“DECREE” under “Code of Civil Procedure, 1908”

Section 2(2) of the Code of Civil Procedure (CPC) defines the term ‘decree’. [1]

A decree is an operative part of a formal judgment. As per S.2(2), a decree is the ‘formal expression’ of an ‘adjudication’ which ‘conclusively determines’ the ‘rights of the parties’ with regard to “all or any of the matters” in controversy in the suit.

Order 20 details rules regarding judgment and decree while Order 21 deals with the execution of decrees and order.

Essentials of decree—

There must an adjudication.

[Adjudication means ‘judicial determination’ of a matter involved in the suit. Thus, a decision on an “administrative matter” is not an adjudication.]

Such adjudication must be by a Court of law.

[According to Section 3 of the Indian Evidence Act, the Court includes all, judges, Magistrates and persons (except arbitrators). ]

The adjudication must be formally expressed.
Adjudication must have been given in a

[The word suit is not defined in the CPC. However, the mode of filing suit has been prescribed under Section 26 of the Code. Section 26 provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. In Hansraj v. Dehradun-Mussorie Electric Tramway Co.,[2] the Privy Council defined suit as civil proceeding instituted by presentation of plaint. The said definition has been re-iterated by the Supreme Court in Pandurang v. Shantibai[3]].

[Special Acts/ Statutory Suits/ Courts: Under certain special enactments/ Acts specific provisions have been made to treat the applications as suits. Such applications are known as statutory suits. (such as , proceedings under the Indian Succession Act, the Hindu Marriage Act, SARFAESI Act, 2002; Recovery of Debts and Bankruptcy Act, 1993; the Land Acquisition Act, the Arbitration Act etc.). The decisions given under the statutory suits are also decrees. The suit must contain (i) opposite parties, (ii) subject-matter of disputes, (iii) cause of action, (iv) some prayer or demand for relief etc. The courts/ Tribunals that decide statutory suits are called statutory courts].

It must have been determined the rights of the parties with regard to all or any of the matter in controversy in the suit.
Such adjudication must be conclusive and final.

[The interlocutory orders are not final, therefore, they are not decree]

Deemed Decree

Decree includes—[4]

Rejection of plaint (O.7 R.11)
Determination of any question regarding restitution of plaint (Section 144).

The (a) Rejection of plaint and (b) Restitution of plaint under Section 144 are also known as deemed decrees.

Decree excludes

However, decree does not include—[5]

Appeal from an order (S.104, Order 43)
Order for dismissal of default.

Decisions which are Decrees

Order dismissing the appeal for non-payment of additional court fee demanded.
Discharge of some of the defendants on the ground of want of cause of action.
An order of abatement.
Holding a defendant as wrongly impleaded and dismissing the suit against him.
Order for modification of a scheme under Section 92.
Dismissal of an application for final decree.
Dismissal of an application by a party to be brought on record as legal representative of a deceased party.
An order setting aside an auction sale as nullity on the ground that deposit was not made on the date of sale.
Rejection of a plaint or a Memorandum of Appeal.
Order as to costs form part of the decree.

Decisions which are not Decrees

An order refusing stay.
An order for remand for fresh trial passed by the Appellate Court under Section 151.
An order rejecting an application to sue in forma-pauperis.
An order refusing leave to institute a fresh suits for accounts of a religious endowment.
An order of setting aside the rejection of a plaint.
An order overruling a plea against the maintainability of a suit.
Decision in plaintiff’s favour as to his title to use.
An order appointing Commissioner to take accounts.
Decision in favour of the plaintiff on question of limitation, jurisdiction and res-judicata.
An order of Appellate Court returning a Memorandum of Appeal to be presented to the proper Court.
An order passed in execution proceedings.
An order on the application of a third party to be added as a party.

Appealabilty of Decree

A decree is appealable unless appeal is barred. Sometimes, second appeal also lies. From the appeal point of view, a decree may be (i) original decree (ii) appellate decree. Order 41 deals with the detail procedure as to an appeal from original decree while Order 42 enshrines provision as to appeal from appellate decree (also known as second appeal).

Classes of Decree

A Decree may be—

‘preliminary decree’ or
‘final decree’ or
‘partly preliminary decree’ and ‘partly final decree’.

[A ‘partly preliminary’ and a ‘partly final decrees are jointly called “Composite Decree”. According to Section 2(2), a decree may be partly preliminary and partly final. Illustration: In a suit for possession of an immovable property and mesne profit, a decree may be passed granting possession and ordering further enquiry for mesne profit. Its first part is final decree while the latter part is preliminary decree.]

Preliminary Decree (PD)—[6]

A PD is a decree which does not adjudicate the right of the party finally and further proceedings have to be taken before final disposal of the suit.[7]
The Code provides for the passing of the PD in the following classes of suits—
Suit for recovery of possession of immovable property and for rent or mesne profit (Order 20. R.12).
Administration suit (O.20, R.13).
Suit for pre-emption (O.20, R.14).
Suit for dissolution of partnership (O.20, R.15).
Suit for account b/w principal and agent (O.20, R.16).
Suit for partition of property (O.20, R.18).
Suit for foreclosure of mortgage (O.34, R.2-3).
Suit for sale of mortgaged property (O.34, R.4-5).
Suit for redemption of a mortgage (O.34, R.7-8).
Apart from the above, a PD may be passed in other suits also in the interest of justice.

