DECREE, JUDGMENT, AND ORDER UNDER CIVIL PROCEDURE CODE, 1908

             DECREE, JUDGMENT, AND ORDER UNDER CIVIL PROCEDURE CODE, 1908

                                                                                              DECREE:

Section 2(2) of the Code of Civil Procedure (C.P.C), 1908 defines decree as-

 a decree is formally expressing an adjudication conclusively determining the rights of the parties of the suit.

Such decree may be either preliminary or final.

Such a decree shall be deemed to include-

 rejection of a plaint and determination of any question within Section 144 of C.P.C.

but shall not include-

 any adjudication from which appeal lies as an appeal from an order,

or

any order of dismissal for default.

ESSENTIAL ELEMENTS OF DECREE:

A decision of a court is said to be a decree when the following elements are present-

  • Adjudication– For a decision of a court to be a decree there must be adjudication Adjudication means a judicial determination of a subject matter in dispute. Such judicial determination of a dispute must be done by a court. An order passed by an officer who is not a court is not a decree. Likewise, any decision is given by a court which is administrative shall not be a decree. Similarly, an order of a court dismissing an appeal or suit for want of prosecution or because a minor is not properly represented in a suit shall not amount to be a decree.
  • Suit– In Hansraj v. Dehradun-Mussoorie Electric Tramways Co. Ltd a suit was defined as a civil proceeding instituted by presenting a plaint. Thus, any decision given in a legal proceeding that does not commence with a presentation of a plaint does not amount to be a decree as such proceeding itself is not a suit.

 Under some acts like the Indian Succession Act, the Hindu Marriage Act, the Arbitration Act, Land Acquisition Act specific provisions are made for treating applications as suits. Proceedings commenced under these acts are statutory suits and decisions given under them are called decrees.

  • Adjudication determines the rights of the parties to the suit- The adjudication must have determined the rights of the parties to all or any of the subject matter of the suit. Here, rights mean substantive rights of the parties and not procedural rights. Substantive rights are rights relating to status, jurisdiction, limitation, accounts, frame of suits, etc

An order dismissing a suit or appeal for default in appearing or execution for non-prosecution or an order refusing leave to sue by an indigent person does not constitute a decree as they do not determine the substantive rights of the parties to the suit. Thus, interlocutory orders on procedural matters not determining the substantive rights of the parties to the suit are not decree.

  • Conclusive Determination– The judicial determination of the court must be conclusive and final. Thus, any interlocutory order like an order refusing adjournment that does not decide the final rights of the parties to the suit is not a decree. A decision of the court dismissing a suit for want of evidence amount to a decree as it conclusively decides the rights of the parties to the suit. Thus, the question is whether the decision is final and conclusive in deciding the substantive rights of the parties. If it is then it is a decree.
  • The formal expression of adjudication– The adjudication must be expressed formally. This formal expression must comply with all the requirements of the law.  The decree follows the judgment and must be drawn separately because if the decree is not formally drawn up in terms of the judgment then no appeal lies from that judgment.

EXAMPLES OF DECISIONS THAT ARE DECREES:

Some of the examples of the decisions amounting to decrees given by the court are as follows-

  1. Order of abatement of the suit
  2. Dismissal of suit for lack of evidence or proof
  3. Rejection of plaint for non-paying court fees
  4. Dismissal of appeal because time-barred
  5. Order holding the appeal not maintainable

TYPES OF DECREES UNDER CODE OF CIVIL PROCEDURE, 1908

The types of decrees recognized by CPC are as follows-

  1. Preliminary decree

The judicial determination or adjudication of the suit deciding the rights of the parties to the suit on the subject matter of dispute but still not completely disposing of the suit is called a preliminary decree. Thus, a preliminary decree is not the final and conclusive adjudication of the suit and is not the final decree adjudicating the suit completely and conclusively. Passing a preliminary decree is a stage before passing the final decree.

The preliminary decree is passed in the following suits-

  1. Administration suits
  2. Suits for pre-emption
  3. Suit for possession and mense profit
  4. Suit for sale of mortgage property
  5. Suit for foreclosure of a mortgage
  6. Suit for dissolution of the partnership
  7. Suit for partition and separate possession, etc

It must be noted that the court can pass a preliminary decree even in cases not expressly mentioned in C.P.C.

