Introduction
The transgression of the law that does not constitute a crime is a civil offence. The Code of Civil Procedure, 1908 is the one collective uniform law that prescribes the procedures to be followed in Indian civil courts and sets out the rules and standards parties must follow, hence called Procedural law or Adjective law. Though the Procedural law and Substantive law are immensely disparate in nature, the legislative intent of the legislature in enacting such a Procedural law is to implement the rights and duties that the Substantive law imparts. For instance, as Substantive law defines and ascertains the legal rights and obligations of the parties indulging in a contract, it would describe how two people might enter into a contract. Whereas, on the other hand, Procedural law describes how the deprived party alleging the breach of contract can seek the court’s help in enforcing such agreement.
This significant civil Procedural law that determines the practice, procedure, and machinery to implement the substantively bestowed rights and duties qua the Code of Civil Procedure cannot be comprehended without understanding the difference between the legal terminologies used to connote the adjudication of a court of law viz. Order and Decree.
Decree
To obviate ambiguities, Section 2 of the code sought to define some essential terms so as to aid proper understanding. Wherein, Section 2(2) defines the term “Decree” as one conclusive expression of adjudication in which the court determines the rights and obligations of the parties to the suit, apropos the matter in dispute. It is a known fact that a Decree follows after and is based on the judgment. However, unlike judgment, as held in the case of Narayan Chandra v. Pratirodh Sahini,[1] the encapsulation of a decree, which determines the interest of both parties, shall be final and conclusive in manner. According to the aforementioned provision, such Decree shall include,
- Rejection of a plaint.
- Determination of any question within Section 144 of CPC and made under Rules 60, 98, 99,101, and 103 of Order 21 of the code.
And, shall not include,
- Appellate order: Any adjudication from which an appeal lies as an appeal from an order, or
- Dismissal in default: Any order of dismissal for default.[2](An Order passed under Order 9 or 17 of the code).
Illustration
Let us suppose, in a suit, A sues C to recover the sum of Rs. 80,000 under a contract, C set off towards the damages sustained by him because of the failure in discharging the contractual obligation from A’s side. Now, after construing the contentions, the court decides the case in favour of one party (either A or C). That decision, which has not left any matter unresolved or to is decided further, is a decree.
Types of Decree
1. Preliminary Decree: adjudication ascertains the rights of the parties concerning all or any of the issues under consideration, but thereon, the suit will not be disposed of entirely. 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.[3]
2. Final Decree: a decree which completely disposes of the suit is a ‘final’ decree. In the case of Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande,[4]it was observed by the Apex Court that while the Preliminary Decree declares the rights and liabilities of the parties by leaving the actual Decree to be figured out in the further proceeding. The resultant of the inquiries conducted pursuant to the Preliminary Decree that outrightly determines the parties’ rights is the “Final Decree.”
3. Partly Preliminary and Partly Final Decree: it is when the Decree determines certain controversy in question while leaving the rest open for further discussion. Lucky Kochuvareed v. P.Mariappa Gounder[5]is the case where the Apex Court elucidated that even though a decree is only one, it can have both the preliminary and final aspects.
Essential Elements of a Decree
1. Adjudication: Basically, Adjudication is the legal process by which the court resolves a dispute after identifying the rights of the parties and analyzing the facts and circumstances of the case. In other words, it is “judicial determination of interests of parties in a dispute.” As held by the Apex Court in the case of Madan Naik v. Hansubala Devi,[6]if a matter has not been judicially determined, then the decision ought not to be recognized as a Decree. Comprehensibly, a decision of administrative nature is not a decree.
2. Adjudication also refers to the judicial decision itself. In the case of Deep Chand v. Land Acquisition Officer,[7]it was held that to recognize a decision as a decree it is a prerequisite that the adjudication was made by an officer of the court.
3. Suit: The adjudication must be done in a Suit. But, in the first place, what is a Suit? Though the code does not provide its explicit definition, the catena of judicial decisions provides that a civil proceeding which has been instituted with the presentation of the plaint in a civil court to enforce civil rights is a suit.[8]It is to be noted that without a civil suit, there can be no decree.
4. Parties’ rights in controversy: The parties to a civil suit are the plaintiff and the defendant. The substantive rights of the parties must be determined by a formal adjudication by the officer of the civil court, not the procedural rights. If an order is passed not upon the application of the plaintiff/defendant but the application of the third party to the suit, then it cannot be considered to be a Decree. Reiteratively, a decree is a legal pronouncement that ascertains the rights of the plaintiff and the defendant, not the third person.
