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CODE OF CIVIL PROCEDURE, 1908

Ministry of Law and Justice

Act nº 5 of 1908


  • Part I
  • Part II
  • Part III
  • Part IV
  • Part V
  • Part VI
  • Part VII
  • Part VIII
  • Part IX. Special Provisions Relating to the High Courts Not Being the Court of a Judicial Commissioner
  • Part X
  • Part XI
  • Orders
  • Appendices
  • Schedules
  • Amending Acts
  • Act nº 5 of 1908

Preamble

THE CODE OF CIVIL PROCEDURE, 1908

[ Act, No. 5 of 1908 ]1

[21 st 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 :--

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.]

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 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 judgement or decree, includes stamped.

9 [***]

1. The words "section 47 or" omitted by Act 104 of 1976, section 3(i) (w.e.f. 1-2-1977).

2. Substituted by Act 2 of 1951, section 4 for clause (5) (w.e.f. 1-4-1951).

3. Inserted by Act 2 of 1951, section 4 (w.e.f. 1-4-1951).

4. Inserted by Act 42 of 1953, section 4 and Schedule III (w.e.f. 23-12-1953)

5. Substituted by Act 104 of 1976, section 3(ii), for "the Indian Civil Service" (w.e.f. 1-2-1977).

6. Substituted by Act 35 of 1934, section 2 and Schedule, for "or naval".

7. Substituted by the A. O. 1950, for "His Majesty".

8. The word "including His Majesty's Indian Marine Service," omitted by Act 35 of 1934, section 2 and Schedule.

9. Clause (21) inserted by the A. O. 1950 and omitted by Act 2 of 1951, section 4 (w.e.f. 1-4-1951).


Section 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.

Section 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 lime being in force for the recovery of rent of agricultural land from the produce of such land.

Section 5. Application of the Code to Revenue Courts

( 1 ) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the State Government1[***] may, by notification in the Official Gazette, declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the State Government2[***] may prescribe.

( 2 ) "Revenue Court" in sub-section ( 1 ) me ans a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but docs not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature.

1. The words "with the previous sanction of the G.G. in C", omitted by Act 38 of 1920, section 2 and Schedule I.

2. The words "with the sanction aforesaid" omitted by Act 38 of 1920, section 2 and Schedule I .


Section 6. Pecuniary jurisdiction

Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

Section 7. Provincial Small Cause Courts

The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 ( 9 of 1887 ),1[or under the Berar Small Cause Courts Law, 1905 ], or to Courts exercising the jurisdiction of a Court of Small Causes2[under the said Act or Law],3[or to Courts in ]4[any part of India to which the said Act does not extend] exercising a corresponding jurisdiction] that is to say,--

(a) so much of the body of the Code as relates to--

(i) suits excepted from the cognizance of a Court of Small Causes;

(ii) the execution of decrees in such suits;

(iii) the execution of decrees against immovable property; and

(b) the following sections, that is to say,--

section 9 ,

sections 91 and 92 ,

sections 94 and 955[so far as they authorize or relate to--

(i) orders for the attachment of immovable property,

(ii) injunctions,

(iii) the appointment of a receiver of immovable property, or

(iv) the interlocutory orders referred to in clause (e) of section 94 ],

and sections 96 to 112 and 115 .

1.Inserted by Act 4 of 1941, Section 2 and Schedule III.

2.Substituted by Act 4 of 1941, section 2 and Schedule III, for "under that Act".

3.Inserted by Act 2 of 1951, section 5 (w.e.f. 1-4-1951).

4.Substituted by the Adaptation of Laws (No. 2) Order, 1956, for "Part BStates".

5.Substituted by Act 1 of 1926, Section 3, for "so far as they relate to injunctions and interlocutory orders".


Section 8. Presidency Small Cause Courts

Save as provided in sections 24, 38 to 41, 75, clauses (a), (b) and (c), 76 ,1[ 77, 157 and 158 ], and by the Presidency Small Cause Courts Act, 1882 ( 15 of 1882 ), the provisions in the body of this Code shall not extend to any suit or proceeding in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay:

2[Provided that--

( 1 ) the High Courts of Judicature at Fort William, Madras and Bombay, as the case may be, may from time to time, by notification in the Official Gazette,3direct that any such provisions not inconsistent with the express provisions of the Presidency Small Cause Courts Act, 1882 ( 15 of 1882 ), and with such modifications and adaptations as may be specified in the notification, shall extend to suits or proceedings or any class of suits or proceedings in such Court;

( 2 ) all rules heretofore made by any of the said High Courts under section 9 of the Presidency Small Cause Courts Act, 1882 ( 15 of 1882 ), shall be deemed to have been validly made.]

1. Substituted by Act 104 of 1976, section 4, for "77 and 155 to 158" (w.e.f. 1-2-1977).

2. Added by Act 1 of 1914, section 2.

3. For instance of such direction, see Calcutta Gazette, 1910, Pt. I, p. 814.


Part I

Section 9. Courts 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.

1[Explanation I].-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.

2[Explanation II .-For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.]

1. Explanation renumbered as Explanation I thereof by Act 104 of 1976, section 5 (w.e.f. 1-2-1977).

2. Inserted by Act 104 of 1976, section 5 (w.e.f. 1-2-1977).


Section 10. Stay of suit

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 1 [India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1 [India] established or continued by 2 [the Central Government] 3 [***] and having like jurisdiction, or before 4 [the Supreme Court].

Explanation.-The pendency of a suit in a foreign Court does not preclude the Courts in 1 [India] from trying a suit founded on the same cause of action.

1. Substituted by Act 2 of 1951, section 3, for "the States" (w.e.f. 1-4-1951).

2. Substituted by the A.O. 1937, for "the G.G. in C."

3. The words "or the Crown Representative" omitted by the A.O. 1948.

4. Substituted by the A.O. 1950, for "His Majesty in Council".


Section 11. 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.

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 a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III.--The matter 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 such suit.

Explanation V.--Any relief claimed in the plaint, which is not expressly granted by the decree, 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 purposes of this section, be deemed to claim under the persons so litigating.

1 [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 or the suit in which such issue has been subsequently raised.]

1. Inserted by Act 104 of 1976, section 6 (w.e.f. 1-2-1977).


Section 12. Bar to further suit

Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

Section 13. When foreign judgment not conclusive

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 --

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the me rits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of1[India] in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud ;

(f) where it sustains a claim founded on a breach of any law in force in1[India].

1. Substituted by Act 2 of 1951, section 3, for "the States" (w.e.f. 1-4-1951).