This article has been written by Pankhuri Anand, a student of Banasthali Vidyapith, Rajasthan. This article discusses the meaning and types of the decree with illustrations and case laws.
A decree is one of the most frequently heard terms in Civil Matters. The adjudication of a court of law is divided into decree and orders. In this article, are going to discuss the decree. The term “decree” has been defined under section 2(2) of the Code of Civil Procedure,1908. The decree is a formal expression of adjudication by which the court determines the rights of parties regarding the matter in controversy or dispute.
Essentials elements of a Decree
The decree is a decision of the court. For any decision of the court to be a decree, the following essential elements are required:
- There must be an adjudication.
- The adjudication should be done in a suit.
- It must determine the rights of parties regarding the matter in dispute.
- The determination of the right should be of conclusive nature.
- There must be a formal expression of such adjudication.
For a decision of the court to a decree, there must be an adjudication. The matter in dispute should be judicially determined. As held in the case of Madan Naik v. Hansubala Devi, if the matter is not judicially determined then, it is not a decree.
So, if the decision is of administrative nature then it can not be considered as a decree. Also, any order for dismissal of suit due to default in the appearance of parties or order for dismissal of an appeal cannot be considered as a decree.
As held in the Deep Chand v. Land Acquisition Officer, the adjudication should be made by the officer of the Court and if it is not passed by an officer of the court then it is not a decree.
For any decision to be considered as a decree, the adjudication must have been done in suit. The term “suit” for this context can be understood as “any civil procedure which has been instituted by the presentation of a plaint”. The decree can only be in a civil suit. If there is no civil suit, there can be no decree.
There are several specific provisions which enable certain applications to be treated as suits such as proceedings under the Hindu Marriage Act, the Indian Succession Act etc. and the decisions therein are to be considered as a decree. To know more about the decree in redemption suit Click Here.
Rights in controversy
The rights of parties which are in controversy must be determined by a formal adjudication. The rights determined under this circumstance are substantial rights and not procedural rights. The parties to the rights in controversy should be the plaintiffs and defendants and, if an order is passed upon the application made by a third party who is a stranger to suit then it is not a decree.
The matter in controversy should be the subject matter of the suit regarding which the relief is sought. Any question regarding the status and characters of party suing, the jurisdiction of the court, maintainability of suit or any other preliminary matter is covered under this.
The determination of rights in controversy in an adjudication should be conclusive in nature. As held in the case of Narayan Chandra v. Pratirodh Sahini, the determination should be final and conclusive regarding the court which passes it. That’s why an interlocutory order which does not finally determine the rights of parties is not considered as a decree.
The main point to be kept in mind is that whether the decision made is final and conclusive in essence as well as substance. If it is so, then the decision will be considered as a decree, else not.
The adjudication should be expressed formally and such formal expression should be given in the manner prescribed by law. The decree should be drawn separately and it should follow the judgement. No appeal lies the judgement if the decree is not formally drawn upon the judgement.
After a detailed study of section 2(2) of the Code of Civil Procedure which defines a decree and then analysing the procedures laid down in civil proceedings and applying the test for a decision to be a decree as laid down in the case of Venkata Reddy v. Pethi Reddy, there are certain instances when decisions of the Court are considered as decree and there are instances when the decisions are not considered as decree as stated below in the following illustrations:
Decisions considered as a decree
The decisions held to be decree are as follows:
- Order of abetment of suit
- Dismissal of appeal as time-barred;
- Dismissal of suit or appeal due to the requirement of evidence or proof;
- Rejection of plant due to non-payment of court fees;
- Order granting costs and instalments;
- An order refusing costs or instalments;
- An order refusing maintainability of appeal;
- Order denying the survival of right to sue;
- Order stating that there is no cause of action;
- An order refusing to grant one or several reliefs;
Decisions not considered as a decree
The decisions which are not considered as a decree are as follows:
- Dismissal of appeal for default;
- Appointment of Commissioner in order to take accounts;
- Order for remand;
- Order granting interim relief;
- An order refusing the grant of interim relief;
- Rejection of plaint in order to present it to the proper court;
- Application rejected for condonation of delay;
- Order holding an application to be maintainable;
- Order of refusal to set aside the sale;
- The order issuing directions for the assessment of mesne profit.
Types of Decree
The Code of Civil Procedure recognises the following three types of decrees.
- Preliminary Decree
- Final decree
- A partly preliminary and partly final decree
A decree is stated as a preliminary decree when the rights of parties regarding all or any of the matter in dispute are determined in the adjudication but it does not dispose of the suit completely. The preliminary decree is only a prior stage
A preliminary decree is passed by the courts mainly when the court has to adjudicate upon the rights of the parties and then, it has put the matter on hold unless the final decree of that suit is passed
As held in the case of Mool Chand v. Director, Consolidation, a preliminary decree is only a stage to work out the rights of parties until the matter is finally decided by the Court and adjudicated by a final decree.
The Supreme Court in the case of Shankar v. Chandrakant held that the preliminary decree is a decree in which the rights and liabilities of parties are declared but the actual result is left to be decided in further proceedings.
A preliminary decree can be passed by the court in the following suits as provided by the Code of Civil Procedure, 1908
Order 20 Rule 12: Suit for possession and Mesne profit
When there is a suit related to possession of immovable property or for rent or mesne profit then in such cases preliminary decree can be passed.
