Define decree and analyse its essential elements. Distinguish between preliminary and final decree.
Decree: The term decree is defined under section 2(2) of the Civil Procedure Code, 1908.The decree is a formal expression of adjudication by which the court determines the rights of the parties regarding the matter in controversy or dispute.
Essentials of a decree: The following points are essential for a decision of a civil court to be a decree:
Adjudication: There must be an adjudication.
(i) To be considered as decree, the matter in dispute should be judicially determined. As held in the case of Madan Naik vs. Hansubala Devi, if the matter is not judicially determined, it is not a decree.
(ii) A decision of administrative nature can not be considered as a decree. In the case of Deep Chand vs. Land Acquisition Officer it was held that if the decree is not passed by the officer of the court, it can not be considered as a decree.
Suit: The adjudication must be done in a suit. A suit is any civil procedure which has been instituted by the presentation of a plaint. Without a civil suit there can not be any decree.
Rights in controversy: It must determine the rights of parties regarding the matter of dispute in the suit. The rights in controversy should be determined by the court.
Conclusive determination: The determination should be conclusive. Rights in controversy must be determined conclusively by the court. In Narayan Chandra Vs. Protirodh Sahini, it was held that the determination should be final and conclusive for the court which passes. Otherwise this can not be considered as a decree.
Formal Expression: There must be a formal expression of such adjudication. The adjudication should be expressed formally and such formal expression should be given in the manner prescribed by law. The decree should be drawn separately and it should follow the judgement. No appeal lies the judgement if the decree is not formally drawn upon the judgement.
Test of Decree: There are instances when the decision by a court can be considered as decree and in certain instances the decision by the courts can not be considered as decree. Test for a decision to be a decree is laid down in the case of Venkata Reddy Vs. Pethi Reddy as listed below.
(i) Following decisions are held to be decree
Order of abetment of suit
Dismissal of appeal as time-barred;
Dismissal of suit or appeal due to the requirement of evidence or proof;
Rejection of plant due to non-payment of court fees;
Order granting costs and instalments;
An order refusing costs or instalments;
An order refusing maintainability of appeal;
Order denying the survival of right to sue;
Order stating that there is no cause of action;
An order refusing to grant one or several reliefs;
(ii) Following decisions are NOT to be held to be decree
Dismissal of appeal for default;
Appointment of Commissioner in order to take accounts;
Order for remand;
Order granting interim relief;
An order refusing the grant of interim relief;
Rejection of plaint in order to present it to the proper court;
Application rejected for condonation of delay;
Order holding an application to be maintainable;
Order of refusal to set aside the sale;
The order issuing directions for the assessment of mesne profit.
Types of Decree: As per the Code of Civil Procedure there are three types of decree
Preliminary Decree : When any or all of the matter in dispute are determined in the adjudication but the suit is not completely disposed off, this is known as preliminary decree. This is a prior stage of final decree.
A preliminary decree is passed by the courts mainly when the court has to adjudicate upon the rights of the parties and then, it has put the matter on hold unless the final decree of that suit is passed
As held in the case of Mool Chand Vs. Director, Consolidation, 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.
In the case of Shankar Vs. Chandrakant, the SC held that the preliminary decree is a decree in which the rights and liabilities of parties are declared but the actual result is left to be decided in further proceedings.
Final Decree: When all the matter in dispute between the parties are settled and the suit is disposed off completely, the decree is a final decree. In case of final decree there should be no matter left to be decided. In the case of Shankar Vs. Chandrakant, the Supreme Court decided that more than one final decree can be passed.
Partly preliminary and partly final decree: There may be instances when some part of the decree is preliminary and rest of the decree is final. The Code of civil procedure approves of such decree. For example, in a suit of possession of immovable property and mesne profit, the court may pass two decrees
A decree deciding the possession of the property
Directs for an enquiry of mesne profit.
In this case, first part of the decree is final whereas the second part is preliminary pending enquiry.
Distinction between preliminary decree and final decree
No comments:
Post a Comment