Deemed Decree

Indian Legal System > Civil Laws > The Code of Civil Procedure > Deemed Decree

In this article, we should study the orders which are deemed decrees and the orders which are considered to be deemed decree and the orders which are not a decree.

Deemed Decree:

An adjudication which does not formally fall under the definition of decree stated under section 2(2) of the Code of Civil Procedure but due to a legal fiction, they are deemed to be decrees are considered as deemed decrees.

In East End Dwellings C. ltd. v. Fisbury Borough Council, 1952 AC 109 case, the Court observed that the term ‘deemed’ is generally used to create a statutory fiction for the purpose of extending the meaning which it does not expressly cover.

Order 21, Rule 58(4) declared that the order made under sub-rule (3) “will have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree”. Thus, the order is declared to be a ‘deemed decree’ and not a ‘decree’ by itself.
Rejection of plaint and determination of the issue of restitution of decree are deemed decree. Also, an adjudication under Rule 98 and Rule 100 are also deemed decrees.

In CIT v. Bombay Trust Corpn. Ltd., AIR 1930 PC 54 case, the Privy Council stated that the term ‘deemed’ is generally used to create statutory fiction for the purpose of extending the meaning which it does not expressly cover. It further stated that when a person is ‘deemed to be’ something, the only meaning possible is that whereas he is not in reality that something, the Act of Parliament or the Legislature requires him to be treated as if he were.

In Lucky Kochuvareed v. P. Mariappa Gounder, AIR 1979 SC 1214 (1220) case, the Court observed that whenever the legislature uses the word ‘deemed’ in any statute in relation to a person or thing, it implies that the Legislature, after due consideration, conferred a particular status on a particular person or thing. 

In B. Nukaraju v. MSN Charities, AIR 1994 AP 334 the Court held that Deemed Decrees are not covered by the definition under Section 2(2) namely of ‘decree’ so as to attract the provisions of Section 96 of the Civil Procedure Code and therefore, only a ‘Miscellaneous appeal’ lies against such ‘order’ and not a ‘Regular appeal’.

In Rajan Kakar v. Vijaya Bank, AIR 2008 Del 17 case, where, under the securitisation and Reconstruction of Financial Assets and Enforcement of Security Interests Act, 2002, the borrower approached the Lok Adalat and an award was passed with the consent of the Bank, no further action under the Act can be taken as the award is a deemed decree.

Orders which are decrees:

The following have been held to be decrees within this sub-section:

1. An order under s 24 of the Bombay Money Lenders Act, 1946 granting or refusing to grant instalments for payment of the decretal amount. (State of Bombay v. Narayan Pure, AIR 1960 Bom 334)
2. an order rejecting the application of tenants under s 6 of the West Bengal Premises Rent Control (Amendment) Act, 1950, for rescission of a decree in ejectment. (Gobardan Dutta v. Pramoda, AIR 1953 Cal 412)
3. an order under s 14 of the Religious and Charitable Endowments Act, 1863. (Ram Narain v. Jai Narain, AIR 1961 All 125)
4. an order transmitting a decree to the collector for execution under s 19 of the UP Encumbered Estates Act, 1934 with the information that the debt is reduced. (Chief Inspector of Stamps v. Uggar Sen, AIR 1965 All 298)
5. an order declaring the defendant a debtor under s 3 (c) of the Karnataka Debt Relief Act, 1976, with the consequence that the debt advanced to him stood discharged under s 4 (a) of the Act is a decree. (Kariyaiah v. Puttathayamma, AIR 1977)
6. a modification in a decree is also a decree. (Panneshwar Lal v. Gokula Nandan Prasad, AIR 1984 Pat 344  ( 346-47)).
7. An award under Pt III of the Land Acquisition Act by a civil court is by reason of s 26 of that Act, a decree. (Louis Pascal v. Spl. Land Acq. Officer, (1970) 72 Bom LR 703)
8. An order made in winding up proceedings under the Indian Companies Act, 1956. (Pushpabai v. Offl. Liquidator, AIR 1970 Bom 271)
9. An order setting aside an ex-parte decree is a decree and the plaintiff aggrieved by such an order can appeal against it. (Bhim Rao v. Laxmibai, AIR 1966 Mys 112)
10. The determination of a question under s 47 was expressly included in the definition of a decree, although such determination was not made in a suit and sometimes not drawn up in the form of a decree. (Shakuntala Devi v. Kantal Kumar, AIR 1969 SC 575)
11. It is no longer so in view of deletion of the words s 47 or. A right of appeal had been provided to a party litigant to go up in appeal against an order passed under s 47, before the Amending Act of 1976, by virtue of the legal fiction introduced in the definition of the term decree as including any order passed in the execution proceedings. This right had been taken away by a valid enactment and it no longer survived after the execution was levied on 4 January, 1979, as the Amending Act had already come into force with effect from 1 February, 1977. No appeal would lie against any order passed under s 47 of the Code of Civil Procedure. (Babulal v. Ramesh Babu Gupta, AIR 1990 MP 317)
12. An order modifying a scheme under s 92 of the Code of Civil Procedure 1908, which is part of a decree, constitutes an amendment in decree against which an appeal would lie. (Bhogaraju v. J. Rama Rao v. Board of Commrs for Hindu Religious Endowments, AIR 1965 SC 231)
13. An order rejecting an application for modification of such a scheme. (Shree Kalimata v. R.C. Chatterjee, AIR 1970 Cal 373)
14. An adjudication under s 5 (2) of the Malabar Tenancy Amendment Act, 1956, is in substance the final adjudication of a matter in controversy and is a decree, although the proceedings thereunder were initiated by an application. (Vamanan Nambudiri v. Narayan, AIR 1965 Ker 1)
15. The High Courts of Gujarat and Punjab have taken the view, that adjudications under ss 911 and 13 of the Hindu Marriage Act, 1955, are decrees for the purposes of those provisions only, but are not decrees within the meaning of this sub-section as they are not passed in a suit. (Bai Umiyaben v. Ambalal, AIR 1966 Guj 139)
16. An order rejecting a plaint is a decree and is not revisable under s 115 of the Code but appealable under s 96 of CPC.  (Meera Sinha v. Girja Sinha, AIR 2009 Pat 19)
17. When a criminal case is referred by a criminal court and is settled by the Lok Adalat, its award cannot be executed as a decree passed by a civil court. The reason behind this view is that when a reference is made to Lok Adalat, that authority is exercising the powers enjoyed by the reference court and can only pass such order which the reference court was competent to pass. (K.N .Govindan Kutty Menon v. C.D. Shaji, AIR 2010 Ker 97)

