Q 3 ) Define decree, discuss the kinds of decree.

What Do You Mean By Decree? Which Orders Are Not Included In The Definition Of ‘Decree’?

Table of Contents hide

1) Decree
2) Essential Elements of Decree
2.1) 1. Adjudication
2.2) 2. Suit
2.3) 3. Rights of the parties
2.4) 4. Determination must be conclusive
2.5) 5. Formal Expression
3) Classification of Decree
3.1) 1. Preliminary Decree
3.2) 2. Final Decree
3.3) 3. Partly Preliminary and Partly Final Decree
3.4) 4. Deemed Decree
3.5) Decree Holder
4) Order
4.1) Essential Elements of order:
4.2) Types of Order
4.2.1) 1. Appealable orders
4.2.2) 2. Non-appealable orders
4.3) Classification of Order
5) Following are the instances of certain orders which are not held to be a decree:
Decree
Section 2 (2) of the Civil Procedure Code defines Decree as a formal expression of an
adjudication expressed by the Court of Law which conclusively determines the rights of the
parties concerned in a particular suit. It may be relating to all or any of the matter in
controversy in the suit.

Decree can be pronounced only in case of a suit, i.e., a civil proceeding instituted by the
presentation of a plaint.

A decree shall include the rejection of a plaint or in determining any question under Section
144, but excludes the following:

any adjudication from which an appeal lies, such as, an appeal from order.
any order of dismissal for default.
The Explanation to this section provides that a decree can either be preliminary or final or
partly preliminary and partly final. Preliminary decrees are those where the suit is not
completely disposed of and further proceedings may take place. And the final decree is when
the Court completely dispose of the suit.

Essential Elements of Decree

The essential features of a decree are as follows:

There must be an adjudication.

The adjudication must be done in a suit.
The adjudication must be done in determining the rights of the parties relating to all or any of
the matter in dispute.
Such determination must be conclusive in nature.
There must be a formal expression of such adjudication.
1. Adjudication
The most essential feature of a decree is that there must be an adjudication, i.e., a formal
decision of the Judge on the matter in dispute. If there is no judicial determination, there is no
decree. And such decision must be passed by the Court. Therefore, an order passed by an
officer who is not a court cannot be termed as a decree.

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

2. Suit
It may be defined as a civil proceeding which is instituted in the Court of Law by the
presentation of a plaint. Thus, if there is no civil suit, there is no decree. However, there are
certain applications which are being treated as suit, such as, proceedings under, the Indian
Succession Act, the Hindu Marriage Act, the Land Acquisition Act, the Arbitration Act, etc.

Therefore, decisions given for these matters are considered as decrees within the meaning of
Section 2(2) of Civil Procedure Code. In addition to this, decisions held by the tribunals are the
decrees passed by the tribunal and not the Court decree.

3. Rights of the parties

The adjudication must determine the rights of the parties in all or any of the matters in
dispute. If the Court passes an order on procedural ground, such order cannot be termed as a
decree, such as, an order dismissing the suit for non-appearance of the parties, or an order
refusing to grant leave to sue as a pauper, etc.

The term parties mean parties to the suit, i.e., the plaintiff (the person who has instituted the
suit) and the defendant (against whom the suit has been filed).

In Kanji Hirjibhai Gondalia vs Jivaraj Dharamshi, AIR 1976, the Court held that the term parties
means the parties to the suit, i.e., the plaintiff and the defendant. In case the Court passes an
order upon an application of a stranger or a third party in a suit, such order will not be
considered as a decree.

4. Determination must be conclusive

The judicial determination held by the Court of Law must be conclusive and final relating to
the rights of the parties to the suit. The provisional decisions or the interlocutory orders
cannot be termed as a decree as they are not the final decision of the Court.

Therefore, orders passed by the Court on certain issues and remitting other issues to the trial
court is not a decree as it does not determine the rights of the parties conclusively.

5. Formal Expression
There must be a formal expression of the adjudication. The Court must express its decision
formally in accordance with the provisions of law.

Classification of Decree
The decree may be classified into:

Preliminary Decree
Final Decree
Partly Preliminary and Partly Final Decree
Deemed Decree
1. Preliminary Decree
The preliminary decree is a decree where the Court decides the rights of the parties relating to
all or any of the matter in controversy but does not dispose of the suit finally.
Civil Procedure Code 1908 provides that, in the following suits a preliminary decree may be
passed:

Suit for possession and Mesne profit (Order 20 Rule 12)

Administration Suits (Order 20 Rule 13)
Suits of pre-emption (Order 20 Rule 14)
Suit filed for dissolution of a partnership (Order 20 Rule 15)
Suits related to accounts between the principal and agent (Order 20 Rule 16)
Suit for partition and separate possession (Order 20 Rule 18)
Suits related to the foreclosure of a mortgage (Order 34 Rule 2)
Suits related to the sale of the mortgaged property (Order 34 Rule 4)
Suits for the redemption of a mortgage (Order 34 Rule 7)
However, in Narayanan vs Laxmi Narayan AIR 1953, the Court held that the above-mentioned
list is not exhaustive, and the Court may pass preliminary decree in a suit not enlisted by the
Code.

