1. Define decree & its types?

2. What do you mean by decree?

3. What are the provisions related to appeal from a decree?

4. What do you mean by Preliminary decree?

5. Can there be more than one Preliminary decree in a civil suit?

6. Define Order?

7. How does it differ from Judgment & decree?

Answer

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Decree - Sec. 2 (2) of the code defines ‘decree’ as A formal expression of an adjudication of the court which Conclusively

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determines the rights of the parties with regard to all or any of the matter's in controversy in the suit. It, is a formal
expression by a court.

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1. Formal expression - It means in a proper format. In every decree. the requirements of 020 R6&7 must be complied with
2. Adjudication It means judicial determination of the matter in dispute. Any Order of a Court which is not an adjudication
is not a decree ea. Dismissal of suit in default.

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3. Rights of Parties in Controversy - The adjudication must have determined the right of the parties. The word "Rights here
means substantive rights & not merely the Procedural rights, thus rights which relate to Character, status,

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Jurisdiction, Limitation etc. are considered as substantive rights. U/s 2 (2) of the Code.

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4. Court → An order passed by an officer who is not a count is not a decree.

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5. Conclusive Determination- Any determination in Order to be a decree must be conclusive in nature. i-e to say the
determination shall be final as regard the court which has passed it.
6. Suit- In order to be a decree the

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1G8E9E9K0F3J must be made in a suit. The word is not define in CPC but the word
signifies - a Civil Proceeding Instituted by the presentation of a plaint
7. Matter in Controversy → The expression matter in controversy refers to Subject matter of the suit with reference to

DEEMED DECREE T
which some relief is sought.
8. Party → The term parties, to the suit are the Plaintiff & the defendants.

"The term "deemed generally used to create a statutory fiction for the purpose of extending the meaning of the word which
it does not expressly cover. Whenever a word 'deemed’ is used in law it implies that the law has Conferred a
particular status on a particular person or a thing.
Sec⋅ 2 (2) of CPC 1908, Confers the status of Decree on the following orders.-
(a) Rejection of Plaint (07 R11)
(b) determination of question u/s 144. (Restitution)

What are not Decrees? Following orders are not decrees -

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

Section 2 (2) of the code recognizes the following 3 types of Decree

1. Preliminary
2. Final decree
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3. Partly Preliminary & Partly Final.

PRELIMINARY DECREE
Any adjudication which decides the rights of the parties with regard to all or any of the matters in controversy in the
suit but it does not completely disposes of the suit, it is a Preliminary decree.
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In Paras Nath V. ST. & Bihar the SC held that a preliminary decree is only a stage of working out the rights of the
parties which are to be finally adjudicated by a final decree, it is a decree which declares the rights & liabilities of the
parties leaving the actual result to be workout in future proceedings.

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 Suits in which Preliminary decree can be passed-
020 R 12, 13, 14, 15, 16 & 18 1034 R2, 4, 7

Can there be more than One Preliminary decrees in a suit?

There is a Conflict of opinion as to whether there can be more than one preliminary decree in a suit. But as regards
partition suit the debate is concluded as the SC in Phoolchand V. Gopal lal has held that there is nothing in the
Court which prohibits padssng of more than one preliminary decree, if circumstances justified the same.

Appeal from Preliminary Decree

An appeal, from P.D Can be proffered u/s 96, however, Sec. 97 provides that if such appeal is not made, the person
shall be excluded from disputing its correctness in any appeal preferred against-final decree.

Final Decree

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A final decree is a decree which completely disposes of the suit, it sets all the question in Controversy b/w the
parties & no further inquiry is to be carried out.

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Generally there is only One final Decree in a suit. However, if two or more cause of actions are joined together than

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there can be more than one final decrees in the same suit. In Shankar V. Chandrakant the SC clarified that there

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can be more than One final decree in the same suit.

Partly Preliminary & Partly final Decree

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The explanation of Sec. 2 (2) says that a decree may, be 'Partly Preliminary' & "Partly final":

Party preliminary & partly final decrees are those where final decision has been passed in respect of a part of the

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suit and other part is left for future adjudication.

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for example: In a suit for possession of Immovable property with Msene Profit a court directs the possession of the

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Immovable property & orders, inquiry into the Msene profit. The first part of decree is final but the second part is
preliminary. Such type of decree is "Called Partly preliminary & partly final decree.

