Decree – Complete Details

INTRODUCTION 

“A decree is a final adjudication upon substantive legal rights of the parties”.

In other words, decree is a last proceeding of any civil case ,thereafter the case comes to an end and nothing remains pending in that case.

It will brings to an end to the suit particularly if it is a final decree.

Decree is defined in sub clause (2) of section 2 of civil procedure code 1908, according to which a 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 under section 144 of the code, but shall not include-

(a) any adjudication from which an appeal lies an appeal from an order

(b) any order for 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.

Essential Elements of decree

  1. There must be an adjudication.
  2. Such an adjudication must have been done in a suit.
  3. such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit.
  4. Such determination must be of a conclusive nature.
  5. There must be a formal expression of such adjudication by he court.

 Against the decrees, appeal can made per se as per Section 96(1) CPC, appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decision of such court.

Kinds of decree

  1. Preliminary
  2. Final
  3. Partly preliminary and partly final

 

  1. Preliminary decree Where any adjudication decides the rights of the parties with regard to all or any of the matters in controversy in the suit, but does not completely dispose of the suit , it is a preliminary decree(s).

In other words , a preliminary decree is only a stage in working out the rights of the parties which are to be finally adjudicated by a final decree.

Court can pass Preliminary decree(s) in following cases

(1)Suit for possession and mesne profit order 20, Rule 12

(2) Administration suits order 20, Rule 13

(3) Suits for pre-emption  order 20, Rule 14

(4)Suit for dissolution of partnership under order 20, Rule  15

(5) suit for accounts between principal and agent under order 20, Rule 16

(6) suit for partition and separate possession order 20, Rule 18

(7) suit for foreclosure of a mortgage order 34, Rule 2-3

(8) suit for sale of mortgaged property order 34, Rule 4-5

(9) suit for redemption of a mortgage order 34, Rule 7-8

 

Narayanan thampi versus Lakshmi Narayana Iyer, AIR 1953 T.C

The Hon’ble Court said that, the list given by the code is not exhaustive and the court may pass preliminary decrees in cases which is not expressly provided in the code.

 

(2) Final decree –  It may be said to be final in two ways-

(a) when within the prescribed period no appeal is filed against the decree or the matter has been decided by the decree of the highest court,

(b) when the decrees, so far as regards the court passing it, completely disposes of the suit.

 In other words,  A final decree is one which completely disposes of a suit and finally settles all questions in controversy between parties and nothing  remains to be further decided thereafter.

Gulusam Bivi VS. Ahamadasa Rowther 1919, Madras HC, The Court observed that there could be more than one preliminary and also more than one final decree in a suit.

 

(3) Partly preliminary and partly final–  A decree may be partly preliminary and partly final , i.e. in a suit for possession of immovable property alongwith Mesne profits where the court –

(a) directs possession of the property

(b) directs an inquiry into the mesne profits.

The formal part of the decree(s) is final while the latter part is only preliminary because the final decree for mesne profits can be drawn only after enquiry, and the  amount due is ascertained, in such a case , even though the decree is only one , it is partly preliminary and partly final.

Decisions of the court which are decree

(1) order of abatement of the suit.

(2) Dismissal of appeal as time barred.

(3) Dismissal of suits or appeals for want of evidence or proof.

(4) Rejection of plaint for non payment of court fees.

(5) Granting or refusing to grant costs or installment.

(6) modification of scheme under section 92 C.P.C.

(7) order holding appeal not  maintainable.

(8) order holding by court that the right to sue does not survive.

(9) order holding by court that there is no cause of action.

(10) order refusing one of several reliefs.

Decisions of the Court which are not decree

(1) Dismissal of appeal for default.

(2) Appointment of commissioner to take account.

(3) order for remand.

(4) order granting or refusing to grant 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 profits.


 

Also Read :

Deemed Decree

Interpleader Suit

 

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