ASSIGNMENT

Topic: - A Brief Capsule of a Decree Under CPC:

Submitted By

MOHAMMAD ZIYA ANSARI

BALLB (HONS)
SEMESTER-VI
ENROLLMENT NO- GI- 6492
FACULTY NO- 17BALLB- 72
PROJECT

Submitted To

PROF. SALIL KUMAR

Professor, Faculty of Law

Aligarh Muslim University

ALIGARH-202002 (INDIA)

2019.20

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 ACKNOWLEDGEMENT

I WOULD LIKE TO EXPRESS A DEEP SENSE OF

THANKS & GRATITUDE TO MY PROJECT GUDIE PROFESSOR SALIL

KUMAR SIR FOR GUIDING ME IMMENSELY

THROUGH THE COURSE OF THE PROJECT.

I ALSO THANKS TO MY SENIORS FOR THEIR MOTIVATION &

SUPPORT. I MUST THANKS TO MY CLASSMATES FOR THEIR
TIMELY HELP & SUPPORT FOR COMPLETION OF THIS PROJECT.

LAST BUT NOT THE LEAST, I WOULD LIKE TO THANKS TO ALL

THOSE WHO HELPED ME DIRECTLY OR INDIRECTLY TOWARDS
THE COMPLETION OF THIS PROJECT.

THANKING YOU

MOHAMMAD ZIYA ANSARI

BALLB-3rd Year GI-6492

17BALLB-72

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 SYNOPSIS

1- INTRODUCTION.
2- DECREE – DEFINITION AND CONCEPT.
3- ESSENTIALS ELEMENTS OF A DECREE.
4- DECISIONS CONSIDERED AS A DECREE.
5- DECISIONS NOT CONSIDERED AS A DECREE.
6- TYPES OF DECREE.
7- DISTINCTION BETWEEN DECREE AND ORDER.
8- DISTINCTION BETWEEN DECREE AND JUDGMENT.
9- DISTINCTION BETWEEN DECREE AND JUDGMENT.
10-CONCLUSION.

11-BIBLIOGRAPHY.

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 DECREE UNDER CPC

1-INTRODUCTION:

This Project Work is based on the topic Decree under Civil Procedure Code. In the project I am
going to cover different aspects of Decree under CPC. In simple word we can say that decree
means an official order that has the force of law. It is a formal and authoritative order, especially
one having the force of law. 1A decree is a rule of law usually issued by a head of state,
according to certain procedures. It has the force of law. The particular term used for this concept
may vary from country to country. The executive orders made by the President of the United
States, for example, are decrees. A decree is one of the most frequently heard terms in Civil
Matters. The adjudication of a court of law is divided into decree and orders. In this Project, I
am going to discuss the whole concept, meaning, essentials and other aspects of decree. The term
“decree” has been defined under section 2(2) of the Code of Civil Procedure, 1908. The decree is
a formal expression of adjudication by which the court determines the rights of parties regarding
the matter in controversy or dispute.

2-DECREE – DEFINITION AND CONCEPT:

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.

1
https://www.dictionary.com/browse/decree. visited on 27/04/2020. (3.37 P.M)

2
Sec 2(2) THE CODE OF CIVIL PROCEDURE, 1908
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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.

“Decree-Holder” means any person in whose favor a decree has been passed or an order capable
of execution has been made.3

So, from above we can say that 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 of
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 any adjudication from which an appeal lies as an appeal
from an order, or any order of dismissal for default.

3-ESSENTIALS ELEMENTS OF A DECREE:

Following essential elements are required for any decision of the court to be a decree-

A. There must be an adjudication.

B. The adjudication should be done in a suit.

C. It must determine the rights of parties regarding the matter in dispute.

D. The determination of the right should be of conclusive nature.

E. There must be a formal expression of such adjudication.

Let’s discuss these essentials in details:

3
Sec 2(3) THE CODE OF CIVIL PROCEDURE, 1908
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A-Adjudication

Definition of decree states that it is formal expression of adjudication. Adjudication is formal

giving or pronouncing of a judgment. For a decision of the court to a decree, there must be an
adjudication. The matter in dispute should be judicially determined. As held in the case of
Madan Naik v. Hansubala Devi4, if the matter is not judicially determined then, it is not a
decree. So, if the decision is of administrative nature then it cannot be considered as a decree.
Also, any order for dismissal of suit due to default in the appearance of parties or order for
dismissal of an appeal cannot be considered as a decree.

