This article is written by L M Lakshmi Priya, a student from the School of Law, Sathyabama Institute of Science and Technology, Chennai. This article provides an exhaustive overview of a preliminary decree. It also discusses the types of decrees passed in the court of law.
It has been published by Rachit Garg.
Table of Contents
Introduction
The most common terminology used concerning civil proceedings is the decree and which is commonly referred to as the verdict rendered by the judges during the case in a court of law. An official such as a judge in a court or other tribunal will issue an order. Section 2(2) of the Code Of Civil Procedure,1908 states that the formal expression the court makes about disputes to the parties may either be final or preliminary. Similarly, a preliminary decree refers to a decision the court makes before the parties’ conclusive rights have been established when it is unable to grant them the final decree. The court can pass a preliminary decree when the case is not entirely resolved and the remaining proceedings are still pending.
Example of a preliminary decree
If a wife requests support, the court should consider it during the trial process; if not, the court may issue a preliminary judgement for maintenance during the trial process; eventually, the judge may declare the final decision after consulting both the parties.
Now let’s look into the deeper perspective of a preliminary decree.
When can a preliminary decree be passed
The following circumstances are ensured by the Civil Procedure Code so that the preliminary decree may be issued:
Order 20, Rule 12 – Suits for possession and mesne profit
The court may issue a decree for possession of the property, for rents that have accrued during the period before the institution of a suit or for the directing an inquiry as to such rent, or for mesne profits, or for directing an inquiry as to such mesne profits when a suit is brought to recover possession of the immovable property and for rent or mesne profits.
Case law – Smt. Subashini v. S. Sankaramma (2018)
The Telangana High Court in this case highlighted the priorities of awarding mesne profit, where it helps to compensate the original owner when the same property is in another person’s unlawful possession and where it is granted to rectify the situation done to the lawful owner by way of compensating the original owner.
Order 20, Rule 13 – Administration suit
The court may make a preliminary decree and any other judgement that may be appropriate in a dispute involving property or concern about its administration that is before the court for a final decree.
Case law – Bai Asmalbai v. Esmailji Abdulali (1963)
In this case, the plaintiff was the widow of Mahmadalli Ibrahimji, who passed away on August 10, 1947. Following his passing, 5 people sued 8 other people to administer the deceased Mahmadalli Ibrahimji’s property. The Court issued an order for administration and named a commissioner to divide the decedent’s assets among his heirs. In the appeal, it was determined that the variation was that the administration should only apply to two-thirds of twenty tolas of gold rather than thirty tolas of gold and that the sale-deed of a house executed by the deceased Mahamadam in favour of his wife defendant was a fraudulent transaction and that the house was, therefore, eligible for administration.
Order 20, Rule 14 – Suits of pre-emption
When the court passes the decree to claim pre-emption regarding the sale or purchase of any property it can be on the day or before the purchase money shall be paid on paying the purchase money to the court and if there is any cost against the plaintiff in case the defendant should deliver the possession to the plaintiff, whose title thereto shall be deemed to have accused from the date of such payment and if the cost or the purchase money is in pending then the court may dismiss the suit.
Case law – C K Gangadharan v. Kumaran (2019)
In this case, the court provided answers to a variety of questions relating to pre-emption rights, including the need for a mandatory injunction to enforce pre-emption, the requirement that the preemptor has the same rights as family members in order to protect family property from outsiders, and the constitutional inconsistency of the right of pre-emption based on consanguinity.
Order 20, Rule 15 – Suits for dissolution of a partnership
When it comes to decisions involving the dissolution of a partnership or taking the partnership’s account in compliance with the parties’ respective share proportions, the court may issue a preliminary decree before issuing a final decree.
Case law – M. Muthukrishnan v. Ethirajulu (2009)
The Court cited a case and ruled that it is not essential to declare the shares in the judgement it has issued in this matter. However, when it is proven through the pleadings and the evidence that the parties have equal shares, the decree must be created by stating the parties’ respective shares. The court must also draft the decree in accordance with Order 20, Rule 15 C.P.C and Form No. 21.
Order 20, Rule 16 – Suits related to accounts between the principal and agent
The Court shall issue a preliminary decree before issuing its final judgement directing that the accounts it deems appropriate to be taken in any suit for an account of financial transactions between a principal and an agent or in any other suit not previously provided for where it is necessary to take an account to determine the amount of money due to or from any party.
