Decree In CPC

cpc

Introduction

A decree is one of the frequently heard terms in Civil Matters. The adjudication of a courtroom of law is divided into decree and orders.  The term “decree” has been defined in section 2(2) of the Code of Civil Procedure, 1908. The decree is a proper expression of adjudication by way of which the courtroom determines the rights of parties concerning the matter in controversy or dispute. It can be relating to any or all of the matter in controversy in the match.

Decree may be suggested best in the case of a healthy, i.e., civil proceeding instituted through the presentation of a plaint.

The decree shall encompass the rejection of a plaint in figuring out any query under Section 144, but excludes the following:

  1. Any adjudication from which an attraction lies, together with, an attraction from order.
  2. Any order of dismissal for default.

The Explanation to this segment presents that a decree can either be preliminary or final or in part initial and partly very last. Preliminary decrees are those in which the in shape is not completely disposed of and further proceedings may take place. The final decree is while the Court absolutely disposes of the suit. This article describes all the aspects of a decree i.e, its major elements, types, procedure to pass decree and various rules related to decree with case laws.

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 essentials are required:

  1. There must be an adjudication.
  2. The adjudication must be done in a suit.
  3. The adjudication must be determining the rights of the parties concerning all or any of the matter at issue.
  4. Such determination must be conclusive in nature.
  5. There must be a formal expression of such adjudication.[1]

1. Adjudication

The most essential feature of a decree is that there must be an adjudication, i.e., a proper decision of the Judge on the matter at issue. If there’s no judicial determination, there’s no decree. And such decision must be gone by the Court. Therefore, an order gone by a politician who isn’t a court can’t be termed as decree. In Madan Naik v Hansubala Devi, the Supreme Court held that if the matter isn’t judicially determined, it’s not a decree.[2]

2. Suit

It may be defined as a civil proceeding which is instituted within the Court of Law by the presentation of a plaint. Thus, if there’s no lawsuit, there’s no decree. There are some applications which are being treated as suit, such as, proceedings under, the Indian Succession Act, the Hindu Marriage Act, the Land Acquisition Act, the Arbitration Act, etc. Therefore, decisions given for these matters are considered as decrees within the meaning of Section 2(2) of Civil Procedure Code.[3] Additionally to the present, decisions held by the tribunals are the decrees gone by the tribunal and not the Court decree.

3. Rights of the parties

The adjudication must determine the rights of the parties altogether or any of the matters at issue. If the Court passes an order on procedural ground, such order can’t be termed as a decree, such as, an order dismissing the suit for non-appearance of the parties, or an order refusing to grant leave to sue as a paper, etc.
The term parties mean parties to the suit, i.e., the plaintiff (the one that has instituted the suit) and therefore the defendant (against whom the suit has been filed). In Kanji Hirjibhai Gondalia vs Jivaraj Dharamshi, the Court held that the term parties means the parties to the suit, i.e., the plaintiff and therefore the defendant. Just in case the Court passes an order upon an application of a stranger or a 3rd party during a suit, such order won’t be considered as a decree.[4]

4. Determination must be conclusive

The judicial determination held by the Court of Law must be conclusive and final concerning the rights of the parties to the suit. The provisional decisions or the interlocutory orders can’t be termed as a decree as they’re not the ultimate decision of the Court. Therefore, orders gone by the Court on certain issues and remitting other issues to the court isn’t a decree because it doesn’t determine the rights of the parties conclusively.

5. Formal Expression

There must be a proper expression of the adjudication. The Court must express its decision formally in accordance with the provisions of law.

Classification of Decree

The decree may be classified into:

  1. Preliminary Decree
  2. Final Decree
  3. Partly Preliminary and Partly Final Decree
  4. Deemed Decree

Preliminary Decree

The preliminary decree may be a decree where the Court decides the rights of the parties concerning all or any of the matter in controversy but doesn’t eliminate the suit finally.
Civil Procedure Code 1908 provides that, within the following suits a preliminary decree could also be passed:

  1. Suit for possession and Mesne profit (Order 20 Rule 12)
  2. Administration Suits (Order 20 Rule 13)
  3. Suits of pre-emption (Order 20 Rule 14)
  4. Suit filed for dissolution of a partnership (Order 20 Rule 15)
  5. Suits associated with accounts between the principal and agent (Order 20 Rule 16)
  6. Suit for partition and separate possession (Order 20 Rule 18)
  7. Suits associated with the foreclosure of a mortgage (Order 34 Rule 2)
  8. Suits associated with the sale of the mortgaged property (Order 34 Rule 4)
  9. Suits for the redemption of a mortgage (Order 34 Rule 7)[5]

However, in Narayanan vs Laxmi Narayan AIR 1953, the Court held that the above-mentioned list isn’t exhaustive, and therefore the Court may pass preliminary decree during a suit not enlisted by the Code.

