DECREE

DECREE

Section 2(2) of the Code defines `decree'. It means the formal expression of adjudication which, so for 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 either be preliminary or final.

Essentials of Decree: In order that the decision of a court may be decree, the following elements must be present:

• There must be 'adjudication'
• Such adjudication must be done in a suit
• Rights of parties in controversy
• Conclusive determination 
• Formal expression 

1. There must be 'adjudication': For a decision of a court to be a decree, there must be an adjudication, i.e., a judicial determination of the matter in dispute. Thus, a decision on the matter of administrative nature or order dismissing a suit for default of appearance of parties cannot be termed as decree as it does not judicially deal with matter in dispute. Supreme Court in Deep Chand v. Land Acquisition Officer, AIR 1994 SC 1901 held that a decision on a matter of administrative nature is not a decree.
2. Such adjudication must be done in a suit: It is necessary for the decree that adjudication must be in a 'suit'. The expression 'suit' is not defined in the Code. In Hansraj Gupta v. Official Liquidator of Dehradun-Mussorie Electric Tramway Co. Ltd., AIR 1933 PC 63, the court defined 'suit' as a civil proceeding instituted by presentation of a plaint. 
3. Rights of parties in controversy: The adjudication must determine the rights of the parties in controversy with regard to all or any of the matters in controversy in a suit. The word 'rights' means substantive rights of the parties and not merely procedural rights. The term 'parties' means parties to the suit, i.e., plaintiff and the defendant. Thus, an order on the application by a third party suit when summons not served, dismissal of application for non prosecution etc. at decrees because they do not determine the rights of the parties in controversy. Matters in Controversy: It means the subject-matter of the suit with reference to which some relief is sought. It would include any question relating to the character and status of a party suing and to ceber preliminary matters which necessitate adjudication before a suit is inquired into.
4. Conclusive determination: Such determination must be of conclusive nature, Le., final as regard the court which passes it. Thus, an interlocutory order which does not decide the rights of the parties finally is not a decree. The crucial point which requires to be decided in such a case is whether the decision is final and conclusive in essence and substance. 
5. Formal expression: There must be formal expression of such adjudication. All the requirements of form must be complied with as given in the manner provided under Rule 6, 6A and 7 of Order 20 of C.P.C.. The decree follows the judgment and must be drawn up separately. 

Deemed Decree

The term 'deemed' is generally used to create a statutory fiction for the purpose of extending the meaning which it does not expressly cover. Under the Code, the definition of 'decree' under Section 2(2) provides that following orders of the court shall be deemed to be decree:

                                                    1. Rejection of plaint under Order 7 Rule 11

     Deemed Decree 

                                                   2. Determination of questions under Section 144 (Restitution)

What are not Decree 

Section 2(2) further clarifies that following orders are not decrees within the meaning of 'decree' under Section 2(2):

(a) An order of dismissal or default.

(b) An adjudication from which an appeal lies as an appeal from order which is specified under Section 104 and Order 43 Rule 1 of the Code.

Classes of Decree 

The Code recognizes following classes of decrees under Section 2(2)

• Preliminary decree
• Final decree
• Partly preliminary and partly final decree

1. Preliminary decree

Explanation to Section 2(2) of the Code provides that where adjudication decides the rights of the parties with regard to all or any of the matters in controversy in the suit but it does not completely dispose of the suit, it is a preliminary decree. A preliminary decree is passed in those cases in which the court has first to adjudicate upon the rights of the parties and has then to stay its hands for the time being until it is in a position to pass a final decree in the suit. 

Supreme Court in Shankar v. Chandrakant, (1995) 3 SCC 413 held that preliminary decree is one which declares the rights and liabilities of parties leaving the actual result to be worked out in further proceedings. For example in case of partition, the first step is to determine the shares of coparceners and it amounts to preliminary decree. The suit is not completely disposed of and the court will proceed further to determine division of the property and its distribution as per metes and bounds.

Suits in which preliminary decree can be passed: The Code provides for passing of preliminary decree in following suits:

1. Suit for possession and mesne profits (Order 20, Rule 12).

2. Administrative suits (Order 20, Rule 13)

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

4. Suits for dissolution of partnership (Order 20, Rule 15)

5. Suit for accounts between principal and agent (Order 20, Rule 16)

6. Suit for partition and separate possession (Order 20, Rule 18)

7. Suit for foreclosure of mortgage (Order 34, Rule)

8. Suit for sale of mortgaged property (Order 34, Rule)

9. Suit for redemption of mortgage (Order 34, Rule 7)

Supreme Court in N.M. Verappa v. Canara Bank, AIR 1998 SC 1101 observed that the above list is not exhaustive. It means the court may pass a preliminary decree in cases not expressly provided under the Code.

Appeal from preliminary decree: An appeal against a preliminary decree can be preferred under Section 96 of the Code. However, Section 97 provides that if such appeal is not made, the person shall be excluded from disputing its correctness in any appeal preferred against final decree. The object of Section 97 is to prevent the preliminary questions being asked at the later stage when the suit has been completely decided. Final decree is dependent on preliminary decree. So if in appeal against the preliminary decree, the preliminary decree is set aside, the final decree falls. 

2. Final Decree 

A final decree, as per Explanation to Section 2(2), is the decree which completely disposes of the suit and finally settles all questions in controversy between parties. It can become final in following ways:

1. Where decree completely disposes of the suit.

2. Where within prescribed period, no appeal is filed against the decree.

The term 'final decree' used in this section is in the first sense i.e. completely disposes of the suit and settles all questions in controversy. There is nothing left to be decided. In 

3. Partly preliminary and partly final Decree 

Such kinds of decrees are passed in certain cases for example suit for possession and mesne profits. In such cases the court directs the possession of land and orders enquiry into the profits. The first part of the decree is final whereas the second part is preliminary. Since the decree is one it is partly preliminary and partly final.