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CPC Research Paper

Instructor: Prakhar Narain Singh Chauhan

BA LLB Sec A
Group Members: Prathik HK
Anshuman M
Shvenak C
Samyak B
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Introduction:

“ex captio res judicata”

is the latin expression that lends its name to the principle of conclusiveness that has been the

hallmark of every functional legal system since the Roman codes; the principle simple put holds

that once a suit or issues raised by it has been decided by conclusively the courts, no more suits or

claims may be filed on the basis of the same dispute. There is little doubt over the necessity and

benefits of such a rule in limiting litigation, reducing the strain on resources and ensuring the

delivery of justice; the principle does however raise an important procedural questions as to the

point at which decisions made by the court acquire this character of finality and the bearing this has

on the implementation of reliefs or adjudications declared by the courts. In India matters of

procedure such as these are governed by The code of civil procedure; within which two implements

have been devised by which to confer this finality “the Judgement” and “the decree.” The following

paper seeks to provide an overview of the jurisprudence behind the rules governing finality, in light

of certain legal and historical points of controversy in order to determine the present point of

finality and the procedural impact this has on the implementation of directives passed by court

during the process of execution.

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CPC

Difference between judgement and decree: Order 20 & 21 a comparison of finality

Judgement and decree are two components of a civil case that that forms the concluding part of any

suit. While both these terms may deal with the finality of a decision, they are still are different from

each other in several ways. Section 2(9)1 of the CPC defines the term judgement which is elucidated

in Order 20 of the said act. It is a document which essentially contains various aspects of the case

such as, the issues involved, evidence by the both the parties, findings in the said issue. It also

consists of various other things like the ratio decidendi, to whom the relief is granted, what is the

said relief etc. It plays a crucial role in the India legal system as it forms the precedent for the future

cases. Order 20 rule 1 deals with the pronouncement of a judgement which might be done in an

open court, at once or at a later future date. In the case “Surendra Singh v. State of UP”,2 the term

“judgement” was defined as “the final decision of the court intimated to the parties and to the

world at large by formal 'pronouncement' or 'delivery' in open court” 3. Before 1976 there was no

time limited set for the pronouncement of judgement which caused unnecessary delay in disposing

the suit, this was changed in the case “R.C Sharma v. Union of India”4, in held that this causes an

unreasonable delay between the delivery of the judgement and final hearing of the arguments.

Hence to avoid this a judgement should come after thirty days of the conclusion of the hearing, and

it should not go beyond sixty days under “exceptional circumstances”. Once a judgement is signed

it cannot be altered in any circumstances as provided in Rule 3 Order 20 of the act. Initially in the

case “Sangam Lal v. Rent Control and Eviction Officer” 5, the court was of the view that once a

judgement is pronounced even dictated openly can be changed if it is not signed, but the concerned

parties must be informed. Later in the case Supreme court in the case “Vinod Kumar v. Banaras

1
The Code of Civil Procedure, 1908, Section 2(9),(“Judgment means the statement given by the judge of the
grounds of decree or order”).
2
Surendra Singh v. State of UP, AIR 1954 SC 194.
3
Ibid.
4
R.C Sharma v. Union of India, AIR 1976 SC 2037.
5
Sangam Lal v. Rent Control And Eviction Officer, AIR 1966 All 221.
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Hindu University”6, where the supreme court discussed the legality of the case which was dismissed

as it was not signed and held some guidelines regarding the same. It held that Once the judgement

has been signed under then it would be binding and no alteration can be made and a few altercations

are only permissible under Section 114, 152 and 153 of CPC but when it is pronounced and not

signed it will still be operative and signature is not necessary except in some exceptional

circumstances like where the court discovers a feature late or is brought up the council which is

significant to the case in hand. Hence in ordinary circumstances as soon as the judgement is

pronounced it becomes operative.

Decree is defined under Section 2 (2) of CPC, and its operative part i.e. execution is dealt Order 20

of the act. A decree follows the judgement and is based on it. While judgement is final in itself,

there are several types of decrees such as preliminary, final, partly final, and partly preliminary. A

Decree essentially lays down the rights of both the parties and contains the outcome of the suit.

