Types of Decree | Preliminary, Final, Partly Preliminary and Partly Final Decree

 Types of 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.

                The definition of decree and the brief explanation of it (Essential element of Decree: Adjudication, Suit, Rights of the Parties in Controversy, Conclusive Determination, Formal Expression). This discuss in the previous post of this blog. If you are not seen the Explanation of Decree, then please first go through it and then come to this post.      

Decision which are decrees: Illustration.

The following decision are held to be decrees.

                Order of abatement of suit.

                Dismissal of appeal as time barred.

                Dismissal of suit appeal for want of evidence or proof.

                Rejection plaint for non- payment of court fees.

                Granting or refusing to grant costs or instalment.

                Modification of scheme under section 92 (Public Charities) of the code.

                Order holding appeal not maintainable. 

                Order holding that the right to sue dose not survive.

                Order holding that there is no cause of action.

                Order refusing one of several reliefs.

Decision which are not decrees: Illustration.

The following decision, on the other hand, are held not to be decrees.

                Dismissal of appeal for default.

                Appointment of commissioner to take accounts.

                Order of remand.

                Order granting or refusing interim relief.

                Return of plaint for presentation to proper court.

                Dismissal of suit under order 23(Withdrawal and adjustment of suit) Rule 1(Withdrawal of suit or abandonment of part of claim).

                Rejection of application for condonation of delay.

                Order holding an application to be maintainable.

                Order refusing to set aside sale.

                Order directing assessment of mesne profit.

Types of Decree:

            There are three types of Decree under code of civil procedure, 1908. as follow.

                Preliminary Decree.

                Final Decree.

                Partly Preliminary and Partly Final Decree.

Case Law:

Shankar v/s. Chandrakant (1995)3 SCC 413: AIR 1995 SCC 1211.

                The court held that, a preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceeding. Then as a result of the further inquiries.

Preliminary Decree:

                Preliminary decree means, where an adjudication decides the rights of the parties with regards to all or any of the matters in controversy in the suit but does not completely dispose of the suit. In other words, if someone appeals against the decree, then that decree is preliminary decree. A preliminary decree is passed in those cases, the cases are, 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.

Preliminary Decree

Case Law

Mool Chand v/s. director, consolidation, (1995) 5 SCC 631: AIR 1995 SC 2493; Hasham Abbas v/s. Usman Abbas, (2007) 2 SCC 355: AIR 2007 SC 1077.

                The court held that, a preliminary decree is only a stage in working out the rights of the parties which are to be finally adjudicated by a final decree.

The code provides for passing of preliminary decree in the following suits.

Order 20, Rule 12: Suit for possession and mesne profit.

                When a suit is for the recovery of possession of immovable property and for rent or mesne profits, then the court may pass preliminary decree.

Order 20, Rule 13: Administration suit.

                When the suit is for the administration suit, then the court is empowered to pass a preliminary decree.

Order 20, Rule 14: Suit for pre- emption.

                When there is suit for Claiming pre- emption concerning sale or purchase- money of particular property, then the court can pass preliminary decree.

Order 20, Rule 15: Suit for Dissolution of Partnership.

                When there is suit for the Dissolution of Partnership or the taking of Partnership accounts, then the court may pass a preliminary decree.

Order 20, Rule 16: Suit for Accounts Between Principal and Agent.

                In a suit for an account of pecuniary transactions between a principal and agent or in any other suit, if required, then the court may pass preliminary decree.

Order 20, Rule 18: Suit for Partition and Separate Possession.

                When there is suit for partition of property and separate possession of share therein, then the court may pass preliminary decree.

Order 34, Rule 2-3: Suit for Foreclosure of a Mortgage.

                In suit for foreclosure of mortgage, under Rule 2 of Order 34 of the code, then the court may pass preliminary decree.

Order 34, Rule 7-8: Suit for Redemption of Mortgage.

                In suit for redemption of mortgage, under Rule 7 of Order 34 of the code, then the court may pass preliminary decree.

Case Law   

Narayan Thampi v/s Lekshmi Narayana Iyer, AIR 1953 TC 220 at p. 222(FB); Peary Mohan Mookerjee v/s Manohar Mookerjee, AIR 1924 Cal 160 at p. 162: 27 CWN 989;

                The above list is however not exhaustive and a court pass preliminary decree in cases not expressly provided for in the code.

Bhagwan Singh v/s Kallo Maula Shah, AIR 1977 MP 257: 1977 MP LJ 583: 1977 Jab LJ 1576 CFB.

