Decree, Judgment and Order under Code of Civil Procedure, 1908

by Nikitha | Mar 18, 2020 |Decree, Judgment and Order under Code of Civil Procedure, 1908

An order is nothing but a judgment while a decree is a final part of judgement.

A judgment contains grounds of a decree or an order

The primary difference between decree and order is that the decree is given in a suit, which determines
the substantive (practical, functional, essential) legal rights of the parties concerned, the order is given
in the course of proceedings, and determines the procedural (technical, routine, ceremonial) legal rights
of the parties concerned.

Decree is the operating part of the judgment and which is in harmony with the judgment.

Judgment refers to what the judge writes regarding all the issues in the matter and the decision on each
of the issues. Hence every judgment consists of facts, evidence, findings etc. and the conclusion of the
court.

Decree is the conclusion reached by the judge after hearing both parties on merits and expressing the
same in writing. Basically decree is the subset in the set of judgment.

The decree forms the last part of the judgment and is extracted from the entire judgment by the decree
clerk who contains the basic details and the result of the case. The date of the decree is the date of
judgment for the purpose of execution though it can be signed anytime later even by a successor judge.

The word ‘judgement’ is derived after combining two words namely, judge and statement. It can also
be termed as an act of judging. It is the conclusion or the result of judging. On the other hand, the term
decree can be termed as the judicial decision in a litigated cause rendered by a Court of equity. It is the
determination of a cause in a Court of admiralty or Court of probate. The Court, after the case has been
heard, shall pronounce judgement, and on such judgement a decree shall follow. Section 33 of the Code
of Civil Procedure describes the term ‘Judgement and Decree’ together.

Decree

What is a decree?

A decree as defined under Section 2(2) of Civil Procedure Code, is a formal expression which determines
the interest of both the parties in a conclusive manner, with regards to any disputed matter in a civil
suit. Significantly, a decree is a formal expression of adjudication by which the court determines the
rights of parties regarding the matter in a controversy or a dispute. A set-off or a counterclaim can be
obtained on the decree.
A decree shall be deemed to include

Rejection of a plaint

Determination of any question under Section 144 of the Act.

The decree might not include

Any adjudication from which an appeal lies as an appeal from an order

Any order of dismissal for default

Illustration: In a suit between A and B wherein A claims that a particular property ‘P’ belongs him while B
claims that the said property belongs to him. After hearing all the arguments, the court will rule in the
favor of either A or B. The final decision of the court regarding the above claim i.e. whether the property
belongs to A or B, is a decree.

Essential elements of a Decree

Following are the mandatory elements to be fulfilled for the adjudication to be termed as a decree.

1. Formal expression: There must be a formal expression of adjudication. In simple terms to be a decree,
the court must formally express its decision in the manner provided by law. A mere comment of the
judge cannot be a decree. The decree follows the judgement and must be drawn up separately. If a
decree has not been drawn up, then there is absolutely no scope of an appeal from the judgment i.e. No
appeal lies against the judgement, if the decree is not formally drawn upon the judgement.

2. Adjudication: It means judicial determination of the matter in dispute. Hence, if the decision is of
administrative in nature, then it cannot be considered as a decree. The adjudication must be about any
or all of the matters in controversy in the suit. The court should resolve the matter of controversy
through its own, by applying the facts and circumstances of the case therein.

The Supreme Court in Madan Naik v. Hansubala Devi, held that if the matter is not judicially determined
then, it is not a decree. Also, in Deep Chand v. Land Acquisition Officer, the apex court held that the
adjudication should be made by the officer of the Court, in absence of which it is ought not to be
recognized as a decree.
3. Suit: The Adjudication must have been given in a suit, which is commenced by filing a plaint in a civil
court. Without a civil suit there lies no decree. However, 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, the Land Acquisition Act, etc. They are regarded as statutory suits and the
decision given thereunder are decrees.

In Hansraj Gupta v. Official Liquidators of The Dehra Dun-Missoorie Electric Tramway Co. Ltd., their
Lordship of the Privy Council stated that the word ‘suit’ ordinary means, a civil proceeding instituted by
the presentation of a plaint.”

4. Rights of the parties: ‘Right’ means substantive rights and not merely procedural rights. Similarly, 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. It must have
determined the rights of the parties with regard to all or any of the matters in controversy in the suit.

