One of the words used most often in civil matters is “decree.” A court of law divides its decision into decrees and orders. This article will talk about the decree. According to section 2(2) of the Code of Civil Procedure, 1908, the word “decree” has a definite meaning. The decree serves as a formal representation of the court’s decision, which establishes the parties’ rights with respect to the subject of the conflict or controversy.
A decree must include the denial of a plaint and the resolution of any issue under Section 144, but it must not include:
- any decision from which an appeal is possible, such as an appeal from an order.
- any dismissal order due to default.
A decree may be either preliminary or final, or it may be partially preliminary and partially final, according to the Explanation to this section. Preliminary decrees are ones in which the case has not been completely resolved and additional actions are still possible. When the Court totally dismisses the case, it is when the final decision is issued.
After carefully examining Section 2(2) of the Code of Civil Procedure, which defines a decree, and after analyzing the civil procedure rules and applying the criteria established in the case of Venkata Reddy v. Pethi Reddy, it can be seen that there are some situations in which court decisions are considered decrees and others in which they are not, as shown in the examples below:
Decisions considered as a decree:
- Order of abetment of suit
- Dismissal of appeal as time-barred;
- Dismissal of suit or appeal due to the requirement of evidence or proof;
- Rejection of plant due to non-payment of court fees;
- Order granting costs and instalments;
- An order refusing costs or instalments;
- An order refusing maintainability of appeal;
- Order denying the survival of right to sue;
- Order stating that there is no cause of action;
- An order refusing to grant one or several reliefs.
Decisions not considered as a decree
- Rejection of an appeal due to default;
- Appointment of Commissioner in order to take accounts;
- Order for remand;
- Order providing temporary respite;
- An order denying the issuance of temporary relief;
- Rejection of a complaint so that the right court can receive it;
- Rejection of the application for a delay pardon;
- Order declaring a request sustainable;
- Order refusing to annul the sale;
- The directives for determining mesne profit issued by the decree.
Essential Elements of Decree
The decree represents a court judgement. The following prerequisites must be met for a court decision to be deemed a decree:
- There needs to be a decision.
- A lawsuit should be used for the adjudication.
- It must ascertain the parties’ legal rights with regard to the issue at hand.
- The right should be decided in a definitive manner.
- Such a determination must have a formal expression.
There must be an adjudication before the court can issue a decree. The issue in question should be decided by a judge. According to the ruling in the case of Madan Naik v. Hansubala Devi, an issue is not a decree if it has not been adjudicated by a court. Consequently, a decision of an administrative nature cannot be regarded as a decree. Additionally, a decree cannot be construed as an order to dismiss a lawsuit because the parties failed to attend or an order to dismiss an appeal. According to the ruling in Deep Chand v. Land Acquisition Officer, the adjudication must be rendered by an officer of the court; otherwise, it is not a decree.
Any decision must have been made in court in order to be regarded as a decree. In this context, a “suit” is defined as “any legal procedure that has been commenced by the production of a plaint.” Only in a civil lawsuit can a decree be issued. A decree cannot be made if there is no civil lawsuit. There are a number of particular rules that permit some applications to be handled as suits, such as actions brought under the Hindu Marriage Act or the Indian Succession Act, and the decisions made in those procedures are to be regarded as decrees. to learn more about the judgement in the redemption suit.
Rights in controversy
A formal adjudication is required to ascertain the rights of the parties whose rights are in question. In this situation, the rights determined are substantive rights rather than procedural rights. The plaintiffs and defendants should be the parties to the rights in question, and if an order is granted based on an application made by a third party who is not a party to the lawsuit, it is not a decree. The case should be about the issue that is in dispute and for which remedy is requested. This applies to any query relating to the standing and character of the party suing, the court’s jurisdiction, the maintainability of the action, or any other preliminary issue.
An adjudication’s finding of the disputed rights should be definitive in character. In light of what was decided in the case of Narayan Chandra v. Pratirodh Sahini, the decision should be final and binding on the court that makes it. An interlocutory order that does not ultimately define the rights of parties is not regarded as a decree for this reason. The fundamental consideration is whether the judgement is final and decisive in both substance and intent. If that is the case, the decision will be regarded as a decree; otherwise, it won’t.
The adjudication should be expressed formally, and it should be expressed formally in the way required by law. The decree must be prepared separately and must be issued after the decision. If the decree is not explicitly drafted from the judgement, there is no appeal from the judgement.
Types of Decrees
The following three categories of decrees are recognized by the Code of Civil Procedure. They are as follows:
- Preliminary Decree
- Final Decree
- A decree that is both preliminary and final.
When the rights of parties over all or part of the matter in question are resolved in the adjudication but the suit is not completely resolved, the decree is stated as a preliminary decree. Preliminary judgement is merely an earlier stage. Courts typically issue a preliminary decree when they must determine the parties’ legal standing before postponing the matter until the suit’s final order is issued. A preliminary decree is simply a stage to determine the parties’ rights until the case is fully decided by the Court and settled by a final decree, as stated in the case of Mool Chand v. Director, Consolidation. In the case of Shankar v. Chandrakant, the Supreme Court ruled that a preliminary decree is one in which the rights and obligations of the parties are set forth, but the final outcome is left to be determined in subsequent processes.
According to the Code of Civil Procedure, 1908, the court may issue a preliminary decree in the following suits:
Order 20 Rule 12: Suit for possession and Mesne profit
Preliminary decrees may be issued in lawsuits involving the possession of real estate, the payment of rent, or the pursuit of personal gain.
Order 20 Rule 13: Administration Suits
A court may issue a preliminary decree when a lawsuit is in the form of an administration suit.