More than one PD—

Whether more than one PD can be passed in a suit? The answer is affirmative. A PD may be more than one in a suit (viz., in the partition suit) if it is necessary in the interest of justice.[8]

Appeal from PD—

Section 97 provides that where a party aggrieved by the PD does not appeal from such decree he shall be precluded from disputing its correctness in appeal against final decree.[9]

When does PD become FD?—

In the following two conditions a PD becomes a FD—

When an appeal has not been filed against the PD and time for appeal has expired.
The matter has been decided by the highest court in appeal.

Final Decree (FD)

A final decree is a decree wherein no further proceedings have to be taken for final disposition of the suit. Illustration: A and B apply for cancellation of a document and a decree is passed in the suit. This is a final decree as the suit is completely disposed of.

Conditional Decree—

A conditional decree does not necessarily means a preliminary decree. In other words, a decree in which a condition is attached, does not because of that become a preliminary decree, it is nevertheless a final decree. Illustration: A files a suit for possession against B. A decree is passed in A’s favour with the condition that unless the purchase money is deposited within two months of the decree, the suit shall stand dismissed. Here, the decree is final one, as nothing remains for the court to determine.

More than one FD—

Ordinarily, there is only one final decree in a suit. But, in certain circumstances more than one final decree in the same suit may be passed. Illustration: A obtains a preliminary decree against B with respect to properties ‘X’ and ‘Y’. In an appeal, B obtains an order for stay of further proceedings in the lower court in respect of property ‘X’. Meanwhile, the trial court passes a final decree in respect of the property ‘Y’. Subsequently, B’s appeal is dismissed. Here, A can apply for a “supplementary or second final decree” in respect of property “X” about which no final decree was passed.

PD vs. FD—

A PD is different from FD in the following senses—

When rights in controversy are not finally decided that is called a PD while when an adjudication completely disposes of the suit, such decree is called a FD.
A PD is not dependent upon FD while FD is dependent upon PD.

Distinction b/w ‘decree’ and ‘order’—[10]

Both decree and order are formal expression of an adjudication of a court but still there are following differences between these twins—

No	Decree	Order
1	Definition: The term ‘Decree’ is defined under Section 2(2) of the Code.	The term ‘Order’ is defined under Section 2(14) of the Code.
2	Civil Suit: A decree can only be passed in a suit which commenced by presenting a plaint.	While an order may or may not originate from a suit. An order generally arises from a proceeding commenced on an application.
3	Conclusiveness: A decree is an adjudication that conclusively determines all or any of the rights of the parties to the suit.	While an order may or may not finally determine the rights of the party.
4	PD/FD: A decree may be preliminary or final or partly preliminary and partly final.	While there is no such distinction in order.
5	Appelability: Generally, the decrees are appealable.	While every order is not appealable. Only those orders are appealable which are specified in Section 104 and Order 43, Rule 1.
6	Second Appeal: A second appeal lies to the High Court on the grounds mentioned in Section 100 in cases of decrees.	While there is no second appeal in case of an order passed by the court.
7	Singularity: In every suit there is one decree except in suit for possession and mesne profit etc. as enumerated under Order 20 and Order 34.	While in a suit numbers of orders may be passed.

Distinction b/w ‘judgment’ and ‘decree’—

No	Decree	Judgment
1	A decree is species.	Judgment is genus.
2	The term ‘Decree’ is defined under Section 2(2) of the Code. Decree is the formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.	The term ‘Judgment’ is defined under Section 2(9) of the Code. It provides that judgment means the statement given by the Judge on the grounds of a decree or order.
3	A decree may be preliminary or final or partly preliminary and partly final.	A judgment can not be preliminary or final.
4	A decree is the crystallization of the rights in controversy of the parties.	Judgment constitute the opinion of the Court and justification for passing the decree wherein it encompasses the pleadings of the parties.
5	A decree is simply ratio decidendi	Judgment includes obiter dicta and ratio decidendi.

[1] . What is meant by decree? What are the essentials of decree? (UPJ-1987)

[2]. AIR 1933 PC 63.

[3]. AIR 1989 SC 2240.

[4] .What are deemed decrees?—(a) Rejection of plaint and (b) Restitution of plaint under Section 144 are also known as deemed decrees.

[5] . Which orders are not included in the definition of decree? (RJS-1994).

[6] . Distinguish b/w preliminary and final decree. In what class of cases is a preliminary decree passed?

[7] . Venkat Reddy v. Pethi Reddy, AIR 1963 SC 992.

[8] . Phool Chand v. Gopal Lal, AIR 1967 SC.

[9] .Can the validity of the PD be challenged through an appeal which is brought against the final decree?(UPJ-1992).

[10] . What are the distinctions b/w decree, order and judgement?

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Prepared and complied by Team LegalMines and the copyright is with the team LegalMines.

“DECREE” under “Code of Civil Procedure, 1908”