An order rejecting the application of a poor plaintiff to waive the court costs is not a decree because it
does not determine the right of the party in regards to the matters alleged in the suit. Dismissing a suit
for default in appearance of the plaintiff is not a decree. However, dismissing a suit on merits of the case
would be a decree.

The disputed matter 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 subject.

5. Conclusive Determination: The decision must be one which is complete and final as regards the court
which passed it. This means that the court will not entertain any argument to change the decision i.e. as
far as the court is concerned, the matter in issue stands resolved. For example, an order striking out
defence of a tenant under a relevant Rent Act, or an order refusing an adjournment is not a decree as
they do not determine the right of a party conclusively. An interlocutory order which does not finally
determine the rights of parties is not considered as a decree. On the other hand, out of several
properties in issue in a suit, the court may make a conclusive determination about the ownership of a
particular property. Such a conclusive determination would be a decree even though it does not dispose
off the suit completely.

The Calcutta High Court in Narayan Chandra v. Pratirodh Sahini, held that the determination should be
final and conclusive regarding the court which passes it.

Types of Decree
The Civil procedure code recognises three kinds of decrees

a) Preliminary decree

b) Final decree

c) Partially preliminary and partially final decree

A. Preliminary Decree

A decree is identified as a preliminary decree when an adjudication decides the rights of parties
regarding all or any of the matter in dispute but it does not dispose of the suit completely. In simple
terms, the preliminary decree is passed when the court is compelled to adjudicate upon a certain matter
before proceeding to adjudicate upon the complete dispute. It is considered to be only a former stage.
As held in the case of Mool Chand v. Director, Consolidation, 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.

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

Order 20 Rule 13: Administration Suits

Order 20 Rule 14: Suits of pre-emption

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

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

Order 20 Rule 18: Suit for partition and separate possession

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

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

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

However, in Narayanan vs Laxmi Narayan AIR 1953, it was held that the list given in code is not
exhaustive and a court has the right to pass a preliminary decree in cases not expressly provided for,
within the code.
Illustration: A files a partition suit against B. During the proceedings, the Court passes a preliminary
decree on the share of A and B. Subsequently, after hearing both the parties and the arguments
contended by both, the court passes a final decree adjudicating upon the said partition.

B. Final Decree

A decree is recognised as ‘final’ when it disposes of the suit completely, so far as the court passing it is
concerned. A final decree settles all the issues and controversies between the parties to the suit by the
court of law. Consideration of final decree depends on the facts the following facts

No appeal was filed against the said decree within the prescribed time period.

The disputed matter in the decree has been decided by the highest court.

When it completely disposes off the suit.

Primarily, a civil suit contains only one preliminary and one final decrees. However, in Gulusam Bivi v.
Ahamadasa Rowther, 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. Reinforcing this observation, the
Supreme Court in Shankar v. Chandrakant, finally settled the conflict of opinion and stated that more
than one final decree can be passed in a single suit.

C. Partly preliminary and partly final decree

A decree shall be held as partly preliminary and partly final, when it determines certain disputes but
leaves the rest open for further decision. What is executable is a final decree and the one which is not
executable is a preliminary decree, unless it merges with the final one.

Illustration: ‘A’ filed a suit for the recovery of possession of a property from B. The court passed a partly
preliminary and partly final decree. So far as final decree is concerned if the court granted possession of
the suit property to A; and it was preliminary as even though mesne profits were awarded. In this case,
only the granting of possession of property to A will be executable; however, preliminary decree will be
executable only after the amount due is determined.

Amendment of Decree

On an application by the Plaintiff or the Respondent, under Section 152 of the Civil Procedure Code, any
clerical errors in the decrees can be changed or corrected by the courts themselves. However, the
entitled corrections shall be only be related to the accidental omission or clerical errors and not any
other errors, which may result in gross negligence. Before the execution of such correction by the
courts, it must be satisfied and validly proven that the error was nothing more than a clerical one or an
arithmetical one.

Decree Holder

Under Section 2(3) of the Civil Procedure Code, any person in whose favour a decree or an order capable
of execution has been passed, he/she is referred to as the Decree Holder. Accordingly, any decree
passed in favour of a person who is not even a party to the suit shall also be considered as the Decree
holder under the code.

Judgment

What is a Judgment?

