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DECREE AND ORDER

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TABLE OF CONTENTS

ACKNOWLEDGEMENT ............................................................................................................................. 3
INTRODUCTION ....................................................................................................................................... 4
DECREE .................................................................................................................................................... 5
Essentials of Decree ............................................................................................................................ 5
RIGHTS OF PARTIES AS TO MATTERS IN CONTROVERSY.................................................................... 6
CONCLUSIVEY DETERMINES ................................................................................................................ 7
FORMAL EXPRESSION ......................................................................................................................... 7
PRELIMINARY DECREE ......................................................................................................................... 8
ORDER ................................................................................................................................................... 12
CONCLUSION......................................................................................................................................... 14
BIBLIOGRAPHY ...................................................................................................................................... 15

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ACKNOWLEDGEMENT
I express my heartfelt gratitude to my teacher, Prof. G.P. Sahoo, for
his constant support and guidance. It would not have been possible
for me to accomplish this task without his encouragement.

I am also thankful to almighty God

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INTRODUCTION
Decree and order are the two terms across which one comes very
frequently while dealing with civil matters. The terms have used widely in
the Code of Civil Procedure, 1908.

One may ignorantly say that the two terms are synonymous, but they are
not. They have distinct meanings, and have been defined precisely in
Section 2 of the CPC.

The words decree and order are found in Section 2 of the Code of Civil
Procedure in clause 2 and 14 respectively, they are defined as follows:

Section 2(2) : "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 matters 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 [3]* * * 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 disposes of the suit, it may be partly preliminary
and partly final

(14) "order" means the formal expression of any decision of a Civil Court
which is not a decree;

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DECREE
The adjudication by a court can be distinguished into two categories,
decrees and orders. Orders may again be divided into two categories,
appealable orders and non-appealable orders. It does not matter if the
adjudication is headed order and fulfils all the conditions of Section 2(2),
it will be treated as a decree irrespective of the heading1. Similarly, if an
order has been labelled as decree, it will not be treated as decree unless
the requirements of Section 2(2) are fulfilled. 2

Essentials of Decree
The following conditions must have been fulfilled:

1) The decision must have been expressed in a suit,


2) The decision must have been expressed on the rights of the parties
with regard to either some or all the matters in controversy,
3) The decision must be one that conclusively determines the rights of
the parties,
4) The decision must have been given formal expression as an
adjudication,
5) If these conditions are fulfilled, the decision in a decree, if not, it is
an order or a finding on an issue.

SUIT

1
Adinaryan V Narasimha AIR 1931 Mad 471
2
Chelaram V Manak AIR 1997 Raj 284

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It is essential that for a decree to be passed there must be a civil
suit, in its absence there can be no decree. The expression suit has
not been defined in the code, but the Privy Council, in Hansraj
Gupta V Official Liquidators of the Dehra Dun- Mussoorie Electric
tram way CO. Ltd3, explained suit as a civil proceeding instituted by
a plaint. Some proceedings commenced by an application are
statuary suits, in such cases it is not necessary that there must be a
plaint for the adjudication to be called a decree. Some examples of
statuary suits, contentious probate proceedings, or application to
file an agreement to refer to arbitration, proceedings to set aside
ex-parte decree etc.

RIGHTS OF PARTIES AS TO MATTERS IN CONTROVERSY


Rights of parties as to matters in controversy in suit must be adjudicated
for a decree to be passed. If the rights of the parties have not been
adjudicated then decree cannot be passed. Any adjudication which
conclusively determines the rights of parties as to matters in controversy
is a decree within Section 2(2) of CPC.

