In this article w shall study the terminology of the code of civil procedure. These are the terms and phrases used in civil proceedings, decree, and judgment.

Abatement of a Suit:

Thus the termination of a suit by operation of the law caused by the death of one of the parties during the pendency of the suit is called the abatement of the suit.

Adjournment of Hearing:

An adjournment of hearing or adjournment of the suit is the postponement of the hearing of the suit to a future date by the Court.

Affidavit:

An affidavit is a declaration of facts, reduced to writing and sworn or affirmed before a person having authority to administer oaths, as for instance, a Magistrate or a Notary Public.

Appeal:

An appeal is a judicial examination of the decision of a lower court by a higher court.

Attachment:

Attachment means restraining or holding some rights over any asset or recoverable amount.

Attachment Before Judgment:

Attachment before judgment is the attachment of property of the defendant when he fails to furnish security to the court, sufficient to satisfy the decree.

Cause of Action:

The cause of action is an act, action, or omission, that gives rise to the institution of a suit.

Caveat:

The caveat is a caution in writing given by an interested party to the court, calling upon the court not to give any relief to another party, without notice or intimation to the party filing the caveat. The person filing a caveat is called a caveator.

Code:

According to Sectio 2(1) of the Civil Procedure Code, 1908, “Code” includes rules.

Commission:

As per the Civil Procedure Code a commission, refers to an authority which is appointed to exercise a power or a direction issued by the Court.

Counter-Claim:

Counter-claim is the cross-claim made by the defendant against the plaintiff and this claim is treated as a plaint filed by the defendant against the plaintiff.

Decree:

According to Sectio 2(2) of the Civil Procedure Code, 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, 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.

Decree Holder or Judgment Creditor:

According to Section 2(3) of the Code of Civil Procedure, 1908, a “decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made.

Defendant:

The litigant against whom the plaintiff has filed suit is called the defendant.

District:

According to Sectio 2(4) of the Civil Procedure Code, 1908, “district” means the local limits of jurisdiction of a principal Civil Court of original jurisdiction(hereinafter called a “District Court”) and includes the local limits of the ordinary civil jurisdiction of a High Court.

Evasive Denials:

When a defendant files a written statement, he must deal with each allegation specifically with each allegation of the plaintiff, that is, he must admit or deny each and every allegation contained in the plaint. If he skips answer to some allegations made by the plaintiff, then it is called evasive denial.

Execution:

The term ‘execution’ refers to the process of enforcing or giving effect to judgment, decree, or order of a court.

Execution of Decree:

Execution of Decree is the enforcement of Decree and Orders of the Court enabling the Decree holder to realize the fruits of decree.

Ex-parte:

An order or a decree is said to be passed ex parte when it is passed after hearing only one side, and not the other.

Ex Parte Decree:

Ex parte decree is a decree passed by a Court on a defendant being absent when the suit is called out for the hearing.

Foreign Court:

According to Section 2(5) of the Civil Procedure Code, 1908, “foreign Court” means a Court situate outside India and rot established or continued by the authority of the Central Government

Foreign Judgment:

According to Section 2(6) of the Civil Procedure Code, 1908, ” foreign judgment ” means the judgment of a foreign Court.

Garnishee:

Garnishee is a person who is a debtor of the judgment debtor.

Garnishee Order:

A garnishee order is an order by which a court can call upon the garnishee not to pay the amount due to the judgment debtor from the garnishee but instead to pay the judgment creditor.

Government Pleader:

According to Section 2(6) of the Civil Procedure Code, 1908, “Government Pleader” includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader

Indigent Person or Pauper:

An indigent person is one who does not have sufficient means to pay the court fees in respect of the plaint being filed by him.

Injunction:

An injunction is an order of a court calling upon a party to do or to refrain from doing a particular act.

Interpleader suit:

An interpleader suit is one where the real dispute is between the defendants only, and therefore, the defendants “interplead”, that is, they plead against each other, instead of pleading against the plaintiff as in an ordinary suit.

