting
his case.
Foreign Judgment Obtained by Fraud: It is the fundamental Principle of Private international Law that a Foreign
Judgment is obtained by fraud, it will not operate as res-judicata. It is the settled preposition of law that a judgment or
decree obtained by playing fraud on the Court is a nullity and non-est in the eye of law. Such a judgment/decree by the first
Court or by the highest Court has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged
in any Court even in collateral proceedings.
Foreign Judgment Founded On Breach of Indian Law: It is implicit that the foreign law and foreign judgment would
not offend against our public policy. Thus, a foreign judgment .for a gambling debt or on a claim which is barred under the
Law of Limitation in India is not conclusive.
Presumption as to Foreign Judgments: Section 14 provides that "the Court shall presume, upon the reduction of any
document purporting to be certified copy of the foreign judgment, that such judgment pronounced by a Court of Competent
jurisdiction unless the contrary appears on the record; but such presumption may be displaced by proving want of
jurisdiction."

Enforcement of Foreign Judgments: A conclusive judgment U/s 13 can be enforced in the following two ways:-
1) By Instituting a suit on such Foreign Judgment: A foreign judgment may be enforced by institution of a suit within a
period of 3 years from the date of the foreign judgment. The Apex Court has held in Roshan Lal V Mohan Singh AIR 1975
SC that any decision of a foreign Court, Tribunal or Quasi-judicial authority is not enforceable in a Country unless such
decision is embodied in a decree of a Court of that Country; or
2) By Institution of Executing Proceedings: A foreign judgment may be enforced by way of execution proceedings as per
specified U/s 44-A of the Code and where all the conditions of S. 13 (a) to (f) are satisfied.