Section 2(2) of the Code of Civil Procedure, 1908 defines what a decree is. The decree is a formal expression of an adjudication in which the court expressing it, conclusively determines the rights of the parties. The rights determined are with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.
As per explanation in Section 2(2) of the code, a decree is said to be preliminary when further proceedings are to be taken before the suit can be completely disposed of. When such adjudication completely disposes of the suit then the decree becomes final. The decree may be partly preliminary and partly final as well.
Judgement has been defined under Section 2(9) CPC, 1908. Section 2(9) is to be read with order 20 rules 1 to 5. Judgement means the statement on the grounds of decree or order given by the judge. Judgement has not been defined elsewhere.
Decree under CPC
Types of Decrees
1. Preliminary Decree
Where an adjudication decides the rights of the parties with regard to all or any of the matters in controversy in the suit but does not completely dispose of the suit is called a preliminary decree. A preliminary decree is passed in those cases in which the court has first to adjudicate upon the rights of the parties and then stay in its hands for some time until the court finds itself in a position to pass a final decree. The preliminary decree is a stage for working out the rights of the parties which are to be finally adjudicated by a final decree.
Examples of preliminary decree
- Suits for possession and mesne profits (Order 20 Rule 12)
- Administrative suits (Order 20 Rule 13)
- Suits for pre-emption (Order 20 Rule 14)
- Suits for dissolution of partnership (Order 20 Rule 15)
- Suits for accounts between principal and agent (Order 20 Rule 16)
- Suits for partition and separate possession (Order 20 Rule 18)
- Suits for foreclosure of mortgage (Order 34 Rule 2-3)
- Suits for sale of mortgaged property (Order 34 Rule 4-5)
- Suits for the redemption of a mortgage (Order 34 Rule 7-8)
The above list is not exhaustible.
2. Final Decree
A final decree is one which completely disposes of a suit and finally settles all questions in controversy between the parties and nothing further remains to be decided. A decree is said to be final if:
- Within the prescribed period no appeal is filed against the decree or the matter has been decided by the decree of the highest court.
- When the court passes the decree completely disposes of the suit.
Example: In a suit for recovery of money, if the amount found due to the decree-holder and the manner in which the amount is to be paid has been laid down, the decree is said to be final.
3. Partly preliminary and party final
Ordinarily, there will be one preliminary decree and one final decree in one suit. But partly preliminary and partly final decrees are an exception to this rule. In a suit for possession of immovable property with mesne profits, where the court (i) decrees possession of the property (ii) directs an enquiry into the mesne profits. The former part is a final decree; the latter part is a preliminary decree because a final decree for mesne profits can be drawn only after the enquiry and the amount due is ascertained. Even though in this case there is only one decree, it can be said that the decree is partly preliminary and partly final.
4. Deemed decree
‘Deemed’ means to consider in a specified way or regard in a specified way. The term ‘deemed’ is generally used to create a statutory fiction for the purpose of extending the meaning which it doesn’t expressly cover. The rejection of a plaint and the determination of questions under Section 144 (restitution) are deemed decrees.
Order 21 rule 58, order 21 rule 98 or 100 are deemed decrees.
Essential Elements of a Decree
1. There must be an adjudication
Adjudication means a judicial determination of a matter in dispute. Judicial determination is where parties and their legal representation present their arguments to an impartial third party. The third party may be a judge or a magistrate. In Madan Naik vs Hansubala Devi, it was held that if there is no judicial determination of any matter in dispute, it is not a decree. The determination must be done judicially by a court. If it is made by an officer who is not a court is not a decree. A decision on a matter of administrative nature, an order dismissing the suit for default of appearance of parties or dismissing an appeal for want of prosecution cannot be termed as a decree because it doesn’t judicially deal with the dispute.
2. The adjudication must have been done in a suit before the court
Every suit is commenced by filing a plaint in a civil court and where there is no civil sit there is no decree. Every suit is to be commenced after the presentation of a plaint, so where there is no presentation of the plaint that cannot be treated as a suit except in certain cases where applications can be treated as suits, for example- Indian Succession Act, Hindu Marriage Act, Land Acquisition Act, Arbitration Act etc.
3. The adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy
There should be a conclusive decision and not an interlocutory order merely. The ‘rights’ means substantive rights of the parties and not merely procedural rights. The procedural rights are not included in the definition. “matters in controversy” here means what the subject matter of the suit is. and “parties” here means the plaintiff and defendant. So, an order on an application of a third party cannot be said to be a decree.
4. Such determination should be conclusive
The determination must be conclusive and final. An order will not be a decree if the order decides only the question of limitation. Conclusive determination of the suit doesn’t mean completely disposing of the suit rather it means conclusively determining the rights of the parties.
