Code of Civil Procedure, 1908 (CPC)
Special Provisions Relating to High Courts: Sections 116 to 120
Part IX of the Code of Civil Procedure, 1908 is short and easily overlooked, and it answers a real question: how far does the Code govern a High Court exercising its own original civil jurisdiction? The answer given by Section 117 is that the Code applies, save as this Part, Part X or the High Court's own rules provide otherwise. Section 120 then makes the one substantial exclusion: the rules on the place of suing in Sections 16, 17 and 20 do not apply. These notes cover all five sections.
The five sections of Part IX, and the three that Section 120 switches off
1. Sections 116 and 117
§ Who the Part applies to, and what it presumes Section 116. This Part applies only to High Courts not being the Court of a Judicial Commissioner. Section 117. Save as provided in this Part or in Part X or in rules, the provisions of this Code shall apply to such High Courts. |
§ Three points on Section 117 • The starting position is inclusion. The Code applies to the High Court as it applies to any other civil court, and the exceptions must be found in one of the three sources named. • Three sources of exception: this Part, which contains Sections 118 to 120; Part X, the rule-making Part, and in particular Section 129, under which a High Court makes rules for its own original side; and rules made under the Code. • The Letters Patent stand behind all of this. A Chartered High Court exercises its ordinary original civil jurisdiction under its charter, and the Code accommodates that rather than displacing it. |
2. Section 118: Execution Before Costs Are Taxed
§ Section 118 (in substance) Where any such High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the Court may order that the decree shall be executed forthwith, except as to so much of it as relates to the costs; and, as to so much as relates to the costs, that the decree may be executed as soon as the amount of the costs has been ascertained by taxation. |
i. The problem it solves. On the original side, costs are quantified by a formal process of taxation, which takes time. Without the section, a successful party would wait for the taxation before executing the substantive part of his decree.
ii. The decree is split for execution. The substantive relief is executed at once; the costs portion follows when taxed.
iii. It is discretionary. The court must consider it necessary, and it makes an order accordingly.
3. Section 119: Who May Address the Court
§ Section 119 (in substance) Nothing in this Code shall be deemed to authorise any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its charter authorised him so to do; or to interfere with the power of the High Court to make rules concerning advocates, vakils and attorneys. |
§ What the section preserves • The right of audience on the original side is governed by the charter and the High Court's rules, not by the general provisions of the Code about recognised agents and pleaders in Order III. • The High Court's control over the profession is untouched. The Code does not interfere with its power to make rules concerning advocates, vakils and attorneys. • The historical background is the distinction on the original side between advocates, who argue, and attorneys or solicitors, who instruct, which the charters recognised and the Code did not disturb. |
4. Section 120: The Three Exclusions
§ Section 120 (in substance) The following provisions shall not apply to the High Court in the exercise of its original civil jurisdiction, namely, Sections 16, 17 and 20. |
The excluded section | What it ordinarily provides |
|---|---|
Section 16 | Suits for the recovery, partition, foreclosure, sale or redemption of immovable property, for a right to or interest in it, or for compensation for wrong to it, to be instituted where the property is situate |
Section 17 | Where immovable property is situate within the jurisdiction of different courts, the suit may be instituted in any court within whose limits any portion of the property is situate |
Section 20 | All other suits to be instituted where the defendant resides, carries on business or personally works for gain, or where the cause of action wholly or in part arises |
§ Why they are excluded, and what is not • The territorial reach of the original side comes from the charter. A Chartered High Court's ordinary original civil jurisdiction is defined by its Letters Patent, and the general place-of-suing rules have nothing to add to it. • The exclusion is confined to three sections. Section 15, requiring a suit to be instituted in the lowest competent court, and Sections 18 and 19 are not excluded. • Section 21 is unaffected. An objection as to the place of suing still requires an objection taken at the earliest opportunity in the court of first instance and a consequent failure of justice. • And the exclusion operates only on the original side. A High Court exercising appellate jurisdiction is not affected by Section 120. |
5. Landmark Points
- Section 116. Part IX applies only to High Courts not being the Court of a Judicial Commissioner.
- Section 117. The Code applies to such High Courts, save as provided in this Part, in Part X, or in rules.
- Section 118. A decree of the original side may be executed forthwith except as to costs, which follow on taxation.
- Section 119. The right of audience on the original side depends on the charter and the High Court's rules, and the Code does not interfere with its power to make rules concerning the profession.
- Section 120. Sections 16, 17 and 20 do not apply to the High Court in the exercise of its original civil jurisdiction.
- Sections 15, 18, 19 and 21 are not excluded by Section 120.
6. Frequently Asked Questions
To which courts does Part IX apply?
By Section 116, only to High Courts not being the Court of a Judicial Commissioner. The Part is concerned with High Courts exercising their own original civil jurisdiction.
Does the Code apply to a High Court?
Yes. Section 117 provides that the provisions of the Code shall apply to such High Courts, save as provided in Part IX, in Part X on rules, or in rules made under the Code.
What does Section 120 exclude?
Sections 16, 17 and 20, which contain the rules on the place of suing for immovable property, for property within the jurisdiction of different courts, and for all other suits. They do not apply to a High Court exercising original civil jurisdiction.
Why are those three sections excluded?
Because a Chartered High Court's ordinary original civil jurisdiction comes from its Letters Patent, which fixes its territorial reach. The Code's general rules on where a suit may be instituted have nothing to add in that setting.
Is Section 21 excluded as well?
No. Section 120 names only Sections 16, 17 and 20. Section 21, requiring an objection to the place of suing to be taken at the earliest opportunity with a consequent failure of justice, is unaffected, as are Sections 15, 18 and 19.
What does Section 118 allow?
The High Court may order that a decree passed on its original side be executed forthwith except as to costs, and that the costs portion be executed once the amount has been ascertained by taxation, so that the successful party need not wait.
7. Related Topics in This CPC Series
- Place of Suing: Sections 15 to 20
- Rule-Making Power: Sections 121 to 131
- Order XLVIII and Order XLIX: Process and Chartered High Courts
- Jurisdiction of Civil Courts: Section 9, Types and Section 21