Interpretation Clause: Some of the important words as they have been defined U/s 2 of the Code are as under:
Section -2: In this Act, unless there is anything repugnant in the subject or context-
Section–2 (1) “Code” includes rules.
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 Section-144, but shall not include:-
- any adjudication from which an appeal lies as an appeal from an order, or
- any order for dismissal for default.
Explanation: A decree is preliminary where 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.
Decree [Section-2 (2)] and Order [Section-2 (14)]
Essential Elements of a decree: The decision of a Court can be termed as a “decree” upon the satisfaction of the following elements:-
- There must be an adjudication .
- Such adjudication must have been given in a suit
- It must have determined the rights of the parties with regard to all or any of the matter in controversy in the suit.
- Such determination must be of a conclusive nature, and
- There must be formal expression of such adjudication.
- An Adjudication: Adjudication means “the judicial determination of the matter in dispute”. If there is no judicial determination of any matter in dispute or such judicial determination is not by a Court, it is not a decree; e.g., an order of dismissal of a suit in default for non appearance of parties, or of dismissal of an appeal for want of prosecution are not decrees because they do not judicially deal with the matter in dispute.
- In a Suit: Suit means a Civil proceeding instituted by the presentation of a Plaint. Thus, every suit is instituted by the presentation of Plaint. Where there is no Civil suit, there is no decree; e.g., Rejection of an application for leave to sue in forma pauper is is not a decree, because there cannot be a plaint in such case until the application is granted.
Exception: But where in an enactment specific provisions have been made to treat the applications as suits, then they are statutory suits and the decision given thereunder are, therefore, decrees; e.g., proceeding under the Indian Succession Act, the Hindu Marriage Act, the Land Acquisition Act, the Arbitration Act, etc.
- Rights of the parties: The adjudication must have determined the rights i.e., the substantive rights and not merely procedural rights of the parties with regard to all or any of the matter in controversy in the suit.
“Rights of the parties” under section 2(2). The rights of the parties inter se (between the parties) relating to status, limitation, jurisdictions, frame of accounts, etc. “Rights in matters in procedure” are not included in section 2(2); e.g.,
An order of dismissal for non-prosecution of an application for execution, or refusing leave to sue in forma pauperis, or a mere right to sue, are not decrees as they do not determine the rights of the parties.
- Conclusive Determination: The determination must be final and conclusive as regards the Court, which passes it. An interlocutory order which does not finally decide the rights of the parties is not a decree; e.g., An order refusing an adjournment, or of striking out defence of a tenant under the relevant Rent Act, or an order passed by the appellate Court under Order 41, rule 23 to decide some issues and remitting other issues to the trial Court for determination are not decrees because they do not decide the rights of the parties conclusively. But, An order dismissing an appeal summarily under Order-41, or holding it to be not maintainable, or dismissal of a suit for want of evidence or proof are decrees, because they conclusively decide the rights of the parties to the suit.
- Formal Expression: There must be a formal expression of such adjudication. The formal expression must be deliberate and given in the manner provided by law.
Classes/ Types of Decrees
- Preliminary Decree Final Decree Partly Preliminary & Partly
- Final Decree
Preliminary Decree: Where an 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.
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.
Provisions in the Code for passing of the Preliminary Decrees:
- a. Suits for possession and mesne profit; Order 20 Rule 12
- Administrative Suits; Order 20 Rule 13
- Suits for ,Pre-emption; Order 20 Rule 14
- Suits for dissolution of Partnership; Order 20 Rule 15
- Suits for accounts between principal and agent; Order 20 Rule 16
- Suits for partition and separate possession; Order 20 Rule 18
- Suits for foreclosure of a mortgage; Order 34 Rules 2-3
Besides above the Court has a power to pass a preliminary decree in cases not expressly provided in the Code.
In Phool Chand Vs Gopal Lal A.I.R. 1967, S.C. 1470, the Apex Court has decided that “C.P.C. does not prohibits passing of more that one preliminary decree, if circumstances justify the same and it may be necessary to do so”.
Final Decree: A decree may be final in two ways.
