Civil Litigation
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This article is written by Oishika Banerji of Amity Law School, Kolkata. The article discusses the concept of deemed decree under the Code of Civil Procedure, 1908. 


Section 2(2) of the Code of Civil Procedure, 1908 defines “decree” as: 

“the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include—

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(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.” 

From this definition, it becomes clear that there are three classes of decrees namely, 

  1. Preliminary: A decree is said to be preliminary when the rights of the parties are decided by an adjudication but the suit is not completely disposed of. For example suit for accounts between principal and agent. 
  2. Final: A decree is said to be final when either when no appeal has been filed against it as the matter has been decided by the highest court who has issued the decree or the court passing the decree has disposed of the suit completely. 
  3. Partly preliminary and partly final: A decree can be partly preliminary or partly final only in cases of mesne profits where the decree passed by the court in regards to possession of the property is the final decree, and the decree which directs an inquiry into the mesne profits will be the preliminary decree.

Nowhere can the concept of the deemed decree be noticed in this provision and therefore it is clear that although deemed decree symbolizes any decree that does not fulfill the essentials under Section 2(2), it can be considered as a decree. This article will provide an overview of the concept of a deemed decree and how it is perceived by the Code of Civil Procedure, 1908. 

Deemed decree

While the meaning attached to the term “decree” has been incorporated under Section 2(2) of the Code of Civil Procedure, 1908, importance must be provided to the term “deemed” as well. The literal interpretation of the word “deemed” signifies “to consider”. The latter term has been coined with “decree” to design a statutory fiction for the purpose of providing a divergent meaning to the term “decree” and thereby covers what the term does not cover expressly. This explanation, therefore, differentiates the words “decree” with that of “deemed decree”. 

The case of CIT v. Bombay Trust Corporation (1930) requires a special mention as the Privy Council, in this case, held that whenever a person is deemed to be something, the Act of the Parliament requires him to be treated like something which he, in reality, is not. It was the case of East End Dwellings C. Ltd v. Finsbury Borough Council (1952) where the function of the term “deemed” was highlighted as have been discussed previously. Further, in 1979, the Apex Court of India in the case of Lucky Kochuvareed v. P. Mariappa Gounder, understood the intention of the legislature behind the usage of the term “deemed’ and observed that whenever any statute is arranged with the term “deemed” is associated to a thing, or an individual in general, it would mean that the Legislature vests a status on that object or the individual after due consideration on its part. 

It is noteworthy to mention that every decree is appealable unless otherwise has been expressly stated in the statute. Similarly, the deemed decree should also be appealable by nature. But, the same gets clarified in the case of B. Nukaraju v. MSN Charities (1994). The Court held that as the concept of a deemed decree is not covered by the ambit of Section 2(2), these types of decrees will therefore not be proceeding according to Section 96 of the Code of 1908 which talks about “appeals from original decree”. Thus in such scenarios, the only miscellaneous appeals will be applied in place of regular appeals. 

Deemed decree under the Code of Civil Procedure, 1908

Section 2(2) of the Code of Civil Procedure, 1908 does not expressly talk about deemed decrees but the Code, in general, recognizes this type of decree in several ways which find a discussion hereunder. 

Rejection of a plaint

Order 7 Rule 11 of the Code of Civil Procedure, 1908 lays down the provision for rejection of a plaint. A plaint is a pleading by the plaintiff, a presentation of which commences a civil proceeding. The provision provides certain grounds which are to be considered by the Court while rejecting a plaint. Now it is necessary to point out why rejection of a plaint will be perceived as a deemed decree. The wordings of Section 2(2) itself states that the provision is deemed to be inclusive of;

  1. Rejection of a plaint;
  2. Determination of any question under Section 144 of the Code of Civil Procedure, 1908.

For a decree under Section 2(2) to result, there are certain requisites that this provision expressly mentions to be followed, which are;

  1. An adjudication must take place;
  2. Adjudication taking place must be done in a suit;
  3. The adjudication must determine the rights of the parties in the suit;
  4. The determination must acquire a conclusive nature;
  5. Adjudication must be formally expressed.

