DECREE

In the definition, some orders which otherwise do not constitute decree are also included and
certain orders which constitute decree have been excluded from it. Merely because there
exists some order captioned as a decree drawn up even in the form of decree, it would not
make such an order decree unless the court satisfied the requirement of s 2 (2) of the Code of
Civil Procedure.

Chelaram v. Manak, AIR 1997 Raj 284.

For determining the question as to whether an order passed by a Court is a decree or not, it
must satisfy the following tests:

there must be an adjudication;

such adjudication must have been given in a suit;

It must have determined the rights of the parties with regard to all or any of the matters in
controversy in the suit;

such determination must be of a conclusive nature; and

there must be a formal expression of such adjudication.

[s. satyam singh vs Surender kaur] 2009 air 1089

The Court with a view to determine whether an order passed by it is a decree or not must take
into consideration the pleadings of the parties and the proceedings leading up to the passing
of an order. The circumstances under which an order had been made would also be relevant.
(ibid)

An order must satisfy the requirements of s 2 (2) in order to become a decree. Merely
labelling it as a decree does not make it a decree. [MPHC. Bal Kishan vs Tulasi Bai]
When a decree is challenged in appeal, the appellate hearing is a re-hearing of the subject
matter. The lower court decree is merged in the appellate decree.

FORMAL EXPRESSION

All requirements of form must be complied with. Accordingly, it was said that if no decree
has been drawn up, no appeal will lie from the judgment. [Mt Chauli Subhadra Devi v. Mt
Meghoo, AIR 1945 All 268]

It has however, been held that the right of a party to prefer an appeal is not affected by the
failure to draw up a decree as that is only formal.[ Parasuram v. Heera Bai, AIR 1957 Bom
59]

A decree follows the judgment and must be drawn up separately [Shakuntala devi vs kuntal
kumari, 1969 AIR 575]

An order must satisfy the requirements of s 2 (2) in order to become a decree. Merely
labelling it as a decree does not make it a decree. [Bal Kishan v. Tulasi Bai, AIR 1987 MP
120]

ADJUDICATION

Means judicial determination of a matter in dispute. If no judicial determination of matter in

dispute, then it is not a decree [Madan Naik vs Hansubala devi]. Such adjudication is to be
done by a COURT, hence an officer who is not a court is not a decree [deep chand vs land
acquisition officer].

CONCLUSIVE DETERMINATION

This expression implies that the decision must be one which is complete and final as regards
the court which passed it. The decree may conclusively determine the rights of the parties
although it does not completely dispose off the suit. [srijib vs dandi swami jagannath ashram]

When any order decides only the question of limitation, such an order will not be a decree
within the meaning of s 2 (2) of the Code of Civil Procedure because such an order does not
result in conclusive determination of the right of the parties envisaged by s 2 (2) with regard
to all or any matter in controversy in a suit.[chelaram vs manak]

An order allowing withdrawal of suit, without liberty to file fresh suit and without
adjudication, does not constitute a decree.[kandapazha nagar vs Chitraganiammal, 2007 AIR
1575]

An order may conclusively determine rights of the parties though not dispose off the suit and
still be a decree. Dismissal of an appeal summarily or dismissal of suit for want of evidence
are decrees.

The crucial point which requires to be decided in such a case is whether the decision is final
and conclusive in essence and substance. If it is, it is a decree, if it is not, it is not a decree.
[jethanand and sons vs state of up, 1961 air 794]

RIGHTS OF PARTIES ON ALL/ANY OF THE MATTERS IN CONTROVERSY

3 TERMS (RIGHTS, PARTIES AND ‘MATTERS IN CONTROVERSY’)

The right in controversy must be a substantive right and not merely a processual right, for a
finding on a processual right is only to enable the court to inquire into the rights in
controversy in the suit.[dattatraya vs radhabai, Bom HC]

Parties means parties to suit and not a third person. Order on an application by a third party
who is a stranger to suit is not a decree.

The expression matter in controversy in the suit means such matter as has been brought up for
adjudication by the court through the pleadings. Hence, the conclusive determination, in
order to amount to a decree must be on matters in controversy in the suit.

An order refusing to record a compromise cannot be tantamount to a decree within the

meaning of s 2 (2) and is not therefore, appealable under s 96. The order cannot be held to be
an adjudication which conclusively determines the rights of the parties with regard to any of
the matters in controversy in the suit. [Gopupeddireddi v. Gopu Tirupathy Reddy, AIR 1991
AP 362.]

