LawPage

Notes and Articles for Law students

User Tools

Site Tools


civil_laws:sections:decree

Decree : meaning, importance and essentials

Section 2(2): “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 47 or section 144, 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:

Definition of decree in the Code of Civil Procedure 1882

The term decree was defined in the Code of 1882 as follows:

Decree means the formal expression of an adjudication upon any right claimed or defence set up in a Civil Court, when such adjudication, so far as regards the Court expressing it, decides the suit or appeal. An order rejecting a plaint or directing accounts to be taken, or determining any question mentioned or referred to in section 244, but not specified in section 688, is within this definition ; an order specified in section 688 is not within this definition.

Importance of the definition of decree

The adjudications of a Court of law may be divided into two classes, namely,

  1. decrees, and
  2. orders.

Orders again may be divided into appealable orders and non-appealable orders. The expression order is defined in clause 14 of the present section as meaning “the formal expression of any decision of a Civil Court which is not a decree.”

Where a decision amounts to a decree, it is invariably appealable unless it is expressly provided that no appeal shall lie from it1). Further, where an appeal is preferred from a decision which amounts to a decree and a decree is passed in appeal, an appeal will lie to the High Court from the decree passed in appeal if the case comes within the provisions of s. 100. This is called a second appeal. In the case, therefore, of an adjudication which amounts to a decree the law permits an appeal, and in some cases also a second appeal. Where an adjudication amounts to an order, no appeal lies from it unless it is enumerated in the list of appealable orders given in s. 104 or in the list given in O. 43, r. 1. We have thus seen that an appeal lies from a decree. Wo have also seen that an appeal lies from an order specified in s. 104 or in O. 43, r. 1.

What then is the distinction between a decree and an appealable order ?

The distinction is this, that while in the case of an adjudication which amounts to a decree the law permits a second appeal in some cases, no second appeal is allowed at all in the case of an adjudication which amounts to an appealable order. That is to say, if an appeal is preferred from a decree and a decree is passed in appeal, an appeal will in certain cases lie from the decree passed in appeal. But if an appeal is preferred from an appealable order and an order is passed in appeal, no appeal lies at all from the order passed in appeal2)).

To take an instance : A appeals from a decision of a Subordinate Judge to a District Judge. The appellate Court decides against A, A prefers a second appeal to the High Court from the decision of the District Court. If the decision of the Subordinate Judge amounts to a decree a second appeal will lie provided the case comes within section 100. But if the decision amounts to an appealable order, no second appeal will lie.

The definition of decree is important not only for determining the right of second appeal but for determining whether an appeal lies at all in the first instance. If an adjudication is an appealable order, there is no difficulty whatever in determining whether an appeal lies from it. All that has to be done in such a case is to refer to section. 104 and to O. 43, r. 1, and to ascertain whether the order is enumerated in the lists there given. The real difficulty in determining the right of appeal arises when the adjudication from which an appeal is preferred is not an appealable order. In such a case the adjudication may be either a decree or a non-appealable order, and an appeal can lie only if the adjudication amounts to a decree. The appellant would in this class of cased endeavour to show that the adjudication appealed from is a decree, while the respondent would endeavour to show that the adjudication is merely an order. Instances of this class of cases are given in the next following paragraph.

Difference between Decree and Order

Decree Order
A decree is the official proclamation of the adjudication by the Judge explaining the rights of the parties concerned with respect to the suit. An order is the official announcement of the decision taken by the court, defining the relationship of the parties in the proceedings.
Substantive legal Rights of the parties. Procedural legal Rights of the parties.
Decree defined under section 2(2) of the code of civil procedure, 1908. Order defined under section 2(14) of the code of civil procedure, 1908.
It clearly ascertains the rights of the parties concerned.It may or may not clearly ascertain the rights of the parties concerned.
There is only one decree in a suit. There can be many orders in a suit.
It can be preliminary, final or partly preliminary and partly final. It is always final.
It is normally appealable except if it is specifically barred by law. It can be appealable or non appealable.

Essential elements of a decree

The term decree is defined in the Code as meaning “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.

The words underlined above indicate the distinguishing marks of a decree. To constitute a decision a decree, the following conditions must be present :

  1. The decision must have been expressed in a suit.
  2. The decision must have been expressed on the rights of the parties with regard t to all or any of the matters in controversy in the suit.
  3. The decision must be one which conclusively determines those rights.

If all the elements set forth above concur in a decision, the decision is a decree, if not, it is an order, for decisions which are not decrees are orders3).

Illustrations of Condition 1

  1. A applies for leave to sue in forma pauperis. The application is rejected on a finding that A is not a pauper. This decision is not a decree, for it is not a decision in a suit. The application is for leave to sue, which shows clearly that there is yet no suit. Every suit is commenced by a plaint and an application for leave to sue in forma pauperis does not become a plaint until the application is granted4) Similarly an order under s. 18 of the Religious Endowments Act 20 of 1863 granting or refusing leave to institute a suit for accounts of a religious endowment is not a decree and is not therefore appealable.
  2. There are several Acts relating to special subjects, under which proceedings have to be commenced by a petition and not by a suit. Decisions on petitions under those Acts would not, therefore, be decrees. Thus a, decision on a petition under the Religious Endowments Act appointing a new member to fill a vacancy in a committee of trustees of an endowment is not a decree.