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Section 2 (14) defines Order as “formal expression. of any decision of a Civil Court which is not a decree’.

Judgment

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Section 2 (9) of CPC 1908 defines judgment as statement given by the Judge on the grounds a decree of Order.
In other words Judgment contains reasoning, application of law to the facts and determination of rights.
Judgment shall be pronounced in the open Court either at once or soon after the hearing is concluded.

Concise facts

Every endeavor shall be made to pronounce Judgment within 30 days from the date when the hearing is concluded
but where it is not practicable the court shall pronounce the Judgment not beyond 30 days from the date when
hearing is concluded but where it is not practicable the court shall pronounce judgment not beyond 60 days.
The transcript of the Judgment shall be signed by the Judge, bear the date on which it was pronounced & form part
of the record.

The Judgment shall be dated & signed by the Judge in the open Court.
Contents of Judgment (1)
Judgments of small causes court shall contain points of determination & decision thereon.
Judgment of Courts other than small causes Courts shall contain a concise statement of the case, the points for
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5N1R8T9P9L0O the decision thereon & the reasons for such decisions.
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Difference b/w Decree & Order

Following are the difference b/w Decree & Order
1.) Sec. 2 (2) of CPC 1908 defines Decree as formal expression of an adjudication which, so far as regards the Count
expressing it, conclusively determines the rights of the parties with regard to all of any of the matters in controversy
in the suit. 0O3L
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On the other hand Sec 2 (14) of CPC 1908 defines order as "formal expression of any decision of a Civil Court
which is not a decree”.

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2. A 'Decree' is an adjudication which necessarily involves application of judicial mind.
On the other hand 'Order' is a formal expression of decision which may or may not involve application of judicial mind.

3. A Decree conclusively determines the rights of the parties in Controversy.

On the other hand an 'Order' need not conclusively determined the rights of the parties in controversy.

4.) A 'Decree' may be final, Preliminary or partly preliminary & partly final.
On the other hand there is no such classification in case of order

5) As a Journal rule there is only one final Decree in a suit.

On the other hand there may be number of orders in a proceeding.
6. As a Journal rule every 'decree' is appealable.
On the other hand only those orders are appealable which are mentioned u/s 104.or 043 of the Code.

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7) A Second appeal lie to the HC on certain grounds from decree passed in 1st appeal.
On the other hand no second appeal lie w in case of appealable Orders.

Legal Representative

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Section 2 (11) of CPC 1908 defines legal representative as a person who in law represents the estate of a

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deceased person, & includes any person who intermeddles with the estate of the deceased & where a party sues or
is sued in a representative character the person on whom the estate devolves on the death of the party so swing or
sued.

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When a person against whom or by whom a suit is brought dies during the proceedings the legal representative,
represent him in the Court

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The word legal representative is wider as Compared to legal heir.

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The word legal heir means a person who receives an interest or Ownership of property from his ancestor who has
died intestate, through the tr-

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intermeddles with the property of deceased.
The word legal representative its wider so it includes a person who

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A person is said to intermeddle with the property who has some title over estate of the deceased, though he does
not inherit the property. Tenants & Licensee are included under intermeddler.

A Decree can be executed against a legal representative but the legal representative is bound or liable only to the
extent for which he is accountable of that portion or that portion of property which has come in his hands.

Msene Profit
The Underlying principle based on which the CPC 1908 functions is 'Ubi Jus ibi Remedium” which means where
there is right there is remedy. The Concept of Msene profit devolves from this principle itself.

Sec. 2 (2) defines 'Msene Profits" as those profits which the person in Wrongful possession of such property
actually received of might with ordinary diligence have received there from, together with interest on such profits,
but shall not include profit due to improvements made by the person in wrongful possession.
The object of providing Msene Profit is to Compensate the person who has been kept out of possession & deprived
of enjoyment of his property. It can be claimed against any person who is in wrongful possession of an immovable
property (ex. Trespasser).

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that in order to calculate Msene Profit law does not provide any fixed rule. But the test to calculate
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the mesne profit is not what the Plaintiff has lost. Rather it is what a defendant has gained or might have gained
with hi ordinary diligence.

Msene Profit does not include profit due to improvements made by the person in wrongful possession.

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