2. Final Decree
When the Court decides all the matters in controversy and finally disposes of the suit it is
called the final decree.

In, Shankar V. Chandrakant, AIR 1995 SC 1211, the Supreme Court stated:

“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.

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

(I) when the time for appeal has expired without appeal being filed against the preliminary
decree or the matter has been decided by the highest court;

(II) When, as regards to the court passing the decree, the same stands completely disposed
of.

It is the latter sense that the word ‘decree’ is used in section 2(2) of the Code.”

3. Partly Preliminary and Partly Final Decree

Partly preliminary and partly final decree are those where a final decision has been passed in
respect of a part of the suit and other part is left for future adjudication, for example, in a suit
for possession of immovable property with mesne profit, the decree of the Court regarding
the possession is a final decree, whereas the decree about the mesne profit is preliminary in
nature.

4. Deemed Decree
Decrees which does not fulfil the prerequisite of Section 2(2) cannot be termed as a decree
under this Code. However, there are certain orders which are considered as deemed decrees
under Civil Procedure Code, such as, adjudication under order 21 Rule 58, Rule 98 and Rule
100 are deemed decrees. Similarly, rejection of plaint and determination of question under
Section 144 (Restitution) is a deemed decree.

Decree Holder
Section 2(3) of the Civil Procedure Code provides that a decree holder is the person in favour
of whom the decree has been passed or an order which is capable of execution has been
made. A decree holder can be any person.

In Dhani Ram v. Lala Sri Ram, AIR 1980, the Court held that a person who is not a party to the
suit but in whose favour a decree has been passed or an order capable of execution is made
shall be the decree holder.

Order
Section 2(14) of the Civil Procedure Code 1908 defines Order as a formal expression of the
Court of Law of any decision which does not constitute a decree.

An order is an official declaration by the Judge after hearing both the parties to a suit on a
particular issue regarding the matter in dispute. It may not necessarily be the final
determination of the rights of the parties, numerous orders can be passed in a suit or in a
proceeding. Orders may be passed both in case of suit instituted by a plaint or a proceeding
commenced by a petition or an application.

Essential Elements of order:

There must be a formal expression
The formal expression must not be a decree
The decision must be pronounced by the civil court.
Types of Order
There are two types of order:

1. Appealable orders
Appealable orders are those orders against which an appeal lies. Orders mentioned under
Section 104 and Order 43 Rule 1 of the Code are appealable orders, for example, an order
returning a plaint to be presented in proper Court, an order rejecting an application to sue as
an indigent person, etc.

2. Non-appealable orders
Non-appealable orders are those orders against which the party cannot file an appeal, in other
words, the orders against which an appeal does not lie is a non-appealable order.

Classification of Order
Order can also be classified into:

1. Final order – Final order means the order which finally and conclusively determines the
rights of the parties to the suit.

2. Interlocutory Order – Interlocutory orders are the provisional orders or the temporary
orders passed by the Court in the course of litigation. It is also called interim orders.

Following are the instances of certain orders which are not held to be a decree:
Order of remand.
Order granting or refusing interim relief.
Order holding an application to be maintainable.
Order refusing to set a side sale.
Order directing assessment of mesne profit.
Dismissal of appeal for default.
Appointment of commissioner to take account.
Return of plaint for presentation to proper court.
Dismissal of suit under order 23 rule 1.
Rejection of application for condonation of delay.
An order rejecting an application for leave to sue as a pauper.
An order rejecting a leave to institute a suit relating to accounts of a religious endowment.
Order dismissing an application for removal of a trustee under the Indian Trusts Act, 1882.
Order rejecting an application to wind up a company.
References:

C.K. Takawani, Civil Procedure, 6th Edition, 2009, Eastern Book Company.
Samarth Agarwal, Pariksha Manthan Recent & Landmark Case Laws, 1st Edition, 2020.
http://www.legalservicesindia.com/article/1335/Ingredients-of-Decree-and-order-related-
judicial-cases.html
This article is authored by Moumita Paul, B.A.LLB student at Hazra Law College, Calcutta
University.

Also Read – How to File A Caveat Petition in Indian Court?

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