Code of Civil Procedure 1908

Decree and Order

Dr. Khakare Vikas

Asso. Prof.
Narayanrao Chavan Law College, Nanded

Dr. Khakare Vikas

Decree
• sec. 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 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.
Dr. Khakare Vikas
Importance of decree
• It is considered as fruit of a litigation.
• Any relief claimed by plaintiff is provided to him through 'decree'.
• When a suit is allowed by court, it is said that “suit is decreed”.
• It is final order of a court; generally at the end of litigation.
• For execution and appeal copy of decree is essential.

Dr. Khakare Vikas

Essentials for a decree.
• Every decree is an 'order' but every order is not a 'decree. The
essentials for a 'decree' are..
1. There must be adjudication,
2. The adjudication must have been given in a suit before the Court,
3. The adjudication must have determined the rights of parties with
regard to all or any of the matters in controversy in the suit,
4. Such adjudication must be conclusive, and
5. There must be formal expression of adjudication.

Dr. Khakare Vikas

1. There must be adjudication
• Definition of ‘decree’ states that, it is formal expression of
‘adjudication’.
• Adjudication is formal giving or pronouncing of a judgment.
• There must be judicial determination of the matter in dispute
between the parties to litigation.

Dr. Khakare Vikas

2. The adjudication must have been given in a suit
before the Court
• There is no decree unless there is a ‘suit’.
• A suit is concluded by judgment and decree.
• ‘Suit’ is not defined in the Code but it includes a civil or revenue
proceeding which is instituted by presentation of a plaint

Dr. Khakare Vikas

3. The adjudication must have determined the
rights of parties with regard to all or any of the
matters in controversy in the suit
• The adjudication must be on the rights of the parties.
• ‘Rights’ means substantive rights of parties in regard to the subject
matter of the suit but not including merely procedural rights.
• Such rights are claimed by the plaintiff and either allowed or rejected
by the court.

Dr. Khakare Vikas

4. Such adjudication must be conclusive
• Adjudication must be conclusive which means, it should be complete
and final.
• Any order which does not determine rights of party conclusively is not
decree.
• Order passed by a Court must be complete and final as regards the
Court passing it.

Dr. Khakare Vikas

5. There must be formal expression of
adjudication
• There should be formal expression which must be deliberate and
given in the manner provided by law.
• ‘Formal expression’ means all requirements of forms that are
necessary to be observed.

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Types of decree
a. Preliminary decree,
b. Final decree,
c. Partly preliminary and partly final decree.
• Following are deemed decree,
d. Order rejecting plaint,
e. Determination of a question within section 144.
• Following are also considered as kinds of decree
f. Consent decree,
g. Ex-Parte decree.

Dr. Khakare Vikas

a. Preliminary decree
• Where adjudication decides the rights of parties with regard to all matters in
controversy in suit but does not dispose suit completely, will be ‘preliminary
decree’.[ Venkat Reddy v. Petho Reddy, AIR 1963 S.C. 992.]
• A Court may pass preliminary decree as to rights of parties but wait to pass final
decree until it reach to such position. In preliminary decree rights and liabilities of
parties are declared while other matters to be worked out with final decree.
• For example,
• in suit for possession of immovable property with mesne profit, the Court decree
for possession of the property and directs an enquiry into the mesne profit. Here
for possession it is final decree and for mesne profit it is preliminary decree.
• in suit for dissolution for partnership and settlement of account; court may pass
preliminary decree for dissolution and may continue trial for settlement of
account.
Dr. Khakare Vikas
b. Final decree
• A final decree is one which completely dispose suit.
• Final decree fully determines the rights and liabilities of parties and
leaves nothing for future.
• There remains nothing to be determined before the Court.

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c. Partly preliminary and partly final decree
• In such decree Court may dispose of some of issues and leaves other
to be decided in future.
• For example, in suit for possession of immovable property with
mesne profit, the Court decree possession of the property and directs
an enquiry into the mesne profit. Here for possession it is final decree
and for mesne profit it is preliminary decree.

Dr. Khakare Vikas

d. order rejecting plaint
• An order rejecting plaint is deemed decree as it does not fulfil the
requirements of a decree.
• But definition specifically includes ‘order rejecting plaint’ as a ‘decree’.
• A plaint may be rejected on ground of non disclosure of cause of
action, where suit is under valued, where plaint is written on
insufficient stamp, where it is barred by any law, where plaint is not
provided in duplicate, where copies of documents are not provided
for summons . (O.7 R.11)

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e. Determination of a question within section 144

• Determination of question under section 144 is specifically included

in definition of decree.
• Under section 144, party can make application for restitution of
property where decree is varied, modified, reversed or set aside in
appeal.
• It is essential that such order has decided the rights of the parties
with regard to matters in controversy under this section.

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Consent decree and Ex-Parte decree.
• During pendency of suit, defendant may give no objection for the
plaintiff's claim OR parties i.e. plaintiff and defendants may settle
dispute between themselves and submit compromise to the Court.
Court may consider such compromise and pass decree. It is known as
compromise or consent decree. No appeal lies from a consent decree.
• After institution of suit and where summons are duly served to
defendant; if defendant remains absent court may proceed ex-parte.
And ultimately at the end of litigation pass decree in the absence of
defendant. Such decree is considered as ex-parte decree.

Dr. Khakare Vikas

what is not a decree
• Any adjudication from which an appeal lies as an appeal from an
order, or
• Any order of dismissal for default.
• A court may pass an order for dismissal for default if after institution
of suit, plaintiff fails to appear or fails to take appropriate steps in the
suit.

Dr. Khakare Vikas

Order
• Sec. 2 (14) 'Order' means the formal expression of any decision of a
Civil Court which is not a decree.
• Adjudication is either decree or order but it cannot be both. Decree
and order both are formal expression of a decision. There are certain
requisites for a decree.

Dr. Khakare Vikas

 Difference
decree order
1. Decree is formal expression of 1. Order means the formal
an adjudication which conclusively expression of any decision which
determines the rights of the is not a decree.
parties with regard to all or any of
the matters in controversy in the
suit.
2. A decree originates from suit 2. An order originates from an
which is initiated by presenting a application.
plaint.

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 Difference ---
decree
3. A decree finally and completely
determines rights and liabilities
between parties.
4. A decree may be preliminary of
final.
5. Generally every decree is
appealable.
6. Generally only one decree is
passed in a suit. (except where
preliminary decre is passed)
order
3. An order may or may not
determine rights or liabilities of
parties.
4. There are no such types of
order.
5. Some orders are appealable
and some are not.
6. There is no such limitation on
numbers of order in a suit.
Dr. Khakare Vikas
Thank you.

Dr. Khakare Vikas