Classes of Decree

The Code recognizes the following classes of decrees:

1. Preliminary decree.
2. Final decree.
3. Partly preliminary and partly final.

1. Preliminary decree:

The word ‘Preliminary’ essentially means something done in the preparatory

stage to assist the final action. Preliminary decree is an important concept
under the Civil Procedure Code. The Code does not define a preliminary
decree per se but in the explanation section, we find out what preliminary
and final decree means.
The explanation to Section 2(2) of CPC provides 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. It may be partly preliminary and partly
final. Hence a preliminary decree is a decree passed in a suit but does
not dispose off the suit. A preliminary decree only comes out as a
consequence of determination of substantive rights.

In other words, a decree is preliminary when the adjudication though it

conclusively determines the rights of the parties with regard to some
matters in controversy in the suit, does not completely dispose of the
suit, and further proceedings have to be taken before the suit can be
completely disposed of.
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 Mool Chand v. Director, Consolidation, AIR 1995 SC 2493, held that a preliminary
decree is only a stage to work out the rights of parties until the matter is finally
decided by the Court and adjudicated by a final decree.

Supreme Court, in the case Shankar v Chandrakant, AIR 1995 SC 1211 said that a
preliminary decree is in use when the court decides on the rights and liabilities of the
parties without deciding on the result, and in fact, leaving the pronouncement of the
result for further proceedings.

In Renu Devi v. Mahendra Singh, AIR 2003 SC 1608, the Court held that a preliminary
decree only declares the rights of the parties leaving room for some further inquiry to
be carried on.
Instances of Suits when the Preliminary Decree can be granted:

Civil Procedure Code allows the passing of the preliminary decree on certain
suits in which the court cannot straight away dispose off the suit. In such
suits, the court primarily decides upon the rights that each of the parties have
and then goes upon deciding the suit finally. The Code provides for passing
of preliminary decrees in cases relating to settlement of mortgage,
dissolution of a partnership, partition and separate possession, etc.

Example, A wife sues her husband for maintenance. In this case, the Court
has to first decide whether she gets maintenance during the time the trial is
taking place. Then order regarding the maintenance during the time the
trial is a preliminary decree. The Court will further enquire and will give
final decree after hearing both the parties.
Difference between Preliminary Decree and Interim Order:
The interim order means “for the time being”, it is to be understood that the need
for the interim order is realised as some suits where it takes a while before a
judgement could finally come. Example: Restraining the party from coming in
contact with the affected party. Whereas in a suit, a preliminary decree concludes
certain controversies between the parties but does not entirely dispose off the suit.
A preliminary decree adjudicates a controversy to some extent.

A deeper understanding which is derived is in terms of the subject matter. Some

suits may take longer to be completely disposed off, therefore to protect subject
matter from being affected, such issues are dealt with temporarily then it would
be an interim order. Whereas if those issues, provided dealing with the
substantive subject-matter are being dealt with permanently, while the suits is not
completely disposed off, since other issues are left to be dealt with, would amount
to a preliminary decree.
Can there be more than one preliminary decree in a suit?

There is a conflict of opinion as to whether there can be

more than one preliminary decree in the same suit.

Some High Courts have taken the view that there can be
only one preliminary decree in a suit, (Joti Parshad v.
Ganeshi Lal, AIR 1961 Punj 120), while other High Courts
have held that there can be more than one preliminary
decree. (Parashuram Rajaram v. Hirabai Rajaram, AIR
1957 Bom 59).
As regards partition suits, the debate is concluded by the
pronouncement of the Supreme Court in Phoolchand v. Gopal Lal, AIR
1967 SC 1470, 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. But the above observations are restricted to
partition suits as the Court specifically observed, "We should however
like to point out that what we are saying must be confined to partition
suits, for we are not concerned in the present appeal with other kinds
of suits in which preliminary and final decrees are also passed."

But the positions with respect to other suits are not clear in the light of
absence of judicial decisions on this point.
Appeal from a Preliminary Decree:

Appeal is provided against both the decrees i.e. preliminary as well

as final. However, if against the preliminary decree appeal is not
filed then its correctness cannot be questioned in an appeal which is
preferred against final decree as provided under Section 97 C.P.C.

Section 97 of the code basically talks about the waiver. When a party
does not appeal from preliminary decree, then in an appeal against
the final decree, he shall be deemed to waive off the right to appeal
from preliminary decree and hence he cannot question the
correctness of the preliminary decree in the appeal.
In those cases, wherein the preliminary decree is appealed against and is set aside
wherein in the lower court, the suit is adjudicated by final decree, then due to the
principle that two conflicting decisions cannot be there, the final decree fails.

