Thursday, May 30, 2024

𝗝𝘂𝗱𝗶𝗰𝗶𝗮𝗹𝗗𝗿𝗲𝗮𝗺™

𝙰𝙵𝙵𝙾𝚁𝙳𝙰𝙱𝙻𝙴 & 𝙰𝙲𝙲𝙴𝚂𝚂𝙸𝙱𝙻𝙴

CPCMODEL ANSWER

DECREE

Write a detailed note on decree.

The whole Indian Justice System is based upon the principle of “Ubi jus ibi remedium” which means that where there is a right, there is a remedy. In our country, every person has been given certain rights and he has complete freedom to enjoy those rights for his adequate growth and development and if any third person infringes the rights of former person then the aggrieved person has right to file a suit against the latter person and claim remedy from him.

If an aggrieved person files a suit against wrongdoer and proves his cause of action then after adjudication, at the end, the court grants decree in the favour of an aggrieved person i.e. in favour of that person who has filed the suit.

The main question arises here is, “what does the term ‘Decree’ means”?
Section 2(2) of Code of Civil Procedure, 1908, defines the term ‘Decree’. According to this section, if any person files a suit against another person then the court before which the suit has been filed determines the rights and liabilities of both the parties with regard to all or any of matters in controversy in the suit and expresses its decision, that formal expression of court is a ‘decree’.

In the leading case of S. Satnam Singh v. Surender Kaur, (2009) 2 SCC 562, the hon’ble court held that in order that a decision of a court may be a “decree”, the following elements must be present:
• That there must be an adjudication
• That such adjudication must have been done in a suit
• That it must have determined the rights of parties with regard to all or any of matters in controversy in the suit
• That such determination must be of a conclusive nature
• That there must be a formal expression of such determination

According to section 2(2) of this Code, if all these elements are present in a determination then that determination of a court may be considered ‘decree’.
Moreover, according to this section, there are different kinds of decrees like
• Preliminary decree
• Final decree
• Deemed decree

Preliminary decree:- According to the provisions of Code of Civil Procedure, 1908, a preliminary decree is that decree which does not conclusively determines the rights and liabilities of the parties. In this, partial rights and liabilities of the parties are determined by the court and some matters are left out by the court for further proceedings.

In the leading case of Shankar v. Chandrakant, AIR 1995 SC 1211 (1212), the hon’ble court held 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.

Moreover, in the leading case of Phoolchand v. Gopal Lal, AIR 1967 SC 1470: (1967) 3 SCR 153, the hon’ble court held that there is nothing in the Code of Civil Procedure, 1908 which prohibits passing of more than one preliminary decrees. A court has power to grant more than one preliminary decrees in one suit.

Final decree:- According to the provisions of Code of Civil Procedure, 1908, final decree is that decree which disposes off the suit completely and determines the rights and liabilities of the parties conclusively. Basically it means in final decree all the disputes are settled finally without leaving anything for further determination.

Moreover, in the leading case of Shankar v. Chandrakant, AIR 1995 SC 1211 (1212), the hon’ble court said that it is settled law that more than one final decree can be passed in a same suit.

Deemed decree:- According to the provisions of Code of Civil Procedure, 1908, a deemed decree is that decree which is not a decree in reality but the law considers it a decree. According to section 2(2), a decree is the formal expression of an adjudication of the court which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. But in deemed decree, court does not determine the rights and liabilities of the parties but the law considers the decision of the court a decree.

The main examples of deemed decree are:
• Rejection of a plaint
• Determination of questions under section 144 of Code of Civil Procedure, 1908
Difference between Decree and Order

S.NoDecreeOrder
1. A decree can be passed only in that suit which has been commenced by the presentation of plaint An order can be passed in that suit which has been commences by the presentation of plaint or it can be passed in that proceedings which have been commenced by the presentation of petition or applicationAn order can be passed in that suit which has been commences by the presentation of plaint or it can be passed in that proceedings which have been commenced by the presentation of petition or application
2.A decree is a formal expression of an adjudication of the court which conclusively determines the rights of the parties with regard to all or any of matters in controversyAn order is a formal expression of any decision of a civil court which is not a decree. It may or may not finally determines the rights of the parties
3.According to section 2(2) of Code of Civil Procedure, 1908, a decree may be preliminary, final or deemed decreeThere are no different types of orders. An order is always a final order
4.Generally, in every suit, there is only one decree. But in certain exceptional cases, more than one decrees can be passedIn a same suit, more than one orders can be passed by the court
5.According to the provisions of Code of Civil Procedure, 1908, every decree is appealable otherwise expressly providedAccording to the provisions of Code of Civil Procedure, 1908, only those orders are appealable which have been mentioned in the Code. Every order passed by the court is not appealable
6.According to the Code of Civil Procedure, 1908, two appeals can be filed with regard to one decree i.e. first appeal and than second appealAccording to the provisions of Code of Civil Procedure, 1908, no second appeal can be filed with regard to an order

Leave a Reply

Your email address will not be published. Required fields are marked *

error: Content is protected !!