THE CODE OF CIVIL PROCEDURE. ACT XIV. OF 1882, RECEIVED THE G-G.'s ASSENT ON THE 17TH MARCH, 1882. 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 Preamble. enacted as follows: Interpretation of the Act.-The first Code of Civil Procedure was passed in the year 1859, and it was repealed by the Code of 1877. The Code of 1877 has been repealed by the present Code. It will be seen from the Preamble that the present Act not only defines and amends but also consolidates the law of civil procedure. The object of consolidation is to collect the statutory law bearing upon a particular subject, and to bring it down to date, in order that it may form a useful code applicable to the circumstances existing at the time when the consolidation Act is passed. When a question therefore arises as to the construction of a section in such an Act, the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning. If the meaning is plain, it is not proper to have recourse to the Act repealed by the consolidating Act [i.e., the Code of 1877] or to appeal to earlier decisions, and the language of the Act must be interpreted uninfluenced by any considerations derived from the previous state of the law. But if the meaning be doubtful, such resort would be perfectly legitimate (a). The following are some of the leading rules relating to the interpretation of statutes: 1. Proceedings of the Legislature in passing an Act are to be excluded from consideration on the judicial construction of the Act (b). The proceedings above referred to include Reports of Select Committees, Statements of Objects and Reasons attached to Bills, and debates of the Legislature (c). 2. Marginal notes to the sections of an Act are not to be referred to for the purpose of construing the Act (d). (a) Bank of England v. Vagliano, (1891) A. C. 107; Administrator-General v. Premlal, 22 Cal. 788, 22 I. A. 107; Norendra v. Kamal Basini, 23 Cal. 563, 23 I. A. 18; 20 Mad. 97, 103; 28 Cal. 517. (b) Administrator-General v. Premlal, 22 Cal. (c) Ss. 1, 2 3. Illustrations in Acts of the Legislature ought never to be allowed to control the plain meaning of the section to which they are appended, especially when the effect would be to curtail a right which the statute in its ordinary sense would confer (dd). 4. The essence of a Code is to be exhaustive on the matter in respect of which it declares the law; hence it is not the province of a judge to disregard or go outside the letter of the enactment according to its true construction (e). Short Title. Commencement. Preliminary. 1. This Act may be cited as "The Code of Civil Procedure:" and it shall come into force on the first day of June, 1882. This section and section 3 extend to the whole of British India. The other sections extend British India except the Scheduled Districts as defined in Act No. XIV. of 1874. Local extent. to the whole of Civil Procedure Codes. The first Code of Civil Procedure being Act VIII. of 1859, was repealed by the Code of 1877; the latter Code has been repealed by the present Code. British India.—There is no definition of "British India" in the Code. In the absence of any definition of a particular term in an Act, we are to turn to the definition of that term in the General Clauses Act X. of 1897. There are several terms or clauses of frequent or general occurrence in several Acts, and these are defined in the General Clauses Act. "British India" is one of them, and it is defined in that Act (s. 3, cl. 17), as meaning "all territories and places within His Majesty's dominions which are for the time being governed by His Majesty through the Governor-General of India or through any Governor or other officer subordinate to the Governor-General of India." The question whether a particular place is within the limits of British India is often of importance in relation to the provisions of s. 380, below. Aden (f) is included in British India, but not Singapore (g). Scheduled Districts.-A list of Scheduled Districts is given in Schedule I. to the Scheduled Districts Act XIV. of 1874. The sections of this Code except ss. 1 and 3 do not extend to any of the Scheduled Districts. Section 5, however, of the Scheduled Districts Act, empowers the Local Government with the sanction of the Governor-General in Council to extend to any of the Scheduled Districts any enactment in force in British India, and the whole of the Procedure Code has accordingly been extended to several Scheduled Districts including Sindh, Ajmere, Merwara and the Scheduled Districts of the Punjab (h). 