The words ‘matter in controversy in suit’ means such matters as has


been brought u for adjudication by the court through pleadings. Thus, a
question relation to possession of the property between a tenant and a
landlord under the Rent Act is matter in controversy. A decision
determining the rights of the properties with respect to the property will
be termed as decree if it fulfils all other requirements in Sec2(2).4 An

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AIR 1933 PC 63
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Kanji Hijri V Jivraj Dharamshi

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order for dismissal of suit due to default of appearance does not
determine the rights of parties, hence, it is not a decree.5

It is noteworthy to mention that adjudication of rights of parties as to


matters in controversy must not be a processual right; it should be a
substantive right. Because, procedural rights are only for the court to be
enabled to inquire into the substantive rights in controversy.6

A decision disposing of a suit for default of the party to appear before the
court is dismissal due to default, hence, not a decree.

CONCLUSIVEY DETERMINES
The decision rendered, which determines the rights of the parties as to
matter in controversy in suit, must be conclusive. It means, that the
decision must be final and conclusive as regards the court passing it. A
decision only on the question of limitation does not result in conclusive
determination of rights of the parties as envisaged by Sec. 2(2) CPC.7

Thus, an interlocutory order, which does not decide the rights of the
parties involved finally is not a decree. Example, an order refusing an
adjournment or an order striking out defence of a tenant under the
relevant Rent Act etc.

It is worth mentioning that a court may conclusively determine the rights


of parties as to the matter in controversy in the suit, but it may not
dispose of the suit completely. In such cases, it is called preliminary
decree.

FORMAL EXPRESSION
All requirements of form must be complied with. Thus, if no decree has
been drawn up, no appeal will lie from the judgment. But this not a strict

5
Gauhati Bank Ltd v Baliram AIR 1950 Assam 169
6
Dattatraya v Radhabai AIR 1921 Bom 220
7
Chela Ram v. Manak AIIR 1997 Raj 284

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rule, if the decision is conformity with Sec. 2(2) CPC and the
requirements as to form have not been complied, it would not make a
difference. A party in whose favour a decision has been passed which has
all the essentials of a decree but has not been headed as such (or other
formal requisites have not been fulfilled), it would not affect the
enforceability of the decree because of failure to comply with
requirements as to formal expression.8

The failure as the requirement of formal expression, also, does not affect
the right to appeal. Under Order 41, rule 1, CPC, as amended by the Code
of Civil Procedure( Amendment) Act, 1999, an appeal lies from the
judgment itself. It is not required that there must be a decree, an
adjudication by a court is enough for filing of appeal.

A decision amounting to decree, is invariably appealable, unless explicitly


barred by Section 96 CPC. But, an order is not appealable, unless it is so
provided in the list of appealable orders given under Sec. 104 or in list
given in Order 43, rule1.

PRELIMINARY DECREE
An adjudication in which rights of parties are determined as to matter in
controversy, but does not dispose of the suit. A decree passed, while the
suit is pending, is called 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 preliminary decree, also, rights of the parties as to the subject matter
in controversy are determined conclusively. The adjudications made
therein are final and conclusive, and are appealable. Such determinations
made by the court in a matter are conclusive unless challenged in appeal,
the determinations so made become care final and cannot be challenged
in the Final Decree.

8
Rajeshwara Rai V. Sohan Law AIR 1957 Pat 398

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When pursuant to the determinations of the court in preliminary, further
inquiries are made and rights of parties are made final, and a decree is
passed in accordance with such determination, it becomes final decree.
The purpose of passing a final decree is to restate and apply with
precision the determination made in the preliminary decree.

The Supreme Court, in Shankar v. Chandrakant,9 held:

“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.
Then, as a result 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 in the same suit. A final decree may be said to
become final in two ways:

1) When the time for appeal has expired without any appeal being filed
against the preliminary decree or the matter has been decided by
the Highest Court;

2) When, as regards the court passing the decree, the same stands
completely disposed of.”

Preliminary decree cannot be executed until the final decree is passed.10


Both the decrees are in the same suit and if preliminary decree is set
aside, the final decree is superseded.11

It must be mentioned that preliminary decree is not a tentative decree, it


decides the rights and liabilities among the parties conclusively, and a
party aggrieved from a preliminary decree must prefer an appeal under
Sec 97, CPC.

