Introduction
A decree is a significant judicial remedy given by the court in civil proceedings. Section 2 of the Code of Civil Procedure, 1908 (CPC) deals with the definition clause, and subsection 2 of section 2 deals with the decree given by the courts. Under subsection 2 of section 2 of CPC, a decree means the formal expression of the adjudication which, so far as regards the courts 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 it does not include any adjudication from which an appeal lies as an appeal from an order, or any order of dismissal for default.
Essentials of the Decree
It is very evident by looking at the definition of the decree as provided in section 2 (2) of CPC that there are certain elements or ingredients if satisfied will be called as a decree. Those essentials or ingredients as also highlighted by the court in S. Satnam Singh v Surender Kaur are;
- There should be an adjudication
Adjudication is one of the essential ingredients of an order to qualify as a decree. Adjudication means here that the matter in dispute must be decided by the court and not anyone. If there is no judicial determination and a court has not passed the order, then it will not be qualified as a decree. The judicial determination of the dispute must be by the court and the judicial officer. If there is a matter that is merely of an administrative nature and does not judicially deal with the dispute, it will not be qualified as a decree. So, in simple words, there must be a judicial determination of the matter by the officer qualified as court then only the order will be qualified to be called as a decree.
- Such adjudication must have been given in a suit
The suit is another important aspect of the decree. CPC has no specific definition of suit but if we refer to the case of Hansraj Gupta v Official Liquidator of The Dehra Dun Mussoorie Electric Tramway Co. Ltd, where the privy council defined the word suit, and they said that the word ‘suit’ ordinarily means a civil proceeding instituted by the presentation of a plaint. Thus, in every suit, it initiates with the presentation of the plaint and therefore for a decree there must be presentation of the plaint.
It is also to be noted that under certain statutes the application is also treated as a suit. For example, Arbitration and Conciliation, 1996. Under section 36 of the Arbitration and Conciliation Act, although there is no institution of the plaint, but it provides that the arbitral award shall be enforced in the same manner just like a decree. It is a deemed decree and not the one covered under section 2 (2) of CPC.
- It must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit
Determination of the rights of the party is also another aspect of the decree which is also essential. The rights of the parties relating to status, limitation, jurisdiction, frame of a suit, etc. are the “rights of the parties”. The term ‘parties’ means the party to the suit, i.e. plaintiff and the defendant. The rights of the parties are the substantive rights and not procedural one (Diwan Bros v Central Bank of India). The order that does not determine the rights of the parties is not the decree. For example, an order dismissing execution, and an order for dismissal of the suit are not decrees because not determining the rights of the parties.
The expression ‘matter in controversy’ refers to the subject matter of the suit. It covers the question related to the character and status of the party suing, jurisdiction of the court, maintainability of the suit, and any other preliminary matters. In whatever way, if the order is determining the rights of the parties, it is called as decree.
- Such determination must be of a conclusive nature
The determination of the rights must be of conclusive nature and must be final with regard to the court which passes it (Narayan Chandra v Pratirodh Sahim). Any interlocutory order which does not decide the rights of the parties conclusively does not qualify as a decree.
It is to be noted that deciding the rights within section 2(2) of CPC does not mean that the complete suit is disposed of. For example, an order dismissing an appeal holding it not maintainable or a decision dismissing a suit for want of evidence or proofs are decrees inasmuch as they decide the rights of the parties conclusively.
- There must be a formal expression of such adjudication
Formal expression is also one of the essentials of the Decree. There must be a formal expression of the adjudication. The formal expression must be deliberate and given in the manner provided by the law. The decree follows the judgment, and it must be drawn separately. If a decree is not formally drawn up in terms of the judgment, then no appeal lies against such judgment.
Test for determining the order to be decree
To find whether an order is a decree or not, the circumstance under which the order is passed in also relevant. The court to find out, should take into account the pleading of the parties and the proceedings leading up to the passing of that order (Venkata Redyy v Pethi Redd).
Classes of Decrees
Under section 2(2) of CPC, it recognizes the following decrees
- Preliminary decree
Preliminary decree as the name suggests is preliminary to the final decree. When 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 conclusively dispose of the suit, then it is called a preliminary decree. A preliminary decree is passed when the court has adjudicated upon the rights of the parties and then the actual result of the proceeding is to be worked out in the further proceedings. Then, as a result of the inquiry done pursuant to the preliminary decree the rights of the parties are fully determined, and then the final decree is passed by the court. Both preliminary and the final decree are in the same suit and until the suit is disposed of by the final decree it will continue (Shankar v Chandrakant).
One question that arises in the case of a preliminary decree is because a preliminary decree is a step back from the final decree. The question is as to whether only one preliminary decree can be passed before the final decree, or it can be more than one. Different high courts have taken different views regarding this. Some were in favour of only one preliminary decree before the final decree (Joti Prasad v Ganeshi Lal) while others in favour of more than one preliminary decree (Parashuram Rajaram v Hirabai Rajaram). The SC in the case of Phool Chand v Gopal Lal, observed that there can be more than one preliminary decree in a suit as there is nothing provided in the Code that prohibits more than one preliminary decree but the court in this case restricted itself to the case of partition only.
- Final decree
There can be two ways in which the final decree is said to be final, as held in the case of Shankar Balwant Lokhande v Chandrakant Shankar Lokhande,
- 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;
- When, as regards the court passing the decree, the same stands completely disposed of.
It is in the latter sense the word "decree" is used in, s.2(2) of CPC.
Therefore, the appealability of the decree will not affect its character as a final decree. The final decree merely carries into fulfillment the preliminary decree.
In the case of Hasham Abbas Sayyad v Usman Abbas Sayyad, it was held and explained by the court that a preliminary decree declares the rights and liabilities of the parties, however, in a given case a decree can be both preliminary or final. There can be more than one final decree, or the decree can be partly preliminary and partly final, but what can be executed is the Final decree and not the preliminary decree unless the final decree is a part of the preliminary decree. So, the court highlighted the execution aspect of the decree.
- Partly preliminary and partly final decree
Apart from the preliminary decree and the final decree, there can be situations where the situation cannot be qualified for the preliminary or final decree then in such cases a decree may be partly preliminary and partly final. For example, in a suit for possession of the immovable property with the mesne profit, where the court decrees for the possession of the property and also directs an inquiry into the mesne profits.
In such cases, in the first part, the decree is final but in the case of the second case, it is preliminary because the final decree for mesne profits can be drawn only after an inquiry, and the amount due is ascertained. This is partly preliminary and partly final although there is only one decree (Lucy Kochuvareed v P. Mariappa Gounder).
Conclusion
Therefore, it is important to understand the decree under the CPC because the appeal lies against the decree. There are five essential ingredients for an order to qualify as a Decree as provided in Section 2(2) of CPC. The nature of order, whether it is a decree or not can also be construed from the circumstances and the pleadings of the case regarding the fulfillment of the essentials. Section 2(2) recognizes preliminary decree, final decree, and partly preliminary and partly final depending on the facts and circumstances of the case.