Final Decree

When the Court decides all the matters in controversy and eventually disposes of the suit it’s called the final decree. In, Shankar V. Chandrakant[6], the Supreme Court stated: A preliminary decree is one which declares the rights and liabilities of the parties leaving the particular outcome to be figured out in further proceedings. Then, as a results of the further inquiries, conducted pursuant to the preliminary decree, the rights of the parties are fully determined and a decree is passed in accordance with such determination which is final. Both the decrees are within the same suit.

A final decree could also be said to be final in two ways:

  • when the time for appeal has expired without appeal being filed against the preliminary decree or the matter has been decided by the very best court;
  • When, as regards to the court passing the decree, an equivalent stands completely disposed of.
    It is the latter sense that the word ‘decree’ is employed in section 2(2) of the Code.

Partly Preliminary and Partly Final Decree

Partly preliminary and partly final decree are those where a final judgment has been passed in respect of a part of the suit and other part is left for future adjudication, for instance, during a suit for possession of immovable property with mesne profit, the decree of the Court regarding the possession may be a final decree, whereas the decree about mesne profit is preliminary in nature.

Deemed Decree

Decrees which doesn’t fulfil the prerequisite of Section 2(2) can’t be termed as a decree under this Code. However, there are certain orders which are considered as deemed decrees under Civil Procedure Code, such as, adjudication under order 21 Rule 58, Rule 98 and Rule 100 are deemed decrees. Similarly, rejection of plaint and determination of question under Section 144 (Restitution) may be a deemed decree.
Decree Holder. Section 2(3) of the Civil Procedure Code provides that a decree holder is that the person in favour of whom the decree has been passed or an order which is capable of execution has been made. A decree holder are often a person[7]. In Dhani Ram v. Lala Sri Ramthe Court held that an individual who isn’t a celebration to the suit but in whose favour a decree has been passed or an order capable of execution is formed shall be the decree holder.[8]

Procedure of Passing A Decree

According to Rule 6 of the Order XX of CPC, a decree should be in agreement with the judgment pronounced by the court. As has already been explained that under Section 33 of CPC, a decree shall follow the judgment. Hence, this rule states that a decree should be in consonance with the judgment. The judgment must explain the precise reasons for pronouncing such decree. If the decree and judgment haven’t any link or relation, it’s going to be ground of appeal.

For example, if the judgment explains why a decree of final injunction can’t be given, the decree should be that suit for a final injunction is dismissed. There must be an immediate proportional relationship between the decree and judgment.

Contents of A Decree

The decree shall follow the judgment, agree with it and bear:

  1. The number of the suit
  2. The names and description of the parties and their registered addresses
  3. The particulars of their claims
  4. The relief granted
  5. the amount of costs incurred within the suit , and by whom or out of what property and in what portions are they paid
  6. The date on which the judgment was pronounced
  7. The signature of the judge

Decrees in Special Cases

In suit for recovery of immovable property, the decree shall contain an outline of such property sufficient to spot it, e.g. boundaries, survey numbers etc. A decree for delivery of movable property must state the amount of money to be paid as an alternate if the delivery of isn’t made. During a decree for payment of money, the court may order that the payment of decretal amount shall be postponed or shall be made by installments with or without interest. During a suit for recovery of possession of immovable property, the court may pass a decree:

  1. For possession of property
  2. for past rent or mesne profits or
  3. Direct a search to such rent or mesne profits
  4. direct an inquiry to such future rents or mesne profits
  5. Final decree in respect of rent or mesne profits in accordance with the results of such inquiry.

Rule 12A states: Decree for specific performance of contract for the sale or lease of immovable property: Where a decree for the precise performance of contract for the sale or lease of immovable property orders that the acquisition money or other sum be paid by the purchaser or lessee, it shall specify the amount within which the payment shall be made.

