THE CODE OF CIVIL PROCEDURE, [VOLUME–I]

[Act No. 5 of 1908]¹

[21st March 1908]

An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature.

Whereas it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; it is hereby enacted as follows: -

1. This Act has been amended in its application to Assam by Assam Act No. 2 of 1941 and 8 of 1953; to Tamil Nadu by Madras Act No. 34 of 1950, Madras A.O. 1950, and Tamil Nadu Act No. 15 of 1970; to Punjab by Punjab Act No. 7 of 1934; to Uttar Pradesh by U.P. Act No. 4 of 1925, 35 of 1948, 24 of 1954,17 of 1970, 57 of 1976 and 31 of 1978; to Karnataka by Mysore Act No. 14 of 1955; to Kerala by Kerala Act No. 13 of 1957; to Rajasthan by Rajasthan Act No. 19 of 1958; to Maharashtra by Maharashtra Act No. 22 of 1960 and 25 of 1970. It has been extended to Berar by the Berar Laws Act, 1941 (Act No. 4 of 1941) and by notification under the Schedule Districts Act, 1874 (Act No. 14 of Year 1874), also to the following Scheduled Districts: -

(1) The Districts of Jalpaiguri, Cachar (excluding the North Cachar Hills), Goalpara (including the Eastern Duars), Kamrup, Darrang, Nowgong (excluding the Mikir Hill Tracts), Sibsagar (excluding the Mikir Hill Tracts) and Lakhimpur (excluding the Dibrugarh Frontier Tracts) : GOI, 1909 Pt. I, p. 5 and GOI, 1914, Pt. I, p. 1690.

(2) The District of Darjeeling and the District of Hazaribagh, Ranchi, Palamau and Manbhum in Chota Nagpur : Calcutta Gazette, 1909, Pt. I, p. 25 and GOI, 1909, Pt. I, p. 33.

(3) The Province of Kumaon and Garhwal and the Tarai Paraganas (with modifications) : U.P. Gazette, 1909, Pt. I. p. 3 and GOI, 1909, Pt. I, p. 31.

(4) The Pargana of Jaunsar-Bawar in Dehra Dun and the Scheduled portion of the Mirzapur District; U. P. Gazette, 1909. Pt. I, p. 4 and GOI, 1909, Pt. I, p. 32.

(5) Coorg : GOI, 1909, Pt. I, p. 32.

(6) Scheduled Districts in the Punjab : GOI, 1909, Pt. I, p. 33.

(7) Sections 36 to 43 to all the Scheduled Districts in Madras : GOI, 1909, Pt. I, p. 152.

(8) Scheduled Districts in the C.P., except so much as already in force and so much as authorizes the attachment and sale of immovable property in execution of a decree, not being a decree directing the sale of such property : GOI, 1909, pt.1, p. 239.

(9) Ajmer-Merwara except Sections 1 and 155 to 158 : GOI, 1909, Pt. II, p. 480.

(10) Pargana Dhalbhum, the Municipality of Chaibasa in the Kolhan and the Porahat Estate in the District of Singhbhum : Calcutta Gazette, 1909, Pt. I, p. 453 and GOI, 1909, Pt. I, p. 443.

Under the Sonthal Parganas Settlement Regulation, Sections 38 to 42 and 156 and rules 4 to 9 in Order XXI in the First Schedule have been declared to be in force in the Sonthal Parganas and the rest of the Code for the trial of suits referred to in Section 10 of the Sonthal Parganas Justice Regulation, 1893: see Calcutta Gazette, 1909, Pt. I, p. 45.

It has been declared to be in force in Panth Piploda by the Panth Piploda Laws Regulation, 1929; in the Khondmals District by the Khondmals Laws Regulation, 1936 and in the Angul District by the Angul Laws Regulation, 1936.

It has been extended to the Districts of Koraput and Ganjam Agency by Orissa Regulation.

It has been extended to the State of Manipur, w.e.f. 1st January, 1957 by Act No. 30 of 1950 to the whole of the Union territory of Lakshadweep, w.e.f. 1st October, 1967 by Regulation 8 of 1965; to Goa, Daman and Diu, w.e.f. 15th June, 1966 by Act No. 30 of 1965; to Dadra and Nagar Haveli, w.e.f. 1st July, 1965 by Reg. 6 of 1963 and to the State of Sikkim, w.e.f. 1st September, 1984, vide Notification No. S.O. 599(E), dated 13th August, 1984, GOI Ext., Part III, Section 3.

PRELIMINARY

1. Short title, commencement and extent.—(1) This Act may be cited as the Code of Civil Procedure, 1908.

(2) It shall come into force on the first day of January, 1909.

²[(3) It extends to the whole of India except-

(a) The State of Jammu and Kashmir;

(b) The State of Nagaland anti the tribal areas:

Provided that the State Government concerned may, by notification in the Official Gazette, extend the provisions of this Code or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications as may be specified in the notification.

Explanation.—In this clause, “tribal areas” means the territories which, immediately before the 21st day of January, 1972, were included in the tribal areas of Assam as referred to in paragraph 20 of the Sixth Schedule to the Constitution..

(4) In relation to the Amindivi Islands, and the East Godavari, West Godavari and Visakhapatnam Agencies in the State of Andhra Pradesh and the Union territory of Lakshadweep, the application of this Code shall be without prejudice to the application of any Rule or regulation for the time being in force in such Islands, Agencies or such Union territory, as the case may be, relating to the application of this Code.]