Illustrations of Condition II

  1. In a suit by A against B an application is made by X to be added as a plaintiff to the suit on the ground that he is interested in the subject-matter of the suit. The application is rejected. The decision is not a decree, for it is not a decision on any right which X might have claimed in the suit had he been made a party-plaintiff.
  2. A plaintiff in a suit, finding that the suit must fail by reason of some formal defect, applies for leave to withdraw from the suit with liberty to bring a fresh suit5). The leave is granted. This decision is not a decree, for it is not an adjudication determining the rights of the parties with regard to any matter in controversy in the suit. These rights still remain open for determination in a subsequent suit.

In all the cases cited above there was an appeal preferred from the decision. The decision not being an appealable order in any of them, it was contended on behalf of the appellant that it amounted to a decree and was therefore appealable. But it was held in all of them that the adjudication did not amount to a decree, and that it was not therefore appealable.

Points of distinction between the definition of "decree” in this Code and that in the Code of l882

The definition of decree as it stood in the Code of 1882 has been modified in the following two respects :

  1. Under the Code of 1882, no adjudication came within the definition of a decree unless it decided the suit. Under this Code, an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit is a decree, though it does not completely dispose of the suit. But the decree in that case is called a preliminary decree as distinguished from a final decree. The present definition is wider than that in the Code of 1882 in that it includes preliminary decrees within its scope, the object being to permit an appeal from preliminary decrees.6)
  2. Under the Code of 1882 there was a conflict of decisions as to whether an order of dismissal for default was a decree. The present section expressly declares that an order of dismissal for default is not within the definition of decree, the object being to exclude the right of appeal from such order.7)

Two other alterations, both of a minor character, may also be noted here. They are as follows:

  1. An adjudication directing accounts to be taken is no longer to be deemed to be a decree as under the Code of 1882 ; it is a decree by the very terms of the present definition, though a preliminary one. Under the Code of 1882 such an adjudication was appealable, for it was to be deemed to be a decree. Under this Code it is appealable for it is a decree. This distinction, however, is of no practical importance.8)
  2. The word “within” has been substituted for “mentioned or referred to in” with a view to bring within the definition of decree orders against sureties (s. 146) and orders as to court-fees in pauper suits (O. 33, r. 13), and thus providing for appeals therefrom.9)

It has been seen that the importance of the definition of decree rests on the fact that by reference to it the right of appeal is determined. Hence every material change made in the definition of that term must be taken to have been made for the purpose either of permitting an appeal from adjudications which were not appealable before or excluding a right of appeal from adjudications from which an appeal was permitted under the old law. It is from this standpoint that the new definition must be examined and that is what we have attempted to do above.

Preliminary decree

A decree maybe preliminary or final or it may be partly preliminary and partly final. A decree is preliminary when the adjudication, though it determines the rights of the parties with regard to the 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. It is final when such adjudication completely disposes of the suit.10)

The question whether a decision amounts to a preliminary decree is one of considerable importance in view of the provisions of section 97, by which it is provided that if a party aggrieved by a preliminary decree does not appeal therefrom within the period of limitation allowed for appeals, he shall be precluded from disputing its correctness in an appeal from the final decree. It was held at one time by the High Court of Bombay that a decision that a suit is not bad for mis-joinder, or that it is not barred by limitation, or a decision that the Court had jurisdiction to entertain a suit, was a preliminary decree. But these decisions have since been overruled by a Full Bench of the same High Court. In the last mentioned case it was held that a decision that the matters in dispute are not caste questions, and are not therefore outside the jurisdiction of Civil Courts, does not amount to a preliminary decree from which an appeal can lie. Similarly, it has been held that a decision that a matter is not res judicata, and that therefore the trial can proceed, is not a preliminary decree. Nor is a decision that the plaintiff is competent to maintain the suit brought by him. Nor is a decision that a suit is not barred by limitation. A finding on a preliminary issue, whether a party is or is not an agriculturist within the meaning of the Hekkhan Agriculturists Relief Act, 1879, is a preliminary decree, if it necessarily involves the result that the accounts should be taken under s. 13 of that Act despite the terms of the contract to the contrary. But it is not a preliminary decree, if there are other questions yet to be determined before the party claiming relief can be held entitled to have accounts taken under that section. An interlocutory order that a plaint should be stamped with a higher court fee than what it is stamped with does not amount to a preliminary decree.