9
(1995) 3 SCC 413(416)
10
A Akakkukama V. G Papi Reddy AIR 1995 AP 166
11
Talebali V Abdul Aziz (Cal)

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There has been conflict of opinions with regard to the question whether
more than one preliminary decree can be passed by the court in a suit.
The Supreme Court has observed in numerous judgments that there is
nothing in the Code which prohibits the courts from passing more that on
preliminary decree.

The Code provides for passing of preliminary decree in the following suits:

1. Suits for possession and mesne profits Order 20, R.12

2. Administration suits Order 20, R.13

3. Suits for pre-emption Order 20, R.14

4. Suits for dissolution of partnership Order 20, R.15

5. Suits for accounts between principal and agent Order 20, R.16

6. Suits for partition and separate possession Order 20, R.18

7. Suits for foreclosure of a mortgage Order 34, R.2-3

8. Suits for sale of mortgaged property Order 34, R.4-5

9. Suits for redemption of a mortgage Order 34, R.7-8

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The above list is not exhaustive, but only enumerative. A court may
pass preliminary decree in cases where it is not expressly provided.

The following have been held to be decrees:

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 there is no cause of action;
10. Order refusing one of the several reliefs.

The following have been held not to be decrees:

1. Dismissal of appeal for default;


2. Appointment of Commissioner to take accounts;
3. Order of remand;
4. Order granting or refusing interim relief;
5. Return of plaint for presentation to the court;
6. Dismissal of suit under O. 23 r. 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 profits.

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ORDER
2(14) "order" means the formal expression of any decision of a Civil Court
which is not a decree;

As has already been pointed out in the beginning, adjudication of a court


of law can be distinguished into two parts viz. decree and order. Decree
has been discussed above in detail.

Section 2(2) CPC, defines order as formal expression of any decision of a


Civil Court which is not a decree. In other words, any formal expression
by any court in any decision is an order. There are certain elements in
common in both of these, but the two are completely different.

Similarities between decree and order

The following similarities can be found in both:

1. Both relate to matters in controversy;

2. Both are decisions given by a courts;

3. Both are adjudications of a court of law;

4. Both are ‘formal expressions’ of a decision

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Distinction between decree and order:

The dissimilarities between decree and order are enumerated


below:

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


presentation of a plaint. An order may originate from a suit
instituted by presentation of a plaint, but an order may originate
from a suit instituted either by presentation of a plaint or
otherwise.

2. A decree is an adjudication which conclusively determines the


rights of the parties as to any or all of the matters in controversy
in a suit. Whereas, an order may or may not determine such
rights.

3. A decree can be preliminary or final, or partly preliminary or


partly final, but an order cannot be preliminary or partly
preliminary.

4. A number of orders can be passed by court in a suit, but (except


in certain cases) only one decree, or one preliminary and one
final can be passed.

5. Every decree is appealable, unless other barred by the Code. But


all the orders are not appealable, only those orders are
appealable which are listed in Section 104, and O. 43 r.1

6. In case of decree it is possible, on certain grounds, that a Second


Appeal may lie to the High Court in case the party is unsatisfied

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by the decision of the First Appeal12. But, in case of appealable
orders no Second Appeal lie.

CONCLUSION
The two terms decree and order are different, and have different usage in
the code. The two cannot be taken as similar. The code provides different
procedures for the two, for example, Section 96 provides that every
decree passed in exercise of original jurisdiction is appealable, whereas all
orders are not appealable as Section 104 of the code enumerates the kind
of orders which are appealable. This is just one instance, there exist a lot
many differences among the two.

The distinction between the two is simple, decree is a formal adjudication


by the court conclusively determining the rights of the parties with regard
to all or any matters in controversy in the suit. And any pronouncement
of the court which is other than decree is an order.

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Section 100 Code of Civil Procedure, 1908

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BIBLIOGRAPHY
The Code of Civil Procedure, 1908.

The Code of Civil Procedure by Sir Dinshaw Farundji Mulla, 16th Edition

Civil Procedure with Limitation Act, 1963, 7th Edition

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