[MP HC, Anjeeni Prasad vs Ishwardin] It was held that the order directing striking out the
names of parties was not a decree. All that the order means is, that those plaintiffs were
improperly joined in the suit and their names were struck out. This order contains a mere
finding that those persons were not necessary parties to the suit and hence, is not a decree.
Consequently, they could not appeal against it.

IN A SUIT

Every suit is commenced by a plaint,[Venkata vs venkatrama MadHC] and when there is no

civil suit there is no decree.[Minakshi vs subramanya MadHC].

PRELIMINARY AND FINAL DECREE

A preliminary decree is one which declares the rights and liabilities of the parties leaving the
actual result to be worked out in further proceedings [ex. partition]. Then, as a result of the
further inquiries conducted pursuant to the preliminary decree, the rights of the parties are
finally determined and a decree is passed in accordance with such determination. That is the
final decree.

decree may be said to become final in two ways [Shankar vs Chandrakant, 1995 AIR 1211] :

when the time for appeal has expired without any appeal being filed against the preliminary
decree or a matter has been decided by the highest court;

when as regards the court passing the decree, the same stand completely disposed off.

In the case of Hasham Abbas Sayyad v. Usman Abbas Sayyad [2007 AIR 1077] the Supreme
Court has explained that preliminary decree declares the rights and liabilities of parties;
however, in a given case a decree may be both preliminary and final.

There can be more than one final decree. A decree may be partly preliminary and party final,
but what can be executed is a final decree and not a preliminary decree, unless final decree is
a part of the preliminary decree.

Preliminary decree is a decree within the meaning of s 2 (2) of the Code of Civil Procedure,
but it is not capable of execution, normally, till a final decree is passed.[ A. K. Akkukamma
v. G Papi Reddy,AIR 1995 AP 166]
Order 20 [ r 12 13 14 15 16 18] and 34 enumerates the classes of suits in which preliminary
decrees are to be passed but this is not exhaustive and does not preclude the court from
passing a preliminary decree in cases not expressly provided for in the Code of Civil
Procedure.

It is settled law that there can be more than one preliminary decrees in a suit. Similarly, there
can be more than one final decree in a suit. [Rachakonda Venkat Rao v. R. Satya Bai, AIR
2003 SC 3322]

A decree can be partly preliminary and partly final as well [ex. In Suit for possession of
immovable property and mesne profits, court grants possession and reserves decree for final
decision on quantum of mesne profits]

DEEMED DECREE
The term ‘deemed’ is generally used to create a statutory fiction for the purpose of extending
the meaning which is doesn’t expressly cover.
CIT vs Bombay Trust Corpn. [AIR 1930 PC 54], the PC stated “When a person is deemed to
be something, the only meaning possible is that whereas he is not in reality that something,
the act of parliament/legislature requires him to be treated as if he were”.
An adjudication the is not a ‘decree’ as per the essentials given under section 2(2) of the code
can’t generally be said to be a decree. Thus by legal fiction, certain orders are deemed to be
decrees under the code.
An award rendered under the Arbitration and Conciliation Act, 1996, is a deemed decree only
for the purpose of enforcement under s 36 of the Act. The enforcement is done by taking
steps under Code of Civil Procedure for the realisation of money. The use of the words as if
in s 36 of the Act demonstrates that it is a decree only by a legal fiction and the said legal
fiction is created only for the purpose of its enforcement as decree cannot be extended
beyond the purpose for which it was created. [Paramjeet Singh Patheja vs ICDS Ltd., 2009
AIR 168]
Some example of orders which are decrees:
 a modification in a decree is also a decree.6
 An order made in winding up proceedings under the Indian Companies Act, 1956;8
 An order setting aside an ex-parte decree is a decree and the plaintiff aggrieved by
such an order can appeal against it.9
 An order modifying a scheme under s 92 of the Code of Civil Procedure 1908, which
is part of a decree, constitutes an amendment in decree against which an appeal would
lie;12
 An order rejecting a plaint is a decree and is not revisable under s 115 of the Code but
appealable under s 96 of CPC.18
Some example of orders which are not decrees:
 An order rejecting an application for leave to sue in forma pauperis for no suit has till
then been filed;20
  An order under the Indian Trusts Act, 1882 dismissing an application for the removal
of a trustee;23
 An order granting interim relief under s 24 of the Hindu Marriage Act, 1955;32
 Rejection of application for condonation of delay and consequent dismissal of appeal
as time barred;42

ORDER
“means the formal expression of any decision of civil court which is not a decree”

As a general rule, an order of a court of law is founded on objective considerations and as

such a judicial order must contain a discussion of the question at issue and the reasons which
prevailed with the court which led to passing of the order.