Taking these grounds into account, a direction by the Court is considered to be a decree. If a plaint is rejected by the Court, then it implies that no adjudication has taken place and, therefore there exists no suit, as a suit means a civil proceeding that is instituted by plaint presentation. Therefore, rejection of a plaint cannot be considered as a decree under Section 2(2) instead of a deemed decree as the legislation intends to state. 

Determination of question under Section 144

Section 144 of the Code of Civil Procedure, 1908 talks about the application for restitution. Just like the rejection of plaint, determining a question under Section 144 is also a deemed decree as having been expressly provided by Section 2(2) of the Code. Section 144 is an empowering provision for the courts to order restitution whenever an order or a decree appears to be reversed by means of an appeal, or revision, or other proceedings. 

In the case of S.M. Deshmukh v. Ganesh Krishnaji Khare (1973) the Bombay High Court had observed that the responsibility to ensure that no action of the Court affects the parties to the suit vests solely on the Courts. The Courts have inherent jurisdiction to grant restitution whenever circumstances demand. Section 144 of the Code can be considered to be a deemed decree and not a decree in general because a decree under Section 2(2) of the Code needs to be a product of conclusive determination whereas Section 144 rectifies any kind of error that could take place by the Court while passing a decree. Therefore, after the error is erased, the decree retains its traits under Section 2(2), and thus the legislation intends to refer to the determination of question under Section 144 as a deemed decree.

Adjudication under Order 21 Rule 58

The term adjudication means determining the point of law that is in conflict. Order 21 Rule 58 of the Code of Civil Procedure, 1908 lays down the provision for adjudication of claims to, or objections to attachment of property. To simply state, Rule 58 talks about adjudication that results from the claim made on the attachment of a property along with the execution of a decree on the basis that such property is not liable to such an attachment. Clause 4 of Rule 58 which invokes the concept of deemed decree under Order 21 Rule 58 states that “Where any claim or objection has been adjudicated upon under this rule, an order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.”  A bare reading of this clause reveals that the adjudication taking place under Rule 58 will not be resulting in a decree under Section 2(2) of the Code, instead will be a deemed decree as Clause 4 expressly mentions. 

Order 21 Rule 98

Order 21 Rule 98 of the Code of Civil Procedure, 1908 lays down the provision for orders after adjudication. Before delving into the provision, it is significant to note that the definition of decree under Section 2(2) of the Code of 1908 expressly eliminates order. Instead, the sub-clauses of clause 2 of Section 2 read with Section 2(14) of the Code differentiate decree from that of order. By this very fact, Order 21 Rule 98 falls within the ambit of deemed decree according to the intention of the legislation but not exactly a decree under Section 2(2). The Andhra High Court in the case of Zafu Javeed v. V. Narasimha Reddy And Others (1998) observed that Order 21 Rule 98 of the Code of Civil Procedure, 1908 contemplates adjudication related to the questions that are referred in Rule 101 Code which deals with the questions that are to be determined. The Court further held that unless an order amounts to adjudication, the same cannot be considered as a decree and therefore no appeal can be filed against such an order. Thus although it cannot be considered a decree, it can be perceived as a deemed decree. 

Order 21 Rule 100

Order 21 Rule 100 of the Code of Civil Procedure, 1908 deals with order to be passed upon application complaining of dispossession. This Rule also needs to be read along with Rule 101 which deals with questions to be determined.  Applying the same interpretation as have been made in Order 21 Rule 98, it can be said that Rule 100 of the same order is a deemed decree as it involves an adjudication which formally does not fit in the scope of Section 2(2) of the Code of 1908 but they are deemed to be decrees due to legal fiction. 


As we come to the end of this article, what can be inferred from the discussion regarding the deemed decree above is that this type of decree holds immense importance just like decrees under Section 2(2). Although not mentioned in any provision, deemed decrees being implied from the examples provided in this article has a greater role to play in the working of the Code of Civil Procedure, 1908. 



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