Case law – Rajendra Singh v. State of Rajasthan (1983)
The Court in this case held that the right to request a statement of accounts is an unusual form of relief that is only given in very specific circumstances and is only to be requested when the relationship between the parties is such that it is the only relief that will allow the claimant to adequately assert his legal rights. A reference to another case was made to reach this decision. The judge highlighted that an agent had a legal obligation to account for his principal under Section 213 of the Contract Act,1872 but that the principal had no equivalent legal duty toward the agent.
Order 20, Rule 18 – Suit for partition and separate possession
If the decree is related to the estate property of the government to pay them revenue, then the decree shall declare the rights of the parties, and the partition may occur in the collector’s presence. If the cases relate to movable or immovable property, then the court may pass the preliminary decree with further investigation based on the parties rights.
Case law – Shasidhar v. Ashwini Uma Mathad (2015)
It was decided that in a lawsuit filed by a co-sharer, co-owner, or joint owner, or as the case may be, for partition and separate possession, it was necessary for the court to examine the nature and character of the properties in a suit, including who was the original owner of the suit properties, how and by what source he/she acquired such properties, whether it was his/her self-acquired property or ancestral property, or joint property or coparcenary property in his/her hand. The Court must consider the grounds of each party’s claim in its proper context before recording a decision about its extent.
Order 34, Rule 2 – Suits related to the foreclosure of a mortgage
When a lawsuit involving foreclosure is filed, the court must order that any money owed to the plaintiff, the costs of his legal defence, and any outstanding principal and interest on the mortgage be deducted from the account if he succeeds. When the defendant fails to pay the sum of charges set by the court at the preliminary decree, the plaintiff may move for the final judgement.
Case law- Narayan Deorao Javle v. Krishna (2015)
In this case, the Supreme Court ruled that even if the mortgagor had acquired a portion of the mortgaged property through the use of a registered sale deed, the decree of foreclosure issued in the lawsuit brought by the mortgagee would not have rendered the mortgagor’s right to redeem land irrelevantly.
Order 34, Rule 4 – Suits for the sale of the mortgaged property
If the plaintiff is successful in the sale lawsuit, the court may issue a preliminary decree, and if the defendant doesn’t pay, the plaintiff may ask for a final decree. The time limit for paying the amount found or declared due under sub-rule (1) or the amount adjudged due in respect of additional costs, charges, expenses, and interest may be extended by the court from time to time, with good cause demonstrated and under conditions to be determined by the Court, at any time before a final decree for sale is issued.
Caselaw – Kanti Ram v. Kutubuddin Mahomed (1894)
As it is to enforce the mortgage security, in this case, the judge’s opinion to dismiss the plaintiff’s lawsuit is incorrect, and the plaintiffs have the right to an order for the sale of the mortgaged property subject to the lien of the prior encumbrances and the formation of the new mortgage decree in accordance with the Transfer of Property Act, 1882.
Order 34, Rule 7 – Suits for the redemption of a mortgage
When the plaintiff submits the application and pays the defendant’s other costs, the defendant is then expected to take all other actions that are necessary to support the plaintiff. If either party fails to comply with the court’s instructions during the preliminary decree, the other may file for the final decree.
Caselaw – L. K. Trust v. EDC Ltd. (2011)
The Apex Court stated in this decision that the mortgagor’s rights are safeguarded in a claim for the redemption of a mortgage. Although the right to redemption is a legislative right in India, the existence of a right of redemption depends on the continued existence of the underlying mortgage. The right of redemption under a mortgage deed can only be terminated in a way that is permitted by law; this right cannot be eliminated except by an agreement between the parties or by a court order.
Features of a preliminary decree
The decree expresses a court judgement. The qualities listed below must be met for a court decision to be considered as a preliminary decree.
Appealability
You can move to the high court by filing an appeal of a particular preliminary decree if you are dissatisfied with the lower court’s order, but you must do it before the final decree is made.
Illustration – In a case involving the division of property, the Madras High Court issued a preliminary decree determining the parties’ respective shares. A final decree was passed based on this initial decree. One of the parties appealed the final judgement on the grounds that the preliminary judgement did not assign the party any shares. Because an appeal against a preliminary decree cannot be brought after the final decree has been issued, the Court refused to allow this appeal.
Passing of a second preliminary decree
The preliminary decree should always be followed by the final decree, while changes to the preliminary decree are permitted prior to the final decree’s approval as long as there has been a significant change in the circumstances. The court must evaluate the revised statute and issue a second preliminary decree as necessary.
