Unit-1

CIVIL PROCEDURE
&
LIMITATION-I
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 1.1. What is Civil Procedure law?
Civil Procedure is the body of law that sets out the rules and
standards that court follows when executing civil law suits.
These rule governs how a law suits or case may be commenced, what
kind of service or process is required and orders allowed in civil cases.
It is an adjective law to facilitate justice and further ends.
It practically answers the cases based on ‘How?’.
There are specific rules and procedures that must be followed in order
for the case to proceed.
 Substantive v. Procedural (Adjective) Law
Substantive law determines the rights and liabilities of parties. But, Adjective or Procedural law
prescribes the practice, procedure and machinery for enforcement of those rights and liabilities.
Substantive law confers legal rights and defines the nature and extent of legal duties. But,
Procedural law prescribes the procedure for the enforcement of legal rights by a court of law or
any other tribunal.
Laws which fix duties, establish rights and responsibilities among and for persons, natural or
otherwise, are substantive law. But, Laws that merely prescribes the manner in which such
substantive law may be exercised and enforced in a court are procedural law.
Substantive law is concerned with the ends which the administration of justice seeks. But,
Procedural law deals with the means and instruments by which those ends are to be attained.
Substantive law is ‘What’ and Procedural law is ‘How’
Eg: Sec.192of Muluki Civil Code,2074 ‘Judgment to be made’ is substantive law and Chapter-22
of Muluki Civil Procedure Act,2074 ‘Provisions Relating to Execution of Judgments’ is
Procedural law
 1.2. Importance & Characteristics of Law of Civil Procedure
Law of Civil Procedure, by forming an indispensable part of the machinery of justice and
operates as an essential tool towards:
1. Enforcing Legal Rights and Claims,
2. Redressing or preventing legal wrongs,
3. Asserting legal defenses,
4. Other ancillary purposes
The characters of the law of Civil Procedure are: Complementary, Protective and Remedial
or Practical.
1. Complementary: It is procedural law which gives life to substantive law by providing its
remedy and effectiveness and bringing it into being.
2. Protective: It safeguards every person and his right to life, liberty, reputation & property.
3. Remedial or Practical: It deals with the actual litigation process itself, in accordance with
the practice and procedure of the court.
 Adversary Procedure ‘Fair Trial’
The procedure where the court hears both the parties without discrimination.
Both the parties have the right to place their respective evidence and to produce
the witnesses.
Both the parties have the right to be represented by advocates, and the right to
place their arguments through their attorney.
The judgement is delivered without any bias, strictly in accordance with the
legal rules.
The adversary process is most dependable and safe procedure in the judicial
disputes resolution system. By this process, proper reconciliation of public and
private interest, i.e; public interest in punishing the wrong doers and private
interest in preventing wrongful convictions, are made practicable.
 1.3. Nepalese Court System & Civil Jurisdiction
There are 3 tires of court in Nepal: Supreme Court, High Court and District Court. As provided in
Constitution and Supreme Court Booklet,2080, the Jurisdiction of these courts are:
Jurisdiction of Supreme Court:
Appeal, Revision, Review and Reference (sadhak) cases,
Hear application on interlocutory order,
Initiate & decide cases of contempt of court,
Transfer cases from one High Court to another,
Send cases for mediation,
Issues appropriate orders or Writs including habeas corpus, mandamus, certiorari, prohibition and
quo-warranto,
Judicial Review through Constitutional Bench,
Hear disputes related to the jurisdiction of Federal, State and Local level as well as disputes on
qualification of elected members of Federal or State Parliament,
Give necessary directives to lower courts regarding administration of justice,
Make rules and regulations of courts. Inspect & monitor sub-ordinate courts and tribunals.
Jurisdiction of High Court: Jurisdiction of District Court:
Appeal and reference cases, General jurisdiction over all types of case
Power to try certain cases as specified by within its territorial jurisdiction, expect as
law, provided by law ,
Initiate & decide cases of contempt of Hear appeal of decisions made by quasi-
court, judicial bodies and judicial committees of
Hear application on interlocutory order, local level,
Transfer case from one District Court to Execute judgments,
another within one’s jurisdiction, Issue search warrant and arrest warrant,
Send cases for mediation, Issue interlocutory order,
Issue writs, Initiate & decide cases of contempt of court,
Inspect & monitor lower courts within Send cases for mediation,
one’s jurisdiction. Issue writ of habeas corpus and injunction
order,
Inspect quasi-judicial bodies and judicial
committees
 1.4. Key Terminologies
Action: A lawsuit in which one party (or parties) sues another.
Suit: a common term for a legal action by one person or entity against another person or
entity, to be decided in a court of law, sometimes just called a "lawsuit." The legal claims
within a lawsuit are called "causes of action."
Self-Serving: Referring to a question asked of a party to a lawsuit or a statement by that
person that serves no purpose and provides no evidence, but only argues or reinforces the
legal position of that party.
Motion: Formal request made to a judge for an order or judgment. Motions are made in
court all the time for many purposes: to continue (postpone) a trial to a later date, to get a
modification of an order, for temporary child support, for a judgment, for dismissal of the
opposing party's case, for a rehearing, for sanctions (payment of the moving party's costs
or attorney's fees), or for dozens of other purposes.
Objection: A lawyer's protest about the legal propriety of a question which has been asked of a
witness by the opposing attorney, with the purpose of making the trial judge decide if the
question can be asked.
Counter Claim(Cross-claim): A retaliatory claim by a defendant against a plaintiff in a lawsuit
included in the defendant's answer and intending to off-set and/or reduce the amount of the
plaintiff's original claim against the defendant.
Pretrial Conference: pre-trial conference is a court hearing where a prosecutor and a defense
attorney get together and discuss whether a case is going to go to trial or whether it can be
resolved through a plea agreement.
