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Dr.RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

CIVIL PROCEDURE CODE

Project on Topic

“DECREE: FUNDAMENTAL PROVISION OF CPC”

Submitted to Submitted by

Mr. Vipul Vinod Aniket Sachan

Assistant Professor, (law) Roll no – 28

Dr. Ram Manohar Lohiya Enrollment id-170101028

National Law University B.A. LLB(HONS), IVth semester

SECTION-“A”
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 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Mr.Vipul Vinod who gave me
the golden opportunity to do this wonderful project of Civil Procedure Code on the topic
“DECREE: FUNDAMENTAL PROVISION OF CPC”, Who also helped me in completing my
project and has rendered endless support, kind and understanding spirit during my project
completion. I came to know about so many new things, I am really thankful to him.

The completion of this project could not have been possible without the participation and assistance
of various people thus; I would also like to thank my parents and friends who helped me a lot in
finalizing this project within the limited period.
I would also like to thank the Great Almighty, source of supreme knowledge for countless love
rendered on me.

ANIKET SACHAN
ROLLNO-28
BA LLB(HONS), IVth semester.
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 TABLE OF CONTENTS

Contents
ACKNOWLEDGEMENT .................................................................................................. 2
TABLE OF CONTENTS ................................................................................................... 3
TABLE OF AUTHORITIES .............................................................................................. 4
INTRODUCTION .............................................................................................................. 5
SCOPE ................................................................................................................................ 6
OBJECTIVE ....................................................................................................................... 6
ELEMENTS OF DECREE ................................................................................................. 8
Formal expression ........................................................................................................... 8
Adjudication .................................................................................................................... 8
Suit .................................................................................................................................. 8
Rights of the parties ........................................................................................................ 9
Matters in controversy in suit ......................................................................................... 9
Conclusive Determination ............................................................................................ 10
CONTENTS OF DECREE ............................................................................................... 11
LIST OF DECISION WHICH ARE DECREE ................................................................ 11
LIST OF DECISION WHICH ARE NOT DECREE ....................................................... 11
KINDS OF DECREE ....................................................................................................... 13
Preliminary decree ........................................................................................................ 13
Party preliminary and partly final decree...................................................................... 15
Final decree ................................................................................................................... 16
DISTINCTION BETWEEN PRELIMINARY AND FINAL DECREE ......................... 17
DEEMED DECREE ......................................................................................................... 18
Deemed Decrees under Code ........................................................................................ 18
DISTINCTION BETWEEN JUDGEMENT AND DECREE.......................................... 19
DISTINCTION BETWEEN DECREE AND ORDER .................................................... 20
CONCLUSION ................................................................................................................ 21
BIBLIOGRPAHY ............................................................................................................ 22
BOOKS ......................................................................................................................... 22
WEBSITES ................................................................................................................... 22
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 TABLE OF AUTHORITIES

Cases

Anubai v Vithoba Shripati Savant 2004 (1) MhLj 545. ........................................................... 13

Bhargavi Pillai v Vijayamma 1989 (1) KLJ 49. ...................................................................... 15

Deep Chand v Land Acquisition officer (1994) 4 SCC 99......................................................... 8

Diwan bros v Central Bank of India (1976) 3 SCC 800 ............................................................ 9

Hari Mohan Thakur v Mahendra NarainChand 1986 PLJR 88. ............................................. 14

M/s Ameya Presence Marketing v Bangalore City Corporation AIR 1998 Kant 400. ........... 17

Narayan Chandra v Pratirodh Sahini AIR 1991 Cal 53. ........................................................ 10

Phoolchand v Gopal Lal AIR 1967 SC 1470 .......................................................................... 13

Phoolchand v Gopal Lal AIR 1967 SC 1470. ......................................................................... 13

Ramabai Govind v Anant Daji AIR 1945 Bom 338. ............................................................... 14

Renu Devi v Mahendra Singh AIR 2003 SC 1608. ................................................................. 12

Shakuntala Devi Jain v Kuntal Kumari AIR 1969 SC 595. ...................................................... 8

Shankar v Chandrakant AIR 1995 SC 1211. .......................................................................... 20

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 INTRODUCTION
The judicial determination of any court of law can be divided into two heads- (1) decree & (2)
order. The term DECREE is defined in section 2(2) of the C.P.C., which reads 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, but shall not includes a) any adjudication from which an appeal lies as an
appeal from an order, or b) any order of dismissal for default.”