Orders which are Decree
- Rejection of plaint.
- Rejection of memorandum of appeal.
- An order for abatement of the suit.
- Modification of a decree is also a decree.
- An order setting aside an ex parte decree is a decree.
- An order dismissing the appeal for non-payment of additional court fees.
- Order for partnership dissolution.
- An order for alimony and maintenance under Section 25 of the Hindu Marriage Act.
- Rejection of plaint pre-emption suit.
The list of orders which are decree is not exhaustive.
Orders which are not Decree
- An order rejecting an application for the leave to sue as an indigent person.
- An order of dismissal of suit for default.
- An order refusing stay.
- An order of setting aside rejection of plaint.
- An order passed in execution proceedings.
- An order for res judicata and law of limitation.
The list of orders which are not decrees are not exhaustive.
Judgement under CPC
In State of T.N vs S. Thangavel, (1997) 2 SCC 349, the Supreme Court held that an order passed by a Central Administrative Tribunal cannot be said to be judgement, even if it has been described as such.
Every judgement shall contain a concise statement of the case, the points or grounds for determination, the decision taken and the reasons for such decision. But, the judgement of the court of small causes should contain only the points of determination and the decision taken thereon.
Section 33 of Civil Procedure Code, 1908 says that after the case has been heard the court has to pronounce a judgement and on that judgement a decree shall follow.
After hearing the pleadings of the parties, the judgement is to be delivered in open court on a day which is to be decided by the court and the court has to send notices to the parties and the learned counsels representing them. The judgement is to be pronounced within 30 days if it is not delivered immediately. Sometimes some exceptional situations may arise, and then in case of those exceptions situations the judgement can be pronounced within 60 days after the end of the hearing date.
According to Order XX Rule 2 of CPC, judgement shall be pronounced in written form and it is not to be pronounced by his predecessor.
Order XX Rule 3 says, the judge has to sign the judgement at the time of pronouncing it and the judgement shall be dated. After the judgement has been signed it shall not be altered or amended afterwards except by way of section 152 which allows clerical or arithmetical mistakes or errors to be changed or on review the judgement can be altered or amended as per Section 114 Code of Civil Procedure, 1908.
Order XX Rule 6B of the Code of Civil Procedure, 1908 provides that when a judgement is pronounced, the copies of the judgement shall be made available to the parties immediately after the judgement has been pronounced for going for an appeal on payment of such charges as may be specified in the rule made by the high court.
Court will provide certified copies of the judgement to the parties once an application is made to the court and the copies are furnished at the expense of the court.
Object of Judgement
Its object is to support by most cogent reason the conclusion arrived at by the judge. If, however, the judge elaborately records the fluctuations of his mind such judgement may defeat the object of the judgement.
When does judgement become effective and operative?
Once the judgement has been dictated and pronounced in open court it becomes effective and operative. It does not matter whether it has been signed by the judge or not. A judgement not pronounced in court does not operate as judgement, it operates only as minutes or memoranda by the judge who wrote it. The judgement is valid even it is extremely brief and unintelligible. Where a judgement is not pronounced, dated, or signed in conformity with the requirements of the code, it constitutes a mere irregularity within the meaning of Section 99, it affords no ground for reversal in appeal of the decree based on it.
Difference between Judgement and Decree
1. Judgement means the statement given by the judge on grounds of a decree or order. In a decree it is not necessary for a judge to give a statement in a decree though it is necessary in a judgement.
2. Judgement has been defined under Section 2(9) of the Code of Civil Procedure, 1908. Decree stands defined under Section 2(2) of CPC, 1908.
3. In the case of judgement, it is not necessary that there should be a formal expression of the order in judgement. In a decree, it is necessary that there should be a formal expression of an adjudication.
4. Judgement is a stage prior to the passing of a decree or order. The decree is followed after the pronouncement of the judgement.
5. Judgement is based upon the facts of the case. A decree is based upon the judgement.
6. Judgement doesn’t have any kinds. Decree is of three types i.e. preliminary decree, final decree and partly preliminary and partly final decree.
Decree is always followed after pronouncement of judgement so it can be said that judgement is the set and decree is its sub set. A decree can be of three kinds which are; preliminary, final or partly preliminary and partly final. Only civil cases, decree is passed. In criminal cases, a decree cannot be passed. The procedure for execution of a decree has been provided under Order XXI of the Code of Civil Procedure. After passing of the decree, the suit stands disposed of since the rights of the parties are finally determined by the court. Judgement stands on a different footing from order and decree. There is no use of the words ‘formal expression’ in the definition ‘judgement’, though they are used in the definition of ‘order’ and ‘decree’. Decree is a formal expression of the judgement. So, a formal expression of the order in the judgement is not necessary though it is desirable.