Code of Civil Procedure, 1908 along with Commentary

 
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[Act, No. 5 of 1908 ]1

[21st March, 1908 ]

Preamble

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:--

Footnote:

1. This Act has been amended in its application to Assam by Assam Acts 2 of 1941 and 8 of 1953; to Tamil Nadu by Madras Act 34 of 1950, Madras A. O. 1950, and Tamil Nadu Act 15 of 1970; to Punjab by Punjab Act 7 of 1934; to Uttar Pradesh by U.P. Acts 4 of 1925, 35 of 1948, 24 of 1954, 17 of 1970, 57 of 1976 and 31 of 1978; to Karnataka by Mysore Act 14 of 1955; to Kerala by Kerala Act 13 of 1957; to Rajasthan by Rajasthan Act 19 of 1958; to Maharashtra by Maharashtra Acts 22 of 1960 and 25 of 1970; It has been extended to Berar by the Berar Laws Act, 1941 (4 of 1941) and, by Notification under sections 5 and 5A of the Schedule Districts Act, 1874 (14 of 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), Gazette of India, 1909, Pt. I, pg. 5 and Gazette of India, 1914, Pt. I, pg. 1690.

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

(3) The Province of Kumaon and Garhwal and the Tarai Paraganas (with modifications), U.P. Gazette, 1909, Pt. I, pg. 3 and Gazette of India, 1909, PT. I, pg. 31.

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

(5) Coorg, Gazette of India, 1909, Pt. I, pg. 32.

(6) Scheduled Districts in the Punjab, Gazette of India, 1909, Pt. I, pg. 33.

(7) Sections 36 to 43 to all the Scheduled Districts in Madras, Gazette of India, 1909, Pt. I, pg. 152.

(8) Scheduled Districts in the C.P., except so much as is already in force and so much authorizes the attachment and sale of immovable property in execution of a decree, not being a decree directing the sale of such property, Gazette of India, 1909, Pt. I, pg. 239.

(9) Ajmer-Merwara except sections 1 and 155 to 158, Gazette of India, 1909, Pt. II, pg. 180.

(10) Paragana Dhalbhum, the Municipality of Chaibassa in the Kolhan and the Porahat Estate in the District of Singhbhum, Calcutta Gazette, 1909, Pt. I, pg. 453 and Gazette of India, 1909, Pt. I, pg. 443.

Under section 3(3)( a) of the Sonthal Parganas Settlement Regulation (3 of 1872), 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 (5 of 1893), Calcutta Gazette, 1909, Pt. I, pg. 45.

It has been declared to be in force in force in Panth Piploda by the Panth Piploda Laws Regulation, 1929 (1 of 1929), section 2; in the Khondmals District by the Khondmals Laws Regulation, 1936 (4 of 1936), section 3 and Schedule and in the Angul District by the Angul Laws Regulation, 1936 (5 of 1936), section 3 and Schedule

It has been extended to the Districts of Koraput and Ganjam Agency by Orissa Regulation, (5 of 1951) section 2.

It has been extended to the State of Manipur w.e.f. 1-1-1957 by Act 30 of 1950, section 3 to the whole of the Union territory of Lakshadweep w.e.f. 1-10-1967 by Regulation 8 of 1965, section 3 and Schedule; to Goa, Daman and Diu w.e.f. 15-6-1966 by Act 30 of 1965, section 3; to Dadra and Nagar Haveli w.e.f. 1-7-1965 by Reg. 6 of 1963, section 2 and Schedule I and to the State of Sikkim w.e.f. 1-9-84, vide Notification No. S.O. 599(E), dated 13-8-1984, Gazette of India Extra. Pt. II, section 3.

Section 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.

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

(a) the State of Jammu and Kashmir;

(b) the State of Nagaland and 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.]

‹~1section1~1›Commentary ‹/a›
‹~2section1~2›
The Code deals with procedural matters, that is, with matters relating to the machinery for the enforcement of substantive rights as contra-distinguished from the substantive rights themselves. As far as the substantive rights are concerned, one must look elsewhere, that is, to the statute law or the general principles of law. Even in matters relating to procedure, it is recognized that all procedure should be accepted to be permissible unless it is prohibited by the Code of Civil Procedure, 1908 either expressly or by necessary implication.
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Footnote:

1. Substituted by Act 104 of 1976, section 2, for sub-section (3) (w.e.f. 1-2-1977).

Section 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 1[***] 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;

2 [(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;

3 [(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, 4 [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 on 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 representative" 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 falling under any of the following descriptions, namely:--

(a) every Judge;

(b) every member of 5[an All-India Service];

(c) every commissioned or gazetted officer in the military 6 [naval or air] forces of 7 [the Union] 8[***] 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 of 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...

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