                Madhya Pradesh court held that, this list is not completed. In this list passing the various preliminary decree.

Phoolchand v/s Gopal Lal AIR 1967 SC 1470: (1967)3 SCR 153.

                This case is related to the partition suit. The supreme court held that, wherein it has been observed that there is nothing in the code of civil procedure which prohibits passing of more than one preliminary decree, if circumstances justify the same and it may be necessary to do so.

                Under section 97 of code of civil procedure, 1908. Where any party offended by a preliminary decree passed after the commencement of this code does not appeal form such decree, he shall be excluding from disputing its correctness in any appeal which may be preferred from the final decree.

Final Decree

There are in three ways of the final decree.

                When within the prescribed period no appeal is filled against the decree, or

                The matter has been decided by the decree of the highest court, and

                When the decree passed by the court, it completely disposes of the suit.

                It is in the latter sense that the words “Final Decree” are used here.

                A final decree is one which completely disposes of a suit and finally solved the all matters in controversy between parties and nothing further remains to be decided thereafter.

Final Decree

                Ordinarily, there will be one preliminary decree and one final decree in one suit.

Case Law

Gulusam Bivi v/s Ahamadasa Rawther, AIR 1919 Mad 998 at p. 1000: (1918)42 Mad 296: 51 IC 140.

Madras high court stated; that neither rule contemplates more than one preliminary decree and one final decree in one suit.

Shankar v/s Chandrakant (1995)3 SCC 413 at p. 418; AIR 1995 SC 1211 at p. 1214.

                The supreme court held that, “it is a settled law that more than one final decree can be passed”.

                If someone not appeal against the preliminary decree, then that preliminary decree automatically becomes the final decree. After judgement when all matters solved in the suit, then that passed decree is final decree.

Partly Preliminary Decree and Partly Final Decree

                A decree may be partly preliminary and partly final decree, former part of the decree is final, while the later part is only preliminary. Because the final decree for mesne profits can be drawn only after enquiry and the amount due is ascertained. 

For eg. two brothers argue over who inherits the family farm property from their late father. This farm is currently leased out to a family. While the determination of who gets the farm is the subject of the final decree, the determination of who gets the profits that acquired from the farm will be divided between the brothers during the length of the trial is a matter of partly preliminary and partly final decree.

Deemed Decree (Short Note)

Meaning:

                The term “Deemed” is generally used to create a statutory fiction for purpose of extending the meaning which it does not expressly cover.

Nature and Scope

                Whenever the legislature uses the word “Deemed” in any statute in relation to a person or thing, after due consideration, conferred a particular status on a particular person or thing.

Case Law

East End Dwellings Co. Ltd. v/s Finsbury Borough Council, 1952 AC 109: (1951)2 All ER 587 (HL).

                Such a statuary fiction created by a legislature cannot be ignored. The effect of such a legal fiction must be given.

                Asquith, J rightly said, “The statute says that you must imagine ascertain state of affairs. It does not say that having done. So, you must cause or permit your imagination to take when it comes the inevitable similar situation that state of affairs”.

Decree and Deemed Decree

                An adjudication not fulfilling the requisites of section 2(2) of the code cannot be said to be a “decree”. By legal fiction certain orders or determinations are deemed to be “decrees” under the code.

Deemed Decree under Code of Civil Procedure, 1908

                The rejection of a plain and the determination of questions under section 144 (Restitution) are deemed decrees. Similarly, adjudications under order 21 is related to Execution of Decrees and Order, Rule 58 is related to the adjudication of claims to, or objections to attachment of, property and as also under order 21 Rule 98 is related to the orders after adjudication and Order 21 Rule 100 is related to order to be passed upon application complaining of dispossession, these are deemed decree.

Conclusion:

            Under Code of Civil Procedure, 1908 the most important part is decree. There are three types of decree, Preliminary Decree, Final Decree and Partly Preliminary and Partly Final Decree. Preliminary Decree means anyone can appeal on that decree. Final decree means the preliminary decree will be automatically converted into Final Decree when no one appealed  on it. And when the decree becomes the final decree then no one can appeal on it. Partly Preliminary and Partly Final Decree means former part of the decree is final, while the later part is only preliminary. Because the final decree for mesne profits can be drawn only after enquiry and the amount due is ascertained. The Deemed decree is also part of the Decree. Decree is passed only in Civil Procedure on the other hand there is no decree in Criminal Procedure.