Issues:

The term “issue” means a point of the question in the legal proceedings or issues are material propositions of facts affirmed by one party and denied by the other.

Judge:

According to Section 2(8) of the Code of Civil Procedure, 1908, “Judge” means the presiding officer of a Civil Court.

Judgment:

According to Section 2(9) of the Code of Civil Procedure, 1908, “judgment ” means the statement given by the Judge of the grounds of a decree or order

Judgment Debtor:

According to Section 2(10) of the Code of Civil Procedure, 1908, a “judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made;

Jurisdiction:

Jurisdiction, in law, is the authority of a court to entertain, hear and determine cases (suits or other proceedings). This authority is based on the Constitution.

Jurisdictional Fact:

The existence of a fact which gives authority to a court to try and dispose of a particular legal proceeding is called jurisdictional fact.

Legal Representative:

According to Section 2(11) of the Code of Civil Procedure, 1908, ” legal representative ” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued

Letter of Request or Rogatory Letter:

A letter of request is a letter issued by a court in one country to a court in a foreign country requesting some judicial assistance from the judiciary of that country.

Litigant:

A litigant is a party to a lawsuit. It is a person engaged in a suit or petition before the Court.

Litigation:

Litigation is a judicial proceeding undertaken in court to determine the rights, duties and obligations of parties in dispute.

Mesne Profits:

According to Section 2(12) of the Code of Civil Procedure, 1908, ” mesne profits ” of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received there from, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.

Next Friend of Minor or Guardian ad litem:

The next friend of the minor is that person who files a suit on behalf of a minor.

Order:

According to Section 2(14) of the Code of Civil Procedure, 1908, ” order ” means the formal expression of any decision of a Civil Court which is not a decree.

Petitioner:

In the case where a petition is filed for example say writ petition, then the person filing it is called the petitioner.

Plaint:

A plaint is a statement of claim. It is the document by which a suit is instituted in a court. It contains the grounds on which the assistance of the Court is sought by the plaintiff. It forms part of pleadings before the Court.

Plaintiff:

The litigant who approaches a court of law by filing a suit or other legal proceedings is called the plaintiff.

Pleader:

According to Section 2(15) of the Code of Civil Procedure, 1908, “pleader” means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court.

Pleadings:

The term “Pleadings” as used in the Code refers to the plaint or written statement. They are to be signed and verified as provided in the Code.

Preliminary Decree:

A preliminary decree is that decree given by the court when further proceedings are required before a suit can be completely disposed of.

Precept:

A precept is an order or direction given by the court which passes a decree to any other court competent to execute the decree.

Public Officer:

According to Section 2(17) of the Code of Civil Procedure, 1908,

” public officer ” means a person falling under any of the following descriptions, namely:-

(a) every Judge;

(b) every member of the Indian Civil Service;

(c) every commissioned or gazetted officer in the military naval or air forces of the Union while serving under the Government;

(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the Court, and every person especially authorized by a Court of Justice to perform any of such duties;

(e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

(f) every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue-process, or to investigate, or to report on, any matter affecting the pecuniary interests of the Government or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; and

(h) every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty:

Reference:

When the subordinate court in order to take assistance refers the case to the High Court, it is called the reference. The opinion of the High Court can also be sought when the subordinate court has some doubts about the question of law. Reference is always made to the High Court.

Respondent:

The party against whom a petition is filed is called the respondent.

Restitution:

The literal meaning of restitution is an act of restoring a thing to its proper owner.

Review:

“review” is the process of judicial re-examination of a case by the same court and by the same judge who has passed the judgment or order earlier.

Revision:

A revision is said to take place when the High Court calls for the record of any case decided by a subordinate court and passes an appropriate order if the subordinate court has exercised a jurisdiction not vested in it or has failed to exercise a jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or material irregularity.

Rules:

According to Sectio 2(18) of the Civil Procedure Code, 1908, “rules” means rules and forms contained in the First Schedule or made under section 122 or section 125.

Set-off:

Set-off is a defence available to the defendant in his written statement, by which he seeks to wipe out or reduce the claim of the plaintiff against him.

