CPC

Chanderprabhu Jain College of Higher Studies & School of Law
Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
Semester: Ffth Semester
Subject Code: LLB 307
Name of the Subject:CPC
Semester: Ffth Semester
Subject Code: LLB 307
Name of the Subject:CPC

Code of Civil Procedure 1908
Res subjudice & Res judicata

Res subjudice • Section 10 contains doctrine of res subjudice. • ‘Res’
means a subject matter against which legal proceeding has been instituted
and ‘subjudice’ means a case under trial or under judgment. • Section
states that, the Court shall not proceed with the trial of suit in which: • i.The
matter in issue in a previously instituted suit between the same parties; •
ii.Where such suit is pending in the same or any other Court in India.

Object of res subjudice • To prevent Courts of concurrent jurisdiction for
simultaneous entertaining and adjudicating two parallel litigation for same
cause, same subject matter or for same relief. • To prevent possibility of
two conflicting/contradicting judgments.

Effect of res subjudice • Section does not prohibit institution of more than
one suit but it simply stays subsequent suit(s) after institution. • If
husband filed a suit for divorce at one place and wife also filed divorce
suit before same or different court, then the subsequently instituted suit
shall be stayed and first suit shall continue.

Conditions for Res-subjudice
1. There must be two suits: Doctrine of res-subjudice will be
applicable for subsequent suit. Obviously there are two suits and
subsequent suit will be stayed. 2. The suits must be between
same parties: Both suits, must be between same parties. Parties
may be actually same or their successor/representative litigating
under the same title. 3. The matter in issue in later suit must be
directly and substantially the same in the previous suit: Subject
matter in both suits must be directly and substantially

4. Both the suits must be pending in a Court of law: Both suits i.e. earlier and
subsequent suit must be pending in the Court of law. Both suits may be pending
in any Courts in India or even in the same Court. Court includes Supreme Court
or a Court established outside India, established or continued by Central
Government but does not include a foreign Court. 5. The parties must be
litigating under the same title: In both suits, parties must be litigating under the
same title i.e. in the same capacity. When these conditions are fulfilled, the Court
shall not proceed in the suit and has to stay the proceeding.

Res judicata
• 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. (sec. 11)

Object of res-judicata
i. Give finality to the judgment of the Court, ii. Protect a person from
endless proceedings and iii. Avoid re-determination of same issues which
have already been adjudicated upon.

Doctrine of res-judicata is based on
the following maxims
i. “Ex captio res judicata”. Meaning: one suit and
one decision is enough for any single dispute; ii.
“Nemo debet bis vexari pro una et endem cuasa”.
Meaning: no one ought to be vexed twice for one
and the same cause; iii. “Interest republicae ut sit
finis litum”. Meaning: in the interest of State
there should be an end to litigation; iv. “Res
judicata pro veitee acciptur” . Meaning: a matter
already adjudicated upon must be accepted as
truth.

Condition for res-judicata
1. Same parties: In both suits i.e. the suit which is pending before the
Court and the suit which has been decided (former suit) should be same.
2. Matter in issue: Subject matter in later suit (which is pending) must be
directly and substantially same in the earlier suit (which was decided).
Subject matter need not to be identical but substantially same. 3. Same
title: The party must be litigating in the subsequent suit must have
litigated under the same title i.e. the same capacity in the earlier or
former suit.

4. Concurrence of jurisdiction: The Court who decided the former suit
must have been competent to try the subsequent suit in which the issue
has been subsequently raised. 5. Final decision: The matter in
subsequent suit must have been ‘heard and decide’ by the former suit.
‘Heard and decided’ means fully heard and finally decided on merit.

Types of res judicata
• Res judicata as to claim: Res judicata is applicable to
entire suit i.e. applicable to all issues in subsequent suit and
thereby the suit is barred. • Res judicata as to issue: Res
judicata is applicable to some or particular issue out of
many issues in the subsequent suit. Section 11 state that,
“No Court shall try any suit or issue”. • Constructive res
judicata: Any matter which might and ought to have been
made ground of defence or attack in such former suit shall
be deemed to have been a matter directly and substantially
in issue in such suit

Difference Res subjudice Res
judicata:
1.Object of Res subjudice is to prevent two
parallel litigations and avoid conflict of
judgments.
2. It is applicable where two suits are
pending in the Court of law for same matter
of controversy.
3.3. By Res subjudice, trial of subsequent
suit is stayed.
4.Res subjudice is applicable if both suits
involve same matter in controversy (all
issues)

1. Object of Res judicata is to give
finality to decision given by Court.
2. It is applicable where a suit is
pending and matter in controversy
is already decided in a former suit.
3. By Res judicata, trial of
subsequent suit is barred. 4. Res
judicata is applicable to suit (all
issues) or to any issue of them.