Order in contempt proceedings is an order within the meaning of this section.84 But it may
be noted that contempt is a matter essentially between the court and condemner. The party
filing an application seeking act ion against the contemner is only informant. Once the court
admits the contempt petition, then the petitioner has really no effective role to play though
usually he is given a hearing in such a petition. The contempt alleged may be a contempt of
civil nature but by exercising its jurisdiction to deal with the alleged contempt, the court does
not become a civil court within the meaning of s 2 (2) and s 2 (14) of the Code of Civil
Procedure. It remains as a court exercising contempt jurisdiction. The court either punishes
the condemner or discharges him or remedies punishment of apology being made to its
satisfaction. No other order is contemplated in such a proceedings. If in such a proceedings
the parties file certain consent terms, they do not form the part of the final order which is
contemplated in contempt proceedings. Filing of the consent terms by the parties is only a
consideration which prompts the court not to proceed further in the matter and terminate the
proceedings by disposing of the petition. Therefore, it can hardly be said that the consent
terms in terms of which the petition is disposed of form the part of the final order of the court.
The court, in exercise of its contempt jurisdiction, does not decide any issue or question much
less on merits. Therefore, the consent terms incorporated in the final order passed in contempt
petition do not amount to a decision within the meaning of the term as used in s 2 (14) of the
Code of Civil Procedure and therefore, it is not an order within the meaning of that section.
Consequently, such an order cannot be said to be executable under O 21 read with s 36 of the
Code of Civil Procedure.85

DECREE OR ORDER OBTAINED BY FRAUD

it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot
be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke
proclaimed; "Fraud avoids all judicial acts, ecclesiastical or temporal".

It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud
on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a
judgment, decree or order by the first Court or by the final Court has to be treated as nullity
by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal,
revision, writ or even in collateral proceedings. In the leading case of Lazarus Estates Ltd. v.
Beasley, (1956) 1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR 502, Lord Denning
observed:

"No judgment of a court, no order of a Minister, can be allowed to stand, if it has been
obtained by fraud."

In A.V. Papayya Sastry vs Govt of AP, the SC when was approached u/a 136 it held that “we
have no doubt that the remedy to move for recalling the order on the basis of the newly
discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation.
No Court or tribunal can be regarded as powerless to recall its own order if it is convinced
that the order was wangled through fraud or misrepresentation of such a dimension as would
affect the very basis of the claim… Keeping in view totality of facts and attending
circumstances including serious allegations of fraud said to have been committed by the land-
owners in collusion with officers of the respondent-Port Trust and Government, report
submitted by the Central Bureau of Investigation (CBI), prima facie showing commission of
fraud and initiation of criminal proceedings, etc. if the High Court was pleased to recall the
earlier order by issuing directions to the authorities to pass an appropriate order afresh in
accordance with law, it cannot be said that there is miscarriage of justice which calls for
interference in exercise of discretionary and equitable jurisdiction of this Court.”

JUDGEMENT
“means the statement given by the judge of the grounds of a decree or order”

In Smt. Swaran Lata Ghosh Vs. Harendra Kumar Banerjee and Anr. (AIR 1969 SC 1167), it
was inter-alia held as follows (at Para 6):

"Trial of a civil dispute in Court is intended to achieve, according to law and the procedure of
the Court, a judicial determination between the contesting parties of the matter in
controversy. Opportunity to the parties interested in the dispute to present their respective
cases on question of law as well as fact, ascertainment of facts by means of evidence tendered
by the parties and adjudication by a reasoned judgment of the dispute upon a finding on the
facts in controversy and application of the law to the facts found, are essential attributes of a
judicial trial. In a judicial trial, the judge not only must reach a conclusion which he regards
as just, but, unless otherwise permitted, by the practice of the Court or by law, he must record
the ultimate mental process leading from the dispute to its solution. A judicial determination
of a disputed claim where substantial questions of law or fact arise is satisfactorily reached,
only if it be supported by the most cogent reasons that suggest themselves to the Judge; a
mere order deciding the matter in dispute not supported by reasons is no judgment at all.
Recording of reasons in support of a decision of a disputed claim serves more purposes than
one. It is intended to ensure that the decision is not the result of whim or fancy, but of a
judicial approach to the matter in contest; it is also intended to ensure adjudication of the
matter according to law and the procedure established by law. A party to the dispute is
ordinarily entitled to know the grounds on which the Court has decided against him, and
more so, when the judgment is subject to appeal. The Appellate Court will then have
adequate material on which it may determine whether the facts are properly ascertained, the
law has been correctly applied and the resultant decision is just. It is unfortunate that the
learned Trial Judge has recorded no reasons in support of his conclusion, and the High Court
in appeal merely recorded that they thought that the plaintiff had sufficiently proved the case
in the plant."