Share in Corporation:

According to Sectio 2(19) of the Civil Procedure Code, 1908, “share in a corporation” shall be deemed to include stock, debenture stock, debenture bonds.

Summary Suit or Summary Procedure:

A summary suit is a suit where the defendant cannot defend the suit as a matter of right and requires the leave of the court to do so. It is to prevent unreasonable obstruction by the defendant who has no defence.

Summons:

A summons is a document issued by an officer of a court, calling upon the person to whom it is directed to appear before the court or an officer of the court for a particular purpose on a stated date at a stated time.

Written Statement:

A written statement is the reply or defence of the defendant in answer to the plaint or the plaintiff. It constitutes the pleading filed by the defendant.

Indian Legal System > Civil Laws > The Code of Civil Procedure > Terminology of CPC

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A decree is one of the most frequently used terms in Civil Matters. The adjudication of a court of law is divided into two classes: decree and orders.  In this article, we are going to discuss the decree.

Execution is the act of carrying into effect the final judgment of a court or other tribunal. The writ authorising a particular officer to carry such judgment is called execution, in its rational and practical sense execution is the formal method prescribed by law, whereby the parties entitled to the benefit of the judgment or any other equivalent obligations may obtain, that benefit. Execution, is the fast stage of a suit whereby possession/recovery of anything/amount recovered by a judgment is obtained. The word execution of criminal means enforcing death sentence.

In Ramnarayan v. Anandilal, AIR 1970 MP 110(118) case, the Court observed that the word execution embraces all the appropriate means by which a decree is enforced and includes ail processes and proceedings in aid of or supplemental to execution.

In State of Rajasthan v. Savaksha, AIR 1972 GUJ 1719 case, the Court observed that the word “Execution” is not defined under the Civil Procedure Code. It is the enforcement of decrees and orders by the process of the court so as to enable the decree-holder to realise the fruits of decree

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;

Section 2(3) of the Code of Civil Procedure, 1908 defines decree holder.

Section 2(3) of the Code of Civil Procedure, 1908

“decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made.

Essentials Elements of Decree:

In Vidyacharan Shukla v. Khubchand Baghel, AIR 1964 SC 1099 (1113) case, the Supreme Court held that in order that a decision of a court to be a “decree” the following elements must be present.

• There must be an adjudication;
• Such adjudication must have been given in a suit;
• It must have determined the rights of the parties with regard to all or any of the matters in dispute in the suit;
• Such determination must be of conclusive nature; and
• There must be a formal expression of such adjudication.

In Bal Kishan v. Tulasi Bai, AIR 1987 MP 120 case, the Court held that order must satisfy the requirements of Section 2(2) in order to become decree. Merely labelling it as a decree does not make it a decree.

Adjudication:

Adjudication is the first essential of decision of the court to be a decree. The matter in dispute should be judicially determined.

In Madan Naik v. Hansubala Devi, AIR 1983 SC 676 case, the Court held that if the matter is not judicially determined then, it is not a decree.

In Deep Chand v. Land Acquisition Officer, AIR 1994 SC 1901 (1903) case, the Court held that the adjudication should be made by the officer of the Court and if it is not passed by an officer of the court then it is not a decree.

In Motilal v. Padmaben, AIR 1982 Guj. 254 case, the Court held that a decision on matter of an administrative nature, or order dismissing a suit for default of appearance of parties or dismissing an appeal for want of prosecution cannot be termed as a decree inasmuch as it does not judicially deal with the matter in dispute.

Suit:

A requirement of a suite is the second essential of decision of the court to be a decree. Without suit there cannot be a decree. Suit ordinarily means a civil proceedings instituted by presentation of a plaint. Civil suit is the institution of litigation for enforcement of civil rights (or substantive rights, it may be against state or individual). A suit is resulted into decree.

In Jagadishwar Sahai v. Surjan Singh Pal, AIR 1977 ALL 554 case, the Court observed every suit is commenced by a plaint.

