Dr. Khakare Vikas

Code of Civil Procedure 1908

Decree and Order

Dr. Khakare VikasAsso. Prof.

Narayanrao Chavan Law College, Nanded

Dr. Khakare Vikas

Decree

• sec. 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-

• (a)Any adjudication from which an appeal lies as an appeal from an order, or

• (b)Any order of dismissal for default.

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Importance of decree

• It is considered as fruit of a litigation.• Any relief claimed by plaintiff is provided to him through 'decree'.• When a suit is allowed by court, it is said that “suit is decreed”.• It is final order of a court; generally at the end of litigation.• For execution and appeal copy of decree is essential.

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Essentials for a decree.

• Every decree is an 'order' but every order is not a 'decree. The essentials for a 'decree' are..

1. There must be adjudication,2. The adjudication must have been given in a suit before the Court,3. The adjudication must have determined the rights of parties with

regard to all or any of the matters in controversy in the suit,4. Such adjudication must be conclusive, and 5. There must be formal expression of adjudication.

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1. There must be adjudication

• Definition of ‘decree’ states that, it is formal expression of ‘adjudication’.

• Adjudication is formal giving or pronouncing of a judgment. • There must be judicial determination of the matter in dispute

between the parties to litigation.

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2. The adjudication must have been given in a suit before the Court• There is no decree unless there is a ‘suit’. • A suit is concluded by judgment and decree. • ‘Suit’ is not defined in the Code but it includes a civil or revenue

proceeding which is instituted by presentation of a plaint

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3. The adjudication must have determined the rights of parties with regard to all or any of the matters in controversy in the suit• The adjudication must be on the rights of the parties. • ‘Rights’ means substantive rights of parties in regard to the subject

matter of the suit but not including merely procedural rights.• Such rights are claimed by the plaintiff and either allowed or rejected

by the court.

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4. Such adjudication must be conclusive

• Adjudication must be conclusive which means, it should be complete and final.

• Any order which does not determine rights of party conclusively is not decree.

• Order passed by a Court must be complete and final as regards the Court passing it.

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5. There must be formal expression of adjudication• There should be formal expression which must be deliberate and

given in the manner provided by law. • ‘Formal expression’ means all requirements of forms that are

necessary to be observed.

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Types of decree

a. Preliminary decree,b. Final decree,c. Partly preliminary and partly final decree.• Following are deemed decree,d. Order rejecting plaint,e. Determination of a question within section 144.• Following are also considered as kinds of decreef. Consent decree,g. Ex-Parte decree.

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a. Preliminary decree• Where adjudication decides the rights of parties with regard to all matters in

controversy in suit but does not dispose suit completely, will be ‘preliminary decree’.[ Venkat Reddy v. Petho Reddy, AIR 1963 S.C. 992.]

• A Court may pass preliminary decree as to rights of parties but wait to pass final decree until it reach to such position. In preliminary decree rights and liabilities of parties are declared while other matters to be worked out with final decree.

• For example, • in suit for possession of immovable property with mesne profit, the Court decree

for possession of the property and directs an enquiry into the mesne profit. Here for possession it is final decree and for mesne profit it is preliminary decree.

• in suit for dissolution for partnership and settlement of account; court may pass preliminary decree for dissolution and may continue trial for settlement of account.

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b. Final decree

• A final decree is one which completely dispose suit. • Final decree fully determines the rights and liabilities of parties and

leaves nothing for future. • There remains nothing to be determined before the Court.

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c. Partly preliminary and partly final decree

• In such decree Court may dispose of some of issues and leaves other to be decided in future.

• For example, in suit for possession of immovable property with mesne profit, the Court decree possession of the property and directs an enquiry into the mesne profit. Here for possession it is final decree and for mesne profit it is preliminary decree.

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d. order rejecting plaint

• An order rejecting plaint is deemed decree as it does not fulfil the requirements of a decree.

• But definition specifically includes ‘order rejecting plaint’ as a ‘decree’.• A plaint may be rejected on ground of non disclosure of cause of

action, where suit is under valued, where plaint is written on insufficient stamp, where it is barred by any law, where plaint is not provided in duplicate, where copies of documents are not provided for summons . (O.7 R.11)

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e. Determination of a question within section 144

• Determination of question under section 144 is specifically included in definition of decree.

• Under section 144, party can make application for restitution of property where decree is varied, modified, reversed or set aside in appeal.

• It is essential that such order has decided the rights of the parties with regard to matters in controversy under this section.

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Consent decree and Ex-Parte decree.

• During pendency of suit, defendant may give no objection for the plaintiff's claim OR parties i.e. plaintiff and defendants may settle dispute between themselves and submit compromise to the Court. Court may consider such compromise and pass decree. It is known as compromise or consent decree. No appeal lies from a consent decree.

• After institution of suit and where summons are duly served to defendant; if defendant remains absent court may proceed ex-parte. And ultimately at the end of litigation pass decree in the absence of defendant. Such decree is considered as ex-parte decree.

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what is not a decree

• Any adjudication from which an appeal lies as an appeal from an order, or

• Any order of dismissal for default. • A court may pass an order for dismissal for default if after institution

of suit, plaintiff fails to appear or fails to take appropriate steps in the suit.

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Order

• Sec. 2 (14) 'Order' means the formal expression of any decision of a Civil Court which is not a decree.

• Adjudication is either decree or order but it cannot be both. Decree and order both are formal expression of a decision. There are certain requisites for a decree.

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Difference decree order

1. Decree is formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.2. A decree originates from suit which is initiated by presenting a plaint.

1. Order means the formal expression of any decision which is not a decree.

2. An order originates from an application.

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Difference ---decree order

3. A decree finally and completely determines rights and liabilities between parties.4. A decree may be preliminary of final.5. Generally every decree is appealable.6. Generally only one decree is passed in a suit. (except where preliminary decre is passed)

3. An order may or may not determine rights or liabilities of parties.4. There are no such types of order.5. Some orders are appealable and some are not.6. There is no such limitation on numbers of order in a suit.

Dr. Khakare Vikas

Thank you.