As held in the Deep Chand v. Land Acquisition Officer5, the adjudication should be made by the
officer of the Court and if it is not passed by an officer of the court then it is not a decree.

B-Suit (Given in Suit)

There is no decree unless there is a suit. A suit is concluded by judgment and decree. For any
decision to be considered as a decree, the adjudication must have been done in suit. The term
“suit” for this context can be understood as “any civil procedure which has been instituted by the
presentation of a plaint”. The decree can only be in a civil suit6. If there is no civil suit, there can
be no decree. There are several specific provisions which enable certain applications to be
treated as suits such as proceedings under the Hindu Marriage Act, the Indian Succession Act
etc. and the decisions therein are to be considered as a decree.

C-Rights in Controversy

4
AIR 1983 SC 676, 1983 (1) SCALE 382, (1983) 3 SCC 15

5
AIR 1975 MP 55
6
Pragji Ranchhod vs Bai Monghi Wd/O Doongersi

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The adjudication must have determined the rights of parties with regard to all or any of the
matters in controversy in the suit. The rights of parties which are in controversy must be
determined by a formal adjudication. The rights determined under this circumstance are
substantial rights and not procedural rights. The parties to the rights in controversy should be the
plaintiffs and defendants and, if an order is passed upon the application made by a third party
who is a stranger to suit then it is not a decree. The matter in controversy should be the subject
matter of the suit regarding which the relief is sought. Any question regarding the status and
characters of party suing, the jurisdiction of the court, maintainability of suit or any other
preliminary matter is covered under this.

D-Adjudication must be conclusive

The determination of rights in controversy in an adjudication should be conclusive in nature. As

held in the case of Narayan Chandra v. Pratirodh Sahini, 7the determination should be final and
conclusive regarding the court which passes it. That’s why an interlocutory order which does not
finally determine the rights of parties is not considered as a decree. The main point to be kept in
mind is that whether the decision made is final and conclusive in essence as well as substance. If
it is so, then the decision will be considered as a decree, else not.

E-Formal Expression of Adjudication

The adjudication should be expressed formally and such formal expression should be given in
the manner prescribed by law. The decree should be drawn separately and it should follow the
Judgment. No appeal lies the Judgment if the decree is not formally drawn upon the Judgment.

Illustrations

After a detailed study of section 2(2) of the Code of Civil Procedure which defines a decree and
then analyzing the procedures laid down in civil proceedings and applying the test for a decision
to be a decree as laid down in the case of Venkata Reddy v. Pethi Reddy8, there are certain
instances when decisions of the Court are considered as decree and there are instances when the
decisions are not considered as decree.
7
AIR 1991 Calcutta 54
8
AIR 1963 SC 992 
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4-DECISIONS CONSIDERED AS A DECREE

 The decisions held to be decree are as follows:

 Order of abetment of suit

 Dismissal of appeal as time-barred;

 Dismissal of suit or appeal due to the requirement of evidence or proof;

 Rejection of plant due to non-payment of court fees;

 Order granting costs and instalments;

 An order refusing costs or instalments;

 An order refusing maintainability of appeal;

 Order denying the survival of right to sue;

 Order stating that there is no cause of action;

 An order refusing to grant one or several reliefs.

5-DECISIONS NOT CONSIDERED AS A DECREE

The decisions which are not considered as a decree are as follows:

 Dismissal of appeal for default;

 Appointment of Commissioner in order to take accounts;

 Order for remand;

 Order granting interim relief;

 An order refusing the grant of interim relief;

 Rejection of plaint in order to present it to the proper court;

 Application rejected for condonation of delay;

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  Order holding an application to be maintainable;

 Order of refusal to set aside the sale;

 The order issuing directions for the assessment of means profit.

6-TYPES OF DECREE

The Code of Civil Procedure recognizes the following three types of decrees.