Illustration – A filed a partition lawsuit against four defendants. The lower court issued a preliminary decree outlining the parties’ respective shares. However, two parties passed away before the final decree could be issued, and a disagreement emerged regarding their respective portions. In order to resolve the conflict, the court had to redistribute the shares specified in the initial provisional decree. It was decided that nothing in the law prevents the issuance of more than one preliminary decree if the situation calls for it. It was decided that a second preliminary decree was necessary.
Non-execution of preliminary decree
Execution refers to the procedure for carrying out or giving effect to a court’s decision. It’s important to remember that only a final decree can be put into effect unless it also becomes a part of the final decree.
Illustration – A filed a partition lawsuit against B, and a preliminary decree was issued defining the shares of A and B in the lawsuit as property. B filed for the preliminary decree to be executed before the court issued the final judgement. The Supreme Court ruled that there is no executable decree because no final decree has been delivered in this case. The decree doesn’t become enforceable until after the final version has been approved.
Characteristics of a preliminary decree
Right of the parties
It should be the plaintiffs and defendants who are parties to the rights in concern rather than a third party who has never been sued before. The rights of the parties concerning all or all of the issues in dispute in the lawsuit must have been decided.
Adjudication
The term ‘adjudication’ simply refers to the court’s decision, which should only be made by judges and other legal professionals after a thorough judicial review of the relevant facts.
Suit
A suit must have been filed to receive an adjudication, and a civil court case is started by filing a plaint. For instance, legal actions brought under the Land Acquisition Act,1894, the Hindu Marriage Act,1955 the Indian Succession Act,1925 etc. are called statutory suits, and the judgement rendered in accordance with such laws is regarded as a decree.
Final decree
When the final decree is rendered, the court reaches its conclusion and will no longer accept further arguments. For instance, interim divorce judgments are granted in order to provide the parties with a chance at reconciliation. The divorce lawsuit then receives a final decree.
Consequences of preliminary decree
A court may issue more than one preliminary decree in a case, and the Civil Procedure Code’s provisions do not prohibit this. The only thing it specifies is that a court may issue a preliminary judgement in a case.
Case laws
Phoolchand v. Gopal Lal (1967)
In this case, the trial court issued a preliminary decree regarding the shares of the parties after which two of the four parties passed away before the issuance of the final decree due to disagreements between the other parties. The Court then redistributed the shares as specified in the first preliminary decree, and later stated that the CPC does not forbid the issuance of more than one preliminary decree if the circumstances of the case enforce it.
Ganduri Koteshwaramma v. Chakiri Yanadi (2011)
In this case, the court ruled that the final judgement should be following the preliminary judgement, but it doesn’t mean that the preliminary judgement cannot be amended depending on the facts of the case.
How is a preliminary decree executed
Execution of a preliminary decree just entails putting effort into the court’s decision, thus a preliminary decree is not executable unless it is made a part of a final decree. A preliminary decree declares the rights of the parties, and a final decree satisfies that preliminary decree.
Example – A filed a partition lawsuit against B, and a preliminary decree was issued defining the shares of A and B in the lawsuit as property. B filed for the preliminary decree to be executed before the court issued the final judgement. The Supreme Court ruled that there is no executable decree because no final decree has been delivered in this case. The decree doesn’t become enforceable until after the final version has been approved.
Types of decrees
The court may decide cases by decree or order. The court resolves conflicts formally by issuing a decree, which is essentially broken down into the following heads.
- Preliminary decree,
- Final decree,
- Partly preliminary and partly final decree.
Preliminary decree
The preliminary decree is brought up by the court prior to rendering a decision in order to put an end to disputes over the parties’ rights and all other issues. It is designed to be passed on by the court to rule on specific cases. This preliminary decree is issued in advance of the final decree. The preliminary decree is a court ruling that outlines the parties’ legal rights and responsibilities but leaves the final result up for decision in the following proceedings. When the court is supposed to decide on the parties’ rights first preliminary decree is passed. But a preliminary decree will not completely conclude the case.
Example of preliminary decree
X, Y, and Z, the parties to the property, are asking the court to order its partition, but the court cannot do so until it has established the shares and rights of each party. The court could issue a preliminary decree in this case in order to accomplish this.
A’s wife sues her husband for maintenance in this case, and the court must make sure that she receives maintenance throughout the trial to enforce that. The court may therefore issue a preliminary decree to ensure that she receives maintenance all through the trial.
Case law
Selvamani v. Chellamal (2015)
In this case, the court made a preliminary decision regarding the parties’ respective shares. Later, the final decree was made, and one party appealed it, arguing that the preliminary decree had not given him any shares. However, the court dismissed the appeal because it was not possible to appeal the preliminary decree since the final decree had already been made.
