This article is written by J Jerusha Melanie, a student of SRM School of Law, Tamil Nadu. This article seeks to elucidate the differences between a decree and an order. It also provides a complete explanation of everything that one needs to know about a decree and an order.
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
The legal world is filled with a myriad of complicated terminologies. Some of the terms are so similar in their meanings that one cannot help wondering whether they mean the same or not. One may not possibly understand them at first glance. “Decree” and “order” are two such terms. The Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC”) defines and distinguishes decree and order to some extent. The Indian courts have tried to explain the same further. Let’s dive in to know the difference between these two terms.
Difference between decree and order
| S. No. | Grounds of difference | Decree | Order |
| 1. | Definition | Under Section 2(2) of the CPC, a decree is 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 preliminary or final. | Under Section 2(14) of the CPC, an order is the formal expression of any decision of a civil court which is not a decree. |
| 2. | Finality | A decree may be preliminary, final, or partly preliminary and partly final. | An order is always final. |
| 3. | Appealability | Usually, a decree is appealable until and unless it is explicitly prohibited by law. | Most orders are not appealable, except those specified in Section 104 and Order 43, Rule 1 of the CPC. |
| 4. | Institution | A decree is passed in a suit instituted upon presenting a plaint. | An order is passed in a suit that may be instituted upon the presentation of either a plaint, an application, or a petition. |
| 5. | Ascertainment of parties’ rights | A decree ascertains the substantive rights and duties of the parties. | An order ascertains the procedural rights of the parties. |
| 6. | Number of decrees/ orders | Usually, only one decree is passed in a suit. | One or more orders may be passed in a suit. |
Decree
To understand the meaning of the term “decree”, let us see what the CPC says about it. Section 2(2) of the CPC defines a “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 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-
- Any adjudication from which an appeal lies as an appeal from an order, or
- Any order of dismissal for default.
Furthermore, Section 2(2) of the CPC goes on to provide a short explanation of the term “decree”. It states that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.
A decree is the manifestation of the court’s adjudication. In simple language, the court’s expression of its adjudication in favour of one or more parties to a suit is called a “decree.” It is the decree that clarifies which party won the suit.
In a decree, there are two parties; one is the decree-holder and the other is the decree-debtor. A decree-holder is the party in favour of whom a decree is passed (Section 2(3) of the CPC); on the other hand, a decree-debtor is the party against whose favour a decree is passed.
To further understand what a “decree” actually means, it is important for us to know the meaning of another term, “judgement”. As per Section 2(9) of the CPC, a “judgement” means the statement given by the judge on the grounds of a decree or order. It means that a judgement contains the grounds of a decree. A decree is derived from a judgement. So, every decree follows a judgement. Ultimately, a decree is the formal manifestation or representation of the judge’s ruling.
Essentials of a decree
A bare reading of Section 2(2) of the CPC clarifies that a decree has the following essentials. It has been further restated in the case of Vidyacharan Shukla v. Khubchand Baghel (1964).
Adjudication
The very beginning of Section 2(2) of the CPC states that a decree is the formal expression of an adjudication. The CPC does not define the term “adjudication.” However, in general parlance, it means a judicial decision or a formal judgement on a disputed matter. It is the legal process in which the court resolves a particular dispute brought forth for its perusal. So, a decree is formal in its expression; furthermore, it should not be merely administrative in nature.
In the case of Madan Naik v. Hansubala Devi (1983), the Supreme Court held that only those decisions that are judicially determined can be recognized as a decree. Furthermore, in the case of Deep Chand v. Land Acquisition Officer (1994), it was held that a decree can proceed only from an officer of the court.
Suit
Section 2(2) of the CPC provides that a decree must be in a suit. In other words, a decree arises only when a suit is instituted. Though the CPC does not explicitly elucidate the term “suit”, generally, a suit under the CPC is a civil proceeding instituted by the presentation of a plaint (Section 26(1) of the CPC). It is instituted to enforce the civil rights of parties.
Determination of the parties’ rights
In a civil suit, there are two parties- the plaintiff (the person who institutes a suit) and the defendant (the person against whom a suit is instituted). It is instituted only when the plaintiff feels that his civil rights are being infringed upon by the defendant.
Further, it is pertinent to note that, as per the Supreme Court’s decision in the case of Dattatraya v. Radhabai (1997), the substantive rights, not the procedural rights, of the parties are determined in a civil suit. So, under Section 2(2) of the CPC, a decree is passed only when there is a civil suit in which the rights of the parties are disputed.
Conclusive determination
Section 2(2) of the CPC provides that a decree should be conclusive in nature. It should conclusively decide the rights and duties of the parties in such a way that the judge has nothing further to decide on. For this very reason, provisional decisions like interlocutory orders do not fall under the ambit of “decree” under the CPC. Similarly, an order partly deciding on and partly remitting some issues to the trial court for determination is also not a decree.
