Basic concepts 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.

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When order will be treated as judgment for filing letters patent appeal?

What would be the situation where discretion is injudiciously exercised, thereby either affecting the right of a plaintiff (say, his application for exemption is rejected) or as in the present case, despite the legal representatives of the deceased defendant seeking to contest the suit, exemption as prayed for is granted thereby sealing their fate? If at all the policy for implementing the discretion that has been conferred is sought to be frustrated by an order of the trial court and the matter reaches the superior court, such court may either compel the performance of the discretion that is conferred on the trial court in a proper and lawful manner or it may itself pass an order which the trial court should have properly and lawfully passed in the exercise of its discretion.

24. Given the position that Order XLIII does not provide an appeal against an order under sub-rule (4) of Rule 4, if such an order were passed by a trial court on a suit pending on its file (other than the High Court exercising ordinary original civil jurisdiction), the party aggrieved could invoke the High Court's supervisory jurisdiction under Article 227 of the Constitution. Since such remedy is not available to a party to a suit instituted on the original side of the High Court, he cannot be left without a remedy. Bearing in mind the maxim ubi jus ibi remedium, the only option for him is to invoke the appellate jurisdiction under Clause 15 of the Letters Patent provided the test laid down in Shah Babulal Khimjee (supra) by the Supreme Court to determine as to when an order passed by a trial judge would constitute a "judgment" within the meaning of Clause 15 of the Letters Patent, is satisfied. We need not refer to such authority in great detail. Suffice it to note that the decision of a trial court deciding a controversy in a manner affecting the valuable right of one of the parties must be treated to be a "judgment" within the meaning of Clause 15 of the Letters Patent is the law. The order dated April 29, 2016 granting prayer (a) claimed by the petitioners in GA 932 of 2016 was made without duly considering the petitioners' own conduct of being in deep slumber in excess of 7 years despite receipt of information of death of the defendant No. 5. The necessity to proceed with the suit expeditiously without wasting time on substitution of the legal representatives of a non-contesting defendant who has died during the pendency of the suit, should have been the paramount consideration for deciding whether exemption should be granted or not. Unfortunately, the order under appeal in the present case was silent on such aspect. Not only that, an observation was made by the learned Judge that the appellants had not taken any step in the suit. Without being substituted as defendants, they were perhaps left with no option but to intimate the petitioners of the death of the defendant No. 5, which they did. We are unhesitatingly of the view that the said order dated April 29, 2016 did affect the right of the legal representatives of the defendant No. 5 and, therefore, was a "judgment" within the meaning of Clause 15 of the Letters Patent; consequently, the appeal was well-nigh maintainable thereunder. Also, the discretion conferred not having been properly and lawfully exercised by the learned Judge, the Division Bench rightly interfered with the order under challenge. The first contention of Mr. Sen, accordingly, stands overruled.

IN THE HIGH COURT OF CALCUTTA

R.V.W.O. No. 44 of 2016, G.A. No. 2924 of 2016 arising out of GA 1950 of 2016 in APO 212 of 2016 arising out of GA No. 932 of 2016 in CS No. 136 of 2006

Decided On: 17.05.2017

A.K.R. Consultants (P) Ltd. and Ors.Vs. Asha Keshri and Ors.

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Whether court can amend judgments, decrees or orders if mistake is arising out accidental slip or omission of parties?

    I am of the view that there is no reason to

restrict the scope of Section 152 of the Code of CPC to

`accidental slip or omission' of the Court and its

ministerial staff alone. It would be relevant to extract

Section 152 of the CPC:

              "152. Amendment of judgments, decrees or orders:-

       Clerical or arithmetical mistakes in judgments, decrees or orders, or

       errors arising therein from any accidental slip or omission may at

       any time be corrected by the Court either of its own motion or on

       the application of any of the parties."

There is nothing to indicate that the applicability of

the Section is confined to cases of slip or omission by

Court.      It     definitely       takes      within    its    compass     the

`accidental slip or omission' of the parties also.