In Minakshi v. Subramanaya, (1888) ILR 11 Mad 26 (35) case, the Court held that when there is no civil suit there is no decree.

In Hansraj Gupta v. official Liquidators of the Dehra Dun-Mussoorie Electric Tramway Co. Ltd. AIR 1933 PC 63 case, the privy council Lordship defined the term “suit” as: “The word ‘suit’ ordinarily means and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint.”

Essentials of a Suit:

• Name of Parties:  To constitute a suit, there must be at least two opposing parties the plaintiff and the defendant. There is no limitation with regards to number on either side.
• A Cause of Action: A cause of action means the whole of the material facts which it is necessary for the plaintiff to allege and prove in order to succeed. The cause of action is essential to a suit represented in Order II Rule 2 of the Code wherein it is stated that a plaint must mention the cause of action. Every plaint must disclose a cause of action if not, Order VII Rule 11 of the Code states that it is the duty of the court to reject the plaint. Examples of cause of action are breach of contract, fraud, defamation, etc.
• Subject Matter: There must be a subject matter with respect the civil dispute exists. A subject matter of the suit is the particular thing in respect of which the suit has been filed. The process of proving and disproving in proceedings can be done on basis of certain facts. These facts which essentially go on to prove or disprove the cause of action will be called the matter in issue. It can either be some property upon which the plaintiff exercises his legal right or it can be a personal right of the plaintiff not related to any property. There cannot be practically anything other than these things for a subject matter of a suit. 
• Relief Claimed by Plaintiff: No court will give relief unless relief is specifically claimed by the party. Relief is of two types: specific relief and alternative relief.

However, under certain enactments specific provisions have been made to treat applications as suits. Proceedings under following Acts are statutory suits and decision given thereunder are, therefore decrees.

• The Indian Succession Act
• The Hindu Marriage Act
• The Land acquisition Act
• The Arbitration Act

In Leela Hotels Ltd. v. Housing & Urban Development Corporation Ltd., AIR 2012 SC 903 case, where the question was whether the Award of an Arbitrator tantamounts to a decree or not, the Court held that Section 36 of the Arbitration & Conciliation Act, 1996 makes it very clear that such an award has to be enforced under CPC in the same manner as if it were a decree of a court. Accordingly, it was held that the said language leaves no room for the doubt as to the manner in which the Award is to be accepted.

In Diwan Bros. v. Central bank of India, AIR 1976 SC 1503 (1518) case, the Court observed that a decision of a tribunal, even though described as “decree” under the Act, is a decree passed by the tribunal and not by a court covered by Section 2(2) of the Code of Civil Procedure.

Rights of the parties: 

In Dattatraya v. Radhabai, AIR 1921 Bom 220 case, the court observed that the word ‘Right’ means substantive rights and not merely procedural rights.

In Kanji Hirjibhai v. Jivraj Dharamshi, AIR 1976 Guj 152 case, the Court held that the term parties means parties to the suit, i.e the plaintiffs and defendants and if an order is passed upon the application made by a third party who is a stranger to suit then it is not a decree.

An order to be a decree it must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit. The expression ‘matter in controversy in the suit’ means such matter as has been brought up for adjudication by the court through the pleadings. Hence, the conclusive determination, in order to amount to a decree must be on matters in controversy in the suit. For example, an order rejecting the application of a poor plaintiff to waive the court costs is not a decree because it does not determine the right of the party in regards to the matters alleged in the suit.

In Ahmed Musaji Saleji v. Hashim Ibrahim Saleji, AIR 1915 PC 116, the Privy Council held that the expression ‘matter in controversy’ refers to the subject matter of the suit with reference to which some relief is sought.

In Ma Chon v. Maung Myint, AIR 1927 Rang 148 (PC) case, the Privy Council held that there must have been an adjudication on the rights of the parties.

In Gauhati Bank Ltd. v. Baliram. AIR 1950 Assam 169 case, the Court held that an order of dismissal for the default of appearance is no determination of rights of the parties and, therefore, not a decree.