2. In this Act, unless there be something repugnant in the subject or context, means a chapter of this Interpretation Chapter 66 Chapter :" Code: (dd) Koylash v. Sonatun, 7 Cal. 132. (e) Gokul Mandar v. Pudmanund, 29 Cal. 707, (f) Aden Laws Regulation, 1891, s. 2. (g) Straits Settlement Act, 1866, s. 1. (h) See Unrepealed General Acts, Vol. II. p. 579. "district" 44 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; every Court of a grade inferior to that of a District Court and every Court of Small Causes shall, for the purposes of this Code, be deemed to be subordinate to the High Court and the District Court: Different rulings of different High Courts. Where there are different rulings of different High Courts on a particular point, a Judge should follow the ruling of the High Court to which he is subordinate (i). "Pleader "The expression "pleader" is here used in a much larger than its ordinary signification as a convenient term to designate all persons entitled to plead for another in Court. Ordinarily the expression "pleader" is synonymous with "vakil" (J). Authority to compromise. An attorney or solicitor is entitled in the exercise of his discretion to enter into a compromise, on behalf of his client, if he does so in a bona fide manner (k). And so is counsel (1). But a pleader cannot enter into a compromise on behalf of his client without his client's express authority (m). The reason is that both counsel and solicitor have an implied authority to compromise, the former, by virtue of his retainer, and the latter, by virtue of his position of agent in relation to his client (n); but a pleader has no such implied authority, and he must therefore obtain the express authority of his client to compromise a suit. A compromise made by a solicitor or counsel is binding on the client, though it may have been made against the express directions of the client, unless the client has revoked the authority of his counsel or solicitor to compromise on his behalf, and communicated the revocation to the other side. This must be done before the decree or order is sealed (0). But there is this distinction between the position of a solicitor and counsel, that if a solicitor has compromised in face of express instructions, an action will lie against him for damages (p), but no such action will lie against counsel under similar circumAnd further, if the compromise made by the solicitor is not reasonable, he will be liable in damages to his client (p), though counsel is not liable under similar circumstances. The reason of this distinction lies in the fact that the relation of counsel and client renders the parties mutually incapable of making any legal contract of hiring and service concerning advocacy in litigation (q). stances. (i) Korban Ally v. Sharoda Proshad, 10 Cal. 82; 15 Bom, 419; 17 Bom. 555. (j) Pleader of the High Court, in re, 8 Bom. (k) Fray v. Voules, I. E. & E. 339; Jagannath- (n) Counsel is not his client's agent, but a (0) Berry v. Mullen, 5 Ir. Rep. Eq 368; Jang (p) (a) Kennedy v. Brown, 13 C. B. N. S. 677. S. 2 S. 2 Hence counsel cannot sue his client for fees, and the client has no legal remedy Power to refer to arbitration. The law is the same as regards reference to arbitration. Counsel has an implied power to consent to a reference, and so has a solicitor on the record (u). But this authority does not extend to referring the case itself to arbitration on terms different from those which the client has authorised (v). And where an agreement to refer has been entered into by a solicitor against the wish of the client, the agreement is binding as in the case of a compromise, and the client's remedy is against the solicitor (w). A Pleader or Vakil has no power to refer the cause without the express consent of the client (x). But neither an attorney nor a vakil can apply to the Court for an order of reference, unless he is specially authorised in writing by his client in that behalf (s. 506 below). Authority to withdraw suit.-Counsel has an implied power to withdraw an action (y); and a solicitor, it would seem, has the same power. But a pleader or vakil has no such authority, unless he is expressly authorised by his client in that behalf, or unless the Vakalatnamah is general in its terms, and empowers the pleader to act and take any steps in the case (z). Power to bind client by admissions.