A. Preliminary Decree

B. Final decree

C. A partly preliminary and partly final decree

A-Preliminary Decree

A decree is stated as a preliminary decree when the rights of parties regarding all or any of the
matter in dispute are determined in the adjudication but it does not dispose of the suit
completely. The preliminary decree is only a prior stage. A preliminary decree is passed by the
courts mainly when the court has to adjudicate upon the rights of the parties and then, it has put
the matter on hold unless the final decree of that suit is passed. As held in the case of Mool
Chand v. Director, Consolidation,9 a preliminary decree is only a stage to work out the rights of
parties until the matter is finally decided by the Court and adjudicated by a final decree.

The Supreme Court in the case of Shankar v. Chandrakant 10held that the preliminary decree is
a decree in which the rights and liabilities of parties are declared but the actual result is left to be
decided in further proceedings. A preliminary decree can be passed by the court in the following
suits as provided by the Code of Civil Procedure, 1908

Order 20 Rule 12: Suit for possession and Mesne profit

9
AIR 1995 SC 2493.

10
AIR 1995 SC 1211
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When there is a suit related to possession of immovable property or for rent or mesne profit then
in such cases preliminary decree can be passed.

Order 20 Rule 13: Administration Suits

When a suit is of the nature of administration suit, then a court is empowered to pass a
preliminary decree.

Order 20 Rule 14: Suits of pre-emption

When there is a suit for claiming pre-emption regarding sale or purchase of a particular property
then the court can pass a preliminary decree.

Order 20 Rule 15: Suit filed for dissolution of a partnership

When there is a suit for dissolution of the partnership or for the partnership account to be taken,
then the court may pass a preliminary decree.

Order 20 Rule 16: Suits related to accounts between the principal and agent

In a suit related to the pecuniary transaction between the principal and agent or any other matter,
if required, the court may pass a preliminary decree.

Order 20 Rule 18: Suit for partition and separate possession

When the suit is related to partition or for separate possession of share then the court may pass a
preliminary decree.

Order 34 Rule 2: Suits related to the foreclosure of a mortgage

When there is a suit related to the foreclosure of mortgage then under Rule 2 of Order 34, a court
is empowered to pass a preliminary decree.

Order 34 Rule 4: Suits related to the sale of the mortgaged property

In suits related to the sale of the mortgaged property, the court is empowered under Rule 4 of
order 34 to pass a preliminary decree.

Order 34 Rule 7: Suits for the redemption of a mortgage

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When a suit is filed before the court regarding the matter of redemption of the mortgaged
property, the court is empowered under Rule 7 of Order 34 to pass a preliminary decree

One question may arise and that is Can there be more than one preliminary decree? There is a
conflict of opinion regarding this question that whether there can be more than one preliminary
decree in the same suit or not. Some High Courts are of the view that there can be more than one
preliminary decree while some of the High Courts are against this view.

The Supreme Court in the case of Phoolchand v. Gopal Lal, 11held that nothing in the Code of
Civil Procedure prohibits passing of more than one preliminary decree if the circumstance
requires or if required by the Court. But it should be noted that this decision was given by the
Court regarding partition suits.

B-Final Decree

The final decree is a decree which disposes of a suit completely and settles all the matter in
dispute between the parties. The final decree does not leave any matter to be decided further.

It is considered as a final decree in the following ways.

a) When no appeal is filed against the decree within a prescribed time period.

b) Matter in the decree has been decided by the highest court.

c) When the decree passed by the court disposes of the suit completely.

Here again one question may arise and that is Can there be more than one final decree?
Ordinarily, in one suit there is one preliminary and one final decree. In the case of Gulusam
Bivi v. Ahamadasa Rowther12, the Madras High Court in the light of Order 20 Rule 12 and 18
stated that the code nowhere contemplates more than one preliminary or final decree.

In the case of Shankar v. Chandrakant13, the Supreme Court finally settled the conflict of
opinion and stated that more than one final decree can be passed.
11
AIR 1967 SC 1470

12
AIR 1919 Mad 998

13
Ibid
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C-Partly preliminary and partly final decree

A decree passed under the Code of Civil Procedure may be partly preliminary and partly final.
This happens some part of the decree is preliminary decree while the rest is a final decree.

Illustrations

If there is a suit of possession of an immovable property along with the issue of mesne profit,
and the court is obliged.

1. Passes a decree deciding the possession of the property.

2. Directs for an enquiry of mesne profit.

The first part deciding the possession of the property is final while the part regarding the mesne
profit is preliminary.

