Indian Legal System > Civil Laws > The Code of Civil Procedure > Preliminary Decree
In the next few articles, we are going to study different types of decrees. In this article, we shall study preliminary decree.
A decree is an official order that is drafted and issued by someone in a position of legal authority, like a judge. Section 2(2) of the Code of Civil Procedure, 1908 defines Decree as follows:-
Section 2(2) of the Code of Civil Procedure, 1908
Decree means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.
It shall be deemed to include the rejection of a plaint and the determination of any question within section 144 of CPC, but shall not include-
a) any adjudication from which an appeal lies as an appeal from an order, or
b) any order of dismissal for default.
Explanation:
A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final;
Generally, there are three types of decrees:
- Preliminary decree
- Final decree
- Partly preliminary and partly final.
Preliminary decree
A decree is the final decision given by the court after determining the rights of the parties in a dispute. The explanation attached to the Section 2(2) of the Act says that “A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final.”
In certain situations, the court cannot give its final decision without conclusively determining the rights of the parties on a particular issue.
- Example 1: Let us consider a joint family of three members X, Y, and Z who jointly own two properties and approaches the court asking for partition. In this case, the court must determine the share of each member i.e. the rights of the parties in the property first. Hence, the court must pass a preliminary decree that conclusively decides the shares of each member in the property. We can see that in this decree the actual partition has not taken place. Hence the suit continues to be pending in the court. In the second stage the court further inquires and passes the final decree affecting the actual partition or division of the properties in accordance with the preliminary decree. Thus the suit gets disposed of after passing the final decree. Thus the declaration of rights or shares or liabilities is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until division takes place by passing a final decree.
- Example 2: A wife sues her husband for maintenance. In this case, the Court has to first decide whether she gets maintenance during the time the trial is taking place. Then order regarding the maintenance during the time the trial is a preliminary decree. The Court will further enquire and will give final decree after hearing both the parties.
When does preliminary decree can be passed?
The code provides for passing of preliminary decree in the following suits.
| Sr. No. | Type of Suit | Under |
| 1 | Suits for possession and mesne profits | Order 20, R. 12 |
| 2 | Administration suits | Order 20, R. 13 |
| 3 | Suits for pre-emption | Order 20, R. 14 |
| 4 | Suits for dissolution of partnership | Order 20, R. 15 |
| 5 | Suits for accounts between principal and agent | Order 20, R. 16 |
| 6 | Suits for partition and separate possession | Order 20, R. 18 |
| 7 | Suits for foreclosure of a mortgage | Order 34, Rr. 2-3 |
| 8 | Suits for sale of mortgaged property | Order 34, Rr. 4-5 |
| 9 | Suits for redemption of a mortgage | Order 34, Rr. 7-8 |
In Narayan Thampi v. Lakshmi Narayana Iyer, AIR 1953 TC 220 (222) FB case, the court observed that the above list, however is not exhaustive and a court may pass a preliminary decree in cases not expressly provided for in the code.
Characteristics of Preliminary Decree:
- It is passed when an adjudication decides the rights of the parties with regard to all or any of the matters in controversy in the suit.
- It does not completely dispose of the suit.
- It is passed in those cases in which the court has to first adjudicate upon the rights of parties.
- It is succeeded by a final decree.
In Renu Devi v. Mahendra Singh, AIR 2003 SC 1608 case, the Court held that a preliminary decree only declares the rights of the parties leaving room for some further inquiry to be carried on.
In Baman Chandra Acharya v. Balaram, AIR 1966 Ori. 160 case, the Court observed that the rights so determined form the preliminary decree which are conclusive in nature. In that limited sense, a preliminary decree is final, so far as the rights are concerned. The court then makes a further inquiry to settle all the issues and gives its final decision known as final decree.
In Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande, AIR 1995 SC 1211 (1212) case, the Court observed: “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. Final decree may be said to become final in two ways: (i) when the time for appeal has expired without any appeal being filed against the preliminary decree or the matter has been decided by the highest court; (ii) when, as regards the court passing the decree, the same stands completely disposed of It is in the latter sense the word “decree” is used in, s. 2(2) of CPC.” The Court also observed that until the final decree is passed, there is “no formal expression” of the court that conclusively settles all the issues in the case.
In Hasam Abbas Sayyad v. Usman Abbas Sayyad, (2007) 2 SCC 355 case, the Court observed that it is worth noting that what is executable is a final decree and not preliminary unless the latter becomes a part of the final decree.
- There can be more than one preliminary decree.
