Sunday, 13 May 2018

Basic concept of CPC Part 3 definitions

Order S 2(14) of CPC
An order has been defined as the formal expression of any decision of a civil court which is not a decree.

Difference between decree and order.
Both a decree and an order are adjudication by a civil court and both relate to matters in controversy. However the following are six points of distinction between the two:
1) A decree is an adjudication which conclusively determines the rights of the parties with regard to any or all matters in controversy;an order on the other hand may or may not finally determine the rights of parties.
2) A decree can only originate from a suit that is proceeding commenced by a plaint. An order may originate from a suit as well as from any other proceeding commenced by an application.
3)Except in certain suits where two decrees(one preliminary and the other final) are passed, in every suit there is only one decree, whereas many orders can be passed in a single suit.
4) A first appeal always lies from a decree. However no appeal lies from an order unless it is appealable order.
5) While appealability is the rule and non-appealability is the exception in the case of a decree,in the case of an order, it is just the reverse.
6) While in the case of a decree, an aggrieved person has the right to second appeal,in an appealable order,he does not have such a right.
An affidavit is a declaration of facts reduced to writing and sworn or affirmed before a person having authority to administer oaths as for instance, a Magistrate or a notary public.
An affidavit must contain statements and not inferences and is always drawn up in the first person.
Read important judgments on affidavit:

A litigant is a party to a lawsuit.

A plaintiff is a person who approaches a court of law by filing a suit or other legal proceeding against another person called the defendant.He calls upon the court to grant him certain reliefs listed in the plaint.

A plaint is a statement of claim. It is the document by which suit is instituted in a court.It contains the grounds on which the assistance of the court is sought by the plaintiff.It forms part of pleadings before the court.

Written statement
A written statement is the reply or defence of defendant in answer to the plaint of the plaintiff.It constitutes the pleading filed by defendant.
Apart from a defence, the court allows a defendant to claim a set off and counter claim in his written statement.

The term pleading as used in the code refers to plaint or written statement.

Cause of action
Cause of action has been described as the “bundle of essential facts which it is necessary for the plaintiff to prove before he can succeed.”It is the foundation of the suit and must necessarily be antecedent to the filing of suit. If plaint does not disclose a cause of action,it is to rejected by the court.

Read important judgments on Cause of action:
Set-off and counter claim
Set off is a defence available to the defendant in his written statement by which he seeks to wipe out or reduced the claim of plaintiff against him.
In the case of counter claim, the defendant makes a cross claim against the plaintiff and this is treated as plaint by defendant against the plaintiff.

A summons is a document issued by the officer of the court calling upon the person to whom it is directed to appear before the court or an officer of court for a particular purpose on a stated date at a stated time.

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