There must also be a formal expression of the adjudication as well as everything should be

conclusive and determined with no scope of doubt. In the case “Deep Chand v. Land Acquisition

Officer”7, it was held that a decree without adjudication cannot be called a decree meaning “an

appeal dismissed in default, or an order dismissing a suit for non-appearance of the parties does not

amount to a decree for there is no judicial determination of the matter in controversy” 8.A decree is a

subset of a judgement and it forms the latter part of the it, essentially it follows the judgement and

should not be contrary to it. A preliminary decree is essentially issued to decide the rights of the

parties9, but it does not dispose of the suit completely 10. It is passed when the court has to adjudicate

in a certain matter before adjudicating upon the complete dispute. A preliminary decree is passed

when the trial is separated into two stages, one in which the rights of the parties are acknowledged

and second when they are executed. The code provides for cases where a preliminary decree is
6
Vinod Kumar v. Banaras Hindu University, AIR 1988 SC 371.
7
Chand v. Land Acquisition Officer, AIR 1994 SC 1901.
8
Ibid.
9
Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande, 1995 AIR 1211.
10
Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992.
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passed in Order 20, however this is not exhaustive and preliminary decrees can be passed in other

cases as well.11 A final decree is issued when the suit if completely disposed of. All the problems

and controversies are resolved after passing the final decree. It should be noted that preliminary

decrees are conclusive by themselves and can be appealed against before a higher court before

passing of a final decree. When Once the final decree has been passed, the parties can only appeal

against the final decree and not the preliminary decree. 12 However, an application may be filed for

amendment of the preliminary decree before the same court. This power of amendment is derived

from the principle that a court should always be ready to correct its mistake. 13 There can also be

more than one preliminary decree due to a similar reason: such as due to the death of party in a

partition suit.14 The decree can also be final when no appeal is made against the preliminary decree

and the limitation period is over or when it has been decided by the highest court of appeal. Another

approach adopted by jurisdictions like the USA is that the decision can only be appealed when it is

final and any findings before that can be modified by the court. 15 Earlier, there was disagreement

between different high courts as to whether multiple final decrees could be passed or not which was

finally settled in in the case of “Shankar v. Chandrakant”16. It was held that only after the final

decree has been drawn and engrossed on stamped paper will the decree be considered final and give

value to the preliminary decree as it not always executable by itself. There are certain cases where

an adjudication does not exactly fall under the definition of decree as defined in Section 2(2) of the

CPC but is deemed to be a decree for example adjudication under Rule 58 of Order XXI.

11
Narayan Thampi v. Lakshmi Narayana Iyer, AIR 1953 TC 220 (222) FB.
12
The Code of Civil Procedure, 1908, Section 97
13
S. Satnam Singh & Ors. v. Surender Kaur & Anr. AIR 2009 SC 1089
14
Phoolchand & Anr. v. Gopal Lal, 1967 AIR 1470.
15
Federal Rules of Civil Procedure, Rule 54(USA)
16
Supra note 9.
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A decree is necessary because an appeal can be made against a decree and not a judgement, hence if

it is absent then the appeal cannot take place. Judgement and decree are different in the way that he

latter is a subset of the former, it cannot exist without a judgement. Decree provides the actual

rationale behind the judgement and cannot deviate from it. It is usually the last paragraph of the

judgement or it can also be issued at a later date, but the decree bears the date on which the

judgement is pronounced.17

Rule 6A of Order 20 prescribes for the decree to be drawn up within 15 days of the judgement

being pronounced and even though judgements are not appealable and only decrees are, if the same

has not been drawn up by the court yet then an appeal can be made on the basis of the judgement.

As soon as the decree is drawn the judgement will no longer have the effect of a decree. This was

inserted upon the recommendation of the 54 th law commission to avoid delay. It was also held”

Drawing up of a decree is not and cannot be a condition precedent for filing of an execution petition

or an application under Order XXI, Rule 41 of the Code of Civil Procedure.”18

All this effectively breaks down the judicial process into different stages (particularly in suits

concerning matters like partition) – the preliminary stage where the rights of the parties are decided,

and the matter is left to be decided completely later on, the final stage where the matter is finally

completely decided and then the execution stage where the parties actually get the relief they seek.