Under Section 2(9) of the Code, Judgment is defined as the statement given by the Judge on the grounds
of a decree or an order. It refers to what the judge observes regarding all the issues in matter and the
decision on each of the issues. Hence, every judgment consists of facts, evidence, findings etc. and the
conclusion made by the court. In simple terms, a judgement is the reasoning given by the judge as to
why the ‘decree’ was given which explains the legal reasoning that formed the basis for the decree,
along with the citation of the relevant case laws, arguments by the counsels, and the conclusions
reached by the Court. It forms the concluding part of a civil suit and it determines the rights and
liabilities of the parties to the suit.

“Judgment – A Judicial determination putting an end to the action by any award or redress to one party
or discharge of the other as the case may be.”

Rule 3 of Order 20 of the code states that the judgment should be signed and dated by the judge while
declaring it in the open court. It further gives provisions that once signed by the Judge, the Judgment
cannot be amended or altered afterwards, except to correct the clerical or arithmetical errors caused
due to accidental slips or omissions, as mentioned in section 152 of the Code or further during the
review.

Essential elements of Judgment

A judgment should possess the essentials of a case, reasoning and basic contention on which it is
delivered or the grounds of the decision.

Judgment of the courts other than that of the Small Causes Court – Rule 4 (2) of Order 20
a) A concise statement of the case

b) The points of determination

c) The decision of the court and

d) The reason for such decision by the court

Judgment of the Small Causes Court

a) The points for determination and

b) The decision thereon

Duration in which the judgment has to be pronounced

The court has to pronounce the judgment in an open court after completion of final arguments, either
on the same day or some other day, after giving due notice to parties or their counsel.

Prior to the Amendment of 1976, no such time limit was specified between hearing of arguments and
delivery of judgment. However, because of persistent demands and as per the suggestion of joint
committee, it was laid that a judgment should be delivered within 30 days of the conclusion of the
proceedings. Unlike in the case of Anil Rai v. State of Bihar in which the judgment was pronounced by
the High Court after 2 years of the final arguments. The Supreme Court had strongly deprecated the
delay and set the provisions of duration in which the judgment had to be pronounced. Per contra, there
is an exception to this rule in certain extraordinary circumstances, which may extend the judgment to
furthermore 60 days.

Copy of judgment

Copies of judgment shall be made available to the parties immediately after the pronouncement of the
judgment for preferring an appeal on payment of such charges as may be specified by the High Court.

Review of judgment

Review means ‘to examine or to study again’. Thus, the review of judgment is to examine or study again
the facts and judgment of the case. It is the substantive power of review by the court, as specified under
Section 114 of the Code. However, the limitations and conditions for review are provided in Order 47
(Rule 1-9) of the Code. The power to review is conferred by law, however, the inherent power to review
vests alone with the court.
Order 47 of Civil Procedure Code deals with the application for review of the judgment which consist of
following rules: –

Rule 1 – Application for review of judgment

Rule 2 – To whom the application for review has to be made

Rule 3 – Application form for review

Rule 4 – Applications where rejected

Rule 5 – Application for review in the court with more than one judge

Rule 6 – Application where rejected under Rule 5

Rule 7 – Order of rejection not appealable, Objections to order granting application

Rule 8 – Registry of application granted, and order for re-hearing

Rule 9 – Bar of certain application

Grounds for review of Judgment

An application for review can be made on various grounds.

When the applicant discovers any new or important evidence which was not known to him/her or due
to negligence not able to provide the evidence while the decree was being passed.

When there is an error apparent on the face of the record which is decided judicially on the facts of each
case. However, an application for review cannot be made on the grounds stating an erroneous decision.

When any other sufficient grounds have been found which is analogous to those specified in the rules
mentioned in the Code.

When a sufficient ground has been established stating the misconception of the court.

Time limit for filing the Review application of Judgment?

As per the Supreme Court Rules, 1966, the Review application shall be filed within the 30 days from the
day the judgment or order passed.

And for appeal against any sentence or judgment in High court, shall be filed within 60 days from the
day of judgment. For the appeal against the death sentence or capital punishment, the limitation period
is 30 days from the passing of order.
Grounds for rejection of application for review

An application for review can be rejected on various grounds. A court can reject the review application
in the following circumstances: –

When the court is satisfied that the application of review is not based on the discovery of new facts,
error apparent on the face of the record or any other sufficient grounds which is analogous to those
specified in these rules.

When the review application has been filed after the expiry of the prescribed time limit for filing of the
application without reasonable excuse.

When the appeal is already on the reviewed order. There will be no further review of any order or
judgment passed on the review order.

When the applicant fails to appear before the court on the date fixed for the review without any
sufficient reason for non-appearance.