Rule 13 states: Decree in administration suit, Where a suit is for an account of any property and for its due administration under the decree of the Court, the Court shall, before passing the ultimate decree, pass a preliminary decree ordering such accounts and inquiries to be taken and made, and giving such other directions because it thinks fit. Within the administration by the Court of the property of any dead person, if such property proves to be insufficient for the payment fully of his debts and liabilities, an equivalent rules shall be observed on the respective rights of secured and unsecured creditors and on debts and liabilities provable, and on the valuation of annuities and future and contingent liabilities respectively, as could also be effective for the nonce, within the local limits of the Court during which the administration suit, is pending with reference to the estates of persons adjudged or declared insolvent, and every one persons who in any such case would be entitled to be paid out of such property, may are available under the preliminary decree, and make such claims against an equivalent as they’ll respectively be entitled to by virtue of this Code.

Rule 14 states: Decree in pre-emption suit, Where the Court decrees a claim to pre-emption in respect of a specific sale of property and therefore the purchase-money has not been paid into Court, the decree shall:

1. Specify each day on or before which the purchase-money shall be so paid, and

2. Direct that on payment into Court of such purchase-money, alongside the prices (if any) decrees against the plaintiff, on or before the day mentioned in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to possess accused from the date of such payment, but that, if the purchase-money and therefore the costs (if any) aren’t so paid, the suit shall be dismissed with costs. Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct and in thus far because the claims decreed are equal in degree, that the claim of every pre-emptor complying with the provisions of sub-rule (1) shall become in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to suits the said provisions would except for such default, have taken effect; and (b) if and in thus far because the claims decreed are different in degree, that the claim of the inferior pre-emption shall not become unless and until the superior preemptor has did not suits the said provisions.

Rule 15 states that: Decree in suit for dissolution of partnership, Where a suit is for the dissolution of partnership, or the taking of partnership accounts, the Court, before passing a final decree, may pass a preliminary decree declaring the proportionate shares of the parties, fixing the day on which the partnership shall stand dissolved or be deemed to possess been dissolved, and directing such accounts to be taken, and other acts to be done.

Rule 16 states that: Decree in suit for account between principal and agent during a suit for an account of pecuniary transactions between a principal and an agent, and in the other suit not herein before provided for, where it’s necessary, so as to determine the quantity of cash thanks to or from any party, that an account should be taken, the Court shall, before passing its final decree, pass preliminary decree directing such accounts to be taken. The court can give special directions regarding mode of taking accounts.

In other cases of immovable property, if the partition or separation cannot conveniently be made without further inquiry, the court may pass a preliminary decree declaring the rights of the parties and giving necessary directions and thereafter a final decree shall be passed.

A decree where the defendant has been allowed a group off or counter claim against the claim of the plaintiff shall state what amount is thanks to the plaintiff and what amount is thanks to the defendant.[9]

Conclusion

The Code of Civil Procedure lays down provisions to pronounce and issue the choice of the Court and decree is one among them. A decree within the decision of a court which determines the rights at issue between the parties to suit. A decree are often preliminary, final or partly preliminary and partly final. There is also an idea of the deemed decree. A decree is different from order and judgment in some ways.

For the execution of decree Order XXI of the Code lays down the provisions and procedure. A decree is appealable and even second appeal lies to Supreme Court after the primary appeal of a decree. A decree is passed only in civil suits and not in criminal matters.


[1] Takawani, C.K. Civil Procedure, 8th Edition, 2018, Eastern Book Company.

[2] Madan Naik v Hansubala Devi  AIR 1983

[3] The Code of Civil Procedure, 1908.

[4] Kanji Hirjibhai Gondalia vs Jivaraj Dharamshi, AIR 1976,

[5] The Code of Civil Procedure, 1908.

[6] Shankar V. Chandrakant, AIR 1995 SC 1211

[7] The Code of Civil Procedure, 1908.

[8] Dhani Ram v. Lala Sri Ram, AIR 1980,

[9] Takawani, C.K. Civil Procedure, 8th Edition, (Reprint) 2018, Eastern Book Company.

The Code of Civil Procedure, 1908.

Aurthor- sundram joshi (Symbiosis Law School)

Law Library LawBhoomi

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