If any party to the suit is aggrieved from the decision given in the preliminary decree and still does not appeal from such decree then cannot dispute its correctness in any appeal that may be preferred from the final decree. If an appeal is made against the preliminary decree and such appeal succeeds then the final decree does not stand. Thus, in such a case the final decree is automatically set aside.

2. Final decree

In a final decree, all the issues of dispute in a suit are adjudicated and nothing remains to be decided later on by the court in the suit.

A decree is said to be the final decree in the following conditions-

  1. A decree is said to be final when all the matters of dispute between the parties to the suit are decided in the suit and the court completely disposes of the suit.
  • When the period of limitation for filing an appeal to the decree has expired the decree becomes the final decree as an appeal against is barred by the period of limitation.
  • When all the matters of dispute in a suit are decided by the highest court then the decree passed by this court is said to be a final decree.

Normally, only one final decree is passed by the court in a suit. However, in special circumstances like two or more causes of action joined together, more than one final decree can be passed in the same suit.

3. Partly preliminary and partly final decree-

A decree passed by a court can be partly final and partly preliminary. For instance, when a suit is filed for the possession of immovable property with mense profits then the court passes the final decree for possession of property and preliminary decree by directing an inquiry into mense profits.  A final decree for mense profit can be passed only when the total amount due is ascertained after inquiry. Therefore, in such a case although only one decree is passed it is partly preliminary and partly final.

                                                

JUDGMENT

Section 2 (9) of the CPC defines judgment as a statement given by a judge on the grounds of a decree or order.

Section 33 of CPC states that after hearing the case the court shall pronounce its judgment and based on such judgment a decree shall follow.

According to Order 20 given in CPC after hearing the case, the court shall pronounce its judgment at once at that time itself or soon thereafter as may be practicable. If the court decides to pronounce judgment on some future day the court shall fix a day for pronouncing the judgment and due notice shall be given to the parties or their pleaders by the court for this purpose.

In case if the full judgment is not pronounced by the court at once then the court shall pronounce the judgment within 30 days from the date of conclusion of the hearing of the case. However, in some exceptional circumstances, the period of 30 days can be extended up to 60 days.

When a court pronounces a written judgment it need not read out the whole judgment. Reading out only the findings of the court on all issues to the suit and the final order passed in the suit is sufficient.

When a judge is specially empowered by the High Court then the judgment can be pronounced by dictation in the open court. After making the necessary corrections and obtaining the signature of the judge the transcript of the judgment must bear the date of its pronouncement.

In any case, if a judgment is written but not pronounced in the court and the judge who wrote the judgment is transferred then the new incoming judge may pronounce the judgment written by his predecessor.

When the judgment is pronounced in the open court it shall be signed and dated by the judge in the court. Once the judgment is signed by the judge it shall not be afterward altered or added to except as provided by section 152 of CPC or on review.

When a judgment is pronounced by a Small Causes Court the judgment need not contain more than the issues for determination and reason for the decision.

The judgment of other courts shall contain the concise statement of the case, the issues for determination, the decision thereon along with the reasons for the decision.

When a court pronounces its judgment then the copies of the judgment shall be given to the parties immediately after they pay the charges for the copy. An appeal can be made against the judgment after receiving a copy of the judgment.

                                                   

ORDER

Section 2(14) of CPC defines order as a formal expression of any decision of a Civil Court which is not a decree. Adjudication of a court on the subject matter of dispute which is not a decree is an order.

A judicial order contains discussion on the controversial issue in the suit and the reasons based on which the court passed the order. Order arises from a suit by presenting a plaint or from a proceeding commenced by a petition or an application.

In the same suit number of orders can be passed by the court. All orders are not appealable unless provided by Section 104 of C.P.C. An order does not necessarily decide the rights of the parties to the suit conclusively. The order passed by the court may be final or interlocutory. Like decree order also follows the judgment. If an order or decree is not as per the judgment then they may be altered. There is no preliminary order like a preliminary decree.

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