In Balraj Taneja and Anr. Vs. Sunil Madan and Anr. (1999 (8) SCC 396), it was inter-alia
held as follows:

"There is yet another infirmity in the case which relates to the "judgment" passed by the
single Judge and upheld by the Division Bench.

"Judgment" as defined in Section 2(9) of the Code of Civil Procedure means the statement
given by the Judge of the grounds for a decree or order. What a judgment should contain is
indicated in Order 20 Rule 4(2) which says that a judgment "shall contain a concise statement
of the case, the points for determination, the decision thereon, and the reasons for such
decision". It should be a self-contained document from which it should appear as to what
were the facts of the case and what was the controversy which was tried to be settled by the
Court and in what manner. The process of reasoning by which the Court came to the ultimate
conclusion and decreed the suit should be reflected clearly in the judgment."

The ratio decidendi of judgment has to be found out only on the reading of the entire
judgment. The ratio of the judgment is what is set out in the judgment itself, the answers to
the questions are merely conclusions and not ratio of the judgment. [Islamic Academy of
Education vs State of Karnataka, AIR 2003 SC 3724]

[MP JAIN] It has been held that section 2(9) defines the word "judgment" as defined in the
Code and not elsewhere.[ The Printers (Mysore) Pvt Ltd v P Joseph, AIR 1961 Mys 8 (DB)]

Thus, the meaning of the word "judgment" in Civil Procedure Code is not helpful in
ascertaining meaning of the word in section 10 of Delhi High Court Act.[ Begum Aftab
Zamani v Shri Lal Chand Khanna, AIR 1969 Del 85 (FB)]

Likewise this definition does not apply to the word as occurring in the Letters Patent.
[ Shorab Modi v Mansata Film Distributors, AIR 1957 Cal 727] "Judgment" in Article
133, Constitution of India also does not carry the sense in which it is defined under this
section.[ Inda Devi v Revenue Board, AIR 1957 All 116 (DB)] Order rejecting application
to appeal as pauper is not a judgment.[ Kailashnath v Nagar Mahapalika, Lucknow, AIR
1963 All 241]

DIFFERENCES

JUDGMENT VS DECREE
Necessary for a judge to give statement of Not necessary for the judge to give
reasons in judgment statement of reason in decree
Judgment  contemplates a stage prior to the After pronouncement of judgment a decree
passing of a decree [ see s. 33] shall follow.

DECREE vs ORDER
Is passed only in a suit instituted by Can be passed in a suit, or may originate from
presentation of plaint petition/application 
Conclusive determination is May or may not conclusively determine rights
quintessential
May be preliminary or final There can’t be a preliminary order
All decrees are appealable Appealable only if enumerated in o43r1
Second appeal may be filed on No provision for second appeal
‘substantial question of law’

PLEADINGS
PLEADING
The object of a pleading is to bring the parties to a trial by concentrating their attention on the
matter in dispute, so as to narrow the controversy to precise issues, and to give notice to
parties of the nature of testimony required on either side in support of respective cases [ladli
pd vs karnal & C, 1963 SC 1279]
Relief in favor of parties not sought in pleading should not be granted [Sayyad Dagadu Karim
vs R. C. Rodrigues, 2003 AIHC 1719 (1720) Bom]
In interpreting the pleading no pedantic approach should be adopted to defeat justice on hair
splitting technicalities.  Sometimes pleadings are expressed in words which may not
expressly make out a case in accordance with hair-splitting interpretation of law. In such a
case it is the duty of court to ascertain the substance of the pleadings to determine the
question [Ram Swarup vs Bishun Narayan, 1987 AIR 1242]
The whole object of pleadings is to ascertain the real disputes between the parties, to narrow
down the area of conflict and to see where the two sides differ, to preclude one party from
taking the other by surprise and to prevent miscarriage of justice [Throp vs Holdsworth,
(1876) Ch D 637].
Ganesh Trading Co. vs Moji Ram [(1978) 2 SCC 91] “provisions relating to pleading in civil
cases are meant to give to each side intimation of the case of the other so that it may be met
to enable courts to determine what is really at issue between parties, and to prevent deviations
from the course which litigation on particular casus of action must take”.
General principles for pleadings:
a. The pleadings should state facts and not law;
b. The facts stated should be material facts;
c. Pleadings should not state evidence; and
d. The facts should be stated in concise form.