“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, it
may be partly preliminary and partly final. Decree is the conclusion reached by the judge after
hearing both parties on merits and expressing the same in writing. Decree is the subset in the
set of judgment. The decree forms the last part of the judgment and is extracted from the entire
judgment by the decree clerk who contains the basic details and the result of the case. The date
of the decree is the date of judgment for the purpose of execution though anytime later even a
successor judge can sign it though it should be given within 15 days. Even a set-off/ counter
claim is in the same decree. Judgments by way of an amendment in 1976 must contain the
exact decree and words like decree what is prayed for cannot be used.”

Thus, every judgment contains the decree, amongst other things, the decree is usually the last
portion of the judgment, and the decree independently is without reasoning. There is no need
of a statement in a decree though it is necessary in a judgment. A judgment is a stage prior to
the passing of a decree or an order, and after the pronouncement of the judgment, way for the
decree has to be left wide open.

“Decree has to be in line with the judgment and it should present the correct interpretation of
the judgment. But in case, scenario arises where there appears to be a conflict between the
judgment and the decree, then the decree must be reasonably construed and if on such
construction both of them able to remain together, then adhere to that decree. But if it gets
difficult for the decree to stay together with the judgment, then it must be amended under
section 151 of the C.P.C. and if there is any clerical mistakes in the decree, then section 152 of
the C.P.C. will take out the decree safe from the clutch of being declared nullity.”
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 SCOPE

It matters not that the judgment is headed an order, for, if it in fact fulfils the conditions of the
definition under s 2(2), it is a decree and an appeal lies. In the definition, some orders which
otherwise do not constitute decree are also included and certain orders which constitute decree
have been excluded from it. Merely because there exists some order captioned as a decree
drawn up even in the form of decree, it would not make such an order decree unless the court
satisfied the requirement of s 2(2) of the Code of Civil Procedure. A decree or order becomes
enforceable from its date, but in appropriate cases, the court passing the decree may prescribe
the time wherefrom the decree becomes enforceable on a future date. In a case where the
language of the decree is capable of two interpretations, one of which assists the decree-holder
to obtain the fruits of the decree and the other prevents him from taking the benefits of the
decree, the interpretation which assists the decree- holder should be accepted. The policy of
law is to give a fair and liberal, and not a technical construction, enabling the decree-holder to
reap the fruits of his decree.

 OBJECTIVE

“In a civil suit several facts might be alleged and the court may be required to rule on several
claims. In simple terms, a decree is the ruling of the court regarding the claims of the parties
of the suit. For example, in a suit between A and B, A may claim that a particular property P
belongs A. After hearing all the arguments, the court will rule in the favour of either A or B.
The final decision of the court regarding this claim i.e. whether the property belongs to A or B
is a decree. As per Section 2(2), a decree is 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. It can be final or preliminary
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 AIM OF THE STUDY

The aim and object of the study are the following. To know about the importance of decree and
its concept. To outline the principles and key indegreints of decrees and orders.

 RESEARCH METHODOLOGY
In this project, doctrinal method of research will be used. Doctrinal method refers
to library research, research done upon writings and documents. It also includes the research
done upon the internet and the journals relating to the subject.

 RESEARCH QUESTION
 What is a decree?
 What are the key indegreints of decree under CPC?
 What are types of Decree?
 What decision can be comprised as decree and which cannot?
 What is difference in Decree Order and Judgement?
.”
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 ELEMENTS OF DECREE
“There are 5 main element of decree, if they are not present then decree is not said to be in
existence..

