This article is written by Abhilasha Vatsal who is pursuing a Certificate Course in Advanced Civil Litigation: Practice Procedure and Drafting from LawSikho.
The proper understanding of Civil Procedure Code, 1908 and more specifically about the functioning of the courts is incomplete without comprehending the difference between the legal terminologies of Order, Decree, and judgement.
“Order” in legal parlance is any formal expression of a civil court’s decision that is not a decree. Hence, the adjudication which does not result in a decree would be an order. The main differentiating points between an order and a decree are:
- It is only when a suit is started off by a plaint’s presentation that a court can pass a decree. However, an order can be passed in a suit, after presentation of a plaint or in cases where the proceedings are started off by a petition, an application.
- A decree determines the final rights of parties as far as all or any matters in controversy are concerned; where in the case of order, conclusive determination of rights might or might not take place.
- There cannot be a preliminary order like a preliminary decree.
- In most of the suits, only one decree can be passed, unlike several orders passed in a suit or proceeding.
- Not all orders are appealable, like in the case of a decree. Only such order is appealable which are enumerated in the code.
- A second appeal of the decree passed in 1st appeal can be sought from the high court, unlike orders.
The essentials of a decree are:
- Adjudication: A decision of administrative nature or a suit’s dismissal on want of merit, either because of the party’s default in appearance or an appeal’s dismissal on prosecution’s absence as there is not any ’judicial determination of rights in dispute’. And such determination must be by a court.
- Suit: A suit is commenced with the presentation of a plaint.
- Rights of parties in controversy: There must be determination of rights of the parties as far as matters in controversy are concerned. The parties refer to Plaintiff and Defendant.
- Conclusive determination: The determination of the decision should be final as far as the court is concerned which passes it.
- Expression must be formal: The prerequisites of form should be complied with. It must be followed as per the law.
Certain examples of decrees include order refusing one of the many reliefs sought, an order that appeal is not maintainable, a plaintiff rejected for want of court-fees, etc. However, orders like passing an order setting aside sale, order refusing an interim relief are not decrees.
There are three classes of decrees
- Preliminary Decree-
In cases where the parties’ rights are decided with respect to all or any of the suit’s disputed matters, however the suit is not completely disposed of, then it would be a preliminary decree. It is a preliminary stage in adjudicating rights of the parties which is conclusively adjudicated by a final decree. In cases of suits for partition, the decree wherein the shares of the concerned persons of a joint family are determined and no actual partition has taken place is a preliminary decree. When further inquiry is done by the court, then final decree of the actual partition of property is passed and the suit is disposed of. Other suits passing preliminary decree involve a suit for a mortgaged property’s foreclosure, a suit for mortgaged property’s redemption, suit for pre-emption, etc.
In the case of Phoolchand v. Gopal Lal, it has been held that as per the facts, circumstances and necessity of the case, there is nothing that precludes the court in passing more than one preliminary decree. They substantiated by stating that their judgement is concerned only with partition suits and not other kinds of suits.
In case the preliminary decree’s appeal succeeds then due to lack of support, the final decree also automatically fails. And then it will not be required by the Defendant to go to the Court passing the final decree to set it aside.
2. Final decree-
There are two ways in which a decree may become final, which are:
- When no appeal lies against the decree in the time period prescribed or the highest court has decided the matter, and
- When the decree passed by the court is completely disposed of.
For instance, in a suit for money’s recovery, when the decree holder’s outstanding amount along with the procedure as to how that amount is to be paid has been declared, the decree becomes final. In the same way, a decree declaring past and future mesne profits at specific rate, with no further enquiry being directed, would be a final decree. Therefore, a preliminary decree passed by a special court which does not consider subsequent proceedings, would be considered a final decree in substance.
The ruling in Gulusam Bivi v. Ahamadasa Rowther with reference to Code of Civil Procedure’s Rule 12 and Rule 18, Order 20, that in one suit, there is no provision made for more than one preliminary decree as well as final decree. Having two final decrees in one suit would be to call the former one a final decree which will be a misnomer and not final. However, this obiter dicta were overruled in the case of Kasi v. Ramanathan Chattiar, wherein the same question was considered at length. It was held that there is a possibility of more than one preliminary decree as well as more than one final decree.
3. Partly preliminary and partly final decree-
It is possible that a decree is party final and partly preliminary. For instance, in case of a suit for immovable property’s possession with mesne profits, the following decrees are passed by the court:
i. For property’s possession, which is the final decree.
ii. Directing inquiry of mesne profits, being the preliminary decree as it is only after enquiry that mesne profits can be drawn.
In such cases, the decree is only one, comprising of partly preliminary and partly final.
The grounds of an order or a decree is stated by the judge in a judgement. It is the formal pronouncement or delivery of the final decision of the court stated to the parties.
Pronouncement of judgement as per Rule 1:
Ensuring the notice to either the parties or their pleaders, the judge, in an open court, after completion of hearing, pronounces the judgement, either on a future day or on one occasion. With the amendment act of 1976, a time limit was imposed for pronouncing judgement after the completion of hearings. Simultaneously, the Apex court had also remarked in R.C. Sharma v. Union of India, that even though there is no time limitation provided under the Civil Procedure Code, an unreasonable delay in pronouncing the judgement after hearing is done, unless substantiated by unavoidable circumstances, is highly unacceptable.
As per the Joint Committee, the time limit to pronounce the judgement after completion of the hearing should be within thirty days, ordinarily. However, if in case it becomes impracticable, to dispose of the judgement in the ascertained limit of thirty days due to exceptional circumstances then the pronouncement can be done within sixty days. It is not mandatory on the judge to read the complete judgement, even if the final order is pronounced then also it would suffice. As per the requirement of Rule 2, the judgement must be dated and signed. It also empowers the judge to pronounce a judgement written by a predecessor judge but not pronounced by him. Sethi, J. had said that in a country like India, judges are considered next to god and therefore it becomes essential in strengthening the common man’s belief to not delay the disposal of cases as it negatively affects the confidence of the general public in the judicial system.
Pronouncing a judgement aims to validate a judgement and that is why it must be judicially performed. Any insignificant deviation in the manner or mode of delivery would be immaterial until the substance is present, and it is not left to any conjecture. Furthermore, the judgement must only be based on the grounds and points of pleading between the parties in dispute. The judgement’s language must be restrained and not follow sobriety.
From the above discussion, a clear distinction can now be drawn between a decree, judgement, and an order. The essentials of a decree are that there must be an adjudication, of a suit, dealing with rights of parties in controversy, that conclusively determines, and it must have a formal expression. However, an order may or may not exclusively determine the rights of the party. As far as judgement is concerned, it is the final decision of the court, which is formally pronounced. The Code’s amendment in 1976 brought in a time restriction within which a judgement must be pronounced, from the date of completion of hearings.
- AIR 1967 SC 1470
- Hasham Abbas v. Usman Abbas, (2007) 2 SCC 355
- AIR 1919 Mad 998
- (1947) 2 MLJ 523
- Lucy Kochuvareed v. P. Mariappa Gounder, (1979) 3 SCC 150
- Section 2(9), CPC
- Surendra singh v. State of U.P., AIR 1954 SC 194
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