PLAINT
A “Plaint” is a statement of claim, document, or a memorial by the presentation of which a
suit is instituted. It contains the grounds on which assistance of court is sought by the
plaintiff.
It is a pleading of the plaintiff.
Plaint is “a private memorial tendered to a court in which a person sets forth his cause of
action; the exhibition of an action in writing” [Assan vs Pathumma, ILR (1899) 22 Mad 494].
Plaint shall contain the following: a) name and details of parties, b) cause of action, c)
jurisdiction of court, d) reliefs. [o7r1]

WRITTEN STATEMENT
May be defined as a reply of the defendant to the plaint filed by plaintiff. 
It is a “term of specific connotation ordinarily signifying a reply to the plaint filed by the
plaintiff” [Food corporation of India vs Yadav Engg and contractor, (1982) 2 SCC 499].
EXECUTION
The process of enforcing or giving effect to the judgment, decree or order of the court.
Execution is the enforcement of decrees and orders by the process of the court, so as to
enable the decree holder the realize the fruits of the decree. [Sreenath Roy vs Radhanath
Mookerjee, ILR (1882) 9 Cal 773]
The execution is complete when decree-holder gets money or other thing awarded to him by
the judgment, decree or order.
 
CAUSE OF ACTION
THE KEY TO INDIAN PRACTICE: A SUMMARY OF THE CODE OF CIVIL
PROCEDURE

BY SIR DINSHAW FARDUNJI MULLA

CAUSE OF ACTION

Cause of action is a bundle of facts which is necessary for plaintiff to prove his case so that
he can succeed. [Nawal Kishore Sharma v UOI, AIR 2014 SC 3607]

Cause of action comprises a bundle of facts which are relevant for determination of lis
between parties.[ AVM Sales Corporation v Anuradha Chemicals (P) Ltd (2012) SCC 315]

In Pittapur Raja v. Suriya Rau,20 their Lordships of the Privy Council, referring to the
expression cause of act ion in r 2, said that it meant the cause of action for which the suit was
brought.

Generally stated, cause of act ion means every fact which is necessary to establish to support
a right or obtain judgment. Another shade of meaning is that a cause of action means every
fact which will be necessary for the plaintiff to prove (if traversed).

ILLUSTRATIONS
(i) A resides at Delhi, and B at Agra, B borrows Rs. 2,000 from A at Banaras and passes a
promissory note to A payable at Banaras, B fails to repay the loan, A may sue B at Banaras
where the cause of action arose or at Agra where B resides. But A cannot sue B at Delhi
where A resides.

(ii) If in Illustration (i) the note was made payable at Amritsar a part of the cause of action
would arise at Banaras where the note was passed and a part at Amritsar where it was made
payable and A could then sue B at his option at Amritsar also.

(iii) B and C pass a joint promissory note to A at Banaras and made payable at Banaras. B
resides at Agra and C at Simla. A may sue B and C at Banaras where the cause of action
arose. He may also sue them at Agra where B resides or at Simla where C resides but in
either of these cases if the non-resident objects, the suit cannot proceed without the leave of
the Court.

MESNE PROFITS

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.

It means those profits to which a person is entitled but from which he has been kept out by
the defendant.[ D Satyanarayanan Murthy v Bhavanna, AIR 1957 AP 766]

Mesne profits can be claimed only regarding immovable property and not in regard to such
property which cannot be deemed to be immovable property.[ KB Singh v MDU Co-op
Association, AIR 1957 Manip 9 .]
Object of awarding such profits—The main object is to compensate the person entitled to be
in possession of the property. A person who is entitled to actual possession can claim mesne
profits. The very foundation of the cause of action for mesne profits is wrongful possession of
the defendant. Thus, for example, the possession of a mortgagor after the date of a
foreclosure decree against him is a wrongful possession.

Similarly, the possession of a vendee under a conveyance which is voidable for fraud or
undue influence is a wrongful possession.

Measure of mesne profits—The measure of mesne profits is not what the plaintiff has lost.
The measure would be, what the defendant has gained by his wrongful

possession, or what he might reasonably have gained by such possession. Thus, if the person
charged has let the land to another, the rent which he has actually received would be the
mesne profits for which he would be liable, unless it is proved that a higher rent could have
been obtained with due diligence.

