Judicial proceeding. It is difficult satisfactorily to define this expression. The classic word 'judicialis' comes from 'judicium' not from judex': and apparently from 'judicium' in the sense of court of justice, rather than in any of its other senses, which are trial, sentence, opinion, judgment, &c. Thus Cicero speaks of ‘jus judiciale' meaning thereby the jus of the law courts (Verr. 2; 4, 47); and of the 'annus j.,' meaning thereby the year in which Pompey altered the form of trials (Brut. 66). With regard to the word 'proceeding,' it must mean in its most general sense any act done for the purpose of advancing the complete determination of a matter Thus for example, in dispute, either by the court or by a party. the taxation of costs was held to be a 'proceeding' in the case reported at L. R., 3 Q. B., 170. Taken together, perhaps the words may mean any act done in a Court to advance the complete determination of a matter in dispute.

3. The enactments specified in the first schedule hereto annexed are hereby repealed to the extent mentioned in the third Enactments repealed. column of the same schedule.

But when in any Act, Regulation or notification passed or issued prior References in preto the day on which this Code comes into force, reference is made to Act VIII of 1859, Act XXIII of 1861, vious Acts. or the Code of Civil Procedure,' or to any other Act hereby repealed, such reference shall, so far as may be practicable, be read as applying to this Code or the corresponding part thereof;

Saving of procedure in suits instituted before 1st October 1877. Saving of certain Acts affecting Oudh, Panjáb, Central Provinces and Burma.

Nothing herein contained shall affect the procedure prior to decree in any suit instituted or appeal presented before this Code comes into force.

4. Save as provided in the second paragraph of Section 3, nothing herein contained shall be deemed to affect the following enactments (namely) :—

The Central Provinces Courts Act, 1865:

The Panjab Courts Act, 1865:

Act No. XXVII of 1867:

The Oudh Civil Courts Act, 1871 :

The Panjáb Appeals Act, 1873:

The Burma Courts Act, 1875:

or any local law prescribing a special procedure for suits between landlord and tenant,

or any local law providing for the partition of immovable property.

And where under any of the said Acts concurrent civil jurisdiction is given to the Commissioner and the Deputy Commissioner, the Local Government may declare which of such officers shall for the purposes of this Code be deemed to be the District Court.

to Mufassal Small Cause Courts.

5. The chapters and sections of this Code specified in the second schedule hereto annexed extend (so far as they are applicable) Sections extending to Courts of Small Causes constituted under Act No. XI of 1865. The other chapters and sections of this Code do not extend to such Courts. And nothing be deemed to enlarge the powers which such Courts now possess for the purposes of effecting attachments or executing decrees. Saving of jurisdic- 6. Nothing in this Code affects the jurisdiction tion and procedure- or procedure

herein contained shall

(a) of Military Courts of Request;

(b) of officers ap; pointed to try small suits in Bombay;

(c) of Village Munsifs and Village Pancháyats in Madras;

(d) of Recorder of Rangoon sitting as an Insolvent Court.

(a) of Military Courts of Request;

(b) of a single officer duly appointed in the Presidency of Bombay to try small suits in military bázárs at cantonments and stations occupied by the troops of that Presidency; or

(c) of Village Munsifs or Village Panchayats under the provisions of the Madras Code;

(d) of the Recorder of Rangoon sitting as an Insolvent Court in Rangoon, Maulmain, Akyab or Bassein,

or shall operate to give any Court jurisdiction over suits of which the amount or value of the subject-matter exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

7. With respect to

(a) the jurisdiction exercised by certain jágírdárs and other authorities invested with powers under the provisions of BomSaving of certain bay Regulation XIII of 1830 and Act XV of 1840 in Bombay laws. the cases therein mentioned; and

(b) cases of the nature defined in the enactments specified in the third schedule hereto annexed,

the procedure in such cases and in the appeals to the civil Courts allowed therein, shall be according to the rules laid down in this Code, except where those rules are inconsistent with any specific provisions contained in the enactments mentioned or referred to in this section.

8. Save as provided in Sections 3, 25, 86, 223, 225, 386 and chapter XXXIX, this Code shall not extend to any suit or Presidency Small proceeding in any Court of Small Causes established Cause Courts. in the towns of Calcutta, Madras and Bombay.

But the Local Government may, by notification published in the official Gazette, extend to any such Court this Code or any part thereof, except so far as relates to appeals and reviews of judgment.

Division of Code. 9.

The first Part:
The second Part:
The third Part:

The fourth Part:
The fifth Part:

The sixth Part:

The seventh Part:

The eighth Part:

The ninth Part:

The tenth Part:

This Code is divided into ten Parts as follows:Suits in General.

Incidental Proceedings.

Suits in particular Cases.

Provisional Remedies.

Special Proceedings.

Appeals.

Reference to and Revision by the High Court.
Review of Judgment.

Special Rules relating to the Chartered High Courts.

Certain Miscellaneous Matters.

PART I.

OF SUITS IN GENERAL.

