CPC Mains Questions
Distinguish between the following terms .[MPCJ2009]
1. Decree and Order
2. Res-subjudice and Constructive Res-Judicata
3. Attachment and precept
Ans.
1. Decree and Order
Under section 2(2) and 2(14) of CPC respectively both decree and order are an adjudication of the court expressed formally. However, they differ on following grounds:-
A decree is the determination of all or any of the matter in controversy i. e. regarding cause of action, matter in issue and relief. Whereas, the order is passed to facilitate the court to finally determine such matter in controversy.
A decree conclusively determines the rights of the parties and thereafter the court becomes functus officio except in the case of preliminary decree. Whereas, in a single suit the court may pass several orders.
A decree is passed in the proceeding commenced by suit. Whereas, an order may originate from the proceeding commenced by an application.
A decree can be preliminary, final or partly preliminary and partly final. Whereas an order cannot be so.
A decree passed by court of first instance is usually appealable, except when it is specifically barred by law. Whereas, an order is appealable only when the statue specifically makes so and in the remaining cases it is non-appealable in nature.
2. Res-subjudice and Constructive Res-Judicata
Sec 10 and section 11-Explanation IV of the CPC respectively incorporate the provision of the res- sub judice and Constructive res – judicata. Both of the aforesaid principle aim to prevent the harassment of the parties, multiplicity of the proceeding and to avoid the situation of contrary judgment but they differ as follow:-
(A) In case of Res-Subjudice, the matter in issue in both the suits must be substantially the same. On the other hand, for constructive res – judicata it is sufficient that the matter directly and substantially in issue in the subsequent suit was so in the former suit constructively i. e. might and ought to have been made ground of defence or attack.
( B) In case, of Res-Subjudice, it applies to only suit including appeal. In case of Res- Judicata, it applies to suit and applications.
Constructive Res-judicata prohibits the second trial of the previous suit, while Res-subjudice prohibits parallel proceedings of the two suits.
By virtue of the Res- subjudice the court is mandated to stay the trial. Whereas, the principle of the constructive res-judicata requires the court to dismiss the suit once it is proved.
3. Attachment and precept
Both the attachment and precept are the modalities of the execution of the decree which court has to adopt depending upon the situation but they differ as under:-
The attachment is a mode of an execution of the decree as provided under section 51 of the CPC. Whereas, a precept under Sec 46 CPC is merely an interim attachment and its operation is restricted to a period of two months only unless this period is extended.
An order of the attachment is passed by the concerned executing court with respect to movable or immovable property situated within his own local jurisdiction. Whereas, a precept is issued by an executing court with respect to the property situated outside of his territorial jurisdiction. It is an order or direction to another competent court to attach the property belonging to the judgment debtor.