As we all know that lex loci i.e., laws of the land can be divided into two heads:
(1) Substantive law; and
(2) Procedural or Adjective law.
Whereas substantive law determines rights and liabilities of the parties concerned, procedural law prescribes the procedure and machinery for the enforcement of those rights and liabilities.1 There is at the outset a vital and essential distinction between substantive and procedural law. The function of substantive law is to define the nature and extent of legal duties. The function of procedural law is to provide the machinery or the manner in which the legal rights or status and legal duties may be enforced or recognized by a court of law or other recognized or properly constituted tribunal.2
The Code of Civil Procedure is an adjective or a procedural law. It neither creates nor takes away any right; Ghanshyam Dass v. Dominion of India, MANU/SC/0006/1984 : (1984) 3 SCC 46 (56): AIR 1984 SC 1004: 1984 (32) BLJR 222: (1984) 1 SCALE 528: (1984) 3 SCR 229: 1984 (16) UJ 604 (SC). It deals with matters related to machinery for the enforcement of substantive rights, as contra-distinguished from the substantive rights themselves. As to the latter rights, one must look elsewhere, that is, to the statute law or the general principles of law.
The history of Civil Procedure begins with the year 1859, when the first Uniform Code of Civil Procedure was enacted. Before that, there was no uniformity in the law of Civil Procedure applicable to the whole of the country. The maiden effort in this direction of evolving a uniform procedure was made when Sir Charles Wood, the then President of the Board for the Affairs of India instructed the Second Law Commission of India to address themselves for preparing a Code of Simple and Uniform Procedure applicable to all the Courts of the country. The first Uniform Code of Civil Procedure was enacted in the year 1859. However, the Code of Civil Procedure, 1859 was not applicable to the Supreme Courts in the presidency towns and to the
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1. 54th Report of the Law Commission of India, p. 18.
2. Halsbury's Law of England, 4th Edn., Vol. 37, pp. 18-19, para 10.
Presidency Small Causes Courts. Few amendments were made therein and the Code was applied to the whole of British India, but there were many defects in it, and therefore, a new Code was enacted in 1877. This Code was again replaced in the year 1882 for the similar reasons. Finally, the present Code of Civil Procedure was enacted in the year 1908.
Thus the Code of Civil Procedure consolidates and amends the laws relating to the procedure of the courts of civil judicature in India. Further the Code applies to the procedure of all courts of civil judicature, except that it does not affect any special or local law or any special jurisdiction or power conferred or any special form of procedure prescribed by or under any other law for the time being in force.
Where there is a conflict between this Code and a special law, then the special law prevails over this Code on the principle that "the special law prevails over the general law".
As we all know, Code of Civil Procedure, 1908 is a vast subject and for general learning it is neither desirable nor feasible to discuss all its provisions. Therefore, this book is being written with a view to provide the knowledge of important provisions which are necessary for a law student. Precautions have been taken not to include redundant case law and to incorporate the latest pronouncements of the Supreme Court and the various High Courts. This book is complete in itself for law students to learn different nuances of this Code. Let us start with the important definitions.
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