Orders which are not a decree.

The following are instances of orders which are not decrees:

1. An order rejecting an application for leave to sue in forma pauperis for no suit has till then been filed. (Secretary of State v. Jillo, (1899) ILR 21 All 133)
2. An order refusing leave to institute a suit for accounts of religious endowments. (Mozaffer Ali v. Hedayet, (1907) ILR 34 Cal 584)
3. An order on a petition to appoint a new member on the committee of a religious endowment. (Minakshi v. Subramanya, (1888) ILR 11 Mad 26 (35))
4. An order under the Indian Trusts Act, 1882 dismissing an application for the removal of a trustee. (Nathu Wilson v. Mcafee, (1897) ILR 19 All 131)
5. An order on a settlement case under s 104 (2) of the Bengal Tenancy Act 3 of 1898 as the proceeding is instituted not by a plaint but by an application. (Upadhya Thakur v. Persidh Singh, (1896) ILR 23 Cal 723 (729))
6. An order made on an application to the District Court under s 84 (2) of the Madras Hindu Religious Endowments Act 2 of 1927. (Rajagopala v. Hindu Religious Endowments Board, AIR 1934 Mad 103)
7. An order for ejectment in a proceeding under Ch-VII of the Presidency Small Cause Court Act, 1882. (Madhav Prasad v. SG Chandravarkar, AIR 1949 Bom 104)
8. An Award by the Calcutta Improvement Trust Tribunal. (A.K. Hossin v. Province of Bengal, AIR 1942 Cal 569)
9. An order rejecting a petition on the ground that the Madras Act IV of 1938 is not appealable. (Lakshmi Devi v. Raja Rao, (1954) 2 Mad LJ 192)
10. An order under s 7 of the Guardian and Wards Act, 1890 on an application under s 10 of that Act. (Wahid v. Jabida Begum, AIR 1952 Nag 190)
11. An order under s 10 of the Disabled Persons Act, 1951. (Punjab National Bank v. Firm of Iswardas Kaluram, AIR 1957 Raj 146)
12. An order passed on an application made to the Insolvency Court under s s 53 and 54 of the Provincial Insolvency Act, 1920. (Lakshmi Devi v. Varada Reddi 1958 Andh LT 896)
13. An order granting interim relief under s 24 of the Hindu Marriage Act, 1955. (Mansingh v. Siva Prabakumari, AIR 1960 Bom 315)
14. An order passed on an application for restitution of conjugal rights, judicial separation, declaration of nullity of marriage or divorce under ss 9 to 12 respectively of the said Act. (Varalakshmi v. Veera Reddy, AIR 1961 AP 359)
15. An order under s 34 of the Malabar Tenancy Act, (Nicholas v. Yasamma, AIR 1961 AP 359)
16. An order under s 17 (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, directing the landlord to restore possession of the premises to the tenant. (Vishnumurthi v. Lakshminarayana, (1961) 63 Bom LR 106)
17. An order passed under s 52 of the Malabar Tenancy Act 33 of 1951 for restoration of a holding. (Choyikutty v. Vasu, (1962) Ker LJ 517)
18. An award by the Debt Board under the Hydrabad Agricultural Debtors Relief Act, 1956. (Dattu Apparao v. D.G. Shengde, AIR 1968 Bom 361)
19. An order passed in proceedings under s 25 of the Guardian and Wards Act. (Kiran Devi v. Abdul Wahid, AIR 1996 All 105)
20. The award given by the motor accident claim tribunal does not have the status of a judgment, decree or order as contemplated by the Code of Civil Procedure. (Oriental Insurance Co. Ltd. v. Sardar Sadhu Singh, AIR 1994 Raj 44 (57))
21. An order refusing to wind up a company is not decree, since such an order does not adjudicate upon any right of a party. (Dundappa v. SG Motor Transport Co., (1966) 1 Mys LJ 786)
22. A decision on a reference under s 49 (1) of the Land Acquisition Act. (Deepchand v. LA Officer, AIR 1975 MP 55)
23. Rejection of application for condonation of delay and consequent dismissal of appeal as time barred. (Ratansingh v. Vijaysingh, AIR 2001 SC 279)
24. Decision of water disputes tribunal as notified. (State of Andhra Pradesh v. State of Karnataka, AIR 2001 SC 1560)
25. Order passed by High Court under contempt proceedings on consent terms. (In Re:Siddharth Srivastava, AIR 2002 Bom 494)
26. Order of dismissal of suit for default or non prosecution is not appealable as a decree. (Firdous Omer v. Bankim Chandra Daw, AIR 2006 SC 2759)

Indian Legal System > Civil Laws > The Code of Civil Procedure > Deemed Decree