When the review application has been made before more than one judge, the decision of majority will
be considered.

Judgment Debtor

A person who is liable to pay a debt or damages to the judgment creditor in accordance with a judgment
entered by a court against him, is called Judgment debtor. In simple terms, a person against whom a
judgment in respect of monetary award has been obtained, is regarded as Judgment Debtor. If a court
renders a judgment involving money damages, the losing party must satisfy the amount of the award,
which is referred to as judgment debt. Such decision grants the judgment creditor, the right to recover
the debt or award through extraordinary means with the help of the court.

Section 2 (10) of the Code defines Judgment debtor as any person against whom a decree has been
passed or an order capable of execution has been made.

Order

The term Order has been defined under Section 2(14) of the Code as the formal expression of any
decision of a civil court which is not a decree.

Essential elements of order are as follows:

It should be a formal expression of any decision.

The formal expression should not be a decree.

The decision to be pronounced by a civil court.

Thus, an adjudication of the court which is not a decree is an order. As a general rule, an order of a court
is founded on the objective considerations and as such judicial order must contain a discussion of the
question at issue and the reasons which prevailed the court which led to the passing of the order.

Orders are of two kinds:

Appealable orders – Orders against which an appeal lies.

Non appealable orders – Orders against which no appeal lies.

Similarly, there are two classes of orders:

Final orders – An order that disposes of all of the claims and adjudicates the rights and liabilities of all
the parties in the suit.

Interlocutory orders – Interlocutory order only settles an intervening matter relating to the cause. Such
orders are made to secure some end and purpose necessary which are essential for the progress of case.
In simple terms, a temporary order issued during the course of litigation is called Interlocutory order.
Also known as the Interim order, is the decision of the court which does not deal with the finality of the
case but rather settles a subordinate issue relating to the main subject matter.

Difference between Judgment and Decree

JUDGMENT DECREE

1. Judgment is defined under Section 2(9) of the Civil Procedure code, 1908. 1. Decree is defined
under Section 2(2) of Civil Procedure code, 1908

2. Judgement means statement given by a Judge of the grounds of decree or order. 2. Decree is an
adjudication conclusively determining the rights of the parties with regards to all or any of the matter in
the controversy.

3. It is not necessary that there should be a formal expression of order in the judgement 3. It is
necessary that there must be formal expression of the decree

4. Judgement states preciously the relief granted. 4. Decree must determinate the rights of the
parties

5. Judgement contains the grounds of decree. 5. Decree follows the judgment.

6. Judgment may be passed in civil suits as well as in criminal cases. 6. Decree is passed in a civil
suit.
7. Judgment is not capable of execution.7. Decree is capable of execution.

Difference between Decree and Order

DECREE ORDER

1. Section 2(2) of the Code of Civil Procedure defines “Decree” 1. Section 2(14) of the CPC defines
“Order”

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. 2. According to Section 2(14) of the said
Code, “order” means the formal expression of any decision of a Civil Court which is not a decree.

3. Decree can only be passed in a suit which commenced by presentation of a plaint. 3. An order may
originate from a suit by presentation of a plaint or may arise from a proceeding commenced by a
petition or an application.

4. Decree may be preliminary or final or partly preliminary and partly final. 4. An order cannot be a
preliminary order.

5. Every decree is appealable 5. Every order is not appealable

Content: Decree Vs Order

1. Comparison Chart
2. Definition
3. Key Differences
4. Conclusion

Comparison Chart

BASIS FOR
DECREE ORDER
COMPARISON

Meaning A decree is the official An order is the official

proclamation of the
adjudication by the judge
explaining the rights of the
parties concerned with
respect to the suit.
announcement of the
decision taken by the court,
defining the relationship of
the parties, in the
proceedings.
 BASIS FOR
DECREE ORDER
COMPARISON

Pass It is passed in a suit It can be passed in a suit

initiated by the initiated by presentation of
presentation of a plaint. plaint, application or
petition.

Deals with Substantive legal rights of Procedural legal rights of

the parties the parties

Defined in Section 2 (2) of the Code of Section 2 (14) of the Code of

Civil Procedure Act, 1908. Civil Procedure Act, 1908.

Ascertainment of It clearly ascertains the It may or may not clearly

rights rights of the parties ascertains the rights of the
concerned. parties concerned.

Number There is only one decree in There can be many orders

a suit. in a suit.