Following are the element of the decree-

1. There must be an adjudication.

2. Such adjudication must have been done in suit.

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

4. Such determination must be of a conclusive nature.

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

 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. “There must be a formal expression of such
adjudication. The formal expression must be deliberated and due in the manner provided by
law. The decree follows the judgement and must be drawn up separately.1”

 Adjudication
For a decision of a court to be a decree, there must be an adjudication, i.e. a judicial
determination of the matter in dispute. “If there is no judicial determination of any matter in
dispute, it is not a decree. 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. Further, such judicial decision determination be by a court. Thus, an order passed
by an officer who is not a court is not a decree.”2 “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.”

 Suit
The expression “suit” is not defined in the code. However, in Hansraj Gupta v. Official
Liquidators of The Dehradun Missoorie Electric Tramway Co. Ltd., their Lordship of the Privy

1
Shakuntala Devi Jain v Kuntal Kumari AIR 1969 SC 595.
2
Deep Chand v Land Acquisition officer (1994) 4 SCC 99.
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Council have defined the term in the following words,“The word 'suit' ordinary means and
apart from some context must be taken to mean, a civil proceeding instituted by the presentation
of a plaint. Thus, every suit is instituted by the presentation of a plaint. “It means that when
there is no civil suit, there is no decree. Thus, rejection of an application for leave to sue in
forma pauperise is not a decree, as there is no plaint until the application is granted. It may,
however be noted that under certain enactment specific provisions have been made to treat
applications as suits, e.g. proceedings under the Indian Succession Act, the Hindu Marriage
Act, the Land Acquisition Act, etc. They are statutory suits and the decision given thereunder
are, therefore, decrees.” Therefore, a proceeding which does not commence with a plaint and
which is not treated as a suit under any act, cannot be said to be suit under the code also and
the decision given therein cannot be said to be a “decree” under section 2(2) of the code. Thus,
a decision of a tribunal, even though described as a decree under the act, is a decree passed by
a tribunal and not by a court covered by section2(2).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 pauperise (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. Thus, rights of the parties inter se relating to status, limitation,
jurisdiction, frame of suit, account, etc. are “rights of the parties” under this section.”Thus, an
order for dismissal of a suit for default of appearance, or an order dismissing an application
“for execution for non-prosecution or a mere right to sue are not decrees as they do not
determine the rights of parties. The term “parties” means parties of the suit, i.e. the plaintiff
and the defendant. Thus, an order on an application by a third party, who is a stranger to the
suit, is not a decree. In inter-pleader suits, the contesting defendants will be deemed parties to
the suit.”

 Matters in controversy in suit

The expression “matters in controversy” refers to the subject matter of the suit with reference
to which some relief is sought. At the same time, however, it should not be understood as
relating solely to the merits of the case. “It would cover any question relating character and
status of a party suing, to the jurisdiction of the court, to the maintainability of a suit and to

3
Diwan bros v Central Bank of India (1976) 3 SCC 800.
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other preliminary matters, which necessitate an adjudication before a suit, is enquired.

Interlocutory orders on matters of procedure, which do not decide the substantive rights of the
parties, are not decrees. Similarly, the proceedings preliminary to the institution of a suit also
will not be included in the definition.”

 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 defence 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.“Such determination must be of a conclusive nature. In other words, the
determination must be final and conclusive as regards the court, which passes it.4”

Thus, an interlocutory order which does not decide the rights of the parties finally is not a
decree, e.g. an order refusing an adjournment or an order striking out decree of a tenant under
the relevant Rent Act. “An order passed by the appellate court deciding same issue and
remitting other issues to the trial court for determination under order 41 rule 23 of the code are
not decrees because they do not decide rights of parties conclusively. On the other hand an
order may determine conclusive the rights of the parties although it may not dispose of the
suit.”

Thus, an order dismissing the appeal summarily under order 41 of the code or holding it to be
not maintainable or a decision dismissing a suit for want of evidence or proof are decrees in as
much as they decide conclusively the rights of the parties to the suit. The crucial point that
require to be decided in such a case is whether the decision is final and conclusive in essence
and substance. If it is, it is a decree, if not, it is not a decree.”