Essentially the question would be whether it was an

instance of `accidental slip or omission'. When the

Court      is    satisfied       that     the    mistake     or    error    was

accidental, powers vested in the Court under Section 152

of the CPC needs to be invoked to correct mistakes in



the decree, especially in a case like the present one,

where parties to the suit do not dispute the fact that

the particulars sought to be corrected, is a mistake. It

would be highly inequitable in such a case, to drive the

parties to a separate litigation seeking the relief of

rectification of the instrument itself. A mistake made

by the parties in a deed upon which the suit is founded

and carried forward into the judgment, decree or order

might      be    or   might not  be    an "accidental slip or

omission". In cases where it is clear that the case is

one of "accidental slip or omission", it is the duty of

the court to correct the decree in tune with the actual

intend of the Court and the parties. It is not necessary

to drive the parties to a separate litigation for

rectification of the deed. Giving such an interpretation

to Section 152 of the CPC would only advance the cause

of justice. Even assuming that Section 152 of the CPC


does not apply, still it could be corrected in exercise

of the inherent power vested under Section 151 of the

CPC. In such matters Courts should not be tied up by the

shackles of technicalities but must strive to do justice

to the parties. In adopting the above approach, I am

fortified by the judgment of the Apex Court in Niyamat

Ali Molla V.Sonargon Housing Cooperative Society and

others (2007 (13) SCC 421).

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT:

         MR. JUSTICE SATHISH NINAN

    17TH DAY OF OCTOBER 2016/

                 OP(C).NO. 1268 OF 2015

       CHANDRAN 

V
           AMRUTHAVALLY,

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Whether rightness or wrongness of the order can be urged in contempt proceedings?

Another judgment cited at the bar is Prithawi Nath Ram v.
State of Jharkhand and Others; (2004) 7 SCC 261. Para 8 of the
said judgment makes the following reading:
“8. If any party concerned is aggrieved by the order
which in its opinion is wrong or against rules or its
implementation is neither practicable nor feasible, it
should always either approach the court that passed
the order or invoke jurisdiction of the appellate court.
Rightness or wrongness of the order cannot be
urged in contempt proceedings. Right or wrong,
the order has to be obeyed. Flouting an order of
the court would render the party liable for
contempt. While dealing with an application for
contempt the court cannot traverse beyond the
order, non-compliance with which is alleged. In
other words, it cannot say what should not have been
done or what should have been done. In cannot
traverse beyond the order. It cannot test correctness
or otherwise of the order or give additional direction
or delete any direction. That would be exercising
review jurisdiction while dealing with an application
for initiation of contempt proceedings. The same
would be impermissible and indefensible. In that view
of the matter, the order of the High Court is set aside
and the matter is remitted for fresh consideration. It
shall deal with the application in its proper
perspective in accordance with law afresh. We make it
clear that we have not expressed any opinion
regarding acceptability or otherwise of the application

for initiation of contempt proceedings”.
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CONMT. PET. (C) No. 374 of 2012 In C.A. No. 2790 of 2012
Bhushan Power & Steel Ltd.
V
Rajesh Verma & Ors.
Dated;April 22, 2014
 A.K SIKRI, J.

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Guidelines for grant of police aid for implementation of court orders

The lower Courts are frequently confronted with the question of issuing police protection. Since the issuance of police aid is often raised in one way or other, by the lower Courts it is appropriate to issue the following guide lines:

*** In appropriate cases, Civil Court has the power to issue suitable directions to police officials as servants of law to extend their aid and assistance in the execution of decrees and orders of Civil Courts or in implementing an order of injunction passed by it. (1992 TLNJ 120).

*** Ordering police protection has got serious consequences, impinging on the rights of the parties.

*** Police aid is not to be granted simultaneously with an order of injunction.

*** In cases where the lower Courts order police protection/police aid in the execution of decrees and orders of the civil Courts or in implementing an order of injunction passed by it, the Court is to record reasons as to how and why the case is the appropriate case to order police aid and for what purpose the police aid is ordered.

*** Police protection/police aid may not be ordered by a non-speaking order. Order of Court for police aid might give room for the parties to take law into their own hands. The party having the order of Court for police aid, might try to disturb the status quo - either by trying to take possession or trying to dispossess the opponent.

*** Order of the Court for police protection is to specifically indicate in precise terms the purpose for which police protection is ordered.

Madras High Court

Abdul Sukhure Bhai vs Durai Kuppuswamy on 23 June, 2005

Equivalent citations: AIR 2006 Mad 186, 2006 (2) CTC 211
Bench: R Banumathi

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