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DECREE

Section 2(2) of the Code of Civil Procedure define decree

“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 matter 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.

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 disposed of the suit. It may
be partly preliminary and partly final.”

ESSENTIALS OF DECREE
 The decision must have been expressed in a suit.
 The decision must have been expressed on the rights of the
parties with regard to all or any of the matters in controversy.
 The decision must be one that conclusively determines the
rights.
 The decision must have been given formal expression as
adjudication.

If all these conditions are fulfilled, the decision is a decree.

In the suit

Every suit is commenced by a plaint and when there is no civil suit,


there is no decree. Some proceedings commenced by an application
are statutory suits so that the decision is a decree e.g., a
contentious probate proceedings, or application to file an agreement
to refer to arbitration proceedings under part III of land
acquisition act by a civil court, proceedings for setting aside an ex
parte decree are in the nature of suits. However proceedings for
leave to sue in forma pauperis, proceedings for leave to institute a
suit for accounts for religious endowments have been held to be the
one not instituted by a plaint, but by an application.

RIGHTS OF PARTIES AS TO MATTERS IN CONTROVERSY

There must have been an adjudication on the rights of the parties.


Any adjudication which conclusively determines the rights of the
parties with regard to any of the matters in controversy in a suit , is
a decree within the meaning of section 2(2). The expression matter
in controversy in the suit means such matter as has been brought up
for adjudication by the court through the pleadings. Thus a decision
on the question of possession as between the landlord and his tenant
in a suit under the rent act is a decision on the rights of the parties
and is a decree. An order of dismissal for default of appearance is
no determination of the rights of the parties and is therefore is not
a decree. So also an order under order 9 rule 2, disimissing a suit
when summons is not served as a consequence of the plaintiffs
failure to pay court fee. Similarly , dismissal of suit as withdrawn
under O23 r 3 CPC is not a decree but an order dismissing the appeal
as withdrawn is a decree for the appeal is brought before the court
and finally disposed off.

The right in controversy in a suit must be a substantive right and


not merely a processual right, for a finding on a processual right is
only to enable the court to inquire into the rights in controversy in
the suit.

A decision disposing of suit and deciding the question of


maintainability in the absence of plaintiff hearing only the
defendant is to be treated as dismissal for default and the order is
not a decree. The order is not appealable but revisable and can be
interfered with under article 227 of the constitution.

CONCLUSIVELY DETERMINES
The expression conclusively determines implies that the decision
must be one that is complete and final as regards the court which
passed it. The decree may conclusively determine the rights of the
parties although it does not completely dispose of the suit.

A decision only on a question of limitation does not result in the


conclusive determination of the rights of the parties envisaged by
2(2) CPC with regard to all or any matter in controversy in a suit.

The adjudication made by trial court on an application for


substitution of legal representatives of deceased does not finally
determine rights of parties and as such does not amount to a decree.
The enquiry under O22 r 5 which is summary in nature is only for the
purpose of continuing the proceedings.

An order allowing withdrawal of suit without liberty to file fresh


suit without any adjudication does not constitute decree.it cannot
debar the defendant from taking defence in second round of
litigation.

An order directing a party to furnish security to raise attachment


of perishable goods is an interlocutory order and cannot be treated
as an order passed adjudicating or determining claims of parties for
attached goods and is not a decree.

An order admitting a second appeal is neither a final order nor an


interlocutory order. It does not amount to a judgement ,decree,
determination, sentence or even order in traditional sense. It does
not decide any issue but merely entertains an appeal for hearing.

FORMAL EXPRESSION
All requirements of form must be complied with. Thus if no decree
has been drawn up , no appeal will lie from the judgement. Howver
the right of a party to prefer an appeal is not affected by the
failure to draw up a decree as that is only formal. And a party in
whose favour a final adjudication has been made up is entitled to
apply for its enforcement in execution even though no formal decree
has been drawn up. Under O 41 r 1 CPC an amendment by the code of
civil (amendment)procedure,1999 brought into force with effect
from july 1 2002 , an appeal lies from the judgement itself and for
the purposes of appeal, drawing of decree is no more essential. It
must be the adjudication by the court.

Where a decision amounts to a decree it is invariably appealable,


unless it is expressly provided that no appeal shall lie from it.
Further where an appeal is preferred from a decision which amounts
to decree and a decree is passed in appeal, a further appeal will lie
to the high court from such decree passed in appeal, if the case
comes within the provision of s 100. This is called a second appeal, on
the case therefore of an adjudication which amounts to a decree,
the law permits an appeal.

Where an adjudication amounts to order , no appeal lies from it,


unless it is enumerated in the list of appealable orders given in s
104or in the list given in O43, r 1 . it matters not that the
judgement is headed as an order, for if, in fact it fulfils the
conditions of the definitions under s 2(2), it is a decree and an
appeal lies.

ABATEMENT OF A DECREE

Abatement of appeal for non substitution is not a decree, since


there is no adjudication on the merits.