4
Narayan Chandra v Pratirodh Sahini AIR 1991 Cal 53.
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 CONTENTS OF DECREE
“The decree shall agree with the judgement, it shall contain the number of the suit and
description of the parties, there registered address, and particulars of the claim and shall specify
clearly the relief granted or other determination of the suit. The decree shall also state that the
amount of cost incurred in the suit, and by whom or out of what property and in what
proposition such cost are to be paid. The court may direct that the cost payable to one party by
the other shall be set of against any sum, which is admitted or found to be due from the former
to the latter.”

 LIST OF DECISION WHICH ARE DECREE

1. Order of abatement of suit.

2. Dismissal of appeal as time barred.

3. Dismissal of suit or appeal for want of evidence or proof.

4. Rejection of plaint for non-payment of court fees.

5. Granting or refusing to grant costs or installment.

6. Modification of scheme under section 92 of the code.

7. Order holding appeal not maintainable.

8. Order holding that the right to sue does not survive.

 LIST OF DECISION WHICH ARE NOT DECREE

1. Dismissal of appeal for default.

2. Appointment of commissioner to take account.

3. Order of remand.
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4. Order granting or refusing interim relief.

5. Return of plaint for presentation to proper court.

6. Dismissal of suit under order 23 rule 1.

7. Rejection of application for condonation of delay.

8. Order holding an application to be maintainable.

9. Order refusing to set a side sale.

10. Order directing assessment of mesne profit.

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 KINDS OF DECREE
The code recognizes the following classes of decrees:

i) Preliminary decree
ii) Final decree
iii) Partly preliminary and partly final.

 Preliminary decree
An adjudication which finally decides the rights of parties, hut does not completely dispose of
the suit is a preliminary' decree. Thus, preliminary decree is one, which declares rights and
liabilities5 of parties leaving actual result to be worked out in further proceedings. 6 A
preliminary decree is only a stage in working out the rights of the parties, which are finally
adjudicated by the final decree.

The question whether a decision amounts to a preliminary decree or not is one of great
significance in view of the provisions of Section 97 of the Code which provides that : “Where
any party aggrieved by a preliminary decree 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."

“Since the passing of a preliminary decree is only a stage prior to the passing of a final decree,
if an appeal preferred against a preliminary decree succeeds, the final decree automatically falls
to the ground for there is no preliminary decree thereafter to support it. It is not necessary in
such a case for the defendant to go to the court passing the final decree and ask it to set aside
the final decree.”

Explaining the nature and scope of preliminary decree in Anubai v Vithoba Shripali Savant.7
, the Bombay High Court observed: “A preliminary decree is passed in those cases in which
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. In other words, 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.”8

5
Indu Singh v Prem Chaudhary O. REF. 2/2018 IN CS(OS) 1098/2005.
6
Renu Devi v Mahendra Singh AIR 2003 SC 1608.
7
Anubai v Vithoba Shripati Savant 2004 (1) MhLj 545.
8
Anubai v Vithoba Shripati Savant 2004 (1) MhLj 545.
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The preliminary decree adjudicates 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. The Code
provides for passing of preliminary decrees in the suit for partition and separate possession
under Rule 18, Order 20. A partition suit in which a preliminary decree has been passed is still
a pending suit and the rights of parties who are added after the preliminary decree have to be
adjusted at the time of final decree.

The preliminary decree is only a stage prior to the passing of a final decree. As regards the
partition suit, in Phoolchand v Gopal Lal9, the Apex Court observed, “there is nothing in Code,
which prohibits passing of more than one preliminary decree, if circumstances justify the same,
and it may be necessary to do so. These observations are made by the Apex Court specifically
dealing with the partition suit.”10

The Code provides for passing of preliminary decrees in the following suits:

1) Suits relating to possession and mesne profits

2) Suits relating to administration
3) Suits relating to pre-emption.
4) Suits relating to dissolution of partnership.
5) Suits relating to accounts between principal and agent.
6) Suits relating to partition and separate possession.
7) Suits relating to foreclosure of mortgage
8) Suits relating to sale of mortgaged property.
9) Suits relating to redemption of mortgage.