COMMENTS

Where there is ambiguity in a provision, the Report of the Special Committee can be looked into.(.(M/s Haldiram Bhujiawala M/s Anand Kumar Deepak Kumar, AIR 2000 SC 1287( 1290).

In interpreting any procedural law, where more than one interpretation is possible, the one, which curtails the procedure without eluding the justice, is to be adopted. The procedural law is always subservient to and is in aid to justice. Any interpretation, which eludes or frustrates the recipient of justice, is not to be followed. (Shreenath v. Rajesh, AIR 1998 SC 1827(1828)

Merely because a law causes hardship, it cannot be interpreted in a manner so as to defeat its object.(Molar Mal v. M/s Iron Works (P)Ltd, AIR 2000 SC 1261(1267).

The statement of the Minister who had moved the Bill in Parliament can be looked at to ascertain mischief sought to be remedied by the legislation and the object and purpose for which the legislation is enacted. The statement of the Minister who had moved the Bill in Parliament is not taken into account for the purpose of interpreting the provisions of the enactment. (P.V. Narsimha Rao v. State (CBI/SPE) AIR 1998 SC 2120(2158)

When the word is not so defined in the Act it may be permissible to refer to dictionary to find out the meaning of that word, as it is understood in the common parlance. But where the dictionary gives divergent or more than one meaning of a word, in that case it is not safe to construe the said word according to the suggested dictionary meaning of that word. In such a situation the word has to be construed in the context of the provisions of the Act and regard must also be had to the legislative history of the provisions of the Act and the scheme of the Act. It is settled principle of interpretation that the meaning of the words, occurring in the provisions of the Act must take their colour from the context in which they are so used. In other words, for arriving at the true meaning of a word, the said word should not be detached from the context. Thus, when the word read in the context conveys a meaning that meaning would be the appropriate meaning of that word and in that case the Court need not rely upon the dictionary meaning of that word. (I.T. Commr. Bangalore v. Ventateswara Hatcheries (P) Ltd. AIR 1999 SC 1225(1228).

Merely because a law causes hardship, it cannot be interpreted in a manner so as to defeat its object. (Molar Mal v. M/s Iron Works (P) Ltd, AIR 2000 SC 1261(1267).

Whenever there are two possible interpretations , its true meaning and legislative’s intent has to be gathered from the ‘Preamble’ and ‘Statement of Objects and Reasons.’(Qarry Owners Association v. State of Bihar, AIR 2000 SC 2870(2886).

2. Substituted by Act No. 104 of 1976 for earlier sub-section (3), w.e.f. 1st February, 1977.

2. Definitions.— In this Act, unless there is anything repugnant in the subject or context.—(1) “Code” includes rules;

(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 ³[***] 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;

(3) “Decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made;

(4) “District” means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a “District Court”), and includes the local limits of the ordinary original civil jurisdiction of a High Court;

⁴[(5) “Foreign Court” means a Court situate outside India and not established or continued by the authority of the Central Government;]

(6) “Foreign judgment” means the judgment of a foreign Court;

(7) “Government Pleader” includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader;

⁵[(7A) “High Court” in relation to the Andaman and Nicobar Islands, means the High Court in Calcutta;

(7B) “India”, except in Sections 1, 29, 43, 44, ⁶[44A,] 78, 79, 82, 83 and 87A, means the territory of India excluding the State of Jammu and Kashmir;]

(8) “Judge” means the presiding officer of a Civil Court;

(9) “Judgment” means the statement given by the Judge of the grounds of a decree or order;

(10) “Judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made;

(11) “Legal representatives” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;

(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;

(13) “Movable property” includes growing crops;

(14) “Order” means the formal expression of any decision of a Civil Court, which is not a decree;

(15) “Pleader” means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court;

(16) “Prescribed” means prescribed by rules:

(17) “Public officer” means a person failing under any of the following descriptions, namely: -

(a) Every Judge;

(b) Every member of ⁷[an All-India Service];

(c) Every commissioned or gazetted officer in the military ⁸[naval or air] forces of ⁹[the Union] ¹⁰[***] while serving under the Government;

(d) Every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the Court, and every person especially authorised by a Court of Justice to perform any of such duties;

(e) Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

(f) Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

(g) Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report on, any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; and

(h) Every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty;

(18) “Rules” means rules and forms contained in the First Schedule or made under Section 122 or Section 125;

(19) “Share in a corporation” shall be deemed to include stock, debenture stock, debentures or bonds and

(20) “Signed”, save in the case of a judgment or decree, includes stamped.

¹¹[***]

3. Substituted by Act No. 104 of 1976 for earlier sub-section (3), w.e.f. 1st February, 1977.

4. The words and figures “Section 47 or” omitted by Act No. 104 of 1976, w.e.f. 1st February, 1977.

5. Substituted by Act No. 2 of 1951, for the original clause.

6. Inserted by Act No. 2 of 1951.

7. Inserted by Act No. 42 of 1953, Section 3 Schedule III.

8. Substituted by Act No. 104 of 1976, for the words “the Indian Civil Service”, w.e.f. 1st February, 1977.

9. Substituted by Act No. 35 of 1934 for the words “or naval”.

10. Substituted by the A.O. 1950, for the words “His Majesty”.

11. The words “including His Majesty’s Indian Marine Service,” omitted by Act No. 35 of 1934, Section 2 and Schedule.

3. Subordination of Courts.—For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court.

4. Savings.—(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.