Joinder: the joining together of several lawsuits or several parties all in one lawsuit, provided
that the legal issues and the factual situation are the same for all plaintiffs and defendants.
Joinder requires a) that one of the parties to one of the lawsuits make a motion to join the
suits and the parties in a single case; b) notice must be made to all parties; c) there must be a
hearing before a judge to show why joinder will not cause prejudice (hurt) to any of the parties
to the existing lawsuits; and d) an order of the judge permitting joinder.
Mis Joinder: The inclusion of parties (plaintiffs or defendants) or causes of action (legal
claims) in a single lawsuit contrary to statute.
Non Joinder: The failure to join a party to a lawsuit.
Interpleder: An interpleader is a way for a party who holds property (a stakeholder) to
initiate a suit between all claimants, who are parties claiming a right to that property.
Intervention: The procedure under which a third party may join an on-going lawsuit,
providing the facts and the law issues apply to the intervenor as much as to one of the
existing contestants.
Testimony: oral evidence given under oath by a witness in answer to questions posed by
attorneys at trial or at a deposition (questioning under oath outside of court).
Subpoena: an order of the court for a witness to appear at a particular time and place to
testify and/or produce documents in the control of the witness (if a "subpoena duces tecum").
A subpoena is used to obtain testimony from a witness at both depositions (testimony under
oath taken outside of court) and at trial.
Ruling: court decision on a case or any legal question.
Decree: final adjudication between the parties and against which an appeal lies, but only
when a suit is completely disposed of.
Decree holder: any person in whose favor a decree has been passed or an order capable of
execution has been made. (According to section 2(3) of the Civil Procedure Code, 1908)
Verdict: the decision of a jury after a trial, which must be accepted by the trial judge to be
final. A judgment by a judge sitting without a jury is not a verdict.
Stay/Stay-Order: a court's order that halts part or all of a case's proceedings.
Judgement: the ability to form valuable opinions and make good decisions.
Mesne Profits: profits which have accrued while there was a dispute over land ownership.
If it is determined the party using the land did not have legal ownership, the true owner
can sue for some or all of the profits made in the interim by the illegal tenant, which are
thus called "mesne profits."
Affidavit: any written document in which the signer swears under oath before a notary
public or someone authorized to take oaths (like a County Clerk), that the statements in
the document are true.
Transcripts: the written record of all proceedings, including testimony, in a trial, hearing or
deposition (out-of-court testimony under oath).
in personam actions: “directed toward a particular person." In a lawsuit in which the case is
against a specific individual, that person must be served with a summons and complaint to
give the court jurisdiction to try the case, and the judgment applies to that person and is
called an "in personam judgment.”
Attachment: the seizing of money or property prior to getting a judgment in court, in
contemplation that the plaintiff will win at trial (usually in simple cases of money owed)
and will require the money or property to cover (satisfy) the judgment.
Garnishment: the entire process of petitioning for and getting a court order directing a
person or entity (garnishee) to hold funds they owe to someone who allegedly is in debt to
another person, often after a judgment has been rendered.
in rem actions: In rem is a Latin term meaning "against a thing," which refers to a court’s
power to adjudicate matters directed against property. In rem jurisdiction is one of the two
forms of personal jurisdiction, with the other being in personam jurisdiction.
Petitory/Petitory Action: a type of legal proceeding that seeks to establish ownership or
possession of property. It is a civil or criminal judicial proceeding that can result in a
judgment or decree.
Partition/Partition Actions: legal proceedings initiated to divide or partition property,
typically real estate, among co-owners or joint tenants. When multiple parties have a shared
interest in a property, one of them may seek a partition to terminate the co-ownership and
allocate individual shares of the property.
Possessory: having something in your possession or owning something. E.g: When you rent
an apartment, you have a possessory right to live there for the duration of your lease.
Plaint: an official legal complaint against someone that is used in a court of law
 1.5. Civil Procedures of General Applicability & Summary
Procedures
Civil Procedures of General Applicability refers to the, rules and processes
that apply to civil litigation in general, rather than to specific types of cases.
These procedures govern how civil cases are handled in court from the
initiation of the lawsuit through the resolution, including aspects like filing
complaints, serving legal papers, pre-trial motions, trial conduct, and post-
judgment actions.
These procedures ensures fairness and consistency in the judicial process.
Summary Proceeding is a mode of trial authorized by statute to be held before
a judge without the usual full hearing.
 Although it functions under the District Court, the Summary Proceedings Court has its
own jurisdiction and set of rules.
The Summary Proceedings Act, 2028 (1971) created it with the intention of giving the
public access to justice quickly and easily.
The Judicial Council appoints one or more judges from the District Court to the
Summary Proceedings Court.
The Summary Proceedings Court can sit at any venue within the district as per the
convenience of the parties and witnesses.
The Summary Proceedings Court handles certain civil and criminal cases that are specified
in the Schedule of the Summary Proceedings Act, 2028 (1971). Some of these cases are:
1. Civil cases involving recovery of money or property not exceeding Rs. 10,000 in value.
2. Civil cases involving partition of joint property not exceeding Rs. 10,000 in value.
3. Civil cases involving eviction of tenants or licensees from any land or building.
4. Civil cases involving injunction or declaration relating to any land or building.
Sources
1. Book: Code of Civil Procedure by Jatindra Kumar Das
2. <https://supremecourt.gov.np/web/assets/downloads/Supreme%20Court%20Booklet-
2080.pdf.>
3. For meaning and Definition: Legal Dictionary - Law.com, Law.com
<https://dictionary.law.com/Default.aspx?typed=Partion%20actions&type=1.>
4. Cornell Law School <https://www.lawschool.cornell.edu/.>
5. <https://dictionary.cambridge.org/dictionary/.>