Ideally this allows for parties to have a clearer picture and settle amongst themselves or comply

with the final decree themselves but realistically this is hardly the case and matters stay pending in a

particular stage for a long time and in cases such as the aforementioned “Shankar v. Chandrakant”

(which itself took 40 years to come to an end) where matters are stuck at the preliminary stage

because the final decree is not drawn up and produced and the period of limitation to enforce the

preliminary decree is over. This is particularly important where not all plaints are privy to legal

knowledge or counsel as to the technicalities. The burden of justice should not be on individuals

17
The Code of Civil Procedure, 1908 Order XX, R7
18
United Phosphorous Ltd. vs A.K. Kanoria, AIR 2003 Bom 97.
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limited by time, knowledge as well as money but on the courts to see the matter to the end without

the requirement further applications and pleadings. A case should be continually adjudicated upon

because the declaration of rights means nothing if those rights cannot be enjoyed by the decree

holder. Similar recommendations have been made in the case of Shubh Karan Bubna v. Sita Saran

Bubna19 where the Supreme Court ruled that the initiation of final decree proceedings do not require

for filing an application.

Execution and finality

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(2009) 9 SCC 689
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Upon pronouncement of the final judgement and decree in a suit per the manner illustrated in

previous sections, the decree-holder attains the right to move the courts in order to pursue the

execution of the decree and reliefs granted by it; in pursuance of this the decree holder may now file

an execution application before the court of original jurisdiction; following this, the court now

becomes an executing court for the purpose of the execution of said decree. This process of

execution is subject to certain procedures limitations in order to protect the fidelity of the final

decree and the rights of the decree holder, the nuances of which shall be examined in the following

section, specifically the nature of finality with regard to the decree being executed.

When we talk about finality of a final decree, it can be understood in two different ways. Firstly a

Decree is said to be final when the time allotted for appeal against that decree has elapsed without

any appeal being filed or the decree has been passed by the court of final appeals. Secondly it is

when a court has finished adjudicating a matter completely and all points of controversy have been

dealt with and disposed of, that a decree is passed; at this juncture the Court will refuse to hear

anymore pleadings and proceedings on the matter. It is in reference to the second context that the

word “decree” is used in section 2 sub-clause 2 of the Code. An appeal to such a decree does not

affect the finality of the decree it operates as res judicata for all other courts at same level. This was

laid out in the case of Shankar Lokhande vs Chandrakant Lokhande20.

In order to understand the procedural implications of finality on execution under order XX, we

must have a clear understanding of what execution is; The Civil procedure code does not define

“execution” within the text of the statute itself, however; the conventionally accepted definition is

well articulated in Halsbury’s Laws of England which states that “execution is the enforcement or

implementing the directions given by a court of justice in the context of orders and judgements.” 21

In the case Overseas Aviation Engineering, Lord Denning held that Execution in this context simply

20
Shankar Balwant Lokhande (Dead) & ors vs Chandrakant Shankar Lokhande & ors 1995 AIR 1211
21
Halsbury’s laws of England (4th edn.) vol 17
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means giving effect to a judgement passed by a Court of law.22 This can be expanded to include

orders as well.23 Execution allows for the decree holder to realise the fruits of his decree.24 The

process of Execution can said to be completed when the decree holder gets what is owed to him as

determined by the court either in the form of money or any other specific relief granted by the

order, judgement or decree.25

A court which is carrying out the procedure of execution however cannot undermine or alter the

decree in any way it must take the decree as it is and execute it accordingly. It has no authority to

contemplate the correctness or legality of the decree as held in V. Ramaswami Aiyengar v. Kailasa

Thevar.26 This is due to the fact that execution proceeding is only undertaken to enforce a decree,

this proceeding is contingent to and bound by the reliefs provided in a decree, which in turn are

contingent on the reasoning and facts declared in the judgement.

The rationale behind this strong binding principle is rooted in two points of law; the first is the

principle of res judicata and the character of finality with which it imbues a final judgement and

decree, articulated in explanation VII of sec 11 of the CPC27 and the second is to prevent the

executing court from acquiring powers beyond its purview or jurisdiction by turning it into a de-

facto court of appeals.