Formal expression
Section 2(2) of the CPC requires that a decree must be the formal expression of an adjudication. It means that every decree is manifested in the form of writing, complying with the laws relevant to the particular case. So, the informal comments of the judges during the course of the judgement (obiter dicta) are not considered a decree.
A decree must be drawn separately and conclusively; in no case can the parties appeal any judgement if the decree is not formally expressed.
What does a decree include
Section 2(2) of the CPC provides the following aspects that fall under the ambit of the term “decree”:
- Rejection of a plaint
When a plaint reaches the court, the court first determines whether it needs to be tried, returned, or rejected. The court regards the material facts of the particular case and the provisions under Order 7 Rule 11 of the CPC to determine it. Order 7 Rule 11 of the CPC states the scenarios when a plaint shall be rejected. A plaint can be rejected by the court if:
- It does not disclose any cause of action;
- The relief claimed is undervalued by the plaintiff, and he/ she failed to correct it within the time stipulated by the court;
- The plaintiff has failed to furnish the appropriate stamp paper within the time stipulated by the court after the court returned it due to the usage of insufficiently stamped paper;
- The statement in the plaint shows that the suit is barred by any law;
- The duplicate copy of the plaint is not filed, or
- The provisions of Order 7 Rule 9 were not adequately complied with by the plaintiff.
Order 7 Rule 12 of the CPC provides that while rejecting a plaint, the judge should record the reasons for such rejection in the form of an order. Section 2(2) of the CPC states that an order made by the judge under Order 7 Rule 12 of the CPC is also a decree.
- Determination of any question under Section 144 of the CPC
Section 144 of the CPC deals with the doctrine of restitution. Restitution refers to the duty imposed on a party to a suit who received a benefit from a decision of the court to return such a benefit to the other party when the decision is reversed. Section 2(2) of the CPC provides that the determination of any question under Section 144 of the CPC is also a decree.
What is not included in a decree
Also, Section 2(2) of the CPC provides that the following aspects are not included within the meaning of “decree”;
- Any adjudication from which an appeal lies
No adjudication which is appealed as an appeal from an order is a decree under Section 2(2) of the CPC.
- Any order of dismissal for default
No order of dismissal of a suit on the ground of the parties’ default is a decree. Examples of parties’ default are failure to appear when the suit is called for a hearing and failure to pay adequate court fees or postal charges. Order 9 of the CPC deals with such dismissal orders.
Types of decrees
Generally, there are 3 classes of decrees, as explained below:
Final decree
Section 2(2) states that a decree may be final. A final decree is one which wholly disposes of a suit and finally settles all disputed matters in the suit. It is issued when all the hearings of a suit are complete and there is nothing more to decide upon.
As held by the Apex Court in the case of Shankar Balwant Lokhande (deceased) v. Chandrakant Shankar Lokhande (1995), a decree is said to be final in the following scenarios:
- When the decree is not appealed within the stipulated time;
- When the decree is passed by the Apex Court, that is, the Supreme Court, and
- When the court regards the decree as having been completely disposed of.
The following are characteristics of a final decree:
- It is executable;
- It may be passed without any preliminary decree;
- It conclusively settles the disputed matter, and
- The Court may pass more than one final decree.
Preliminary decree
Section 2(2) states that a decree may be preliminary. Let us recall what Section 2(2) of the CPC says about a preliminary decree. The said Section states that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such an adjudication completely disposes of the suit. So a preliminary decree is passed when there is still something that the court needs to decide upon before conclusively determining the rights and duties of the parties. There may be more than one preliminary decree in a suit.
As held by the Supreme Court in the case of Mool Chand and Ors v. Dy. Director Consolidation (1995), the court passes a preliminary decree when, though the rights of the parties are figured out, a few other matters are still pending to be decided upon.
One must note that a preliminary decree does not completely dispose of the suit; it leaves the suit pending before the court until the final decree is passed.
Under the CPC, a preliminary decree may be passed in the following types of suits:
- Administration suits (Order Rule 13)
- Suits for possession and Mesne profit (Order 20 Rule 12)
- Partnership dissolution suits (Order 20 Rule 15)
- Suit for partition and separate possession (Order 20 Rule18)
- Suit regarding the sale of mortgaged property (Order 34 Rule 4)
- Suits regarding accounts between the principal and agent (Order 20 Rule 16)
- Suits regarding foreclosure of a mortgage (Order 34 Rule 2)
- Mortgage redemption suits (Order 34 Rule 7)
Partly preliminary and partly final decree
Sometimes, depending upon the nature of the suit, the court may pass a partly preliminary and partly final decree. Such a decree may contain parts that are final, while the majority of the decree may still be preliminary.
For instance, in a suit relating to inheritance, the court may pass a partly preliminary and partly final decree, in which the determination of whether or not a particular party is entitled to receive a share in the property may be final in nature; whereas the determination of who will receive what share in the property is a part of the preliminary decree.
Now that we have discussed a decree, let us now see what an order is.
