Q.

Explain Decree, Order, and

Judgment and distinguish between
them.
Q. What are the essential elements of
a decree? What are the kinds of
decree?
Q.What are the consequences of non
appearance of parties? What is an ex
parte decree?
 Decree

1. Definition As per Section 2(2),

2. essential elements of a decree

3. Kinds of Decree

4. ex parte decree

4. Order

5. Judgment
 Definition
• Decree: Section 2(2) of the Code of Civil Procedure defines Decree as
follows:-

• 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 of CPC,
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.
 Essentials of a decree:

1. There must be an adjudication

2. There must be a suit
3. Rights of the parties
4. Conclusive Determination
5. Formal expression
 1. There must be an adjudication
Adjudication means Judicial Determination of the matter
in dispute.

In other words, the court must have applied its mind on

the facts of the case to resolve the matter in dispute.

For example, dismissing a suite because of default in

appearance of the plaintiff is not a decree.

But dismissing a suite on merits of the case would be a

decree.
In Black’s Law Dictionary (6th Edn.) at p. 42
“adjudication” is defined as :

“Adjudication.- The legal process of resolving a

dispute. The formal giving or pronouncing a
judgment or decree in a court proceeding; also
the judgment or decision given. The entry of a
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 issue(s)
involved.”
 2. There must be a suit -
Decree can only be given in relation to a suit.

Although CPC does not define what suit means,

in Hansraj vs Dehradun Mussoorie Tramways Co.
Ltd. AIR 1933,
the Privy Council defined the term suit as "a civil
proceeding instituted by the presentation of a
plaint".
 3. Rights of the parties -
The adjudication must be about any or all of the
matters in controversy in the suit.
The word right means substantive rights and
not merely procedural rights.
For example, an order refusing leave to sue in
forma pauperis (i.e. an order rejecting the
application of a poor plaintiff to waive court
costs) is not a decree because it does not
determine the right of the party in regards to
the matters alleged in the suit.
 4. Conclusive Determination
The determination of the right must be conclusive.
This means that the court will not entertain any
argument to change the decision. I.e. as far as the court
is concerned, the matter in issue stands resolved.

For example, an order striking out defense of a tenant

under a relevant Rent Act, or an order refusing an
adjournment is not a decree as they do not determine
the right of a party conclusively.

On the other hand, out of several properties in issue in

a suit, the court may make a conclusive determination
about the ownership of a particular property. Such a
conclusive determination would be a decree even
though it does not dispose off the suit completely.
 5. Formal expression -
To be a decree, the court must formally
express its decision in the manner provided
by law. A mere comment of the judge cannot
be a decree.
Examples of decisions which are Decrees -
Dismissal of appeal as time barred,
Dismissal or a suit or appeal for want of
evidence or proof,
Order holding appeal to be not maintainable.

Examples of decisions which are not Decrees -

Dismissal of appeal for default,
order of remand,
order granting interim relief.
 Kinds of Decree

1. Preliminary decree
2. Final decree
3. Party preliminary and partly final decree
4. Deemed Decree
 1.Preliminary -

Where an adjudication decides the rights of

the parties with regard to all or any of the
matters in controversy in the suit but does
not completely dispose of the suit, it is a
preliminary decree.
It is passed when the court needs to
adjudicate upon some matters before
proceeding to adjudicate upon the rest.
In Shankar vs Chandrakant SCC 1995, SC stated 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 proceedings.
CPC provides for passing a preliminary decrees in several suits
such as –
suit for possession and manse profits,
administration suit, suits for pre-emption,
dissolution of partnership, suits relating to mortgage.

In Narayanan vs Laxmi Narayan AIR 1953, it was held that the

list given in CPC is not exhaustive and a court may pass a
preliminary decree in cases not expressly provided for in the
code.
2. Final - When the decree
disposes of the suit completely, so
far as the court passing it is
concerned, it is a final decree. A
final decree settles all the issues
and controversies in the suit.
Party preliminary and partly final - When a
decree resolves some issues but leaves the rest
open for further decision, such a decree is
partly final and party preliminary.

