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UNIT I CPC

The document discusses the definition of 'decree' under the Code of Civil Procedure, distinguishing between preliminary and final decrees. It explains that a preliminary decree declares rights but requires further proceedings, while a final decree conclusively determines the rights of the parties. Additionally, it states that an aggrieved party cannot question the correctness of a preliminary decree in an appeal against a final decree if no prior appeal was made against the preliminary decree, as per Section 97 of the CPC.

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7 views

UNIT I CPC

The document discusses the definition of 'decree' under the Code of Civil Procedure, distinguishing between preliminary and final decrees. It explains that a preliminary decree declares rights but requires further proceedings, while a final decree conclusively determines the rights of the parties. Additionally, it states that an aggrieved party cannot question the correctness of a preliminary decree in an appeal against a final decree if no prior appeal was made against the preliminary decree, as per Section 97 of the CPC.

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haavishkak
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Q. An appeal is filed against a final decree.

Can in such an appeal, the


correctness of the preliminary decree be questioned when no appeal has
been preferred by the aggrieved party against the preliminary decree?
Define "decree" in Code of Civil Procedure and distinguish between
preliminary and final decree. (2020, 2018)
~Zeeshan Ahmad Abbasi
Section 2 (2) of the Civil Procedure Code, 1908 defines Decree. According to
said Section "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, 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.

The decree is a decision of the court. For any decision of the court to be a
decree, the following essential elements are required:

1. There must be an adjudication.

2. The adjudication should be done in a suit.

3. It must determine the rights of parties regarding the matter in dispute.

4. The determination of the right should be of conclusive nature.

5. There must be a formal expression of such adjudication.

(i) Adjudication: Adjudication means application of judicial mind to


come to a conclusion. If the matter is not judicially determined then, it
is not a decree. The court in Deep Chand v. Land Acquisition
Officer held that the adjudication should be made by the officer of the
Court and if it is not passed by an officer of the court then it is not a
decree.
(ii) Suit: The expression suit is not defined in the code but in Hansraj
Gupta v. Official Liquidators Dehradun Mussoorie Elec. Tramway
Co. Ltd, the court determined that ‘suit’ means a civil proceeding
instituted by presentation of plaint.
(iii) Rights in controversy: The adjudication must have determined the
rights of the parties with regard to all or any of the matters in issue.
The rights determined under this circumstance are substantial rights
and not procedural rights.
The parties to the rights in controversy should be the plaintiffs and
defendants and, if an order is passed upon the application made by a
third party who is a stranger to suit then it is not a decree. The matter
in controversy should be the subject matter of the suit regarding which
the relief is sought. Any question regarding the status and characters
of party suing, the jurisdiction of the court, maintainability of suit or
any other preliminary matter is covered under this.
(iv) Conclusive: The main point to be kept in mind is that the decision made
is final and conclusive in essence as well as substance. If it is so, then
the decision will be considered as a decree, else not. Interlocutory
orders would not count as decree.
(v) Formal Expression: The adjudication should be expressed formally and
such formal expression should be given in the manner prescribed by
law. The decree should be drawn separately and it should follow the
judgement. No appeal lies the judgement if the decree is not formally
drawn upon the judgement.
Primarily, there are three types of decree:
1. Preliminary Decree
2. Final Decree
3. Partly Preliminary and Partly Final
Difference between Preliminary and Final Decree
The distinction between preliminary decree and final decree is artificial and has
resulted in delay in execution of decree.
In Renu Devi v. Mahendra Singh, the Supreme Court made out the distinction
between 'Preliminary' and 'Final' decree in the following manner:

"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 finally determined and a decree is passed in
accordance with such determination, which is, the final decree.

The distinction between preliminary and final decree is this: a preliminary


decree merely declares the rights and shares of the parties and leaves room for
some further inquiry to be held and conducted pursuant to the directions made
in the preliminary decree which inquiry having been conducted and the rights of
the parties finally determined a decree is incorporating such determination
needs to be drawn up which is the final decree."

In Rachakonda V. Rao v. R. Satya Bai, it was observed by the Apex Court


that, the explanation to section 2(2) of the Civil Procedure Code, 1908 makes it
clear that a decree is preliminary when further proceedings have to be taken
before the suit can be completely disposed of. It is final when such adjudication
completely disposes of the suit. A decree may be partly preliminary and partly
final.
Can correctness of the preliminary decree be questioned during final decree
where no such appeal was made earlier?

According to Section 97 of the Civil Procedure Code, Where any party aggrieved
by a preliminary decree after the commencement of this Code does not appeal
from such decree, he shall be precluded from disputing its correctness in any
appeal which may be preferred from the final decree.

In the recent landmark judgement of Shri Gurdial v. Shri Dilbag Singh (2023),
while adjudicating on the disputed issue of Maintainability of the second appeal,
the High Court of Himachal Pradesh noted that under Section 97 of CPC, the
aggrieved is precluded from disputing the correctness of the preliminary decree
in an appeal against the final decree and he is not precluded from filing an appeal
against the final decree.

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