-Counsel (a), solicitors (b), and pleaders or vakils (c), have an implied authority to bind their clients by admissions of fact, provided such admissions are made during the actual progress of litigation, and not in mere conversation. Thus an admission of liability by a pleader is sufficient to warrant a decree (d). A fortiori it is so, when the admission is made by a solicitor or by counsel. The result is that the client will be bound by the admission, even though it may be erroneous. But neither counsel nor solicitor nor pleader can bind his client by an admission on a point of law. Hence if the admission be erroneous, the client will not be bound by it (e). "Government pleader" includes also any officer ap pointed by the Local Government to perform all or any of the functions ex "Government pleader." pressly imposed by the Code on the Government pleader : (r) Swinfen v. Lord Chelmsford, 1 F. & F. 619 (s) Nundo Lal v. Nistarini, 27 Cal 428; Swin- (u) Smith v. Tromp, 7 C B. 757; Faviell v. Tromp, supra. (x) Thakur Pershad v. Kalka, 6 N. W. P. 210. (y) Chambers v. Mason, 5 C. B. N. S. 59; (2) Ram Coomar v. Collector of Beerbhoom, 5 (a) (b) Haller v. Worman, 2 F. & F. 165. Wagstaff v Watson, 4 B. & Ad. 339; Petch v. Lyon, 9 Q. B. 147. (c) Kower Narain v. Srinath, 9 W. R. 485; Rajunder v. Bijai, 2 M. I. A. 253; 18 All. 384; 22 Mad. 538. (d) (e) Sreemutty Dossee v. Pitamber, 21 W. R. 332. Dwar Bux v. Fatik, 3 C. W.N. 222 (pleader) Beni Pershad v. Dudhnath, 27 Cal. 156; 26 I. A. 216 (counsel). "Collector." revenue: "decree." "Collector" means every officer perform- "decree" means the formal expression of an adjudication upon any right claimed, or defence set up, in a Civil Court, when such adjudication, so far as regards the Court expressing it, decides the suit or appeal. An order rejecting a plaint, or directing accounts to be taken, or determining any question mentioned or referred to in section 244, but not specified in section 588, is within this definition: an order specified in section 588 is not within this definition : "order" means the formal expression of any decision "order." Importance of distinction between Decree and Order.-The decisions of a Court of law may be divided into two classes, namely, (1) decrees, and (2) orders. The distinction between a decree and an order is important, for while all decrees are appealable (s. 540), all orders are not. Only such of the orders as are set forth in s. 588 below are appealable under the Code; other orders are not so appealable. Since an appeal can lie only from a decree or from an order specified in s. 588, it is clear that when a party appeals from a decision, he must show that the decision is either a decree or an appealable order. To take an illustration: A, alleging that he is a pauper (s. 401), applies for leave (ss. 403-404) to institute a suit as a pauper against B for damages for breach of a contract. [The object of a petition to sue in forma pauperis is to be exempted from the payment of Court fees (s. 410).] The Court finds on enquiry that A is not a pauper, and rejects the application (s. 407). A appeals from the decision. B contends that the decision is not appealable. In order that an appeal may lie, the decision must amount to a decree or it must be an order appealable under s. 588. Now a decision rejecting an application for leave to sue as a pauper is not set forth as an appealable order in s. 588. A must therefore show that the decision amounts to a decree. But it has been held that this decision is not a decree. It is therefore an unappealable order, and no appeal will lie from it (f). It will thus be noted that it is only when a decision does not find place in s. 588 as an appealable order, that the question arises whether the decision is a decree or an order, by which latter expression is meant in this context an unappealable order. To take another instance: A, in Calcutta, institutes a suit in Bombay, by his constituted attorney X, against B, to recover the amount due on a promissory note. B applies for an order for the personal appearance of A in the Bombay Court, and the application is granted (s. 66). A appeals from the decision. Will the appeal lie? The first question to ask is whether a decision under s. 66 directing the personal appearance of a plaintiff in Court is an order appealable under s. 588. On referring to s. 588, cl. (3), it will be seen that such a decision is an appealable order. The appeal will therefore lie, and it is unnecessary to determine whether the decision is a decree. (f) Secretary of State v. Jillo, 21 All. 133. S. 2 |