5. Conclusive Determination: Determination of the parties’ rights and liabilities should be conclusive in nature i.e. further arguments to change the decision is off-limits. In the Narayan Chandra Case,[9]the court affirmed the same, to be a decree; the determination should be final and conclusive regarding the court which passes it.
6. Formal Expression: A Decree that follows the judgment should be expressed formally i.e. in compliance with the law. Therefore, a mere comment of judge thereon the controversy is not Decree.
Order
The term “Order” is defined under Section 2 (14) of the code. The bare reading of the provision’s original context provides that except Decree, all other formal expressions of the court’s decision are orders. As mentioned at the outset, the Decree is an adjudication that conclusively determines the rights of the parties, if an order is an adjudication of the court, which is not a decree, then, an order must be the direction prescribed by the court to the parties regarding their conduct. For instance, an Interim Injunction Order refrains a party temporarily from doing a specific act. It is pertinent to note that, unlike Decree, an Order deals with the procedural rights of the parties such as adjournment, revision, implementation, amendment, etc. Order is of two types, viz.
- Appealable Orders: Orders against which an appeal lies. (Section 104 and Order 43, Rule 1 of the code).
- Non Appealable Orders: Orders against which no appeal lies.
Furthermore, orders can be categorized into two classes, they are
- Final Orders: An order that completely disposes of all the claims of the parties to the suit.
- Interlocutory Orders: A provisional order is issued during the course of litigation to settle down the adjacent issues, which hinder the progress of the case.
Essential Elements of an Order
1. The decision has to be pronounced by the civil court, not by the administrative tribunal.
2. Such pronouncement should be formal expressed i.e. must be precisely written.
3. That formal expression should not be a Decree.
Comparison Between Decree and Order
| Basis | Decree | Order |
| Meaning | An adjudication of the court of law that conclusively determines the rights and liabilities of the parties. | A legal declaration of the decision by the court of law that ascertains the legal relationship between the parties in the proceeding. |
| Definition laid down in | Section 2(2) of the code. | Section 2(14) of the code. |
| Addresses | Substantive rights of the parties. | Procedural rights of the parties. |
| When can be passed? | It is only when the suit is started off by the presentation of a plaint. | It can be passed in suit, after the presentation of the plaint, or may arise from proceeding commenced by petition or application. |
| Establishment of the rights | It conclusively determines the rights of the concerned party. | It may ascertain the rights of the parties. |
| Numbers | In general, only one Decree can be passed in a suit, except in a suit where a preliminary and a final decree is passed. | Several orders can be passed in a suit or proceeding. |
| Appeal | Every Decree is appealable unless it is expressly barred by law. | Not all Orders are appealable unless it is mentioned under Section 104 of the code read with order 43. |
| Types | The decree is of Three types viz. A) Preliminary Decree, B) Final Decree, and C) partly preliminary and partly final Decree. | Order is of two types viz. A) Final Order and B) Interlocutory Order. |
Difference Between Decree and Order
| Decree | Order |
| Every Decree is an Order. | The order excludes Decree from its ambit. |
| A second appeal may lie against a Decree passed in the 1st appeal. | No such second appeal lies in the case of an appealable Order. |
| A Decree may be preliminary, final, or partly preliminary and partly final. | An Order is always final. There cannot be a preliminary order. |
| The decree cannot be merged into an Order | All orders that have been passed in a case can be merged into a Decree. |
| A Decree is an operation or conclusiveness of a judgment. It follows and is based on the same. | An Order is merely a command by the judge or the panel of judges to one of the parties to the suit, or it can be a direction given to the public official to perform a certain action. |
Conclusion
Though a proper difference between a Decree and an Order has been drawn from the above analysis, it is noteworthy that they do have common elements. It emerges that the adjudication of a court can either be expressed as a decree or an order, but it cannot be both. Despite, both being a formal expression of the court; both relate to the matter in dispute, and both are pronounced by the court of law, not by the central administrative tribunal.
References:
1. https://blog.ipleaders.in/introducing-decree/#Order_and_Decree
2. https://lawtimesjournal.in/judgement-decree-order-cavet/
3. https://bnblegal.com/article/decree-judgment-and-order-under-code-of-civil-procedure-1908/
[1] AIR 1991 Cal 53.
[2] Code of Civil Procedure, 1908. S. 2(2).
[3] Shankar v. Chandrakant, 1995 AIR 1211.
[4] AIR 1995 SC 1211 (1212).
[5] AIR 1979 SC 1214 (1220).
[6] AIR 1983 SC 676.
[7] AIR 1994 SC 1901 (1903).
[8] Hansraj Gupta v. Official liquidators of Dehra Dun-Missoorie Electric Tramway Co.Ltd, AIR 1933 PC 63.
[9] Id. at 1.