Type It can be preliminary, final It is always final.

or partly preliminary and
partly final.

Appeal It is normally appealable It can be appealable or non-

except if it is specifically appealable.
barred by law.

Definition of Decree

As per section 2(2) of Code of Civil Procedure 1908, a decree is a legal

pronouncement of an adjudication by the court, that ascertains the rights of
the plaintiff and defendant, about all or any matters of the suit. It is derived
from the judgment, i.e. a decree comes into being as and when the judgment is
expressed and not on the date when it is duly signed and authorized.

A decree can be a preliminary or a final one, subject to the further proceedings

required before the disposal of the suit. If in case any of the matters of the suit
is resolved, then it is a preliminary decree, while when all the matters of the
suit are resolved, it is termed as the final decree. A preliminary decree is not
based on the final, but the final decree is based on the preliminary decree.

There are two parties in a decree, namely decree-holder – the individual, in

whose favor the decree is passed and judgment debtor – an individual, against
whom the decree is passed.

Definition of Order

The order can be defined as the legal declaration of the decision, by the judge
or the panel of judges in the court, which does not include a decree,
ascertaining the legal relationships between the plaintiff and defendant, of the
court proceedings, trial or appeal.

In finer terms, an order is the direction given by the judge or court to a party
to the suit, to perform a specific act or refrain him/her from doing certain acts
or direct the public official to take certain actions, is known as an order.

An order is concerned with procedural aspects such as impleadment,

adjournment, amendment or striking out of parties of the contesting parties.

Key Difference Between Decree and Order

The difference between decree and order can be drawn clearly on the following
grounds:

1. The formal proclamation of the adjudication by the court of law

explaining the rights of the parties concerned judgment the suit, is
called decree. The legal announcement of the judgement taken by the
court, defining the relationship of the parties, in the proceedings, is
called an order.
2. A decree is given in a suit initiated by the presentation of a plaint. On
the contrary, an order is given in a suit initiated by the presentation of
the plaint, application or petition.
 3. A decree is concerned with the substantive legal rights of the contesting
parties, whereas the order takes into account the procedural rights of
the parties concerned.
4. While a decree is defined under section 2 (2) of the Code of Civil
Procedure Act, 1908 order is defined under section 2 (14) of the Act.
5. In a decree, the rights of the plaint and defendant are clearly
ascertained. As against this, in case of an order, may or may not clearly
ascertains the rights of the plaint and defendant.
6. There can be many orders in a suit, while there is only one decree in a
suit.
7. A decree can be preliminary, final or partly preliminary and partly final,
whereas an order is always final.
8. A decree is usually appealable, except when it is specifically barred by
law. Conversely, an order is appealable and non-appealable.

Difference between Judgement and Decree

Judgement  Decree
 A decree is based upon
 A judgement is based upon facts. 
judgement.

 Decree always follows a

 Judgment is made prior to decree.
judgement.

 A judgement contains facts of the  A decree contains the outcome

case, the issues involved, the of the suit and conclusively
evidence brought by the parties, determines the rights of the
finding on issues(based on parties with regard to the issues
evidence and arguments).  in dispute in the suit.
  The definition of the word
 The definition of the word decree
judgement given in section 2(9)
given in section 2(2) of Code of
of the Code of Civil Procedure,
Civil Procedure, 1908 includes
1908 does not include the word
the word ‘formal’.
‘formal’. 

 Section 2(9) of the Code of Civil  Section 2(2) of the Code of Civil
Procedure, 1908 describes the Procedure, 1908 describes the
term judgement. term decree.

 A decree is divided into three

 Judgement has no types. 
types.

 Judgement may result in a

 The decree may be a preliminary
preliminary decree or a final
or final or partly preliminary and
decree or an order by itself, the
partly final.
judgement is always final. 

 After passing the decree, the

 Judgement leads to the final
suit stands disposed of since the
disposal of the suit after the
rights of the parties are finally
decree is drawn up.
determined by the court.

Judgement 

Contents of the judgement 

According to Rule 4 Order XX of Code of Civil Procedure, 1908:

 Judgements of a Court of Small Causes are satisfactory if they contain

the points for determination and the decision thereon.
 Judgments of other Courts shall contain:

1. Summary of the pleadings which is a concise statement of the case;

2. Issues which are the points for determination;
3. Findings on each issue and the decision thereon;
4. Ratio decidendi (reasons for such a decision); and
5. The remedy, which is the relief granted.