The above list is, however, not exhaustive and the court may pass a preliminary decree in cases
not expressly provided in the Code. A preliminary decree can be taken in appeal only within
the period of limitation. If the limitation period is over, then the party cannot dispute the
correctness of the preliminary decree in the appeal from the final degree. In Narayanan vs
Laxmi Narayan11 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.

9
Phoolchand v Gopal Lal AIR 1967 SC 1470.
10
Phoolchand v Gopal Lal AIR 1967 SC 1470.
11
Narayanan v Laxmi Narayan
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 Party preliminary and partly final decree

“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 mesne profits, where the court decrees possession of the property and directs an
enquiry into the mesne profits, the former part of the decree is final but the latter part is
preliminary.”

Explanation to Section 2(2) of the Code reads, “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. It may be partly preliminary and partly final.”
In Ramabai Govind v. Anant Daji12 the Bombay High Court held that “a decree can be partly
final and partly preliminary only when it deals with different matters in different ways, and that
a decree or the part of a decree in the form provided for by Rule 18(2), Order 20 must be either
final or preliminary.” In Hari Mohan Thakur v. Mahendra NarainChand13, the Patna High
Court held that “the mere fact that a decree is labelled as preliminary is in no way conclusive.
The law visualises a synthesis in this context and envisages a hybrid. It, therefore, follows that
even though in a partition suit where the decree may be named as preliminary it may
nevertheless have the attributes of finality as well in certain aspects.”

In Sri Bhasker Saikia v. Suit. Tatari Devi, the Guwahati High Court observed that from a bare
reading of the definition of “decree”. Inasmuch as a preliminary decree, as the Explanation to
Section 2(2) of the Code shows, is a decree, when further proceedings have to be taken before
suit can be completely disposed of; whereas, a final decree is one, where adjudication has been
made and the suit has been completely disposed of. In a given case, however, a decree may be
partly preliminary and partly final. Now question arises if a decree is partly preliminary and
partly final whether that part of the decree which is final is executable?

In Bhargavi Pillai v. Vijayamma14, the Kerala High Court held that in a case where a decree
is partly preliminary and partly final. It cannot he said that that part of the decree which in the
beginning itself was final would cease to be an executable decree on the passing of the final
decree. Which will result in the erasure of that part of the decree, which was, to start with, a
preliminary decree.

12
Ramabai Govind v Anant Daji AIR 1945 Bom 338.
13
Hari Mohan Thakur v Mahendra NarainChand 1986 PLJR 88.
14
Bhargavi Pillai v Vijayamma 1989 (1) KLJ 49.
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 Final decree
When the decree disposes of the suit completely, as 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.

“A decree may be said to be final in two ways:

i) When within the prescribed period no appeal is filed against the decree or the matter has been
decided by the decree of the highest court

ii) When the decree, so far as regards the court passing it, completely disposes of the suit.

A final decree is one, which completely disposes of a suit and finally settles all questions in
controversy between parties and nothing further remains to be decided thereafter. Thus, in a
suit for recovery of money, if the amount found due to the decree-holder is declared and the
manner in which the amount is to be paid has also been laid down, the decree is a final decree.
Similarly, a decree passed for a sum representing past mesne profits and future mesne profits
at a particular rate, without directing any further enquiry, is a final decree.”Thus, where a
decree passed by a special court did not contemplate any further proceedings, the decree, even
though described as a preliminary decree, in substance was a final decree. Ordinarily, there will
be one preliminary decree and one final decree in one suit.
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 DISTINCTION BETWEEN PRELIMINARY AND FINAL

DECREE

Preliminary decree Final decree

 Preliminary decree is granted even  Final decree is granted after the

before the final disposal of the suit. final disposal of the suit.

