DECREE & ORDER

DECREE [Section 2(2)] Decree means formal expression of an adjudication which so far as
regards the court expressing it, conclusively determines the rights of parties with regard to all
or any of the matter in controversy in suit and may be either preliminary or final.

It shall be deemed to include the rejection of plaint and determination of any question within
the Section 144

but shall not include :-

(a) any adjudication from which an appeal lies as an appeal from an Order.
(b) an order of dismissal for default

Explanation : Decree is preliminary when further proceeding 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

Essential elements of a decree

(i) There must be adjudication.
(ii) Such adjudication must have been given in a suit.
(iii) It must have determined the rights of parties with regard to all or any of the matters in
controversy in suit.
(iv) Such determination must be of conclusive nature.
(v) There must be a formal expression of such adjudication.

ORDER [Section 2(14)]Order means the formal expression of any decision of civil court which
is not a decree (Section 2(14)). Thus the adjudication of a court which is not a decree is an
Order.

DECREE and ORDER : DISTINCTION

The adjudication of court of law may either be decree or Order : Fundamental distinction
between two are:-
(a) Decree can only be passed in a suit which commenced by presentation of plaint. An Order
can be passed in suit by presentation of plaint or may arise from proceeding commenced from
application.
(b) Decree is an adjudication conclusively determining the rights of parties with regard to all
or any of the matter in controversy. Order on the other hand, may or may not finally determine
such rights.
(c) Decree may be preliminary or final, but there cannot be preliminary order.
(d) Except in certain suits in which two decrees i.e. one preliminary and one final is passed,
there can be only one decree, but in suit or proceedings there can be number of orders.
(d) Every decree is appealable unless otherwise expressly provided but every order is not
appealable only those orders are appealable as specified in code.

Various kinds of decree: there are six kinds of Decree :

(i) Preliminary Decree
(ii) Final Decree
(iii) Partly preliminary & partly final decree
(i) Illegal or Irregular Decree
(ii) Void Decree
(iii) Consent /Compromise decree

PRELIMINARY DECREE :
Where an adjudication decides the rights of the parties with regard to all or any of matter in
controversy in suit but does not completely dispose of the suit. It is a preliminary
decree. Explanation added to Section 2(2) also says "Decree is preliminary when further
proceedings have to be take before the suit can be completely disposed of".

CPC provides for passing of preliminary decree in following cases:

(1) Suit for possession and mesne profit (O. 20 R. 12)
(2) Administration Suit (O. 20 R. 13)
(3) Suit for Pre-emption (O. 20 R. 14)
(4) Suit for Dissolution of Partnership Firm (O. 20 R. 15)
(5) Suit for Accounts between Principal and Agent (O. 20 R. 16)
(6) Suit for Partition and Separate Possession (O. 20 R.18)
(7) Suit for foreclosure of Mortgage (O. 34 R. 2-3)
(8) Suit for Sale of Mortgaged Property (O. 34 R. 4-5)
(9) Suit for Redemption of Mortgage (O. 34 R. 7-8)
Question whether decision amounts to preliminary decree or not is a great significance in view
of Section 97 CPC which provides:-
"Where any party aggrieved by Preliminary decree does not appeal from such decree he shall
be precluded from disputing its correctness in any appeal which may be preferred from final
decree."

FINAL DECREE A decree may be said to final in two ways:-

(i) When within prescribed period no appeal is filed against the decree or the matter has been
decided by decree of the highest court.
(ii) When the decree, so far as regards the court passing it completely disposes of the suit.
Normally "Final Decree" is construed which so far as the court passing it, finally dispose of the
controversy involved and the suit.

What is the effect of reversal of the Preliminary decree on the final decree passed by the lower
court during the pendency of appeal against final decree.
Ans. "The effect of the reversal of the preliminary decree on the final decree passed by the
lower Court during the pendency of the appeal against the preliminary decree is that the final
decree is superseded because the final decree is its nature dependent and subordinate, as it is a
decree which has been passed as a result of proceeding directed and controlled by the
preliminary decree and based thereon. Therefore, when a preliminary decree is set aside, the
final decree is automatically superseded, whether the appeal was brought before or after the
passing of the final decree."
In Sital Parshad v. Kishori Lal, AIR 1967 SC 1236 it was observed by Supreme Court that
since the passing of preliminary decree is only a stage prior to the passing of final decree, if an
appeal against a preliminary decree succeeds, the final decree automatically falls to the ground
for there is no preliminary decree thereafter in support of it.

Can an appeal against final decree correctness of the preliminary decree be questioned, when
no appeal has been preferred by aggrieved party against the preliminary decree ?
Ans. Section 97 of Code of Civil Procedure Code, give answer to this, which provides that -
"Whether any party aggrieved by a preliminary decree ......... does not appeal from such decree,
he shall be precluded from disputing it's correctness in any appeal which may be preferred from
the final decree."
So in view of Section 97, in an appeal against final decree, correctness of preliminary decree
cannot be challenged in the absence of any appeal against preliminary decree by aggrieved
party."