For example, in a suit for possession of

immovable property with manse profits, where
the court decrees possession of the property
and directs an enquiry into the manse profits,
the former part of the decree is final but the
latter part is preliminary.
Deemed Decree - The word "deemed" usually
implies a fiction whereby a thing is assumed to
be something that it is ordinarily not. In this
case, an adjudication that does not fulfill the
requisites of S. 2 (2) cannot be said to be a
decree. However, certain orders and
determinations are deemed to be decrees
under the code.
For example, rejection of a plaint and the
determination of questions under S. 144
(Restitution) are deemed decrees.
 Order

Order
As per Section 2 (14), The formal expression of
any decision of a civil court which is not a
Decree is Order.
 Decree - S. 2(2) vs. Order S. 2(14)

• Decree - S. 2(2) • Order S. 2(14)

• Can only be passed in a • Can be passed in a suit
suit originated by the originated by the
presentation of a plaint. presentation of a plaint,
application, or petition.
• Contains Conclusive
Determination of a right • May or may not finally
determine a right.
• May be final,
preliminary, or partly • Cannot be a preliminary
preliminary - partly order.
final.
• In general, there can only • There can be any number
be one decree or at the of orders in a suit.
most one preliminary and
one final decree in a suit.
• Only those orders which
• Every decree is appealable are specified as appealable
unless an appeal is in the code are appealable.
expressly barred.

• A second appeal may lie • There is no second appeal

against a decree to a High for orders.
Court on certain grounds.
Judgement
As per Section 2 (9), "judgment" means the statement
given by the judge of the grounds of a decree or order.
Every judgment should contain –

→ a concise statement of the case,

→ the points for determination,
→ the decision thereon,
→ the reasons for the decision.

In the case of Balraj Taneja vs Sunil Madan, AIR 1999,

SC held that a Judge cannot merely say "Suit decreed"
or "Suit dismissed". The whole process of reasoning has
to be set out for deciding the case one way or the
other.
sec 2(5)- “foreign Court” means a
Court situate outside India and not
established or continued by the
authority of the Central Government;

sec 2 (6) “foreign judgment” means

the judgment of a foreign Court;
 ENFORCING FOREIGN JUDGMENTS IN INDIA
A foreign judgment can be enforced in India in one of two
ways:
Firstly-
by filing an Execution Petition under Section 44A of the CPC
(in case the conditions specified therein are fulfilled).

In other words – Judgments from Courts in “reciprocating

territories” can be enforced directly by filing before an Indian
Court an Execution Decree.

“reciprocating territory” is defined in explanation 1 to

Section 44A of India’s Civil Procedure Code as:
“Any country or territory outside India which the Central
Government may, by notification in the Official Gazette,
declare as a reciprocating territory.”
The List of the Reciprocating Territories as per the
Provisions of Section 44 A of the Code of Civil Procedure,
1908, is as under :

United Kingdom
Singapore
Bangladesh
UAE
Malaysia
Trinidad & Tobago
New Zealand
The Cook Islands (including Niue)and The Trust
Territories of Western Samoa
Hong Kong
Papua and New Guinea
Fiji
Aden.
Secondly by filing a suit upon the foreign
judgment /decree

In other words – Judgments from “non-

reciprocating territories,” such as the United
States, can be enforced only by filing a law suit
in an Indian Court for a Judgment based on the
foreign judgment. The foreign judgment is
considered evidentiary. The time limit to file
such a law suit in India is within three years of
the
Section 2 , sub-section 12 of the Civil Procedure
Code provides the meaning of Mesne Profits.
According to this section , Mesne Profits
of property means those profits which the
person in wrongful possession of such property
actually received or might with ordinary
diligence have received there from , together
with interest on such profits, but shall not
include profits due to improvements made by
the person in wrongful possession.”
SUIT----

CPC does not define what suit means,

in Hansraj vs Dehradun Mussoorie
Tramways Co. Ltd. AIR 1933,
the Privy Council defined the term suit
as "a civil proceeding instituted by the
presentation of a plaint".