Illustrations

  1. A sues B for cancellation of a document, and a decree is passed in the suit. This is a final decree, for the suit is completely disposed of.
  2. A suit is brought by one partner against another for a dissolution of the partnership and for the taking of partnership accounts. Here the Court may pass a preliminary decree declaring the proportionate shares of the parties, and directing such accounts to be taken as it thinks fit, and, after the accounts are taken, it may pass a final decree directing payment of debts due by the partnership, the costs of the suit, md to the parties the amount found due to them on taking the accounts.11)
  3. A sues B for the recovery of possession of certain immovable property and for mesne profits. The Court may pass a decree for possession of the property, and direct inquiry as to mesne profits. Here the decree is partly final and partly preliminary, it is final so far as it directs delivery of possession to A, It is preliminary so far as it directs an inquiry as to mesne profits. After the inquiry is completed, the Court has to pass a final decree in respect of mesne profits in accordance with the result ot the inquiry.12)

The following is a list of suits in which a preliminary decree may be passed under this Code :

  1. Suits for recovery of possession of immovable property and for rent or mesne profits (O. 20, r. 12).
  2. Administration suits (O. 20, r. 13).
  3. Suits for pre-emption (O. 20, r. 14).
  4. Suits for dissolution of partnership (0. 20, r. 16).
  5. Suits for account between principal and agent (O. 20, r. 16).
  6. Suits for partition of property or separate possession of a share therein (O. 20, r. 18).
  7. Suits for foreclosure of a mortgage (O. 34, rr. 2-3).
  8. Suits for sale of mortgaged property (O. 34, rr. 4-6).
  9. Suits for redemption of a mortgage (O. 34, rr. 7-8).

Rejection of plaint

As to an adjudication rejecting a plaint it has been expressly provided by the present clause that it shall be deemed to be a decree. Such adjudication, therefore, is appealable as a decree. An appeal, however, is not the only remedy open to a party whose plaint is rejected, for he may cure the defect for which the plaint was rejected and present a fresh plaint.13) As to the cases in which a plaint shall be rejected, see O. 7, r. 11.

Order returning plaint

A plaint may be returned for amendment (O.6, r. 17) or to be presented to the proper Court (O. 7, r 10). In either case the decision returning the plaint is an order as distinguished from a decree. An order returning a plaint to be presented to the proper Court was appealable under the Code of 188214) and it is also appealable under this Code15). An order returning a plaint for amendment was appealable (of course, as an order) under the Code of 188216); it is no longer appealable under this Code.

Rejection of memorandum of appeal

It is provided by the present section that a decision rejecting a plaint ie to be deemed to be a decree. The provisions of this and other sections relating to suits apply to appeals so far as such provisions are applicable.17) Hence a decision rejecting a memorandum of appeal on the ground that it is barred by limitation or that it is insufficiently stamped, or that it was not duly presented is appealable as a decree.

Order returning memorandum of appeal

No appeal lies from an order returning a memorandum of appeal to be presented to the proper Court. Nor does an appeal lie from an order returning a memorandum of appeal for amendment.

Adjudications appealable as orders

An adjudication which is appealable as an order is not a decree.18).

Order of dismissal for default

It is provided by 0. 9, r. 8, that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed. Such an order, it is enacted by the present section, is not within the definition of decree, and is not therefore appealable. Under the Code of 1882 there was a conflict of decisions as to whether the decision of a Court under the corresponding section 102 dismissing a suit for default was a decree or merely an order. It was held by the High Court of Madras that the decision was an order and not a decree and that there was no first or second appeal therefrom. On the other hand, it was held by the other High Courts that the decision was a decree and appealable as sucg.

Again, it is provided by O. 41, r. 17, that whereon the day fixed the appellant does not appear when the appeal is called on for hearing the Court may make an order that the appeal be dismissed, such an order, it is enacted by the present section, is not within the definition of decree, and is not therefore appealable.

Under the Code of 1882 it was held by the High Courts of Bombay and Calcutta that a decision under the corresponding section 556 dismissing an appeal for default was a decree and was therefore appealable. In an Allahabad case it was assumed that the decision was not a decree.

Further, it is provided by O. 41, r. 11 (2), that if on the day fixed for the hearing of the appeal the appellant does not appear, the Court may make an order that the appeal be dismissed. Such an order, it is enacted by the present section, is not within the definition of decree, and is not therefore appealable. Under the Code of 1882 it was held by the Calcutta High Court that a decision under the corresponding section 551 dismissing an appeal for default was a decree and was therefore appealable.

Lastly, we may refer to the provisions of O. 9, r.3 , by which it is provided that when neither party appears when the suit is called on for hearing the Court may make an order that the suit be dismissed. Such order, it is enacted by the present section, is not within the definition of decree, and is not therefore appealable.

1)
Section 96
2)
Section 104, sub-section (2
3)
see definition of “order” under cl. 14
4)
see O. 33 r. 8
5)
O. 23, r. 1
6)
See notes below under the head Preliminary decree.
7)
See notes below under the head Order of dismissal for default.
8)
Section. 97
9)
See Section 146 and O. 33, r. 13.
10)
As to appeals from decrees, see ss. 96 and 97.
11)
See O. 20. r. 16.
12)
See O. 20, r. 12.
13)
0. 7, r. 13
14)
s. 588, cl. (6)
15)
O. 43, r. 1, cl. (a)
16)
s. 688, cl. (6)
17)
section 108
18)
See s. 104 and O. 43, r. 1