Deemed decree

An adjudication which does not formally fall under the definition of decree stated under section
2(2) of the Code of Civil Procedure but due to a legal fiction, they are deemed to be decrees are
considered as deemed decrees.

Rejection of plaint and determination of the issue of restitution of decree are deemed decree.
Also, an adjudication under order 21 Rule 58, Rule 98 and Rule 100 are also deemed decrees.

Let’s discuss the distinctions between decree and order

7-DISTINCTION BETWEEN DECREE AND ORDER

The essence of the distinction between decree and order lies in the nature of the decision rather
than the manner of its expression. The main distinctions between the two are as follows: -

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 A. A decree can only originate from a suit commenced by presenting a plaint. But an order
may originate from any suit, it generally arises from a proceeding commenced on an
application.

B. A decree is an adjudication which conclusively determines the rights of the parties with

regard to any or all matters in controversy. On the other hand, an order may or may not
finally determine the rights of the parties.14

C. A decree may be preliminary or final but there is no such distinction in order.

D. Except in certain suits where two decrees, one preliminary and the other final, are passed,
in every suit, there is only one decree. On the other hand, many orders can be passed in a
single suit.

E. A first appeal always lies from a decree, unless otherwise expressly provided by section
96 of C.P.C. Appealability is the rule and Non – Appealability is the exception in the case
of a decree. However, no appeal lies from an order, unless it is one of the appealable
orders according to section 104 or Order 43 of C.P.C.15

F. In case of a decree, an aggrieved party has the right to second appeal on the grounds
mentioned in section 100 of C.P.C. But in case of an appealable order, an aggrieved party
does not have the right to the second appeal.

8-DISTINCTION BETWEEN DECREE AND JUDGMENT:

A. A decree must be a formal expression. But the judgment does not require to have a
formal expression.

14
https://lawtimesjournal.in/judgement-decree-order-cavet/ visited on 28/04/2020 at 9.49 P.M.

15
http://ijtr.nic.in/APPELLATE%20JURISDICTION.pdf visited on 29/04/2020 at 9.49 P.M.

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 B. For decree, a statement of the ground is not required to be given by the judge. But
judgment is the statement of the judge on the ground of a decree or an order.

C. A decree can be passed only in a civil suit but Judgment is pronounced in civil as well as
criminal matters.

D. A decree determines the rights in dispute between the parties and on other hand the relief
granted is required to be stated preciously in the Judgment.

E. A decree is passed after issuing the Judgment but a judgment is passed in a stage prior to
passing a decree.

9-DISTINCTION BETWEEN DECREE ORDER AND JUDGMENT:

A. It is the decree or order which is capable of execution and not the Judgment.

B. Decree and order always follow the Judgment while the judgment contains the grounds of
both decree and order.

C. Judgment is superior in form and if decree or order are not in accordance with it, they
may be altered.

D. It is the decree or order which is appealable and not the judgment.

E. Decree and order have different kinds but that is not a case with the judgment.

10-CONCLUSION:

In this whole project I have gone through different aspects of decree under Code of Civil
Procedure. So, after observing each and every aspects of decree under CPC, I would like to

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conclude my project work with the few lines and they are as- The Code of Civil Procedure lays
down provisions to pronounce and issue the decision of the Court and decree is one of them. A
decree in the decision of a court which determines the rights in dispute between the parties to
suit. A decree can be preliminary, final or partly preliminary and partly final. There is also a
concept of the deemed decree. A decree is different from order and judgment in many ways. For
the execution of decree Order XXI of the Code lays down the provisions and procedure. A
decree is appealable and even second appeal lies to High Court after the first appeal of a decree.
A decree is passed only in civil suits and not in criminal matters.

11-BIBLIOGRAPHY

To complete this project, I have taken the help from following sources

Books

 Takwani, C.K, Civil Procedure with Limitation Act, 1963, Eastern Book Company,

Delhi, 2020

 Jain M.P, The Code of Civil Procedure, Lexis Nexis, Allahabad, 2019.

Websites
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 https://indiankanoon.org/doc/1581945/?type=print

 https://www.legalcrystal.com/

 https://www.scribd.com/document/318849653/Cpc-Project

**********

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