WHAT IS A DECREE?
Section 2(2) of Code of Civil Procedure defines Decree as a formal expression that determines the interest of both of the parties in a conclusive manner, with regards to any disputed matter in a civil suit. Decree defines as the formal expression of adjudication by which court determines the rights of the parties regarding the matter in a controversy or in a dispute.
A Decree includes:-
• Determination of any of the question under section 144 of the act.
• Rejection of a plaint.
A Decree does not include:-
• Any of the adjudication from which any appeal lies as an appeal from an order
• Any dismissal order for the default
ESSENTIAL ELEMENTS OF A DECREE
Following are the essential elements of a Decree:-
- Formal expression: There must be a proper expression of adjudication. In simple words, a mere comment of the judge can’t be a decree, the court must formally express its decision within the manner provided by law. The decree must be drawn up separately and must follow the judgement. If the decree has not been involved, then there’s absolutely no scope of an appeal from the judgment i.e. No appeal lies against the judgement.
- Adjudication: It means the judicial determination of the matter at issue. Hence, if the decision is of an administrative nature, then it cannot be considered as a decree. The adjudication must be about any or all of the matters in controversy within the suit. The court must resolve the matter of the controversy on its own, by applying the facts of the case therein.
In the case of Madan Naik v. Hansubala Devi the Supreme Court of India held that if the matter is not judicially determined then, it is not a decree. Also, within the case of Deep Chand v. Land Acquisition Officer, the apex court held that the adjudication should be made by the officer of the Court, in absence of which it’s ought to not to be recognized as a decree.
- Suit: The Adjudication must be given in a suit, which will be commenced by filing a suit in a civil court of law. Without a civil suit there is no decree. However, there are many specific provisions in which certain applications are to be treated as suits such as proceedings under the Hindu Marriage Act, the Indian Succession Act, the Land Acquisition Act, etc. They are considered statutory suits and therefore the decision given under are decrees.
- Rights of the parties: ‘Right’ means the rights which are substantive and not merely the procedural rights. Similarly, the parties to the rights in controversy should be the plaintiffs and defendants and, if an order is passed upon the appliance made by a 3’rd party who is a stranger to suit then it’s not a decree.
An order rejecting the appliance of a poor plaintiff to waive the court costs isn’t a decree because it doesn’t determine the right of the party with regards to the matters alleged in the suit. Dismissing a suit for default in appearance of the plaintiff isn’t a decree. However, the decree would be dismissing a suit on merits of the case.The disputed matter should be the topic of the matter of the suit, regarding which the relief is sought.
- Conclusive Determination: According to the conclusive determination the court will not entertain any argument to change the decision. The order which doesn’t determine the rights of the parties isn’t considered as a decree. On the opposite hand, out of several properties in issue during a suit, the court may make a conclusive determination about the ownership of a specific property. Such a conclusive determination would be a decree even though it does’t not dispose off the suit completely.
Types of Decree
The Civil procedure code recognizes three kinds of decrees, which are:-
a) Preliminary decree
b) Final decree
c) Partially preliminary and partially final decree
A. Preliminary Decree
A decree is identified as a preliminary decree when an adjudication decides the rights of the parties regarding all or any of the matter in dispute but it does not dispose of the suit completely. In simple terms, the preliminary decree is been passed when the court is compelled to adjudicate upon a certain matter before proceeding to adjudicate upon the complete dispute. It is to be considered as a former stage.
Illustration: X a person files a partition suit against Z. The Court shall pass a preliminary decree on the share of X and Z during the proceedings. Subsequently, after hearing all of the arguments of both of the parties, the court should pass a final decree adjudicating upon the said partition.
B. Final Decree
A Final Decree is recognized as ‘final’ when it dispose of the suit completely. All the issues and controversies between the parties to the suit by the court of law are settled by a Final Decree. The consideration of the final decree depends following facts
• No appeal was filed against the Final decree within the prescribed time period.
• The highest court can decide the disputed matter in the Decree.
• When the suit is completely disposed off.
C. Partly preliminary and partly final decree
It determines certain disputes but leaves rest of the disputes open for the further decision. An executable decree may be a final decree whereas the decree which isn’t executable may be a preliminary decree, unless it got merged with the ultimate one.
Illustration: X a person filed a suit for the recovery of the possession of a property from Z. A partly preliminary and partly final decree is passed by the court. So far as final decree is concerned if the court granted the possession of the suit property to X; and it was preliminary as even though mesne profits was awarded. In this case, only the granting of the possession of property to X are getting to be executable; however, preliminary decree are getting to be executable only after the amount due is decided.
Amendment of Decree
Section 152 of the Code of Civil Procedure defines that if there are any clerical errors in the decree then it can be changed or corrected by the courts themselves on an application which is given by the Plaintiff or the Respondent. However, the entitled corrections can only be related to the clerical errors or accidental omissions, not any other errors, which may result in gross negligence. Before the execution of such corrections within the decree by the courts, it must be satisfied and validly proven that the errors were nothing more quite a clerical one.
Under Section 2(3) of the Code of Civil Procedure, a decree holder may be a person in whose favour a decree or an order capable of execution has been passed. Accordingly, if any of the person who is not even a party to the suit and a decree is passed in the favour of that person then that person shall be also considered as Decree holder under the code of civil procedure.
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