The Bombay high court has held that an order holding that the right
to sue did not survive after the death of the original plaintiff
amounted to a decree as it is determined the rights of the legal
representatives.

A compromise decree bears a dual aspect. It is an adjudication ,but


is based on agreement and the principles of contract apply.

An order dismissing a suit as abated is not a decree as there is no


formal expression of an adjudication. An order dismissing an appeal
as abated on ground of not bringing the legal representatives on
record is not a decree.

PRELIMINARY POINT

A decision on a preliminary point, holding that a suit is not


maintainable, is a decree. Similarly ,a decision holding that the court
has no jurisdiction to try and entertain a particular suit is a decree.
However, a finding that the matter is not res judicata , or that the
court has a jurisdiction to try the suit, is not a preliminary decree.
REJECTION OF PLAINT

The definition of decree provides that the rejection of a plaint shall


be deemed to be a decree. Such adjudication therefore is appealable
as a decree. Ad order rejecting a plaint for a failure to pay an
additional court fee as required by the court , is a decree.

A reasoned order passed on merits rejecting plaint is a decree. An


appeal alone will lie against such order and not a petition under at
227 of the constitution.

An order rejecting a plaint is a decree and such decree is not


revisable under s 114 but appealable under s 96 of the code.

The word default in s 2(2) means default of appearance; an order


dismissing a suit for default in payment of costs is a decree
according to the high court of Madhya Pradesh. According to the
high court of patna, however, an order of dismissal for default in
depositing deficiting court fee is not a decree.

REJECTION OF APPEAL

An order rejecting a memorandum of appeal following the rejection


of an application for condonation of delay is not a decree, but an
order and is not appealable. Consequently dismissal of appeal as time
barred is not is also not a decree. However, in some of the decisions,
it has been held that a memorandum of appeal which is time barred
and is dismissed under the limitation act, such dismissal dispose off
the appeal and is appealable as a decree.

DISMISSAL OF APPEAL

An order dismissing an appeal after the dismissal of an appeal is not


a decree. It is true that the rejection of a plaint on the ground of
limitation is a decree and sec 107(2) provides that the appellate
court has the same powers and performs the same duties as are
conferred by the code on the courts of original jurisdiction in
respect of suits. But the order of rejection of memorandum of
appeal does not amount to rejection of the plaint an thus does not
fall within the definition of decree.

Order of dismissal of appeal by the high court under O 41 r 11(1) is a


decree.

EXECUTION PROCEEDINGS

An execution proceedings , though a proceeding in a suit is not a suit


and an adjudication in execution is not a decree.

Before 1976,the determination of a question within s 47 was


included in the definition of decree. In 1976, the determination of a
question within s 47 was deleted from the definition of decree. The
omission of these words by the amendment act 1976, means that
such orders , even though they are made under s 47 are not decrees.
The object of removing the words relating to s 47 was to exclude
appeals in respect of the determination of questions under s 47as
such appeals were found to clog execution proceedings. The
determination of any such question now ceases to be a decree, and
loses its appealability as a decree under s 96.

According to patna high court , however if an order passed satisfies


the essential characteristics of a decree as now defined, the mere
fact that the order was passed in exercise of powers under s 47
would not be of any consequence. According to this view construing
the word suit in 2(2)in its wider meaning, as including proceedings
that are a continuation of a suit in law, the determination in a
proceeding as such in an appeal from a decree or execution of the
decree would be a determination of the suit so as to amount to a
decree.
When the court granted a decree for possession and the respondent
was also found to be entitled to an enquiry in terms of O 20 12 of
CPC in regard to computation of mesne profits from the date of
institution of the suit, till the date of actual delivery of possession,
it would not be correct to contend that the decree was a composite
one.

According to Punjab high court view, after the amendment of 1976,


no appeal lies against a determination under s 47. According to
Gujarat high court under s 47 is not appealable as a decree.it has
dissented from the view of the patna high court.
Classes of decrees
The decrees recognized in the code under the explanation to s 2(2)
are

 Preliminary decree
 Final decree
 Partly preliminary and partly final
 Order rejecting the plaint

An adjudication that finally the right of parties but does not


completely dispose of the suit is a preliminary decree. A preliminary
decree is one which declares the rights and liabilities of the parties
leaving the actual result to be worked out in further proceedings. In
a preliminary decree, certain rights are conclusively determined and
unless the preliminary decree is challenged in appeal the rights so
determined become final and cannot be questioned.

A preliminary decree is not a tentative decree, but decides


conclusively matters concerning the passing of that decree.
Thereafter a final decree is passed, which again decides conclusively
the matters raised therein. A party aggrieved by a preliminary
decree must, under s 97, appeal thereafter.