Final decree
A final decree is one in which the court of law resolves all legal concerns and issues the final order after the dispute in the lawsuit has been resolved, and the court will then entirely dispose of the lawsuit. Final decrees are granted in one of two situations:
1) when an appeal is not filed within the allotted time or when the high court decides on it, and
2) when the court completely settles the case.
Example of final decree
To provide for a chance of reconciliation, interim divorce decrees are granted. A final decree is subsequently issued in the divorce suit.
Case law
Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande (1995)
The Court ruled in this case that until the final decree is issued, there cannot be a formal court order that definitively resolves all of the case’s issues.
Partly preliminary and partly final decree
The Code of Civil Procedure permits a decree to be partly preliminary and partly final. This occurs because only a portion of the order is final, while the rest is a preliminary decree
Example of partly preliminary and partly final decree
Think about two brothers who want to inherit their late father’s property but the property is now rented. The succession of the property may be the final decision, and the rent from the leased property may be both a preliminary and final decree.
Case law
Lucky Kochuvareed v. P. Mariappa Gounder (1979)
In this case, the Court concluded that there is a dispute between mesne profits and a claim for possession of the immovable property. Thus, the court must either decide who is the rightful owner of the property or order a mesne profits inquiry. The first component defining possession of the property is final, whereas the piece determining the mesne profit is preliminary.
Difference between preliminary decree and final decree
| Preliminary decree | Final decree |
| The formal statement made by the court to determine the rights of the parties involved in the issues in the lawsuits is known as a preliminary decree. | The final decree resolves the lawsuits entirely and leaves no issues for decisions in the future. |
| The court may determine the parties’ rights and wait for the final decree to be rendered | There is nothing left to decide after the parties’ rights and responsibilities are established by the final decree. |
| The preliminary decree may be revised if the circumstances change. | The final decree must always comply with the preliminary decree. |
| A preliminary decree may be issued more than once. | There can be more than one final decree issued. |
| According to Phoolchand v. Gopal Lal ,(1967) a preliminary decree may be issued more than once. | According to Sankar v. Chandrakant (1995), there may be more than one final decree |
Conclusion
The term ‘preliminary decree’ is not defined in the Civil Procedure Code, but the CPC has preliminary decree, final decree and partly preliminary and partly final decrees, which the court may issue regarding any decree from this. The preliminary decree can also be appealed, and there may be more than one preliminary decree. When necessary, the preliminary decree will be followed and come to an end with the final decree, which helps to determine the parties’ rights.
Frequently Asked Questions (FAQs)
Is it possible to appeal a preliminary decree?
An appeal is possible for both preliminary and final decree. But it should be challenged earlier, thus, when the court issues the final decree, an appeal against the preliminary decree cannot be made; rather, the preliminary decree will become the final decree once the appeal period has elapsed for the preliminary decree.
When can the second preliminary decree be passed?
When circumstances change, a second preliminary decree may be issued, but it may not serve as the final decree. In Alagammal v. Gopal Lal (2016), the Supreme Court decided that a second preliminary decree can be issued in a partition case to modify the shares that had already been allocated in the first decree and resolve any disagreements that might have arisen between the parties who survived the partition.
What is a deemed decree?
Deemed decrees are those that do not satisfy the requirements of a decree but are nonetheless specifically identified as decrees by the legislature. There are some orders that are regarded to be deemed decrees under the Civil Procedure Code, such as adjudication under Order 21 Rule 58, Rule 98, and Rule 100, while Section 2(2) of the Code of Civil Procedure, 1908 does not explicitly mention this form of decree.
References
- https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00051_190805_1523340333624§ionId=33335§ionno=2&orderno=2
- https://www.legalraj.com/articles-details/overview-of-decree
- https://thefactfactor.com/facts/law/civil_law/civil-procedure-code/preliminary-decree/13316/
- https://www.legalkatta.in/2020/09/meaning-of-decree-its-defintion-essentials-and-amendment.html
- https://www.lawzonline.com/bareacts/civil-procedure-code/order20-rule12-code-of-civil-procedure.htm
- https://www.writinglaw.com/order-20-rule-12-cpc/
- https://lawtimesjournal.in/preliminary-decree/
- https://lawofcivilprocedure.wordpress.com/2016/10/31/preliminary-decree/
- https://legislative.gov.in/sites/default/files/A1908-05.pdf
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