Order 20 Rule 13: Administration Suits
When a suit is of the nature of administration suit, then a court is empowered to pass a preliminary decree.
Order 20 Rule 14: Suits of pre-emption
When there is a suit for claiming pre-emption regarding sale or purchase of a particular property then the court can pass a preliminary decree.
Order 20 Rule 15: Suit filed for dissolution of a partnership
When there is a suit for dissolution of the partnership or for the partnership account to be taken, then the court may pass a preliminary decree.
Order 20 Rule 16: Suits related to accounts between the principal and agent
In a suit related to the pecuniary transaction between the principal and agent or any other matter, if required, the court may pass a preliminary decree.
Order 20 Rule 18: Suit for partition and separate possession
When the suit is related to partition or for separate possession of share then the court may pass a preliminary decree.
Order 34 Rule 2: Suits related to the foreclosure of a mortgage
When there is a suit related to the foreclosure of mortgage then under Rule 2 of Order 34, a court is empowered to pass a preliminary decree.
Order 34 Rule 4: Suits related to the sale of the mortgaged property
In suits related to the sale of the mortgaged property, the court is empowered under Rule 4 of order 34 to pass a preliminary decree.
Order 34 Rule 7: Suits for the redemption of a mortgage
When a suit is filed before the court regarding the matter of redemption of the mortgaged property, the court is empowered under Rule 7 of Order 34 to pass a preliminary decree.
Can there be more than one preliminary decree?
There is a conflict of opinion regarding this question that whether there can be more than one preliminary decree in the same suit or not. Some High Courts are of the view that there can be more than one preliminary decree while some of the High Courts are against this view.
The Supreme Court in the case of Phoolchand v. Gopal Lal, held that nothing in the Code of Civil Procedure prohibits passing of more than one preliminary decree if the circumstance requires or if required by the Court. But, it should be noted that this decision was given by the Court regarding partition suits.
The final decree is a decree which disposes of a suit completely and settles all the matter in dispute between the parties. The final decree does not leave any matter to be decided further.
It is considered as a final decree in the following ways.
- When no appeal is filed against the decree within a prescribed time period.
- Matter in the decree has been decided by the highest court.
- When the decree passed by the court disposes of the suit completely.
Can there be more than one final decree?
Ordinarily, in one suit there is one preliminary and one final decree. In the case of Gulusam Bivi v. Ahamadasa Rowther, the Madras High Court in the light of Order 20 Rule 12 and 18 stated that the code nowhere contemplates more than one preliminary or final decree.
In the case of Shankar v. Chandrakant, the Supreme Court finally settled the conflict of opinion and stated that more than one final decree can be passed.
Partly preliminary and partly final decree
A decree passed under the Code of Civil Procedure may be partly preliminary and partly final. This happens some part of the decree is preliminary decree while the rest is a final decree.
If there is a suit of possession of an immovable property along with the issue of mesne profit, and the court is obliged.
- Passes a decree deciding the possession of the property.
- Directs for an enquiry of mesne profit.
The first part deciding the possession of the property is final while the part regarding the mesne profit is preliminary.
An adjudication which does not formally fall under the definition of decree stated under section 2(2) of the Code of Civil Procedure but due to a legal fiction, they are deemed to be decrees are considered as deemed decrees.
Rejection of plaint and determination of the issue of restitution of decree are deemed decree. Also, an adjudication under order 21 Rule 58, Rule 98 and Rule 100 are also deemed decrees.
Order and Decree
|1.||The decree is passed only in a suit which is commenced by the presentation of the plaint.||An order can be passed in a suit instituted on plaint as well as from a proceeding commenced on a petition application.|
|2.||Decree determines the right of parties in dispute conclusively.||An order may or may not finally and conclusively determine such rights.|
|3.||A decree can be preliminary or final.||An order cannot be preliminary.|
|4.||In a suit, there can be only one decree except for the suits where a preliminary and final decree is passed.||A number of orders can be passed in a suit or proceeding.|
|5.||Every decree is appealable unless expressly provided.||Only the orders specified in this code are appealable.|
|6.||The second appeal lies to the High Court against the first appeal of a decree.||There is no provision of the second appeal in case of appealable orders,|
Judgement and Decree
|1.||Judgement is the statement of the judge on the ground of a decree or an order.||For decree, a statement of the ground is not required to be given by the judge.|
|2.||The judgement does not require to have a formal expression.||A decree must be a formal expression.|
|3||The relief granted is required to be stated preciously in the Judgement.||A decree determines the rights in dispute between the parties.|
|4.||A judgement is passed in a stage prior to passing a decree.||A decree is passed after issuing the judgement.|
|5.||Judgement is pronounced in civil as well as criminal matters.||A decree can be passed only in a civil suit.|
The Code of Civil Procedure lays down provisions to pronounce and issue the decision of the Court and decree is one of them. A decree in the decision of a court which determines the rights in dispute between the parties to suit. A decree can be preliminary, final or partly preliminary and partly final. There is also a concept of the deemed decree. A decree is different from order and judgement in many ways.
For the execution of decree Order XXI of the Code lays down the provisions and procedure. A decree is appealable and even second appeal lies to High Court after the first appeal of a decree. A decree is passed only in civil suits and not in criminal matters.
- Takawani, C.K. Civil Procedure, 8th Edition, (Reprint) 2018, Eastern Book Company.
- The Code of Civil Procedure, 1908.
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