Semester: fifth Semester
Name of the Subject:
cpc
Name of the Subject:
cpc
Introduction to cpc

Introduction to CPC 1908

Scheme of the Act:- It consolidates the law
relating to procedure of Civil Courts.
It has 158 sections in the first part (the main
part) and 51 ORDERS in the second part
containing Rules and 8 appendices .
The Sections contain the fundamental
principles, and thus create jurisdiction hence a
substantive law whereas the Rules deal with the
detailed procedure as to how the jurisdiction
should be exercised.
CIVIL PROCEDURE CODE, 1908

Jurisdiction is the basic authority of the Court by which it adjudicates the disputes
brought before it.
 jurisdiction is of various types such as 1. Pecuniary 2. Territorial 3. of the given
subject matter
Basic Structure of Civil Courts 1 Civil Judge (Junior Dn.) 2. Civil Judge (Senior Dn.)
3. District Judge 4. High Court 5. Supreme Court
 There are some other designated courts created both under the CPC and outside the
Code, Small causes courts are created under CPC. Other courts are created by various
special Acts through which the jurisdiction of the civil courts relating to some specified
subject matters becomes barred and these adjudicatory bodies acquire jurisdiction e.g.
Family Courts, Labour Courts and Tribunals, Administrative Tribunals, Electricity
Tribunals, MACT.
 All Civil claims and proceedings are required to be filed in the lowest competent
courts.
Jurisdiction of the Civil Courts

Res - Judicata- A suit or an issue decided by a Competent Court cannot be reopened
and re-adjudicated in a subsequent suit between the same parties or parties claiming
through them, in another Court or the same Court.
The matter should be directly and substantially issue, in the former suit,

● (S.15)- in the Court of lowest grade competent to try.
● (S.16)- if relating to immovable property, where the property is
situated, or where the defendant resides or works for gain.
If the property is situated within jurisdiction of different Courts, in any
of those Courts, or Where cause of action / part arises.
Suits to be filed:-

• Plaintiff is the person who files the suit seeking relief against some
person or set of persons.
•Defendant or defendants are the persons against when the suit is filed
and relief sought.
• In some cases certain parties against whom no actual relief is claimed
are shown as “Proforma defendants” since those parties are otherwise
necessary to be impleaded or joined in the proceeding.
Parties to Suits

Institution of Suits
•Filed by presentation of plaint in Court.
Plaint to contain all facts alleged by plaintiff and the relief prayed for by him.
•Plaint is to be filed along with the prescribed Court Fees, wherever applicable.
•After preliminary scrutiny, the Court orders issuance of summons upon the
defendant, if the plaint is in order.

•Additional copies of the plaint are filed by the plaintiff in Court.
•Additional copied are served upon the defendant by various means
such as through Court staff personally, by Registered post, through
Courier or by E-mail.
•Purpose of service is to inform the defendants about the suit being
filed, and the allegations against them.
•Some times summons are served by pasting or publication in the
newspaper when defendant is not available.
•Refusal to accept service amounts to good service.
•Service of summons is the stage when it becomes the defendants
responsibility to appear and contest the case.
Issuance & Services of Summons

•After service of summons the defendant is expected to appear and file his
written statement on the fixed date. If defendant appears and contests, the case
proceed according to Law.
• If defendant dose not contest, the case is heard exparte.
•If plaintiff himself does not appear, the case is dismissed for default.
•Order of exparte hearing or dismissal for default are revocable.
Appearance & Non- Appearance of parties

•In a contested case the documentary evidence of both sides is vital.
•Either side can have the documents relied upon by the other side to be
produced in Court.
•He can then inspect those documents and if necessary, challenge the
same in Court.
Inspection and Production of documents

•Affidavits are the statements given by the parties on oath before
authorized persons in or outside the Court.
•Such persons are generally lawyers em-powered by the State and
Central Government to attest the affidavits. They are known as
“Oath Commissioners” or “Notaries”.
•Affidavits can also be sworn by the parties in the Court to support
the statements made by them in their pleadings and other
applications.
Affidavits

•During pendancy of suit a Civil Court is competent to grant a Temporary
injunction or pass such interlocutory order as is necessary for the ends of
justice.
•The temporary injunction is an order by which any or all parties may be
restrained from doing any act or directed to do any act, normally during
pendancy of the suit.
•Normally an injunction is granted after notifying the other party in the
suit, but in an emergency it may be granted without notice or ex parte.
•For disobedience of an other of injunction, guilty party may be detained
in Civil prison.
Temporary injunctions & Interlocutory
Orders