A decree acquires the character of finality under the Principle of res judicata only when the merits

of the suit in question have been heard and settled by the court i.e they are accompanied by a

judgement; it does not extend to decrees which are merely affixed with the authority of the court in

order to ensure compliance to an agreed upon covenant such as compromise decrees; this rule was

22
Overseas aviation engineering, In re, (1962)
23
Sreenath Roy v. Radhanath Mookerjee, ILR (1882) Cal 773
24
A.K. Ghose v. R.K. Banerjee, 79CWN 76
25
Overseas Aviation Engineering
26
V. Ramaswami Ayyangar & ors Vs T N V Kailasa Thevar, 1951 AIR 189
27
The Code of Civil Procedure, 1908, Sec 11, expln. VII
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decide in the case of pulavarthi v Valluri28, wherein the court dismissed an appeal filed on res

judicata grounds for the enforcement of a compromise decree on the providing the above stated

principle as the ratio. Per the same principle execution applications and decrees do not acquire

finality until they are disposed of on the grounds of their merits, as such execution applications

dismissed on purely technical orders such as non-appearance or non-prosecution are not final and

new execution applications on the same grounds can be filed at a later date.

The sole grounds on which the merits of a decree can be challenged during execution proceedings is

that of inherent lack of jurisdiction of the court passing the decree; in such a situation the decree is

no real decree and null in the eyes of the law; this however is a fairly narrow exception; the rule of

law as it stands states that as long as the court passing the impugned decree has some reasonable

and material footing upon which to pass the decree; the appropriate forum for a challenge is court of

appeals and not the court of execution; this principle was illustrated in the case of Hira Lal v Kali

Nath29, wherein the appellant challenged the results of an arbitration on grounds of nullity and

jurisdiction at the execution proceedings; the court rejected the appeal on the grounds that his

consent to a transfer of jurisdiction provided a material basis for the decree and as making the

appropriate forum for his contention the High court and not the execution proceedings where it was

actually raised; as such the executing court was both bound by the decree in question and required

to enforce it.

The broader application of the above-mentioned rule, as it extends to the powers of an executing

court in altering the decree is Further illustrated in the case of Chandra Mohapatra vs Land

Acquisition Officer30. The executing court may alter some minor clerical or arithmetical mistakes in

the judgement. However they cannot reconsider and reweigh any of the points of law within the

decree, as this would undermine the finality of the decree as it is being revisited by a court of same
28
Pulavarthi Venkata Subba Rao & ors Vs Valluri Jagannadha Rao & ors, 1967 AIR 591
29
Hira Lal Vs Kali Nath, AIR 1962 SC 199
30
Jaya Chandra Mohapatra vs Land Acquisition Officer
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level. It is a matter reserved for the appellate courts and not for the executing court as it lies beyond

their jurisdiction. If the executing court is allowed to alter the decree we would be allowing two

concurrent courts adjudicating the same matter this expressly prohibited in section 10 of the Code.

This was also upheld in the case of Aspi Jal v. Khushroo Rustom31, the Supreme Court saw the

potential problem in parallel litigation by two concurrent courts yielding contradictory decrees, if

the finality of the decree is allowed to be undermined by the executing court in this we are allowing

the same problem to arise.

Although the executing court cannot make any substantive alterations or re-interpret matters settled

by the final judgement and decree; it is not merely relegated to the mechanic execution of the terms

of a decree. The executing court exists to ensure fidelity of the final judgement is maintained and as

such the court is free to alter decrees in so far as they are in conflict with the judgement. In

situations where the decree is inconsistent with the findings of the judgement or is improperly

drafted owing to some accident or oversight, the executing can look at the judgment in order to

reconcile this difference; in the case of State bank of India v Maa Sarada oil mills32, this Principle

was reiterated with the court noting:

“It is the settled proposition of law that while there is some inconsistency between the

Judgement and the decree, the real intendment of the result of the suit should be gathered

by reconciliation between the judgement and the decree. Neither the decree nor the

judgement should be read in isolation, but in combination. The learned Executing Court is

duty bound to give effect to the decree in its substance and should not pass any order

rendering the judgement a futile attempt”

Conclusion:

31
Aspi Jal V Khushroo Rustom Dadyburjor, (2013) 4 SCC 333
32
State Bank Of India vs Maa Sarada Oil Mills And Ors. (2003) 1 GLR 436
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From the above paper it becomes clear that finality far from being a clearly demarcated and

arbitrary point existing in the service of procedural efficiency; is an arrived at process that takes

place across the duration of the trial and well into the execution of its verdict. It is determined by

the adequacy and competence with which matters of controversy are settled and is in many wasy

fundamental to the disbursement of fair and equitable justice.

Distribution of work:

Introduction and conclusion: Prathik H Kumar

Pages 3, 4, 5 : Samyak Bilala

Pages 6, 7: Anshuman Malik

Pages 8-11: Jointly written by Prathik HK and Shvenak C

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