Conclusive Determination: 

Such determination by the court must be conclusive in nature. This means that the court will not entertain any argument to change the decision i.e. as far as the court is concerned, the matter in issue stands resolved. Thus any interlocutory order not deciding of the parties is not a decree.

In Narayan Chandra v. Pratirodh Sahini, AIR 1991 Cal 53 case, the Court held that the determination should be final and conclusive regarding the court which passes it.

Test of Order to be a Decree:

In Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992 case, the Court observed that the crucial point which requires to be decided in such a case is whether the decision is final and conclusive in essence and substance. If it is, it is a decree, if not, it is not a decree. The Court further held that whether or not an order of the court is a decree, the court should take into account pleadings of the parties and proceedings leading up to the passing of an order. With a view to find out the meaning of the words in the order and to determine whether such order is a decree, the court often may have to consider the circumstances under which the order was made and the words were used.

Formal Expression:

There must be a formal expression of adjudication. In simple terms to be a decree, the court must formally express its decision in the manner provided by law. All the requirements of form must be complied with. The decree should be drawn separately and it should follow the judgment. A mere comment of the judge cannot be a decree. If a decree has not been drawn up, then there is absolutely no scope of an appeal from the judgment i.e. No appeal lies against the judgment, if the decree is not formally drawn upon the judgment.

In Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 (577) case, the Court held that the decree should follow the judgment and it should be drawn separately.

Decisions considered as a decree

The decisions held to be decree are as follows:

• 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

The decisions which are not considered as a decree are as follows:

• Dismissal of appeal for default;
• Appointment of Commissioner in order to take accounts;
• Order for remand;
• Order granting interim relief;
• An order refusing the grant of interim relief;
• Rejection of plaint in order to present it to the proper court;
• Application rejected for condonation of delay;
• Order holding an application to be maintainable;
• Order of refusal to set aside the sale;
• The order issuing directions for the assessment of mesne profit.

Classes of Decree:

Preliminary Decree:

A decree is preliminary when the adjudication. though it conclusively determines the rights of the parties with regard to some matters in controversy in the suit, does not completely dispose of the suit, and further proceedings have to be taken before the suit can be completely disposed of.

Example: 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.

Final Decree:

A final decree is one which completely disposes of a suit and finally settles all questions in the controversy between parties and nothing further remains to be decided thereafter. Ordinarily there will be only one final decree in the suit. However, where two or more causes of action are joined together there can be more than one final decree.

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

1. when within prescribed period there has been no appeal filed against the decree or the matter has been decided by the decree of the highest Court, or
2. when the Court passing it completely disposes of the suit.

Partially preliminary and Partially Final Decree:

A decree may be partly preliminary and partly final and this may be explained by way of example.

For example, two brothers argue over who inherits the family property from their late father. This property is currently leased out to a family. While the determination of who gets the property is the subject of the final decree, the determination of who gets the profits that accrue from the lease rent being paid during the length of the trial, is a matter of partly preliminary and partly final decree.

Order Rejecting a Plaint:

When a plaint is rejected, the order rejecting it is not an order, but a decree, and is, as such, appealable. It must be noted that there is no decree where the rejection of plaint is not under the Civil Procedure Code.

Determination of Question Under S. 144 of the Code:

An application for restitution can be filed under Section 144 of the Code. A restitution is ‘an act of restoring a thing to its proper owner’. When code passes an order of such restitution, then that order amounts to a decree.

Other Terms Used w.r.t. Decree:

Absolute Decree:

When a decree is complete by itself and becomes of full effect at once, it is called absolute decee

Decree Nisi:

The decree which is not to take effect, unlessthe person affected by it fails to show cause against it within a specified time is called decree nisi.

Ex Parte Decree:

When a plaint is filed and the plaintiff appears in court, but the defendant does not, when the suit is called out, if it is proved the summons were duly served on the defendant, the court may make an order that the suit shall be heard ex parte. In such case, the court may hear the plaintiff only and pass a decree in the matter. Such a decree is called an ex parte decree.

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Indian Legal System > Civil Laws > The Code of Civil Procedure > What is a Decree?

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