In Phoolchand v. Gopal Lal, AIR 1967 SC 1470 case, a suit for partition was filed against four people. A preliminary decree was passed by the lower court specifying the shares of all the parties. However, before the final decree could be passed, two parties died, and there arose a dispute with respect to the shares of these two persons. The court had to decide the dispute, redistributing the shares indicated in the initial preliminary decree. The Court observed that there is nothing in a Code of Civil Procedure which prohibits passing of more than one preliminary decree, if the circumstances justify the same and it may be necessary to do so. The Court clearly mentioned that their view is only with respect to partition suit only.
In Ganduri Koteshwaramma v. Chakiri Yanadi, (2011) 9 SCC 788 case, the Court held that the final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree cannot be altered by the court, before the final decree is passed. Such an alteration is justified in the event of changed circumstances.
- The preliminary decree can be varied if the law affecting the parties is changed before the passing of the final decree.
In Prema v. Nanje Gowda, AIR 2011 SC 2077 case, the Court held that a preliminary decree can be varied if the law affecting the parties is changed before the passing of the final decree. The court must take into consideration the amended law and pass a second preliminary decree accordingly.
In S. Sai Reddy v. S. Narayana Reddy, (1991) 3 SCC 647 case, the members of a joint family filed a suit for partition. At the time when preliminary decree was passed, daughters were not allowed to claim shares in the joint family property. However, the State, prior to the passing of the final decree, amended the law as a result of which unmarried daughters became entitled to claim a share. The Court held that unless the division of property is effected (i.e., final decree is passed), the daughters cannot be deprived of the benefit of this amended law. Hence, a second preliminary decree must be passed accordingly.
- It cannot be challenged in a final decree
In Parvathamma v. Muniyappa, AIR 1997 Ker 37 case, the Court held that in a preliminary decree certain rights are conclusively determined and unless the preliminary decree is challenged in appeal, the rights so determined become final and conclusive and cannot be questioned in final decree.
- Appeal against preliminary decree cannot be filed when final decree is passed.
- A preliminary decree is a final decree, when the time for appeal has expired without any appeal being file against the preliminary decree or a matter has been decided by the highest court.
- A preliminary decree is a final decree, when as regard the court passing decree, the same stand completely disposed off.
In S. Talabali v. Abdul Aziz, AIR 1920 Cal 689 case, the Court held that both preliminary and final decrees are in the same suit and if the preliminary decree is set aside, the final decree is suspended.
In Selvamani v. Chellamal, (2015) 1 MWN (Civil) 739 case, in a dispute regarding the partition of a property, the court passed a preliminary decree determining the shares of the parties. On the basis of this preliminary decree, a final decree was passed. One of the parties filed an appeal from the final decree stating that, no share was allotted to the party in the preliminary decree. The Court held that the appeal against a preliminary decree cannot be filed after the final decree had been passed and appeal was not allowed by the Court.
In Sital Parshad v. Kishorilal, AIR 1967 SC 1236 case, the lower court made a final decree on the lines of its preliminary decree, even though an appeal against preliminary decree was pending. After this, the pending appeal comes on for hearing and the preliminary decree is reversed. The Court held that if an appeal preferred against a preliminary decree succeeds, the final decree automatically falls to the ground for there is no preliminary decree thereafter in support of it
In Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992 case, the lower court made a final decree on the lines of its preliminary decree, even though an appeal against preliminary decree was pending. After this, the pending appeal comes on for hearing and the preliminary decree is reversed. In this case, the Court discussed preliminary decree under light of Section 97 of the Act. Section 97 of the Act provides that, “Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.” The Court held that if an appeal preferred against a preliminary decree succeeds, the final decree automatically falls to the ground for there is no preliminary decree thereafter in support of it and it is not necessary in such a case for the defendant to go to the court passing the final decree and ask it to set aside final decree.
- It is not executable
In A. Akkukamma v. G. Papi Reddy, AIR 1995 AP 166 case, the Court held that Preliminary decree is a decree within the meaning of s. 2(2) of the Code of Civil procedure, but it is not capable of execution, normally, till a final decree is passed.
- There is no need to pass preliminary decree in all suits.
In Purushottam Haridas v. Amruth Ghee Co. Ltd., Gunthur, (1960) Andh. LT 524 case, the Court held that even in suits of nature mentioned in O 20, if the matters in dispute are simple and do not require elaborate scrutiny of accounts, the court is not bound to pass preliminary decree and may proceed straightway to pass a decree for the amount determined as due.
Conclusion:
The term preliminary decree has not been defined in the code but it says that a decree can be preliminary, final or partly preliminary and partly final. In a preliminary decree, the suit is not disposed off. One must appeal against the preliminary decree at the earliest stage. The code lays down certain instances wherein the court can pass a preliminary decree. It cannot be challenged when final decree is passed. There is no bar on as to how many preliminary decrees can there be in a suit.
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