Order 20 Rule 14: Suits of pre-emption
The court may issue a preliminary decree when a pre-emption suit is filed regarding the sale or acquisition of a specific piece of property.
Order 20 Rule 15: Suit filed for dissolution of a partnership
The court may issue a preliminary decree when there is a lawsuit filed for the dissolution of the partnership or for the seizure of the partnership account.
Order 20 Rule 16: Suits related to accounts between the principal and agent
The court may issue a preliminary decree in a case involving the financial transaction between the principal and agent or any other matter, if necessary.
Order 20 Rule 18: Suit for partition and separate possession
The court may issue a preliminary order where the case involves a partition or separate possession of a share.
Order 34 Rule 2: Suits related to the foreclosure of a mortgage
A court is authorized to issue a preliminary order when a lawsuit involving the foreclosure of a mortgage is filed in accordance with Order 34 Rule 2.
Order 34 Rule 4: Suits related to the sale of the mortgaged property
According to Rule 4 of Order 34, the court has the authority to issue a preliminary decree in cases involving the sale of the mortgaged property.
Order 34 Rule 7: Suits for the redemption of a mortgage
According to Rule 7 of Order 34, the court may issue a preliminary decree when a lawsuit is brought before it seeking the redemption of the mortgaged property.
Can there be more than one preliminary decree?
Whether more than one preliminary decree can be issued in the same lawsuit or not is a subject of disagreement. There can be more than one preliminary decree, according to some High Courts, whereas other High Courts disagree with this notion. In the case of Phoolchand v. Gopal Lal, the Supreme Court ruled that nothing in the Code of Civil Procedure prevents the passing of more than one preliminary decree if the situation calls for it or if the Court so orders. However, it should be remembered that the Court made this ruling about division cases.
The final decree is the final ruling in a case, and it resolves every point of contention between the parties. Nothing remains to be resolved after the final decree has been issued. In the following instances, it is regarded as a final decree:
- When the decree is not appealed within the required time frame.
- The highest court has made a decision regarding a matter in the decree.
- When the lawsuit is fully resolved by the court’s judgement.
Can there be more than one final decree?
One preliminary and one final decree are typically issued in a single lawsuit. The Madras High Court stated in the matter of Gulusam Bivi v. Ahamadasa Rowther that the code nowhere permits more than one preliminary or final decree in light of Order 20 Rule 12 and 18. The Supreme Court finally resolved the disagreement in the Shankar v. Chandrakant case by ruling that several final decrees may be issued.
Partly preliminary and partly final decree
A decree issued in accordance with the Code of Civil Procedure may be partially final and partially preliminary. This occurs when a portion of the decision is preliminary and the remainder is final. For instance, the court must either issue a decision deciding who gets possession of the property or order an investigation into mesne profit if there is a suit for possession of an immovable property and the question of mesne profit. While the portion determining the mesne profit is provisional, the first component determining possession of the property is final.
An adjudication that does not officially fit the definition of a decree as specified in section 2(2) of the Code of Civil Procedure is yet regarded as a decree due to a legal fiction. Rejecting a complaint and deciding on the question of restitution of a decree both qualify as decrees. Additionally, decisions made in accordance with Order 21 Rules 58, 98, and 100 are likewise regarded as decrees.
Order is defined as a formal expression of any court decision that is not a decree under Section 2(14) of the Civil Procedure Code of 1908. An order is a formal declaration made by the judge after both parties to a lawsuit have been heard on a particular topic pertaining to the subject of the dispute. Numerous orders may be made in a litigation or case; therefore, it may not necessarily be the ultimate judgement of the parties’ rights. Orders may be made in both civil and criminal proceedings that are started by petitions or applications. The following are examples of orders that are not considered to be decrees:
- Order of remand.
- Order approving or rejecting temporary relief.
- Order determining the maintainability of an application.
- Refusing to set a side sale in an order.
- Order mandating the evaluation of median profit
- Rejection of the appeal due to default.
- The appointment of a commissioner to consider.
- Return of the complaint for filing in the appropriate court.
- Rejection of the application for a delay pardon. Dismissal of the lawsuit pursuant to Order 23 Rule 1.
- An order rejecting a request for permission to sue as a beggar.
- An order denying permission to file a lawsuit about the financial records of a religious endowment.
- Order denying a request to remove a trustee in accordance with the Indian Trusts Act of 1882.
- Order disapproving a request to dissolve a firm.
Essential Elements of order
- There must be an official statement.
- There cannot be a decree in the formal statement.
- The civil court is required to make the ruling.
Types of Order
Orders that are subject to an appeal are those that are appealable. Orders referred to in Section 104 and Order 43 Rule 1 of the Code are appealable decisions, such as orders directing a complaint to be filed in the appropriate court or denying an application to file a claim on behalf of the destitute.
Non-appealable orders are those against which the party cannot appeal; in other words, non-appealable orders are those against which an appeal does not lie.
Final order refers to the judgement that definitively and finally resolves the rights of the parties to the lawsuit.
Interlocutory orders are temporary or provisional orders made by the Court during a legal proceeding. Interim orders are another name for them.
The Code of Civil Procedure outlines procedures for announcing and releasing a court’s decision, and a decree is one of them. a ruling in a court decision that resolves the rights in controversy between the parties to a lawsuit. A decree may be partially preliminary and partially final, preliminary, or final. The idea of a considered edict is another one. Order and judgement are distinct from a decree in many ways. Order XXI of the Code lays out the requirements and process for the execution of the decree. A decree may be appealed, and following the initial appeal, a second appeal may be made to the High Court. Only in civil lawsuits, not in criminal proceedings, is a decree rendered.
Author: Arryan Mohanty,
Symbiosis Law School, Nagpur/Student