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TABLE OF CONTENTS
ACKNOWLEDGEMENT ............................................................................................................................. 3
INTRODUCTION ....................................................................................................................................... 4
DECREE .................................................................................................................................................... 5
Essentials of Decree ............................................................................................................................ 5
RIGHTS OF PARTIES AS TO MATTERS IN CONTROVERSY.................................................................... 6
CONCLUSIVEY DETERMINES ................................................................................................................ 7
FORMAL EXPRESSION ......................................................................................................................... 7
PRELIMINARY DECREE ......................................................................................................................... 8
ORDER ................................................................................................................................................... 12
CONCLUSION......................................................................................................................................... 14
BIBLIOGRAPHY ...................................................................................................................................... 15
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ACKNOWLEDGEMENT
I express my heartfelt gratitude to my teacher, Prof. G.P. Sahoo, for
his constant support and guidance. It would not have been possible
for me to accomplish this task without his encouragement.
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INTRODUCTION
Decree and order are the two terms across which one comes very
frequently while dealing with civil matters. The terms have used widely in
the Code of Civil Procedure, 1908.
One may ignorantly say that the two terms are synonymous, but they are
not. They have distinct meanings, and have been defined precisely in
Section 2 of the CPC.
The words decree and order are found in Section 2 of the Code of Civil
Procedure in clause 2 and 14 respectively, they are defined as follows:
(14) "order" means the formal expression of any decision of a Civil Court
which is not a decree;
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DECREE
The adjudication by a court can be distinguished into two categories,
decrees and orders. Orders may again be divided into two categories,
appealable orders and non-appealable orders. It does not matter if the
adjudication is headed order and fulfils all the conditions of Section 2(2),
it will be treated as a decree irrespective of the heading1. Similarly, if an
order has been labelled as decree, it will not be treated as decree unless
the requirements of Section 2(2) are fulfilled. 2
Essentials of Decree
The following conditions must have been fulfilled:
SUIT
1
Adinaryan V Narasimha AIR 1931 Mad 471
2
Chelaram V Manak AIR 1997 Raj 284
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It is essential that for a decree to be passed there must be a civil
suit, in its absence there can be no decree. The expression suit has
not been defined in the code, but the Privy Council, in Hansraj
Gupta V Official Liquidators of the Dehra Dun- Mussoorie Electric
tram way CO. Ltd3, explained suit as a civil proceeding instituted by
a plaint. Some proceedings commenced by an application are
statuary suits, in such cases it is not necessary that there must be a
plaint for the adjudication to be called a decree. Some examples of
statuary suits, contentious probate proceedings, or application to
file an agreement to refer to arbitration, proceedings to set aside
ex-parte decree etc.
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AIR 1933 PC 63
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Kanji Hijri V Jivraj Dharamshi
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order for dismissal of suit due to default of appearance does not
determine the rights of parties, hence, it is not a decree.5
A decision disposing of a suit for default of the party to appear before the
court is dismissal due to default, hence, not a decree.
CONCLUSIVEY DETERMINES
The decision rendered, which determines the rights of the parties as to
matter in controversy in suit, must be conclusive. It means, that the
decision must be final and conclusive as regards the court passing it. A
decision only on the question of limitation does not result in conclusive
determination of rights of the parties as envisaged by Sec. 2(2) CPC.7
Thus, an interlocutory order, which does not decide the rights of the
parties involved finally is not a decree. Example, an order refusing an
adjournment or an order striking out defence of a tenant under the
relevant Rent Act etc.
FORMAL EXPRESSION
All requirements of form must be complied with. Thus, if no decree has
been drawn up, no appeal will lie from the judgment. But this not a strict
5
Gauhati Bank Ltd v Baliram AIR 1950 Assam 169
6
Dattatraya v Radhabai AIR 1921 Bom 220
7
Chela Ram v. Manak AIIR 1997 Raj 284
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rule, if the decision is conformity with Sec. 2(2) CPC and the
requirements as to form have not been complied, it would not make a
difference. A party in whose favour a decision has been passed which has
all the essentials of a decree but has not been headed as such (or other
formal requisites have not been fulfilled), it would not affect the
enforceability of the decree because of failure to comply with
requirements as to formal expression.8
The failure as the requirement of formal expression, also, does not affect
the right to appeal. Under Order 41, rule 1, CPC, as amended by the Code
of Civil Procedure( Amendment) Act, 1999, an appeal lies from the
judgment itself. It is not required that there must be a decree, an
adjudication by a court is enough for filing of appeal.
PRELIMINARY DECREE
An adjudication in which rights of parties are determined as to matter in
controversy, but does not dispose of the suit. A decree passed, while the
suit is pending, is called preliminary decree.
A preliminary decree is one which declares the rights and liabilities of the
parties leaving the actual result to be worked out in further proceedings.
In preliminary decree, also, rights of the parties as to the subject matter
in controversy are determined conclusively. The adjudications made
therein are final and conclusive, and are appealable. Such determinations
made by the court in a matter are conclusive unless challenged in appeal,
the determinations so made become care final and cannot be challenged
in the Final Decree.
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Rajeshwara Rai V. Sohan Law AIR 1957 Pat 398
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When pursuant to the determinations of the court in preliminary, further
inquiries are made and rights of parties are made final, and a decree is
passed in accordance with such determination, it becomes final decree.
The purpose of passing a final decree is to restate and apply with
precision the determination made in the preliminary decree.
“A preliminary decree is one which declares the rights and liabilities of the
parties leaving the actual result to be worked out in further proceedings.
Then, as a result of the further inquiries, conducted pursuant to the
preliminary decree, the rights of the parties are fully determined and a
decree is passed in accordance with such determination which is final.
Both the decrees are in the same suit. A final decree may be said to
become final in two ways:
1) 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;
2) When, as regards the court passing the decree, the same stands
completely disposed of.”
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(1995) 3 SCC 413(416)
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A Akakkukama V. G Papi Reddy AIR 1995 AP 166
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Talebali V Abdul Aziz (Cal)
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There has been conflict of opinions with regard to the question whether
more than one preliminary decree can be passed by the court in a suit.
The Supreme Court has observed in numerous judgments that there is
nothing in the Code which prohibits the courts from passing more that on
preliminary decree.
The Code provides for passing of preliminary decree in the following suits:
5. Suits for accounts between principal and agent Order 20, R.16
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The above list is not exhaustive, but only enumerative. A court may
pass preliminary decree in cases where it is not expressly provided.
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ORDER
2(14) "order" means the formal expression of any decision of a Civil Court
which is not a decree;
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Distinction between decree and order:
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by the decision of the First Appeal12. But, in case of appealable
orders no Second Appeal lie.
CONCLUSION
The two terms decree and order are different, and have different usage in
the code. The two cannot be taken as similar. The code provides different
procedures for the two, for example, Section 96 provides that every
decree passed in exercise of original jurisdiction is appealable, whereas all
orders are not appealable as Section 104 of the code enumerates the kind
of orders which are appealable. This is just one instance, there exist a lot
many differences among the two.
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Section 100 Code of Civil Procedure, 1908
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BIBLIOGRAPHY
The Code of Civil Procedure, 1908.
The Code of Civil Procedure by Sir Dinshaw Farundji Mulla, 16th Edition
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