The expression mesne profits as defined in s 2 (12) of the Code means those profits which a
person in wrongful possession of such property either act ually received or might have
received with due diligence. It is not always necessary that there should be proof of actual
receipt. [Mohadei v. Kaliji Birajman, 1969 All LJ 896]

The principles which would guide a Court in determining whether mesne profits be

allowed or not, are as follows:

(1) a wrongful possessor should not profit by his possession.

(2) restoration of status before dispossession of the rightful owner; and

(3) use to which the rightful owner would have put the land if he was himself in

possession.

Reference may be made to Nandita Bose v Ratan Lal Nahata, AIR 1987 SC 1947 :

(1987) 3 SCC 705 wherein, it has been held as follows:

“The claim for mesne profits damages is neither palpably absurd not imaginary. It needs
judicial consideration. The acceptance of the view put forward by the respondent (tenant)
may lead to encouraging a tenant who has forfeited his right to the tenancy to carry on a
dilatory litigation without compensating the land lady (land lord) suitably for loss suffered by
him on account of the unreasonable deprivation of the possession of his premises for a long
period until he is able to get possession of the premises through the Court.”

The possession of a co-sharer can never be wrongful within the meaning of s 2 (12) as he has
a right and interest in every inch of the undivided property. Therefore, one co-sharer cannot
claim mesne profits against the other, on the ground that the latter was in wrongful
possession. [Shambhu Dayal Khetan v. Motilal Murarka, AIR 1980 Pat 106]

It has been held that interest is an integral part of mesne profits and has therefore to be
allowed in computation of mesne profits itself. What rate of interest shall be allowed, that
always depends on the discretionary powers of the Court as there is no question of any
contractual rate or any particular rate fixed by statute. [N Dajee v Tirupathi Devasthanam,
AIR 1965 SC 1231]

INTERMEDDLER
THE KEY TO INDIAN PRACTICE: A SUMMARY OF THE CODE OF CIVIL
PROCEDURE

BY SIR DINSHAW FARDUNJI MULLA

CAUSE OF ACTION

Cause of action is a bundle of facts which is necessary for plaintiff to prove his case so that
he can succeed. [Nawal Kishore Sharma v UOI, AIR 2014 SC 3607]
Cause of action comprises a bundle of facts which are relevant for determination of lis
between parties.[ AVM Sales Corporation v Anuradha Chemicals (P) Ltd (2012) SCC 315]

In Pittapur Raja v. Suriya Rau,20 their Lordships of the Privy Council, referring to the
expression cause of act ion in r 2, said that it meant the cause of action for which the suit was
brought.

Generally stated, cause of act ion means every fact which is necessary to establish to support
a right or obtain judgment. Another shade of meaning is that a cause of action means every
fact which will be necessary for the plaintiff to prove (if traversed).

ILLUSTRATIONS

(i) A resides at Delhi, and B at Agra, B borrows Rs. 2,000 from A at Banaras and passes a
promissory note to A payable at Banaras, B fails to repay the loan, A may sue B at Banaras
where the cause of action arose or at Agra where B resides. But A cannot sue B at Delhi
where A resides.

(ii) If in Illustration (i) the note was made payable at Amritsar a part of the cause of action
would arise at Banaras where the note was passed and a part at Amritsar where it was made
payable and A could then sue B at his option at Amritsar also.

(iii) B and C pass a joint promissory note to A at Banaras and made payable at Banaras. B
resides at Agra and C at Simla. A may sue B and C at Banaras where the cause of action
arose. He may also sue them at Agra where B resides or at Simla where C resides but in
either of these cases if the non-resident objects, the suit cannot proceed without the leave of
the Court.

MESNE PROFITS
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.

It means those profits to which a person is entitled but from which he has been kept out by
the defendant.[ D Satyanarayanan Murthy v Bhavanna, AIR 1957 AP 766]

Mesne profits can be claimed only regarding immovable property and not in regard to such
property which cannot be deemed to be immovable property.[ KB Singh v MDU Co-op
Association, AIR 1957 Manip 9 .]

Object of awarding such profits—The main object is to compensate the person entitled to be
in possession of the property. A person who is entitled to actual possession can claim mesne
profits. The very foundation of the cause of action for mesne profits is wrongful possession of
the defendant. Thus, for example, the possession of a mortgagor after the date of a
foreclosure decree against him is a wrongful possession.

Similarly, the possession of a vendee under a conveyance which is voidable for fraud or
undue influence is a wrongful possession.

Measure of mesne profits—The measure of mesne profits is not what the plaintiff has lost.
The measure would be, what the defendant has gained by his wrongful

possession, or what he might reasonably have gained by such possession. Thus, if the person
charged has let the land to another, the rent which he has actually received would be the
mesne profits for which he would be liable, unless it is proved that a higher rent could have
been obtained with due diligence.