Order
An order is defined under Section 2(14) of the CPC as the formal expression of any decision of a civil court which is not a decree. As the definition clearly explains, an order is not a decree. However, though an order is not a decree, a decree is usually an order. It is because a decree may be preliminary, final, or partially both, but an order is always final in nature. Nevertheless, it is pertinent to note that here, “final” refers to an order’s conclusive ability to execute; it means that an order must be essentially and procedurally executed. An order determines the procedural rights of the parties. The court may pass orders at any stage of a civil suit. Essentially, a decree is followed by one or several orders.
Essentials of an order
From the definition of the term “order” provided under Section 2(14) of the CPC, we can say that an order has the following essentials:
Decision of a Civil Court
- Only the formal expression of a civil court’s decision is considered as an order.
Formal expression
- An order must be expressed formally, that is, in writing.
It should not be a decree
- Under Section 2(14) of the CPC, no order can be a decree.
Types of orders
The following are the types of orders under CPC:
Final order
A final order is one which ultimately establishes and calls for the execution of the procedural rights of the parties.
Interlocutory order
An interlocutory order is one which is passed as a temporary measure to prevent the happening of any harm to any person or property. Interlocutory orders are also called interim orders.
Appealable order
As the name suggests, an appealable order is one against which an appeal can be filed. Though most orders can not be appealed, a few orders, for instance, the orders provided under Section 104 and Order 43 Rule 1 of the CPC, are appealable orders.
Non-appealable order
A non-appealable order is one against which no appeal can be filed. It is issued during the course of the suit and is provisional in nature.
Key differences between decree and order
Now that we have understood what a decree and an order mean, let us now discuss the key differences between both terms.
Definition
Firstly, a decree is defined under Section 2(2) of the CPC 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 preliminary or final.
On the other hand, an order is defined under Section 2(14) of the CPC as the formal expression of any decision of a civil court which is not a decree.
Finality
Secondly, a decree may be either preliminary, final, or partly preliminary and partly final. However, an order is always final in nature.
Appealability
An appeal can lie only against a decree, not an order. A decree is appealable except in cases where the law explicitly bans it. However, most orders are non-appealable, except those specified in Section 104 and Order 43 Rule 1 of CPC.
Institution
A decree is passed in a suit instituted upon presenting a plaint. On the other hand, an order is given in a suit that may be instituted upon the presentation of either a plaint, an application, or a petition.
Ascertainment of the rights of parties
As discussed earlier, a decree determines the substantive rights of the parties to a suit. Contrarily, an order concerns only their procedural rights.
The number of decrees/ orders
Generally, there is only one decree in a suit. However, there may be as many orders as needed in the suit.
Conclusion
The terms “decree” and “order” are often used interchangeably. Confusion regarding the difference between the terms arises majorly because both are formally expressed. Nevertheless, both are different in various ways, as elucidated in this article. The foremost ground that distinguishes an order from a decree is its finality. Generally, a decree comes to pass only at the end of any suit, and it concludes the controversy regarding the substantive rights of the parties. Contrarily, an order may be passed at any time during the course of a suit, and it establishes the procedural rights of the parties.
Frequently Asked Questions (FAQs)
What is a judgement?
Judgement refers to the statement given by the judge on the basis of the decree or order.
What is the difference between a judgement and an order?
An order is defined under Section 2(14) of the CPC as the formal expression of any decision of a civil court which is not a decree, whereas a judgement is defined under Section 2(9) of the CPC as the statement given by the judge of the grounds of a decree or order.
What is the difference between a judgement and a decree?
A judgement is defined under Section 2(9) of the CPC as the statement given by the judge of the grounds of a decree or order, whereas Section 2(2) of the CPC defines a “decree” as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties.
Which courts can execute a decree?
As per Section 38 of the CPC, a decree can be executed either by the court which passed it or by the one to which it is sent for execution. The term “court which passed a decree” is elucidated under Section 37 of the CPC; it states that the “court which passed a decree” includes:
- The court that passed the decree in appellate cases;
- The court that has jurisdiction to try the case during execution, in case the court of the first instance ceases to exist, or
- The court that has jurisdiction to try the case during execution, in case the court of first instance ceases to have jurisdiction over the case.
Can a foreign decree be executed in India?
Yes. Under Section 44A of the CPC, a foreign decree can be executed in India if it is of a conclusive nature.
References
- How judgement, Decree and Order are Different? (finology.in)
- Decree & Order – Meaning, Definition, Essential Elements And Types (lawcorner.in)
- Difference Between Decree And Order – Law Corner
- Decree: All you want to know about its intricacies under CPC- iPleaders
- Restitution and Res Judicata under Civil Procedure Code, 1908 (ipleaders.in)
- Order 7 Rule 11 || Rejection of plaint and its grounds || CPC (lawnotes4u.in)
- Decree: Meaning, its essentials, and examples with relevant case laws (thefactfactor.com)
- What do You Mean by “Appealable Orders”? (India) (shareyouressays.com)
- Final Decree, and partial preliminary and partial final decree, meaning (thefactfactor.com)
- Interlocutory Applications and Orders under Civil Procedure (ipleaders.in)
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