What Do You Mean By Decree? Which Orders Are Not Included In The Definition Of ‘Decree’?

Decree

Section 2 (2) of the Civil Procedure Code defines Decree as a formal expression of an adjudication expressed by the Court of Law which conclusively determines the rights of the parties concerned in a particular suit. It may be relating to all or any of the matter in controversy in the suit.

Decree can be pronounced only in case of a suit, i.e., a civil proceeding instituted by the presentation of a plaint.

A decree shall include the rejection of a plaint or in determining any question under Section 144, but excludes the following:

1. any adjudication from which an appeal lies, such as, an appeal from order.
2. any order of dismissal for default.

The Explanation to this section provides that a decree can either be preliminary or final or partly preliminary and partly final. Preliminary decrees are those where the suit is not completely disposed of and further proceedings may take place. And the final decree is when the Court completely dispose of the suit.

Essential Elements of Decree

The essential features of a decree are as follows:

1. There must be an adjudication.
2. The adjudication must be done in a suit.
3. The adjudication must be done in determining the rights of the parties relating to all or any of the matter in dispute.
4. Such determination must be conclusive in nature.
5. There must be a formal expression of such adjudication.

1. Adjudication

The most essential feature of a decree is that there must be an adjudication, i.e., a formal decision of the Judge on the matter in dispute. If there is no judicial determination, there is no decree. And such decision must be passed by the Court. Therefore, an order passed by an officer who is not a court cannot be termed as a decree.

In Madan Naik v Hansubala Devi AIR 1983, the Supreme Court held that if the matter is not judicially determined, it is not a decree.

2. Suit

It may be defined as a civil proceeding which is instituted in the Court of Law by the presentation of a plaint. Thus, if there is no civil suit, there is no decree. However, there are certain applications which are being treated as suit, such as, proceedings under, the Indian Succession Act, the Hindu Marriage Act, the Land Acquisition Act, the Arbitration Act, etc.

Therefore, decisions given for these matters are considered as decrees within the meaning of Section 2(2) of Civil Procedure Code. In addition to this, decisions held by the tribunals are the decrees passed by the tribunal and not the Court decree.

3. Rights of the parties

The adjudication must determine the rights of the parties in all or any of the matters in dispute. If the Court passes an order on procedural ground, such order cannot be termed as a decree, such as, an order dismissing the suit for non-appearance of the parties, or an order refusing to grant leave to sue as a pauper, etc.

The term parties mean parties to the suit, i.e., the plaintiff (the person who has instituted the suit) and the defendant (against whom the suit has been filed).

In Kanji Hirjibhai Gondalia vs Jivaraj Dharamshi, AIR 1976, the Court held that the term parties means the parties to the suit, i.e., the plaintiff and the defendant. In case the Court passes an order upon an application of a stranger or a third party in a suit, such order will not be considered as a decree.

4. Determination must be conclusive

The judicial determination held by the Court of Law must be conclusive and final relating to the rights of the parties to the suit. The provisional decisions or the interlocutory orders cannot be termed as a decree as they are not the final decision of the Court.

Therefore, orders passed by the Court on certain issues and remitting other issues to the trial court is not a decree as it does not determine the rights of the parties conclusively.

5. Formal Expression

There must be a formal expression of the adjudication. The Court must express its decision formally in accordance with the provisions of law.

Classification of Decree

The decree may be classified into:

1. Preliminary Decree
2. Final Decree
3. Partly Preliminary and Partly Final Decree
4. Deemed Decree

1. Preliminary Decree

The preliminary decree is a decree where the Court decides the rights of the parties relating to all or any of the matter in controversy but does not dispose of the suit finally.

Civil Procedure Code 1908 provides that, in the following suits a preliminary decree may be passed:

1. Suit for possession and Mesne profit (Order 20 Rule 12)
2. Administration Suits (Order 20 Rule 13)
3. Suits of pre-emption (Order 20 Rule 14)
4. Suit filed for dissolution of a partnership (Order 20 Rule 15)
5. Suits related to accounts between the principal and agent (Order 20 Rule 16)
6. Suit for partition and separate possession (Order 20 Rule 18)
7. Suits related to the foreclosure of a mortgage (Order 34 Rule 2)
8. Suits related to the sale of the mortgaged property (Order 34 Rule 4)
9. Suits for the redemption of a mortgage (Order 34 Rule 7)

However, in Narayanan vs Laxmi Narayan AIR 1953, the Court held that the above-mentioned list is not exhaustive, and the Court may pass preliminary decree in a suit not enlisted by the Code.

