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

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In the last article, we have studied about preliminary decree. In this article, we shall study final decree and partially preliminary and partially final 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:

1. Preliminary decree
2. Final decree
3. Partly preliminary and partly final.

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.

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.”

In Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare, (2008) 8 SCC 198 case the Court observed that “A decree, therefore may denote final sdjudication between the parties and against which appeal lies, but only when a suit is completely disposed of thereby a final decree would come into being. There cannot be any doubt whatsoever that a decree may b partly preliminary and partly final.”

Characteristics of Final Decree:

• Final decree is 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.

• In some suits final decree can be passed without passing a preliminary decree.

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.

• It settles matter in controversy:

In Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande, AIR 1995 SC 1211 (1212) case, the Court 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.

• It carries fulfilment of the primary decree:

In Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande, AIR 1995 SC 1211 (1212) case, the Court held that the final decree merely carries into fulfilment the preliminary decree.

• Court can pass more than one final decree:

In Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande, AIR 1995 SC 1211 (1212) case, the Court held that it is settled law that more than one final decree can be passed.

Partly preliminary and partly final

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.

In Lucky Kochuvareed v. P. Mariappa Gounder, AIR 1979 SC 1214 (1220) case, in a suit for possession of immovable property with mense profits, where the court (a) decides possession of the property; and (b) directs an enquiry into mense profits. The Court observed that the former part of decree is final, while the latter part is only preliminary because the final decree of mense profits can be drawn only after enquiry, and the amount due is ascertained. In such a case, even though the decree is only one, it is partially preliminary and partially final.

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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:

1. Preliminary decree
2. Final decree
3. 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.

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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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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