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

The post Deemed Decree appeared first on The Fact Factor.

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.

For More Articles on the Code of Civil Procedure Click Here

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

The post Final Decree appeared first on The Fact Factor.