2. Final Decree

When the Court decides all the matters in controversy and finally disposes of the suit it is called the final decree.

In, Shankar V. Chandrakant, AIR 1995 SC 1211, the Supreme Court stated:

“A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries, conducted pursuant to the preliminary decree, the rights of the parties are fully determined and a decree is passed in accordance with such determination which is final. Both the decrees are in the same suit.

A final decree may be said to be final in two ways:

(I) when the time for appeal has expired without appeal being filed against the preliminary decree or the matter has been decided by the highest court;

(II) When, as regards to the court passing the decree, the same stands completely disposed of.

It is the latter sense that the word ‘decree’ is used in section 2(2) of the Code.”

3. Partly Preliminary and Partly Final Decree

Partly preliminary and partly final decree are those where a final decision has been passed in respect of a part of the suit and other part is left for future adjudication, for example, in a suit for possession of immovable property with mesne profit, the decree of the Court regarding the possession is a final decree, whereas the decree about the mesne profit is preliminary in nature.

4. Deemed Decree

Decrees which does not fulfil the prerequisite of Section 2(2) cannot be termed as a decree under this Code. However, there are certain orders which are considered as deemed decrees under Civil Procedure Code, such as, adjudication under order 21 Rule 58, Rule 98 and Rule 100 are deemed decrees. Similarly, rejection of plaint and determination of question under Section 144 (Restitution) is a deemed decree.

Decree Holder

Section 2(3) of the Civil Procedure Code provides that a decree holder is the person in favour of whom the decree has been passed or an order which is capable of execution has been made. A decree holder can be any person.

In Dhani Ram v. Lala Sri Ram, AIR 1980, the Court held that a person who is not a party to the suit but in whose favour a decree has been passed or an order capable of execution is made shall be the decree holder.

Order

Section 2(14) of the Civil Procedure Code 1908 defines Order as a formal expression of the Court of Law of any decision which does not constitute a decree.

An order is an official declaration by the Judge after hearing both the parties to a suit on a particular issue regarding the matter in dispute. It may not necessarily be the final determination of the rights of the parties, numerous orders can be passed in a suit or in a proceeding. Orders may be passed both in case of suit instituted by a plaint or a proceeding commenced by a petition or an application.

Essential Elements of order:

1. There must be a formal expression
2. The formal expression must not be a decree
3. The decision must be pronounced by the civil court.

Types of Order

There are two types of order:

1. Appealable orders

Appealable orders are those orders against which an appeal lies. Orders mentioned under Section 104 and Order 43 Rule 1 of the Code are appealable orders, for example, an order returning a plaint to be presented in proper Court, an order rejecting an application to sue as an indigent person, etc.

2. Non-appealable orders

Non-appealable orders are those orders against which the party cannot file an appeal, in other words, the orders against which an appeal does not lie is a non-appealable order.

Classification of Order

Order can also be classified into:

1. Final order – Final order means the order which finally and conclusively determines the rights of the parties to the suit.

2. Interlocutory Order – Interlocutory orders are the provisional orders or the temporary orders passed by the Court in the course of litigation. It is also called interim orders.

Following are the instances of certain orders which are not held to be a decree:

1. Order of remand.
2. Order granting or refusing interim relief.
3. Order holding an application to be maintainable.
4. Order refusing to set a side sale.
5. Order directing assessment of mesne profit.
6. Dismissal of appeal for default.
7. Appointment of commissioner to take account.
8. Return of plaint for presentation to proper court.
9. Dismissal of suit under order 23 rule 1.
10. Rejection of application for condonation of delay.
11. An order rejecting an application for leave to sue as a pauper.
12. An order rejecting a leave to institute a suit relating to accounts of a religious endowment.
13. Order dismissing an application for removal of a trustee under the Indian Trusts Act, 1882.
14. Order rejecting an application to wind up a company.

References:

• C.K. Takawani, Civil Procedure, 6th Edition, 2009, Eastern Book Company.
• Samarth Agarwal, Pariksha Manthan Recent & Landmark Case Laws, 1st Edition, 2020.
• http://www.legalservicesindia.com/article/1335/Ingredients-of-Decree-and-order-related-judicial-cases.html

This article is authored by Moumita Paul, B.A.LLB student at Hazra Law College, Calcutta University.

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