The expression mesne profits as defined in s 2 (12) of the Code means those profits which a
person in wrongful possession of such property either act ually received or might have
received with due diligence. It is not always necessary that there should be proof of actual
receipt. [Mohadei v. Kaliji Birajman, 1969 All LJ 896]
The principles which would guide a Court in determining whether mesne profits be

allowed or not, are as follows:

(1) a wrongful possessor should not profit by his possession.

(2) restoration of status before dispossession of the rightful owner; and

(3) use to which the rightful owner would have put the land if he was himself in

possession.

Reference may be made to Nandita Bose v Ratan Lal Nahata, AIR 1987 SC 1947 :

(1987) 3 SCC 705 wherein, it has been held as follows:

“The claim for mesne profits damages is neither palpably absurd not imaginary. It needs
judicial consideration. The acceptance of the view put forward by the respondent (tenant)
may lead to encouraging a tenant who has forfeited his right to the tenancy to carry on a
dilatory litigation without compensating the land lady (land lord) suitably for loss suffered by
him on account of the unreasonable deprivation of the possession of his premises for a long
period until he is able to get possession of the premises through the Court.”

The possession of a co-sharer can never be wrongful within the meaning of s 2 (12) as he has
a right and interest in every inch of the undivided property. Therefore, one co-sharer cannot
claim mesne profits against the other, on the ground that the latter was in wrongful
possession. [Shambhu Dayal Khetan v. Motilal Murarka, AIR 1980 Pat 106]

It has been held that interest is an integral part of mesne profits and has therefore to be
allowed in computation of mesne profits itself. What rate of interest shall be allowed, that
always depends on the discretionary powers of the Court as there is no question of any
contractual rate or any particular rate fixed by statute. [N Dajee v Tirupathi Devasthanam,
AIR 1965 SC 1231]

JURISDICTION
JURISDICTION

Definition

Jurisdiction means the extent of power of a court to entertain suits and applications. It
signifies the power authority and competency of the court to adjudicate disputes presented
before it. It refers to the right of administering justice by means of law. [Official Trustee,
West Bengal vs Sachindra Nath Chatterjee, 1969 AIR 823]

Jurisdiction means the power or authority of a court to inquire into facts, to apply the law and
to pronounce a judgment and to carry it into execution. [Ujjam Bai vs State of UP, 1962 AIR
1621]

The definition of jurisdiction under Black’s Law Dictionary is : “ The power and authority
constitutionally conferred upon ( or constitutionally recognized as existing in) a court or
judge to pronounce the sentence of law, or to award the remedies provided by law , upon a
state of facts, proved or admitted, referred to tribunal for decision, and authorized by law to
bring the subject of investigation or action by that tribunal, and in favor of or against persons
(or a Res) who present themselves, who are brought before the court in some manner
sanctioned by law as proper and efficient.”

Where a court lacks jurisdiction to try a matter, it cannot be created by express consent of
parties [Patel Roadways Ltd vs Prasad trading Co], , waiver [P Dasa Muni reddy vs P Appa
Rao], or acquiescence [kiran singh vs chaman paswan]. Similarly , it can’t be taken away by
act of parties.

Where multiple courts have jurisdiction, parties may choose.

Decree by court not having jurisdiction is null and void.

LACK OF JURISDICTION AND IRREGULAR EXERCISE OF JURISDICTION

Lack of jurisdiction = the concerned court has no jurisdiction to entertain the suit.

Irregular exercise of jurisdiction = the court has jurisdiction but has exercised such
jurisdiction irregularly.
Ittyavira Mathai vs Varkey varkey [1964 AIR 707]

It was contended that decree passed by court was nullity as the suit was time barred. The SC
observed “if the suit was barred by time and yet the court decreed it, the court would be
committing an illegality and therefore the aggrieved party would be entitled to have the
decree set aside by preferring an appeal against it. But it is well settled that a court having
jurisdiction over the subject-matter of the suit and over parties thereto though bound to decide
right may decide wrong; and that even though it decided wrong it would not be doing
something which it had no jurisdiction to do… if the party aggrieved does not take
appropriate steps to have that error corrected, the erroneous decree will hold good and will
not be open to challenge on basis of being a nullity”.

