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.

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 an 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.

Adjudication
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 Devi, if the matter is not
judicially determined then, it is not a decree.
 As held in the Deep Chand v. Land Acquisition Officer, 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.

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.

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.

Conclusive determination
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, 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.

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 lies the judgement if the decree is not formally drawn upon the
judgement.

Illustrations
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. Pethi Reddy, 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:

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;

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.

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

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, 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 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

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 Lal, 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.

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.
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 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. 

In the case of Shankar v. Chandrakant, the Supreme Court finally

settled the conflict of opinion and stated that more than one final decree
can be passed.

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.