Code of Civil Procedure, 1908 (CPC)
Nature and Scheme of the CPC, 1908: Sections, Orders and the Rule-Making Power
Two questions organise this topic. The first is structural: how is the Code built, and why is it built that way? The second is characterological: what kind of law is the Code, and what follows from that character for its operation in time and its interpretation? The two questions are connected, because the structure of the Code of Civil Procedure, 1908 is itself an expression of its nature as a purely procedural statute, and both are staple questions in judiciary examinations: the scheme as a short note, the nature through problems on retrospective operation.
The two-level scheme of the Code
1. The Scheme of the CPC: Body and First Schedule
The Code consists of two operative parts. The body contains 158 sections, arranged in a preliminary group followed by eleven Parts, dealing among other things with suits in general (jurisdiction, res judicata, place of suing, transfer), execution, incidental and supplemental proceedings, suits in particular cases including suits by or against the government, appeals, reference, review and revision, the rule-making power, and miscellaneous matters ending with the inherent-powers provision, Section 151. The First Schedule contains the Orders, 51 as originally enacted, each subdivided into rules, together with appendices of model forms for pleadings, processes and decrees. Of the five Schedules originally enacted, only the First survives: the Second, on arbitration, was repealed by the Arbitration Act, 1940, and the remainder by later repealing Acts.
Basis | Body of the Code (Sections) | First Schedule (Orders and Rules) |
|---|---|---|
Content | 158 sections stating fundamental principles of jurisdiction and general powers | 51 Orders as enacted, subdivided into rules, prescribing the detailed machinery |
Function | Tells the court what it may do | Tells the court how it is done |
Amendment | Only by the legislature | By the High Courts under Sections 122 to 131, with State Government approval |
In case of conflict | The section prevails | The rule yields; rules must be consistent with the body (Section 128) |
Examples | Sections 9, 11, 96, 151 | Orders VI to VIII, XXI, XXXIX, XLI |
The division of labour between sections and Orders
The division is deliberate and functional. The sections lay down principles: that a court of competent jurisdiction shall try all suits of a civil nature (Section 9), that a matter finally decided shall not be reopened (Section 11), that every decree is appealable once (Section 96). The Orders supply the method: how a plaint is framed (Orders VI and VII), how a defendant answers (Order VIII), how documents are disclosed (Order XI), how a temporary injunction is obtained (Order XXXIX), how a decree is executed (Order XXI). Reading the Code competently means reading in pairs: the section that confers the power and the Order that regulates its exercise.
Sections of the CPC paired with their Orders
Section (the power) | Order (the machinery) |
|---|---|
Section 9: courts to try all suits of a civil nature | Orders VI and VII: pleadings and plaint |
Section 26: institution of suits | Order IV: institution; Order I: parties |
Section 38: courts by which decrees may be executed | Order XXI: execution machinery |
Section 75: power to issue commissions | Order XXVI: commissions |
Section 94: supplemental proceedings | Order XXXVIII: arrest and attachment before judgment; Order XXXIX: temporary injunctions |
Section 96: first appeal | Order XLI: appeals from original decrees |
Section 114: review | Order XLVII: review |
2. Rule-Making Power of the High Courts: Sections 122 to 131 CPC
Under Section 122, each High Court may, from time to time, annul, alter or add to all or any of the rules in the First Schedule for the courts under its superintendence. The power is conditioned: rules require the previous approval of the State Government (Section 126), and by Section 128(1) they must be not inconsistent with the provisions in the body of the Code, Section 128(2) then listing, without limiting, the matters rules may provide for. Amendments made by one High Court explain why the printed text of an Order can differ from State to State, and why a practitioner must always read the local amendments alongside the central text.
§ The rule of priority From Section 128 flows the working rule of the whole scheme: rules must yield to sections. Where a section and a rule conflict, the section prevails, because the Schedule exists to work out the principles the body lays down and can never override them. The hierarchy is legislature over High Court, principle over machinery, body over Schedule. |
The purpose of the two-level design is historical and practical. The Codes of 1877 and 1882 fixed every procedural detail in the statute, so that every adjustment required an amending Act, and procedure fell out of step with practice. The 1908 Code separated what must be stable, the principles, from what must be adaptable, the machinery, and entrusted the latter to the courts that operate it. The design is the reason the Code has survived a century while its predecessors lasted a generation each.
3. Nature of the CPC: Adjective Law and Its Consequences
The Code is adjective or procedural law: it creates no rights of property, contract or status, but regulates the machinery by which rights conferred by substantive law are enforced in the civil courts. Three consequences follow from that character, and each is separately examinable.