- When no appeal is filled against the decree within the prescribed period or the matter has been decided by the decree of the highest Court;
- When the decree so far as regards the Court passing it, completely dispose of the suit.
“A final decree is one which completely disposes of the suit and finally settles all the questions in controversy between the patties and nothing further remains to be decided thereafter. Under the special circumstances, more than one final decrees can be passed in the same suit, e.g. Where two or more causes of actions are joined together, there can be more than one final decree.
Partly Preliminary and Partly Final Decree: For example, in a suit for possession of immoveable property with mesnes profits, the Courta)
- decrees possession of the property, and
- directs an enquiry into the mesne profits.
The former part of the decree is finally while the later part is only preliminary because the Final Decree for mesne profits can be drawn only after enquiry and ascertainment of the due amount. In such a case, even though the decree is only one, it is Partly Preliminary and Partly Final. Order: Section -2 (14)
An order means the formal expression of any decision of a Civil Court which is not a decree. The adjudication of a court of law may be either Decree or Order; and cannot be both.
Difference Between Decree and Order
|Basic of Distinction||Decree||Order|
|Origin||A decree can only be passed in|
a suit which commenced by
presentation of plaint
|An order may originate from a|
suit, by presentation of a plaint
or may arise from a proceeding
commenced by a petition or an
|Determination of Rights||A decree is an adjudication|
conclusively determining the
rights of the parties with regard
to all or any of the matters in
|A decree may be Preliminary or|
Partly Preliminary or Partly
|Type of Decree||Decree may be Preliminary or|
Party Preliminary or Party Final
|There cannot be a Preliminary|
|No. of Order/ Decree||In every suit, there can be only|
one decree, except in certain
suits, where two decrees, one
Preliminary and one Final are
|In case of suit or proceeding|
number of order may be
|Appeal From||Every decree is appealable|
unless otherwise expressly
|Every order is not appealable.|
Only those orders are
appealable as specified in the
Code i.e. Section 104 & Order
43 Rule 1.
|Second Appeal||A second appeal lies to the High|
Court on Certain grounds from
the decree passed in First
Appeal (Sec. 100). Thus there
may be two appeals
|No Second appeal lies in case|
of appealable orders [Sec.
2(3) “Decree-Holder” means any person in whose favour a decree has been passed or an order capable of execution has been made.
2(5) “Foreign Court” means a Court situate outside India and not established or continued by the authority of the Central Government;
2(6) “Foreign Judgment” means the judgment of a foreign Court;
2(8) “Judge” means the presiding officer of a Civil Court;
2(9) “Judgment” means the statement given by the Judge on the grounds of a decree or order.
2(10) “Judgment-Debtor” means any person against whom a decree has been passed or an order capable of execution has been made.
2(11) “Legal Representative” means a person who in law represents the estate of a deceased person, and includes any person who intermediates with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
2(12) “Mesne Profits” of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession;
The owner of property or any other person who is entitled to have possession of property has a right to the possession of his property and when such person is deprived of such a right by any other person, person, then he is entitled not only to receive back possession of that property but also to damages for wrongful possession from that person.
“Mesne Profits” of property means those profits which the person in wrongful possession of such property actually received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.
The mesne profits are compensation, which is penal in nature.
A decree for mesne profits is to compensate the person who has been kept out of possession even though he was entitled to possession thereof. Against whom Mesne profits can be claimed?
The mesne profits can be claimed with regard to immoveable property only. Generally, person in wrongful possession and enjoyment of immoveable property is liable for mesne profits.
A decree for mesne profit can be passed against a tresspasser or a person against whom a decree for possession is passed, or against a mortgagee in possession of property even after a decree for redemption is passed or against a tenant holding over at will after a notice to quit has been served him.
To ascertain and provide mesne profits it is not what the plaintiff has lost by being out of possession but what the defendant gained or might reasonably and with ordinary prudence have gained by such wrongful possession. Since interest is an integral part of mesne profits, it has to be allowed in the computation of mesne profits itself.
2(14) “order” means the formal expression of any decision of a Civil Court which is not a decree;
2(16) “prescribed” means prescribed by rules;
2(18) “rules” means rules and forms contained .in the First Schedule or made under section 122 or section 125.