Introduction to the CPC: procedural law, history and key definitions

1. Substantive and procedural law

Substantive law defines rights and duties: the Contract Act tells you when a promise binds, the Transfer of Property Act tells you who owns land. Procedural law lays down the machinery by which those rights are enforced in a court: how a suit is started, how the other side is brought in, how evidence is taken, how a decree is executed. Salmond put it as the distinction between the law of rights and the law of remedies. The Code of Civil Procedure, 1908 is procedural; it creates no right of its own, though some of its provisions (res judicata, the right of appeal) affect rights so closely that they are treated as substantive.

Three consequences follow, and each makes a good paragraph in an answer.

• Retrospectivity. No one has a vested right in a mode of procedure, so a change in procedure ordinarily applies to pending cases. A right of appeal, by contrast, is a substantive right that vests on the date the suit is filed.
• Liberal construction. Procedure is a handmaid of justice, not its mistress. In Sangram Singh v. Election Tribunal, Kotah, 1955 INSC 15, AIR 1955 SC 425, the Court said that a code of procedure is designed to facilitate justice and should not be read as a penal enactment for punishing erring parties.
• Directory time-limits. The same reasoning led the Court in Kailash v. Nanhku, 2005 INSC 186, (2005) 4 SCC 480, to treat the 90-day outer limit for a written statement in Order VIII rule 1 as directory, so that the court may extend it in exceptional cases.

2. History of the Code

• Before 1859 the courts in the Presidency towns and in the mofussil followed different regulations. The first uniform code was Act VIII of 1859; it did not apply to the Supreme Courts in the Presidency towns or to the Presidency Small Cause Courts.
• It was replaced by the Codes of 1877 and 1882.
• The present Code of Civil Procedure, 1908 (Act 5 of 1908) came into force on 1 January 1909 (section 1(2)). Its great innovation was the division into a body of sections and a First Schedule of rules.
• Amendment Act 104 of 1976, on the Law Commission’s 54th Report, made wide changes (Explanations VII and VIII to section 11, sections 21A, 35B, counter-claim in Order VIII rules 6A to 6G, among others).
• Amendment Acts 46 of 1999 and 22 of 2002, in force from 1 July 2002, were aimed at delay: time-limits for written statements, the proviso to Order VI rule 17, section 89 (settlement outside court), service by courier and electronic means. Their validity was upheld in Salem Advocate Bar Association v. Union of India, 2002 INSC 444, (2003) 1 SCC 49.
• The Commercial Courts Act, 2015 (Act 4 of 2016), by its section 16 and Schedule, amended the Code in its application to commercial disputes of a specified value (with effect from 23 October 2015): a substituted section 35 on costs, verification by statement of truth (Order VI rule 15A), a strict 120-day limit for written statements, and summary judgment (Order XIII-A).

3. Scheme and extent

The Code has 158 sections in the body and 51 Orders in the First Schedule, followed by appendices of forms. The sections lay down jurisdiction and general principles; the Orders and rules lay down the manner of their exercise. The body can be amended only by Parliament; the rules in the First Schedule may be annulled, altered or added to by the High Courts under section 122. Where a section and a rule conflict, the section prevails.

Under section 1(3) the Code extends to the whole of India except the State of Nagaland and the tribal areas, which the State Government may extend it to by notification. The former exclusion of Jammu and Kashmir was omitted by the Jammu and Kashmir Reorganisation Act, 2019 (Act 34 of 2019) with effect from 31 October 2019.

4. Decree: section 2(2)

A decree is “the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.” Its elements:

• An adjudication: a judicial determination of the matter in dispute. An administrative order or a mere direction is not a decree.
• In a suit: the proceeding must begin with a plaint. Proceedings commenced by application are not suits, except where a statute declares the result to be a decree.
• Rights of the parties with regard to all or any of the matters in controversy: the decision must touch the substantive rights, not merely procedure.
• Conclusive determination so far as the court expressing it is concerned: the court must be done with that question, even though an appeal may lie.
• Formal expression: the decree is drawn up separately in the form the Code requires.

A decree is preliminary when further proceedings must be taken before the suit can be completely disposed of (a partition suit declaring shares before division by metes and bounds), and final when the adjudication disposes of the suit completely. It may be partly preliminary and partly final. The definition also creates deemed decrees: the rejection of a plaint and the determination of a question under section 144 (restitution). It excludes any adjudication from which an appeal lies as an appeal from an order, and any order of dismissal for default.

5. Order, judgment and related terms

• Order, section 2(14): the formal expression of any decision of a Civil Court which is not a decree. An order may be on a procedural or an incidental matter, may be passed in a suit or in a proceeding begun by application, and may or may not be appealable.
• Judgment, section 2(9): the statement given by the Judge of the grounds of a decree or order. The judgment gives the reasons; the decree follows it (section 33).
• Decree-holder, section 2(3), and judgment-debtor, section 2(10): the person in whose favour, or against whom, a decree has been passed or an order capable of execution has been made.
• Legal representative, section 2(11): a person who in law represents the estate of a deceased person, including a person who intermeddles with the estate, and, where a party sues or is sued in a representative character, the person on whom the estate devolves on his death.
• Mesne profits, section 2(12): the profits which the person in wrongful possession of property actually received or might with ordinary diligence have received, together with interest on them, but not profits due to improvements made by the person in wrongful possession. The measure is what the wrongdoer got or could have got, not what the owner lost. A claim for mesne profits may be joined with a suit for possession (Order II rule 4) and the court may direct an inquiry into them (Order XX rule 12).
• Foreign Court, section 2(5), and foreign judgment, section 2(6): see the note on sections 13 and 14.

6. Decree and order distinguished

• A decree can be passed only in a suit begun by plaint; an order may arise from a suit or a proceeding begun by application.
• A decree conclusively determines the rights of the parties; an order may or may not.
• A decree may be preliminary or final; an order is not so classified.
• Every decree is appealable unless an appeal is expressly barred (section 96); only the orders listed in section 104 and Order XLIII rule 1 are appealable.
• A second appeal lies from an appellate decree on a substantial question of law (section 100); no second appeal lies from an order passed in appeal under section 104 (section 104(2)).

7. Problem

The trial court rejects P’s plaint under Order VII rule 11 as disclosing no cause of action. In another suit by Q the court returns the plaint under Order VII rule 10 for presentation to the proper court. What remedy does each have?

Issue. Whether each decision is a decree or an order, because the remedy depends on that.

Law. Section 2(2) deems the rejection of a plaint to be a decree. A decree is appealable under section 96. Return of a plaint is not within the definition of decree; it is an order, and Order XLIII rule 1(a) makes it appealable under section 104, except where the procedure in Order VII rule 10A has been followed.

Application and conclusion. P may file a regular first appeal under section 96; he may also, under Order VII rule 13, present a fresh plaint on the same cause of action, since rejection does not of its own force bar it. Q’s remedy is a miscellaneous appeal under Order XLIII rule 1(a), unless he chose the rule 10A route and asked the court to fix a date before the proper court, in which case rule 10A(5) takes away the appeal.

How this is examined

As short notes: “Substantive and procedural laws” and “Mesne profit” (January 2025); “Decree and order” (January 2026). As an essay: “Define decree and order. What are the differences between them?” (January 2025). KSLU papers sometimes put the decree question in Unit III, alongside judgment and decree under Order XX, but the material is this note. Quote section 2(2), list its elements with one example each, give the deemed decrees and the two exclusions, then set out the differences point by point.