Illustration: Mr. A files a partition suit against Mr. B. In that, the Court passes a
preliminary decree on the share of Mr. A and Mr. B. Later on, the court passes a
final decree adjudicating upon the partition. If Mr. A is dissatisfied with the final
decree and files an appeal against it, he thereby cannot question the correctness of
the share allocation in the preliminary decree. He had to appeal against the
preliminary decree when it was passed and not wait for the final decree.

2. Final Decree:
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.
A decree may be said to be final in two ways,
i. when the time for appeal has expired without any appeal being filed
against the preliminary decree or the matter has been decided by the
highest court;
ii. when the Court passing it completely disposes of the suit.

In Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar

Lokhande, AIR 1995 SC 1211, the Court observed: "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 inquires conducted pursuant to the
preliminary decree, the rights of the parties are fully determined and a
decree is passed in accordance with such determination which is final.”
In Bikoba Deora Gaikwad v. Hirabai Marutirao Ghorgare, (2008) 8 SCC 198 case
the Court observed that "A decree, therefore may denote final adjudication
between the parties and against which appeal lies but only when a suit is
completely disposed of thereby a final decree would come into being."

Example, 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.

Example, when in a suit for possession of any property, the court determines that
the party have a right of mesne profit, but appoint a commission for inquiry to
determine the appropriate amount to be given as mesne profit and later on the basis
of such report received finally decides the matter. In such situation, the first decision,
which determines the right of mesne profit is the preliminary decree and the final
determination of the appropriate sum to be given as mesne profit, is the 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.

In some suits final decree can be passed without passing a preliminary decree. In
Purushottam Haridas v. Amruth Ghee Co. Ltd., Gunthur, 1960 Andh. LT 524, the
Court held that if the matters in dispute are simple and do not require elaborate
scrutiny of accounts, the court is not bound to pass preliminary decree and may
proceed straightaway to pass a decree for the amount determined as due.

In Shankar Balwant Lokhande (Dead) v. Chandrakant Shankar Lokhande, AIR

1995 SC 1211, the Court observed;
• that until the final decree is passed, there is no formal expression of the court
that conclusively settles all the issues in case.
• that the final decree merely carries into fulfilment of the preliminary decree.
Court can pass more than one final decree:

Ordinarily there will be only one preliminary decree and one final
decree in one suit. (Anandi Devi v. Mahendra Singh, AIR 1997 Pat
7).

In Kasi v. Ramanathan Chettiar, 1947 2 MLJ 523, Madras High

Court considered the question at considerable length. It was noted
that there was divergence of opinion whether there could be more
than one preliminary decree as also more than one final decree in a
suit. The Court observed that there could be more than one
preliminary decree and more than one final decree in a suit.
Patanjali Sastri, J. (as he then was) concluded the matter thus;

“The question is not whether the Code allows more than one
preliminary decree or one final decree to be made, but whether the
Code contains a prohibition against the Court in a proper case
passing more than one such decree.”

Finally, in Shankar Balwant Lokhande (Dead) v. Chandrakant

Shankar Lokhande, AIR 1995 SC 1211, "it is settled law that more
than one final decree can be passed."

However, where two or more causes of action are joined together,

there can be more than one final decree.
3. Partly preliminary and partly final decree:

A decree may be partly preliminary and partly final, e.g., in a suit for possession
of immovable property with mesne profits, where the court:

(a) decrees possession of the property; and

(b) directs an enquiry into the mesne profits.

The former part of the decree is final, while the latter part is only preliminary
because the final decree for mesne profits can be drawn only after enquiry, and
the amount due is ascertained. In such a case, even though the decree is only one,
it is partly preliminary and partly final.

For example, two brothers argue over who inherits the family property from their
late father. This property is currently leased out to a family.
While the determination of who gets the property is the subject of the
final decree, the determination of who gets the profits that accrue from
the lease rent being paid during the length of the trial, is a matter of
partly preliminary and partly final decree.

In Lucky Kochuvareed v. P. Mariappa Gounder, AIR 1979 SC 1214

(1220) case, in a suit for possession of immovable property with mense
profits, where the court (a) decides possession of the property; and (b)
directs an enquiry into mense profits. The Court observed that the
former part of decree is final, while the latter part is only preliminary
because the final decree of mense profits can be drawn only after
enquiry, and the amount due is ascertained. In such a case, even though
the decree is only one, it is partially preliminary and partially final.