TOPIC - DECREE

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 article, are going to discuss the 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.

I. Essentials elements of a Decree

The decree is a decision of the court. For any decision of the court to be a decree, the following essential
elements are required:

1. There must be adjudication.

2. The adjudication should be done in a suit.
3. It must determine the rights of parties regarding the matter in dispute.
4. The determination of the right should be of conclusive nature.
5. There must be a formal expression of such adjudication.

(a) Adjudication
For a decision of the court to a decree, there must be adjudication. The matter in dispute should be judicially
determined. As held in the case of Madan Naik v. Hansubala Devi1, 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 Officer 2, 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
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 suit. If there is no civil suit, there can be no
decree.

1
AIR (1983) 67
2
1994 AIR 1901
1
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
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) Conclusive determination
The determination of rights in controversy in adjudication should be conclusive in nature. As held in the
case of Narayan Chandra v. Pratirodh Sahini 3, the 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
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 judgement. No appeal
lays the judgement if the decree is not formally drawn upon the judgement.

II. Decisions as to Decree

After a detailed study of section 2(2) of the Code of Civil Procedure which defines a decree  and then
analysing 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. Pothi Reddy4, 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 as stated below in the following illustrations:

(a) Decisions considered as a decree

The decisions held to be decree are as follows:

 Order of abetment of suit
3
AIR 1991 Cal. 53
4
1963 AIR 992
2
  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;
(b) 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;
 Order holding an application to be maintainable;
 Order of refusal to set aside the sale;
 The order issuing directions for the assessment of mesne profit.

III. Types of Decree

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

1. Preliminary Decree
2. Final decree
3. A partly preliminary and partly final decree

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 (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, Consolidation5, 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. Chandrakant6 held 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

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

5
Civil Appeal No. 10214 (1983)
6
1995 AIR 1211
4
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

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.

 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 Lal7 , held 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.

1. When no appeal is filed against the decree within a prescribed time period.
2. Matter in the decree has been decided by the highest court.
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1961 AIR 1470
5
 3. When the decree passed by the court disposes of the suit completely.

 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 Rowther8, 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. Chandrakant9, the Supreme Court finally settled the conflict of opinion and
stated that more than one final decree can be passed.

(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.
4. 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,
adjudication under order 21 Rule 58, Rule 98 and Rule 100 are also deemed decrees.

IV. Distinctions
(a) Order and Decree
S.
Decree Order 
No.
1. The decree is passed only in a suit which is An order can be passed in a suit instituted on plaint
commenced by the presentation of the plaint.  as well as from a proceeding commenced on a

8
(1918)
9
1995 AIR 1211
6
 petition application.
Decree determines the right of parties in An order may or may not finally and conclusively
2.
dispute conclusively. determine such rights.
3. A decree can be preliminary or final. An order cannot be preliminary.
In a suit, there can be only one decree except
A number of orders can be passed in a suit or
4. for the suits where a preliminary and final
proceeding.
decree is passed.
Every decree is appealable unless expressly Only the orders specified in this code are
5.
provided. appealable.
The second appeal lies to the High Court There is no provision of the second appeal in case
6.
against the first appeal of a decree. of appealable orders,
 

(b) Judgement and Decree

S.No
Judgement Decree
.
Judgement is the statement of the judge on the For decree, a statement of the ground is not
1.
ground of a decree or an order. required to be given by the judge.
The judgement does not require having a
2. A decree must be a formal expression.
formal expression.
The relief granted is required to be stated A decree determines the rights in dispute
3
preciously in the Judgement. between the parties.
A judgement is passed in a stage prior to
4. A decree is passed after issuing the judgement.
passing a decree.
Judgement is pronounced in civil as well as
5. A decree can be passed only in a civil suit.
criminal matters.

BIBLIOGRAPHY

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1.) BOOKS
 Bare Act – Code of Civil Procedure 1908
 M.P.Jain – Code of Civil Procedure 1908

2.) Websites

 www.indiankanoon.in
 www.lawoctopus.in
 www.legalbites.in