What is a decree? Explain its essential elements. Distinguish between preliminary decree and final decree. In what cases the preliminary decree is mandatory?

Question:- What do you mean by decree and analyse its essential elements. When a decree is called final?

OR

What is a decree? Explain its essential elements. Distinguish between preliminary decree and final decree. In what cases the preliminary decree is mandatory?

Answer:- Decree.-Section 2 (2) of the Code defines decree as follows "Decree" means the formal expression of an adjudication which so far as regards the Courts expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of plaint and the determination of any question within Section 144, but shall not include

(a) any adjudication from which an appeal lies as an appeal from an order; or

(b) any order for dismissal of default.

Explanation.-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It may be partly preliminary and partly final.

Decision dismissing suits for want of evidence or proof disposes of all matters in controversy, and is a decree.

Essentials of a decree:

In order that a decision of a Court may be a decree the following elements must be present:

(i) Formal expression of Adjudication.-To constitute a decision of a Court to be a decree there must be a formal expression of an adjudication meaning thereby a formal expression of judicial determination of the matter in dispute. Thus, if there is no judicial determination of any matter in dispute and it is not passed by a Court, there can be no decree. Thus following matters do not satisfy the aforesaid requisite of law and are held to be not a decree, namely:

(a) decision on a matter of administrative nature is not a decree; as being grassed by the administrative authority not by a Court,

(b) an order dismissing a suit for default of appearance of parties is not a decree, and

(c) dismissal of an appeal for want of prosecution, is not a decree; because matters involved in the case have not been dealt with judicially.

Besides above, adjudication must be formally expressed. In another words it drawn up separately. Any violation of manner provided by law shall vitiate the decree and consequently no appeal shall lie.

In Madan Naik v. Hansubala Devi, AIR 1983 SC 676, it is held that if there is no judicial determination of any matter in dispute, it shall not be treated as decree.

(ii) Suit before the Court.-There can be no decree unless there was a suit. Suit though not defined in the Code may be taken to mean civil, revenue or other proceedings which may be instituted by presentation of a plaint or application which may amount to plaint.

With regard to commencement of a suit the authoritative pronouncement of Supreme Court is Pandurang v. Shantibai, (AIR 1989 SC 2240). In this case it was held that expression "suit" generally means proceeding instituted by the presentation of a plaint. But proceedings commencing with presentation of an application are also suit and decree passed on such suits is statutory decree and although actually they are not decree under Section 2 (2) of the Code, the examples of such statutory decree are decrees passed under the Hindu Marriage Act. 1955, the Land Acquisition Act etc.

Every suit is commenced by a plaint. Rejection of an application to sue in forma pauperis is not a decree as there is no commencement of suit by presentation of a plaint.

(iii) The adjudication must have determined the rights of parties with regard to all or any of the matters in controversy in the suit.-Expression "rights of parties" mean substantive rights of the parties not merely procedural rights.

The term "parties" means the parties to the suit. It does not include third party i.e. stranger to the suit. Thus, following things do not constitute an adjudication. An order of dismissal of the suit for default of appearance, order amending an execution petition, refusal to leave to sue in forma pauperis etc.

For the purpose of this section the "matters in controversy" means subject-matter of the suit with regard to which some relief is demanded.

(iv) Conclusive adjudication.- This element connotes that such adjudication must be complete and final as regards the Court which passed it.

Decree may conclusively determine the rights of the parties although it does not completely dispose of the suit [Srijib v. Dandi Swami Juggannath Asram, 73 CLJ 352 (536)]. The definition further provides that the rejection of a plaint will also be a decree. Similarly, the determination of any question within restitution proceedings under Section 144 shall also be decree. But it does not mean that any interlocutory order in execution is decree, e.g., refusing adjournment or any process, or any decision on a question of law.

Preliminary Decree:

Where an adjudication decides the rights of the parties with regard to all or any of the matters in controversy in suit but does not completely dispose of the suit it will be a preliminary decree. In Mool Chand v. Dy. Director of Consolidation, AIR 1995 SC 2493 it is held that a preliminary decree is only a stage in working out the rights of the parties which are to be finally adjudicated by a final decree.

Cases of Preliminary Decree:

The Code provides for the passing of preliminary decree in the following classes of cases:

(1) Suits for possession and for rent or mesne profits (O. 20, R. 12).

(2) Administration suits (O. 20, R. 13).

(3) Suits for pre-emption (O. 20, R. 14).

(4) Suits for dissolution of partnership (O. 20, R. 15).

(5) Suits for accounts between principal and agent (O. 20, R. 16).

(6) Suits for partition and separate possession (O. 20, R. 18),

(7) Suits for foreclosure of a mortgage (O. 34, Rr. 2, 3).

(8) Suits for sale mortgaged (O. 34, Rr. 4, 5).

(9) Suits for redemption of a mortgage (O. 34, Rr. 7, 8).

The above list is not exhaustive; there may be preliminary decrees in cases not expressly provided for in the Code.

When a decree is called final:

A decree may become final in two ways:

(1) When the time for appeal has expired without any appeal being filed or the matter has been decided by a decree of the highest Court.

(2) When the decree, so far as regard the Court passing it, completely disposes of the suit [Shankary. Chandrakant, AIR 1995 SC 1211].

It is in the latter sense that the words "final decree" are used. The appealability of a matter therefore, will not affect its characters as a final decree.

A suit is completely disposed of when there is nothing further remaining to be decided in it. Thus when a decree is passed for a sum representing part mesne profits, and for subsequent mesne profits at a particular rate without directing any inquiry, the decree completely disposes of the suit and is, therefore, a final decree.

If the Court, however, had merely declared a party is liable for mesne profits, the declaration though a decree does not completely disposes of the suit and is, therefore, only a preliminary decree and not a final one [Bimla Thakurani v. Kashinath Panda, (1974) 1 SCWR49].

A decree in which a condition is attached upon the fulfilment of which the decree holder is to enjoy the fruits of the decree, does not, because of that, become a preliminary decree, it is nevertheless a final decree.

Illustration

A files a suit for pre-emption against B. A decree is passed in A's favour but with the condition that unless the purchase price is deposited within 2, months of the decree, the suit shall stand dismissed. The decree is a final one, as nothing is left for the Court to determine.

Ordinarily there will be only one final decree in a suit. But circumstances are not inconceivable which require the passing of more than one final decree in the same suit.

Illustration

A obtains a preliminary decree against B. B appeals and obtains an order for stay of further proceedings in the lower Court in respect of a portion of the subject-matter. The trial Court passes a final decree in respect of the portion not affected by the stay order. The appeal is subsequently dismissed. A can apply for a supplementary or second final decree in respect of the portion about which no final decree was passed.

----------------------

Key Words:- #Decree #preliminary decree # final decree #adjudication #controversy in the suit.