 Preliminary decree is superior.  The final decree is subordinate to

preliminary decree.

 If the preliminary decree is set aside  If the final decree is set aside in
in appeal, then the final decree is appeal, then the. Preliminary decree
also automatically set aside. is also automatically set aside.

 Appeal against preliminary decree  If the final decree lapses after

must be filed within the limitation limitation period, it cannot be
period disputed after appeal.

 Preliminary decree ascertains what  Final decree states the results

things are to be done. achieved by the means of the
preliminary decree.

 Preliminary decree may be  Final decree is generally present

generally present or absent. with or without preliminary decree.
 P a g e | 18

 DEEMED DECREE
An adjudication not fulfilling the requisites of Section 2(2) of the Code cannot be said to be
“decree”. By a legal fiction, however, certain order and determinations are “deemed” to be
“decree” within the meaning of Section 2(2). The term “deemed” is used in several statues in
different senses. Sometimes it means “generally regarded” at other times, it signifies “taken
prima facie to be”. It may also mean, “taken conclusively to be”. Whenever the word “deemed”
is used in a statute in relation to a person or thing, it implies that the legislature, after due
consideration, exercised its judgment in conferring that status or attribute to a person or thing.

In M/s. Ameya Presence Marketing v. Bangalore City Corporation15, the Karnataka High
Court observed that, “The term ‘deemed’ is used in the statute in various senses. Sometimes it
means “generally regarded, taken prima fade to be, and taken conclusively to he”. When used
in a statute it means some matter or thing has happened, the way in which it has to be attached.

In the modern statute, this expression is used to introduce artificial conceptions— that are
intended to go beyond legal principles and to give an artificial construction to a word or a
phrase.

The deeming provision is generally made to include what is obvious or what is uncertain or to
impose for the purpose of a statute an artificial construction of a word or phrase that would not
otherwise prevail. A deeming provision may also be made to include what is obvious or
uncertain or to impose an artificial extension of a word or phrase that would not otherwise be
possible. Thus, the meaning to be attached to the word “deemed" must depend upon the context
in what it is used. A question may, therefore, arises as to the effect of such legal fiction. Now
a deeming provision creates a legal fiction.

The effect of such legal fiction is that a position which otherwise would not be there, is deemed
to be present under certain circumstances. An effect must be given to such legal fiction.

 Deemed Decrees under Code

Section 2(2) of the Code defines “decree”. However, it also states “the rejection of a plaint" as
well as “the determination of a question under section 144” would be deemed to be a "decree.”
Likewise, certain orders passed or made in execution proceedings are deemed to be “decrees”
under the Code. Thus, under the Code a decree is deemed to include:

15
M/s Ameya Presence Marketing v Bangalore City Corporation AIR 1998 Kant 400.
 P a g e | 19

1. The rejection of a plaint;

2. The determination of any question concerning an application for restitution;

3. the adjudication of claims to or objection to attachment of property.

 DISTINCTION BETWEEN JUDGEMENT AND DECREE

Judgement Decree
Defined in section 2(9) of the Civil Defined in section 2(2) of the Civil
Procedure Code. Procedure Code.

“Judgment” is the statement given by the
judge on the grounds of a decree or order.
“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 is necessary for a judge to give a not necessary for the judge to give a
statement in a judgment. statement in a decree.

It is not necessary rather desirable that there In the case of decree formal expression of
should be a formal expression of the order court is necessary.
in the judgment.

A judgment contemplates a stage prior to A decree shall follow after the

the passing of a decree or an order pronouncement of the judgment.