On the question whether more than one preliminary decree could be


passed, the decisions are conflicting. But the preponderance of
authority is in favour of the view that there can be more than one
preliminary decree. The supreme court has observed that there is
nothing in the code which prohibits the passing of more than one
preliminary decree if circumstances so justify. In some cases it may
be necessarily to do so particularly in partition suits where after a
preliminary decree has been passed, some parties die resulting in the
shares of the other parties being augmented. In such an event the
court can and should pass a second preliminary decree collecting the
shares. If there is a dispute in that regard, the order of the court
deciding the dispute and altering the shares set out in the previously
passed preliminary decree is a decree itself which is subject to
appeal.

A final decree is that after the passing of which he suit is


completely disposed of and no further proceedings are required.

A decree becomes final in two ways-

1) When time to file appeal expired without appeal or the matter


has been decided by the decree of the highest court.

2) Whether decree so far as regards the court passing it


completely disposes of the suit.

A decree may be partly preliminary and partly final. The question of


a decree being partly preliminary and partly final arises only where
the court decides two questions by the same decree. Thus where a
suit is instituted for possession and mesne profits and the court has
passed a decree for possession and mesne profits, there so far as
the decree of possession is concerned is final and so far as the
decree for mesne profits is concerned it is preliminary because a
final decree for mesne profits can only be passed when the amount
of mesne profits is determined or ascertained after due enquiry.

In this case even the decree is only one but the decree is partly
preliminary and partly final.
ORDER
Sec 2 (14) Of CPC defines order-

Order means the formal expression of any decision of civil court


which is not a decree.

The following have held to be an order-

1) Order under s 98 of the representatives of the people act


1951, containing reasons.
2) Award under s 26 of land acquisition act

In the definition of mesne profit under s 2(2), interest is an


integral part of mesne profits and therefore has to be allowed
while computing the same and the grant of it implicit. A review
petition for grant of interest on mesne profits is maintainable
where the court did not grant interest and did not take into
consideration the question of payment of mesne profits of all.
Non award of interest is a patent and glaring mistake.

Order in competent proceedings has been discussed in the case of


onkermull vs padampat

The award of the debt board under the Hyderabad debtors relief
act is not an order. Also the award given by motor accident claim
tribunal does not have the status of a judgement, decree or order
as contemplated by the civil procedure code.
Now let us take some decision which are decree and which are not
decree.

Decision which are decree.

1. Order of abatement of suit.


2. Dismissal of appeal as time barred.
3. Dismissal of suit or appeal for want of evidence or proof.
4. Rejection of plaint for non-payment of court fees.
5. Granting or refusing to grant costs or instalment.
6. Modification of scheme under section 92 of the code.
7. Order holding appeal not maintainable.
8. Order holding that the right to sue does not survive.
9. Order holding that there is no cause of action.
10. Order refusing one of several reliefs.

Decision which are not decree.

1. Dismissal of appeal for default.


2. Appointment of commissioner to take account.
3. Order of remand.
4. Order granting or refusing interim relief.
5. Return of plaint for presentation to proper court.
6. Dismissal of suit under order 23 rule 1.
7. Rejection of application for condonation of delay.
8. Order holding an application to be maintainable.
9. Order refusing to set aside sale.
10. Order directing assessment of mesne profit.
DISTINCTION BETWEEN ORDER AND DECREE

The essence of distinction between a decree and an order seems to


be in the nature of the decision , rather than in the manner or
expression

1) A decree can only be passed in a suit which commenced by


presentation by a plaint. An order may originate from a suit by
presentation of a plaint or may arise from a proceeding
commenced by a petition.
2) A decree is an adjudication conclusively determining the rights
of the parties with regard to all or any of the matters in
controversy. An order may or may not finally determine such
rights.
3) A decree may be preliminary or final or partly preliminary or
partly final. An order cannot be preliminary one.
4) Usually one decree is passed in a suit. But in case of suit or
proceeding, a number of orders may be passed.
5) Every decree is appealable unless otherwise expressly
provided. A first appeal invariably lies from a decree unless it
is expressly provided viz. Sec 96(3) provides that no appeal
shall lie from a decree passed by the court with the consent of
the parties.
ACKNOWLEDGEMENT

I Ayonija of BA.LLB (hons.) pay my gratitude to the my subject


teacher. Prof. G.P.Sahoo for Code of Civil Procedure. Without his
help this endeavour would not have been possible. I’d also like to
thank my friends & class fellows, who helped me in understanding
the topic & gathering resources for the completion of my project. I
would also like to mention that the project has borrowed its content
from books like T.P.Tripathi, Mulla,Takwani also websites such as,
wikieductor, researchgate, academia.edu..,. etc

AYONIJA

Roll.NO-01
THE CODE OF CIVIL PROCEDURE

ORDER AND DECREE

BA.LLB (Hons.)

2016-17

SUBMITTED TO: SUBMITTED BY:

G.P.SAHOO AYONIJA

PROFESSOR BA.LLB Vth semester

DEPT. OF LAW 14137LA001

B.H.U

LAW SCHOOL BANARAS HINDU UNIVERSITY

ENROLLMENT NO.- 371954