First consequence: retrospective operation
A statute dealing purely with procedure is presumed to apply retrospectively, that is, to all proceedings pending and future, because no litigant has a vested right in any particular course of procedure. He has only the right to have his case decided by the procedure in force when each step is taken. The Supreme Court stated the presumption in Anant Gopal Sheorey v. State of Bombay, AIR 1958 SC 915, and its standard application is to changes of forum.
📖 New India Assurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840 A fatal accident occurred before the Motor Accidents Claims Tribunal was constituted for the area, and the claimant filed her claim before the Tribunal after its constitution, instead of suing in the civil court where the cause of action had arisen. The Supreme Court held that the constitution of the Tribunal effected only a change of forum, which is a matter of procedure; the claimant not only could but had to go to the Tribunal, since the civil court's jurisdiction stood barred from the date the Tribunal came into existence. Rule: a change of forum is procedural and operates retrospectively, catching even causes of action that accrued before the change. |
Second consequence: the presumption stops at vested rights
The procedural presumption stops where a vested right begins. The right of appeal, though exercised through procedure, is a substantive right which vests on the date the original proceeding is instituted and cannot be taken away or burdened except by express words or necessary intendment. The line of authority runs from Colonial Sugar Refining Co. v. Irving, [1905] AC 369 (PC), through the following decision, to the Constitution Bench in Garikapati Veeraya, which is examined in full in the topic on substantive and procedural law.
📖 Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh, AIR 1953 SC 221 When the assessee's sales tax proceedings began, an appeal lay on furnishing security or on payment as directed. Before the appeal was filed, the Act was amended to require deposit of the entire assessed amount as a condition of appeal. The Supreme Court held that the amendment did not govern the assessee: the right of appeal on the old, lighter terms had vested when the original proceeding commenced, and the new fetter, being an impairment of a substantive right, could not apply retrospectively without clear legislative words. Rule: a new condition burdening an appeal does not reach proceedings instituted before the amendment. |
Third consequence: liberal construction
The Code's interpretive nature follows from its object. As a procedural statute in aid of justice, it is construed liberally, so as to render the administration of justice effective rather than to defeat claims on technical grounds: Sangram Singh and Shamlal Murari state the approach, and Kailash v. Nanhku applies it to the amended Code by reading the ninety-day written-statement limit as directory. The qualification is constant: provisions that are mandatory by their language and object, such as the notice under Section 80, receive their full force, and the liberal approach cannot repeal them.
4. Landmark Judgments on the Nature and Scheme of the CPC
- Anant Gopal Sheorey v. State of Bombay, AIR 1958 SC 915. No person has a vested right in any course of procedure; procedural changes govern pending proceedings.
- New India Assurance Co. v. Shanti Misra, (1975) 2 SCC 840. Change of forum is procedural and retrospective; the new forum alone can be approached.
- Colonial Sugar Refining Co. v. Irving, [1905] AC 369 (PC). Taking away an appeal for pending matters interferes with a vested right and is not mere procedure.
- Hoosein Kasam Dada (India) Ltd. v. State of M.P., AIR 1953 SC 221. A new deposit condition on appeal does not apply to proceedings instituted before the amendment.
- Kailash v. Nanhku, (2005) 4 SCC 480. Order VIII Rule 1 ninety-day limit is directory; the Code's procedural character shapes its construction.
- Sangram Singh v. Election Tribunal, AIR 1955 SC 425 and State of Punjab v. Shamlal Murari, (1976) 1 SCC 719. The construction of the Code is liberal, in aid of decisions on the merits.
5. Frequently Asked Questions on the Nature and Scheme of the CPC
What is the scheme of the Code of Civil Procedure, 1908?
The CPC has two operative parts: a body of 158 sections laying down fundamental principles, amendable only by the legislature, and a First Schedule of 51 Orders with rules prescribing the detailed machinery, which the High Courts may annul, alter or add to under Sections 122 to 131.
What happens if a rule in the First Schedule conflicts with a section of the CPC?
The section prevails. Section 128 requires rules to be consistent with the body of the Code, and the Schedule exists only to work out the principles the sections lay down, so a rule can never override a section.
Is the CPC retrospective in operation?
Yes, as procedural law it is presumed to apply to all pending and future proceedings, because no litigant has a vested right in any course of procedure (Anant Gopal Sheorey). The presumption stops at vested rights: a right of appeal, which vests when the suit is instituted, cannot be taken away or burdened without express words (Hoosein Kasam Dada; Garikapati).
Why can the text of a CPC Order differ from State to State?
Because each High Court may amend the rules in the First Schedule for the courts under its superintendence under Section 122, with the previous approval of the State Government under Section 126. Local amendments must therefore always be read alongside the central text.
6. Related Topics in This CPC Series
- Code of Civil Procedure, 1908: Introduction, Object and Scope
- History and Evolution of Civil Procedure in India
- Difference Between Substantive Law and Procedural Law
- Is the CPC Exhaustive? Section 151 and Inherent Powers