“Lack of jurisdiction may arise in various ways. There may be an absence of those formalities
or things which are condition precedent to the tribunal having any jurisdiction to embark on
an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make.”
[Anisminic Ltd vs Foreign Compensation commission]

PECUNIARY JURISDICTION

PECUNIARY JURISDICTION

SECTION 6
“—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.”

It is the plaintiffs valuation in his plaint which prima facie determines the jurisdiction of the
court and not the amount which may be found or decreed by the court. [Fray v. Voules,
(1859) 1 E&E 839]
Where different suits which are severally within the jurisdiction of the court are consolidated
for hearing, the court does not lose its jurisdiction to hear it by reason of the value of all the
suits exceeding its jurisdiction if taken together.[ Ramappayya v. Subbamma, AIR 1949 Mad
98]
The Bombay High Court has held that in a case of damages, the amount of damage which the
Court can award is limited to the pecuniary jurisdiction of the Court.[ Jiwibai v. Ram Kumar,
AIR 1947 Nag 17:]
Mesne profits after suit do not affect pecuniary jurisdiction. The value of a suit for the
recovery of possession and mesne profits is the value of the immovable property plus mesne
profits up to the date of the suit. Mesne profits after suit do not form part of the cause of act
ion even though there be a prayer in the plaint for mesne profits after suit. If the suit is
properly brought in the court of a munsiff for the recovery of possession of land and mesne
profits prior to the date of the suit, and there is also a prayer for mesne profits from the date
of the institution of the suit, which are claimed or assessed at a sum beyond the pecuniary
jurisdiction of the munsiff, the munsiff has jurisdiction to fix the mesne profits from and after
the date of the institution of the suit and to pass a decree therefore although the amount may
be beyond his pecuniary jurisdiction.[ Sadashiv v. Maruti, (1890) ILR 14 Bom 455]
ILLUSTRATION
A sues B for possession of land valued at Rs 686 and for the mesne profits up to the date of
the suit valued approximately at Rs 200 and for mesne profits subsequent to the date of the
suit not valued at all. The suit is brought in the court of a munsiff whose pecuniary
jurisdiction is limited to Rs 1,000. A decree is passed in the suit for the plaintiff for
possession and for mesne profits upto the date of the suit. Subsequently, the plaintiff applies
to the munsiff for assessment of mesne profits after the date of the suit claiming Rs 60,000
for such profits. The munsiff can pass a decree for Rs 60,000 though the amount exceeds his
pecuniary jurisdiction.
This section has no application to proceedings other than suits.[ Hemalatha v. Jambu Prasad,
AIR 1959 All 383]
 But proceedings in execution are included in the word suit and will be governed by the
provisions of the Code of Civil Procedure.[Chambers v. Mason, (1858) 5 CBNS 59]
Example where valuation of sm of application exceeds subject value of suit.

----- CA 1 -----

JURISDICTION OF CIVIL COURTS

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. 
[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. 
[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.]

A court is said to have jurisdiction of the subject matter of a particular controversy if the
court has authority to hear and decide causes of a class to which the particular controversy
belongs. 
the allegations made in the plaint decide the forum. The jurisdiction does not depend upon the
defence taken by the defendants in the written statement.4
In all types of civil disputes, civil court has inherent jurisdiction as per s 9, unless a part of
that jurisdiction is curbed out from such jurisdiction, expressly or by necessary implication,
by any statutory provision and conferred on any other tribunal or authority.6

SUIT OF CIVIL NATURE

A suit is of civil nature if the principal question therein relates to the determination of a civil
right and enforcement thereof. It is not the status of parties of the suit, rather the subject-
matter of it which determines whether or not the suit is of a civil nature.

Most Rev P.M.A. Metropolitan vs Moran Mar Marthoma [1995 AIR 2001]

Example of suits of civil nature

1. Suit by govt servant for arrears of salary
2. Right to worship
3. Right relating to religious or other processions
The Supreme Court has laid down certain principles deciding the question as to
whether a right to a religious office would be a right of civil nature or not? These are:
(i) A suit for a declaration with respect to religious honours and privileges
simpliciter will not lie in a Civil Court:
(ii) However, a suit to establish one's right to an office in a temple and to honours,
privileges, remuneration or requisites, attached to such an office will be
maintainable in a Civil Court.
 (iii) The condition for the existence of an office is that the holder of the alleged
office should be under a legal obligation to discharge the duties attached to the
said office, for non-observance of which penalties can be inflicted on him. [Sinha
Ramanuja v Ranga Ramanuja, AIR 1961 SC 1720 : (1962) 2 SCR 509]
4. Right of burial
4. Right of person as a member of club
4. Rights under contract
4. Suit for a declaration