•A plaintiff is at liberty to withdraw his suit against any defendant(s) or give
up his claim.
•Some times suits can be withdrawn with liberty to file a fresh one if there is
any formal defect which otherwise cannot be rectified while it remains
pending.
•A suit can also be withdrawn on compromise between the parties if the terms
of compromise are otherwise not unlawful.
•The compromise decree can however not be challenged later own by either
party on the ground of its being illegal.
Withdrawal & Compromise of Suits

•Appeal is the proceeding which a losing party normally files in The Superior
Court after the suit is decided against him by the Trial Court.
• Original decrees and certain orders can be appealed against.
•A compromise decree between the same parties can however not be appealed
against.
•In first appeal the findings of the Trial Court both on points of law and facts can
be challenged.
•However in the second appeal (before the High Court) only points of law can be
challenged.
First & Second Appeal

(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council
of India
•When any substantive question of law arises, or where the
legality or constutionalty of any law or enactment is
doubtful, a subordinate court can refer the matter for
consideration of the High Court. It is known as
“Reference”.
• Similarly the trial Court can “Review” the propriety of its
own judgment if any party applies for doing so within 30
days of the original judgment.
• Revision:- Any party can approach the Superior Court
(generally High Court) against an order of the Lower Court
on the ground of its Jurisdictional irregularity within 90
days.
•The Superior Court in deciding such application exercises
its power of “Revision”.
Reference, Review & Revision

Name of the Subject: cpc
Name of the Subject: cpc
execution

What is an execution?
Execution may not be used to seize property in
the hands of a third person (trustee execution). •
“Regular” execution may not be levied on a bank
account (Gabovitch v. Lundy, 584 F2d 559
(1978, CA1 Mass.) (interpreting Massachusetts
law). • A creditor who improperly uses a writ of
execution in this manner may be subject to
liability for unfair debt collection practicess.
execution

When does it issue?
After judgment.
After period for appeal has
expired with no appeal
taken.

No execution may be taken out during
pendency of appeal (Mass. R. Civ. P. 62(a) and
(d)). Postjudgment attachment is an option
however. The Appeals Court has recognized
that attachment may be available after judgment
during the pendency of an appeal: “Parties may
request from a trial court judge an attachment of
real property or the grant of a security interest
in personal property to protect a judgment
pending appeal.”
When does it issue

In the District Court (only) execution may not issue on a
judgment by default for 10 days (Rule 62(a)). There is no
comparable language applicable to the Superior Court. District
Court language taken from now-repealed District/ Municipal
Courts Rules of Civil Procedure. Possibly due to high default
rate in District Court
When does it issue

In the District Court (only) execution may not issue on a
judgment by default for 10 days (Rule 62(a)). There is no
comparable language applicable to the Superior Court.
District Court language taken from now-repealed District/
Municipal Courts Rules of Civil Procedure. Possibly due
to high default rate in District Court.

May require filing of certain papers (Dist./Mun.
Cts. Supp. R. Civ. P. 110) when action is founded
upon promissory note, check or any negotiable
instrument. Original note must be filed with clerk
prior to issuance of execution (if lost an affidavit
and motion to the court to use a copy).

If action is founded on an out of state judgment will
need a “transcript of the record of the judgment”
before execution will issue. If action is founded on
a judgment issued by another Massachusetts court
will need a certificate of judgment before execution
will issue.

Must be requested within one year of the
time the party was first entitled to its
issuance. (G.L. c. 235, § 17) • If party does
not make a timely request then can seek it
only through the allowance of a motion,
which appears to be entirely discretionary

Execution should include interest from the time the
judgment issued until the day the execution issues.
The interest is at the same rate as the prejudgment
interest and is on the entire judgment total
(including prejudgment interest, punitive damages
such as 93A double or treble damages, costs, and
attorney’s fee).
Interest

Interest continues to accrue on the
execution after it is issued until it
is satisfied at the same rate as
prejudgment interest.

Without specific direction of what property to seize (a
general “seize any non-exempt property of the debtor) it
is likely the officer will not do anything more than make a
demand for payment upon the debtor since in that
instance the officer would have liability for any property
wrongfully seized. Where the officer seizes property upon
a specific direction of the creditor, the law will imply a
promise by the creditor to indemnify the officer from any
liability for wrongful seizure.
Levy of Execution on Personal Property

Officer may require creditor to post a bond to protect
against wrongful seizure, as authorized in G.L. c. 235, §
35.
• Levy is made when the officer takes possession of the
property, or takes a position whereby he can exercise
dominion and control over it.
• The officer must keep the property at least four days
before selling it, but must be sold within 14 days, unless
the value of the property is over $300 and either party has
requested a newspaper advertisement in which case it must
be sold within 30 days.

An officer serving an execution may not break down the
door of a dwelling house to attach the owner’s goods
(Isley v. Nichols, 29 Mass. 270(1832).
• An officer is entitled to break down the door to a
warehouse to attach a defendant’s goods (Platt v. Brown,
33 Mass. 553 (1835), which implies that the same could
be done to levy an execution (although the use of force is
certainly something that should be used as sparingly as
possible).

