Decree | Brief Explanation of Decree

 Introduction of code of civil procedure, 1908.

                This Act may be cited as the code of civil procedure,1908. It shall come into force on the 1^st January,1909. It extends to the whole of India except the state of "Jammu and Kashmir".

Decree

Definition of decree:

                Decree define under section 2(2) of the code of civil procedure,1908. In following words.

             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 regards 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 it 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.

Decree

 Explanation:

                The decree is not an order. The decree is a formal expression of an adjudication given by the court. A decree is an official order, this order is drafted by the judge and also it is issued by the judge. A decree is preliminary, when some of the matters are solved in the suit, is not completely disposed of further proceeding in the suit are remaining. It is final decree when all the matters solve, the suit completely disposed of. Decree may be partly preliminary and partly final.

Essential elements

                In order that decision of a court may be a “decree”, the following elements must be present.

a)       There must be an adjudication.

b)      Such adjudication must have been done in a suit.

c)       It must have determined the rights of the parties with regards to all or any of the matters in controversy in suit.

d)      Such determination must be conclusive nature. And,

e)      There must be a formal expression of such adjudication.

 

a)      Adjudication:

The Black Law Dictionary (6^th Edn) at p 42.

                The legal process of resolving dispute. The formal giving or pronouncing a judgement or decree in a court proceeding, also the judgement or decision given. The entry of decree by a court in respect to the parties in a case. It implies a hearing by a court, after notice of legal evidence on the factual issues involved.

Explanation: There must be an adjudication for decision of court to be a decree.

Case Laws:

Madan Naik v/s Hansubala devi ,(1983) 3 SCC 15:AIR 1983 SC 676.

     The court held that, a judicial determination of the matter in dispute. If there is no judicial determination of any matter in a dispute, it is not a decree.

Motilal v/s Padmaben, AIR 1982 Guj 254: (1982) 2 Guj LR 107: 1982 Guj LH 349.

                The court held that, thus a decision on a matter of an administrative nature, or an order dismissing a suit for default of appearance of parties or dismissing an appeal for want of prosecution cannot be termed as a decree inasmuch as it does not judicially deal with the matter in dispute.

Deep chand v/s. Land Acquisition Officer, (1994) 4 SCC 99 at p. 102: AIR1994 SC 1901 at p.1903: Diwan Bros. v/s. Central Bank of India, (1976) 3 SCC 800: AIR 1976 SC 1503.

                The court held that, further, such judicial determination must be by a court. Thus an order passed by an officer who is not a court is not a decree.

b)      Suit:

The expression suit is not defined in code. But in Hansraj Gupta v/s. Official Liquidators. The privy council have defined following words.

         “The word ‘suit’ ordinarily means a civil proceeding instituted by the presentation of a plaint” when there is no civil suit, there is no decree. Thus rejection of an application for leave to sue in forma pauperis is not a decree, as there is no plaint till the application is granted.

In forma pauperis means:

                  In forma pauperis is the status. In forma pauperis is a Latin legal term. It means that “in the character or manner of pauper”. Allowing a poor person to bring suit without liability for the cost of the suit.

e.g. It means that proceeding under the civil suit like, the Indian Succession Act, Land Acquisition Act, The Arbitration Act, Hindu Marriage Act. etc. In forma pauperis the application given by the plaint is not treated as a suit and the decision given therein cannot be said to be a “Decree” under section 2(2) of the code.

c) Rights of the Parties in controversy:

                With regards to all or any of the matters in controversy in the suit, the adjudication must have determined the rights of the parties.

Case Laws:

Dattatray v/s. Radhabai, AIR 1921 Bom 220 ILR (1921) 45 Bom 627.

                The court held that, the words ‘rights’ means substantive rights of the parties and not merely procedural rights. In this way rights of the parties inter-se or between relating to the status, limitation jurisdiction, frame of suit, account etc. are ‘rights of the parties’ under section 2(2) of the code. The rights in matter of procedure are not included in it. Now the following fact does not determine the rights of the parties, an order for dismissal of the suit for default of appearance, or an order dismissing an application for execution, for non -prosecution, or an order refusing leave to sue in Forma Pauperis, for a mere right to sue, are not a decree.

Kanji Hirjibhai v/s. Jivraj Dharamshi, AIR 1976 Guj 152: (1975) 16 Guj LR 469. Venkata Reddy v/s Pethi Reddy, AIR 1963 SC 992: 1963 Supp (2) SCR 616.

                The court held that, the term ‘parties’ means parties to the suit, i.e. the plaintiff and the defendant. A third party who is stranger to the suit file the application, then an order on an application is not a decree with reference to which some relief is sought or asked the expression “matters in controversy” refers to the subject matter of the suit. At the same time, however, matters in controversy as relating solely to the merits of the case should not be understood. Matters in controversy would cover any relating to the character and status of party suing, to the jurisdiction of the court, to the maintainability of suit and to other preliminary matters which necessitate an adjudication before a suit is enquired in to. The substantive rights of the parties which do not decide under the interlocutory order on matters of procedure are not decree. Similarly, the proceedings preliminary to the institution of a suit also will not be included in the definition.

d)     Conclusive Determination:

 Case Law:

        Narayan Chandra v/s. Pratirodh Sahini, AIR 1991 Cal 53.

                     The court held that, such determination must be of a conclusive nature. In other word the determination must be final and conclusive as regards the court which passes it. Thus interlocutory order, which do not decide the rights of the parties finally is not decree.

Under order 41 Rule 23 of the code following situations are not decrees.

An order refusing an adjournment or an order dismiss or striking out defense of a tenant under relevant Rent Act, or an order passed by the appellate court on which some issues are decided and remitting other issues to the trial court for determination. These situations are in intermediate state of suit. So, the final decision is not clear. So, they are not decrees, because they do not decide rights of the parties conclusively.

On the other hand, an order may determine conclusively the rights of the parties although it may not dispose of the suit under order 41 of the code. Thus an order dismissing an appeal summarily or holding it to be not maintainable or a decision as they decide conclusively the rights of the parties to the suit.

Case Law:

Jethannand and Sons, v/s. State of U.P. AIR 1961 SC 794: (1961) 3 SCR 754.

The court held that, the crucial point which requires to be decided in such a case is whether the decision is final and conclusive in essence and substance. If it is, it is decree, if not, it is not a decree.

e)      Formal expression:

Formal expression means the recordation of the ruling of the court on the matter presented before it, so far as the court expressing it alludes to the fact that the same issue cannot be adjudicated by or before the court again but only before higher forum. i.e. an appellate forum.

There must be a formal expression of such adjudication. All the requirement of form must be complied with. The formal expression must be deliberate and given in the manner provided by law. The decree follows the judgment and must be drawn up separately. Thus if a decree is not formally drawn up in terms of the judgment no appeal lies from that judgment. But the decree need not be in a particular form. Thus, a misdescription of decision as an order which amounts to a decree does not make it less than a decree.    .             

Conclusion:

            Under Code of Civil Procedure, 1908 the decree is the most important part. The decree defines under section 2(2) of Code of Civil Procedure, 1908. The brief explanation of decree consists of the explanation of all essential elements of the decree. The essential elements are Adjudication, Suit, Conclusive Determination, Rights of the Parties in controversy, Formal expression.