Suits.-The word 'suit,' secta, Fr. suite, i. e., consecutio, sequela, signifies a following another, but in divers senses. The first is a suit in law, and is divided into suit real and personal, which is all one with action real and personal. Tomlins' Law Dictionary. It is usual to speak of an action' at law, a suit' in Chancery. To 'sue' is much the same as to prosecute: but the latter term is commonly used where the 'following' is in a criminal Court. An action is said to be "nihil aliud quam jus prosequendi in judicio quod alicui debetur:" and it is proper to speak of the pursuit of a man's right. Where there is no right capable of being pursued, there can be no suit. For a classification of rights of action, see the notes below.

CHAPTER I.

OF THE JURISDICTION OF THE COURTS AND RES JUDICATA.

Jurisdiction. This word and the cognate word 'judicature' need comment. Austin observes, at p. 606, that :-Jurisdictio was properly the power of hearing and determining causes, or of associating a judex or arbiter when necessary. This was all that the word meant, and the Prætor has this power by virtue of his jurisdictio. Jurisdictio was distinct from the coercitio (or power of compelling and restraining) which might be necessary to carry into effect the judgment of the Prætor or Judex. The power of compelling or restraining (when vested in criminal tribunals) was called imperium, or imperium merum; and is often synonymous with our 'criminal jurisdiction.' 'Jurisdiction' (in Roman law-language) is seldom or never applied to criminal jurisdiction. When combined with civil jurisdiction, the power of coercing was styled “imperium mixtum."

Comyns Digest, sub tit. Courts (A), declares that all judicature remains in the Kings Court, and proceeds to explain it by a number

of dicta, of which the following are some :-"The King has distributed all his power of judicature to divers courts. And therefore the King himself cannot administer justice except by his justices. A superior (court will decide questions not within its jurisdiction, which come incidentally before it. And to the proceedings of one invested with judicial authority, credit must be given, unless he exceeds his jurisdiction; a principle which is not confined to courts of record. But a party who institutes a proceeding in a court of justice, is not thereby estopped from afterwards questioning their jurisdiction touching that suit. Its jurisdiction cannot be ousted by Act of Parliament, unless by express words, or by necessary implication."

Tomlins' Dictionary tells us that jurisdiction is :-" An authority or power, which a man hath to do justice in causes of complaint brought before him; of which there are two kinds; the one which a person hath by reason of his fee, and by virtue thereof doth right in all plaints concerning the lands within his fee; the other is a jurisdiction given by the prince to a bailiff, as divided by the Normans; and by him whom they called a bailiff we may understand all who have commission from the king to give judgment in any cause. The courts and judges at Westminster have jurisdiction all over England; and are not restrained to any county or place; but all other courts are confined to their particular jurisdictions, which if they exceed, whatever they do is erroneous."

Lush, at p. 1 of his Practice S. C., tells us that :-" The jurisdiction of the Superior Courts of Common Law embraces all causes of action of a transitory nature, whether they have arisen within the realm or abroad, and whether between subjects of this realm or aliens . . . . . This brings us to notice what may be termed, by way of distinction, the local jurisdiction of the courts, or the topical limits within which their process is effective. It is this which defines the nature and extent of their jurisdiction over local actions."

Chamber jurisdiction is extended by the 1 & 2 Vict. c. 45, s. 1, which enacts that every judge "shall have equal jurisdiction, power and authority to transact out of court such business as may, according to the course and practice of the court, be so transacted by a single judge, relating to any suit or proceeding, &c."

Best, at p. 473, says: "The maxim Omnia præsumuntur rite esse acta' does not apply to give jurisdiction to magistrates or other inferior tribunals."

Broom's Com. C. L., p. 47, says: "It may however, be as well to add, that civil process, by way of execution against the person of a defendant, clearly cannot be enforced beyond the limits of this kingdom already specified; because, in such case, the maxim still holds extra territorium jus dicenti impune non paretur.”

Story in his Conflict of Laws, at p. 952, observes :-" In order, however, to found a proper ground of recognition of any foreign judgment in another country it is indispensable to establish, that the court pronouncing judgment should have a lawful jurisdiction over the cause, over the thing, and over the parties. If the jurisdiction fails as to either, it is (as we have already seen) treated as a mere nullity, having no obligation, and entitled to no respect beyond the domestic tribunals. And this is equally true, whether the proceedings be in rem or in personam, or in rem and also in personam." Again in the next page he has quoted an opinion of an American court:-" Upon principle, it would seem, that the operation of every judgment must depend on the power of the court to render that judgment; or, in other words, on its jurisdiction over the subject-matter which it has determined. In some cases, that jurisdiction unquestionably depends, as well on the state of the thing, as on the constitution of the court."

Questions of jurisdiction," says Taylor, p. 1472, "most frequently arise with regard to summary convictions by magistrates, orders of justices, inquisitions found by sheriff's juries, and other judicial proceedings of inferior tribunals; and here, although, as already explained, an adjudication of this kind cannot be impeached by disproving the facts stated in it, not excepting those which are necessary to give jurisdiction,—yet still, the parties against whom it is offered in evidence may establish its invalidity, either by proving any extrinsic facts, which show that the person or court pronouncing it had no authority to enter into the inquiry, or by pointing out the circumstance, that the adjudication itself does not disclose facts sufficient to give jurisdiction."