 DISTINCTION BETWEEN DECREE AND ORDER
ORDER
 “An order may originate from a suit
by presentment of a plaint or may
arise from a proceeding commenced
by a petition or an application.”
 An order may or may not finally
determine such rights
 There cannot be a preliminary order.
 In the case of a suit or proceeding, a
number of orders may be passed.
 Not every order is appealable. Only
those orders are appealable as
specified in the code in section 104
and order 43 rule 1.
 There may be two appeals; while no
second Appeal lies in case of
appealable orders.(section 104(2)
P a g e | 20
DECREE
 “A decree can only be passed in a suit
which commenced by presentment of a
plaint.”
 A decree is an adjudication
conclusively determining the rights of
the parties with regard to all of the
matters in controversy
 A decree may be preliminary or final,
or partly preliminary and partly final
 “Except in certain suits, where two
decrees, one preliminary and the other
final are passed, in every suit there can
be only one decree.”
 Every decree is appealable, unless
otherwise expressly provided as per
section 96.
 “A Second Appeal lies to the High
Court on certain grounds from the
decree passed in the first
Appeal.(section 100)”
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 CONCLUSION
“As for decree is concerned, it is the final stage of the stage of suit. In the conclusion, I can say
that decision given by the judge is called judgment, which contains the grounds of the decree
and order. Decree and order are analogous to each other..”

They are defined under section 2(2, 9, and 14). The importance of decree lies in fact that they
are appealable and conclusively determine the rights of the parties. There is difference between
order, decree and Judgment. A decree is preliminary when a further procedure has to be taken
before the suit can be completely disposed of. When adjudication completely disposes of the
suit, such decree is final. In Shankar v Chandrakant,16 the Supreme Court Said “It is settled law
that more than one final decree can be passed.”

“Under section 152of CPC, any clerical errors about decrees can be corrected by the court
themselves or on application of plaintiffs. However, according to section 153, courts have a
general power to amend and may at any time as it deems fit, amend any error or defect
proceeding in a suit. These corrections are relating to accidental omissions or clerical errors.”

This make project very clear about the topic and what decree and clears all the doubts from the
mind of general people. But in practical day to day life if this procedure not be fulfilled but still
judgment is valid and this is the lacuna of this Act which required to be amended and need to
some change.
“A decree being the subset of a judgement is a formal expression of the resolution of the
controversies or cause of disagreement existing between the different parties to the contract.
It is common knowledge that rights may be procedural or substantive but the rights proclaimed
under a decree must be substantive and procedural.

However, a decree may not pertain only to the merits of the case; it can also be on the ground
such as character of the parties, settlement etc. Therefore, a decree is a formal expression of an
adjudication that determines the right of parties pertaining to any or all of the controversies in
the suit.”

16
Shankar v Chandrakant AIR 1995 SC 1211.
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 BIBLIOGRPAHY
 BOOKS
1) Tripathi, T.P, Code of Civil Procedure, 2nd edition 2008, Allahabad Law Agency

2) Thakkar,C.K, Code of Civil Procedure, 5th edition, 2003, Eastern Book Company, Lucknow

 WEBSITES
1) www.manupatra.com

2) www.vakilno1.com

3) www.ebc-india.com

 CASES
Anubai v Vithoba Shripati Savant 2004 (1) MhLj 545. ........................................................... 13

Bhargavi Pillai v Vijayamma 1989 (1) KLJ 49. ...................................................................... 15

Deep Chand v Land Acquisition officer (1994) 4 SCC 99......................................................... 8

Diwan bros v Central Bank of India (1976) 3 SCC 800 ............................................................ 9

Hari Mohan Thakur v Mahendra NarainChand 1986 PLJR 88. ............................................. 14

M/s Ameya Presence Marketing v Bangalore City Corporation AIR 1998 Kant 400. ........... 17

Narayan Chandra v Pratirodh Sahini AIR 1991 Cal 53. ........................................................ 10

Phoolchand v Gopal Lal AIR 1967 SC 1470 .......................................................................... 13

Phoolchand v Gopal Lal AIR 1967 SC 1470. ......................................................................... 13

Ramabai Govind v Anant Daji AIR 1945 Bom 338. ............................................................... 14

Renu Devi v Mahendra Singh AIR 2003 SC 1608. ................................................................. 12

Shakuntala Devi Jain v Kuntal Kumari AIR 1969 SC 595. ...................................................... 8

Shankar v Chandrakant AIR 1995 SC 1211. .......................................................................... 20