THANK YOU

Semester: Fifth Semester
Name of the Subject: CPC
Semester: Fifth Semester
Name of the Subject: CPC
Civil pleading

Pleadings Legislative Provision:
Order VI of the Civil Procedure Code, 1908. Pleading refers to plaint and
written statement. Every pleading shall contain only a statement of
material facts in concise form. It should not contain evidence. It should be
divided into paragraphs, numbered consecutively. Each allegation, so far
as is convenient, should be contained in a separate paragraph. Dates,
sums and numbers should be in figures as well as in words.

Legislative Provision: Order VI of the Civil Procedure Code, 1908. Every
pleading must be signed by the party and his pleader. Every pleading
must be verified by the parties or one of the parties pleading. The person
verifying must specify what he verifies upon of his own knowledge and
what he verifies upon information received and believed to be true. The
person verifying must also furnish an affidavit in support of his pleading.
Amendment of Pleadings

Legislative Provision: O. VI R. 17, 18 of the Civil Procedure Code, 1908.
If it is not necessary for the purpose of determining the real question in
controversy between the parties. If it introduces a totally different, new and
inconsistent case. If it changes the fundamental character of the suit or defence.
If the effect of the proposed amendment is to take away from the other side a
legal right accrued in his favour. If the application for amendment is not made in
good faith.
Grounds for Refusal of Amendment

Legislative Provision: Order VII of the Civil Procedure Code, 1908.
In general, a civil suit is instituted by presentation of a plaint. A plaint
contains all the relevant facts necessary for the final determination of the
dispute between the parties. It is basically a statement of claim or a
document, by the presentation of which a suit is instituted. A plaint should
contain particulars specified in O VII R 1 of the Civil Procedure Code,
1908. It must specifically categorize the relief which the plaintiff claims.
What is a Plaint?

Legislative Provision: O. VII of the Civil Procedure Code, 1908.
If the plaintiff seeks recovery of money, he must state the precise amount
claimed. If the plaintiff has allowed a set-off or relinquished a portion of
his claim, it must contain the amount so allowed or relinquished. It must
also contain a statement of the value of the subject matter of the suit for the
purposes of jurisdiction and court-fees. It must specifically categorize the
relief which the plaintiff claims.
General Rules Relating to Plaints

O VII R 1 of CPC, 1908 A plaint should contain the following
particulars: The name of the Court in which suit is bought. Name,
description and place of residence of plaintiff Name, description
and place of residence of defendant If plaintiff or defendant is a
minor or a person of unsound mind, a statement to that effect Facts
constituting the cause of action and where it arose Facts showing
that the Court has jurisdiction Reliefs, as claimed by the plaintiff If
plaintiff has allowed a set-off or relinquished a portion of his claim,
the amount so allowed or relinquished A statement of the value of
the subject-matter of the suit.
Essentials of a Plaint

If it does not disclose a cause of action. If the relief claimed is
undervalued and the plaintiff fails to correct the valuation. If plaint is
returned upon paper insufficiently stamped and the plaintiff fails to correct
the valuation. If it is barred by any law for the time being in force. If it is
not filed in duplicate. If the plaintiff fails to present copies of the plaint on
plain paper to all the defendants along with the requisite fee for service of
summons on the defendant. Legislative Provision: O. VII R. 11 of the Civil
Procedure Code, 1908.
Grounds for Rejection of Plaint

Legislative Provision: Order VIII of the Civil Procedure
Code, 1908. It is a reply to the plaint filed by the
plaintiff. A written statement is the pleading of the
defendant. It deals with every material fact alleged by
the plaintiff in his plaint. It may also states any new
facts in favour of defendant or takes legal objections
against the claim of the plaintiff. It must be filed within
thirty days from the date of service of summons upon
defendant. It is the duty of defendant to produce
documents upon which relief is claimed or relied upon
by him. The defendant must raise by his pleading all
matters which show the suit not be maintainable, or that
the transaction is either void or voidable in point of law.
What is a Written Statement?

W.S. is the statement of defence in writing and filed by the defendant in
which he deals with every material fact answering to plantiff contetion and
also states new facts which may be in his favour and adding such legal
objections as he wishes to make to the claim.

1) A pleading must state facts and not law.
2) 2) Only material facts of the case.
3) 3) Pleading should not state the evidence.
4) 4) Pleading should be in concise form etc.

Facta probenda:- material fact required to be proved.
Facta probentia:- evidence of material facts.

It is a document issued by office of court of justice, calling upon the
person to appear before it.
Contents in summons:-
1) full name of the person.
2) Date of the case.
3) Address of court.
4) Seal of office.
summons

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