ASSIGNMENT

TOPIC: DECREE – DEFINATION, ESSENTIALS, TYPES

SUBJECT: CODE OF CIVIL PROCEDURE I

ASSIGNMENT SUBMITTED TO

FACULTY OF LAW, UNIVERSITY OF LUCKNOW

LL.B. (HONS.)-V SEM (SECTION-B)

2023-2024

UNDER GUIDANCE OF: SUBMITTED BY:

Ms.TUSHARIKA DUBEY HARSHITA SINGH PATEL

GUEST FACULTY 200013015106

FACULTY OF LAW LL.B. (HONS.) V SEM

UNIVERSITY OF LUCKNOW SECTION-B

1
 ACKNOWLEDGEMENT:

The success and final outcome of this assignment required a lot of guidance and assistance from
many people. I’m extremely fortunate to have got this all along the completion of my assignment
work. Whatever I have done is only due to such assistance and guidance.

I would like to thank my Head and Dean of the department of faculty of law, University of
Lucknow, Professor B.D. Singh sir for organizing such assignment to enhance my knowledge and
skills. I would like to pay my special gratitude to my subject professor Ms. Tusharika Dubey for
her guidance and support throughout the assignment.

Last but not the least, my special thanks to my family, friends, seniors and everyone for lending
me their precious time and support.

THANK YOU.

2
 TABLE OF CONTENT:

SR.NO TITLE PG.NO

.
1 INTRODUCTION
4
2 DEFINATION
5
3 ESSENTIALS OF DECREE
5
4 TYPES OF DECREE
7
5 PROCEDURE OF PASSING DECREE
9
6 CONTENTS OF DECREE
10
7 DISTINCTION
11

3
 INTRODUCTION:

Adjudication of a court of law is basically divided into two classes i.e Decree and Order.

Adjudication of court of law

Decree Orders

Section 2(2) Section 2(14)

Decree is one of the most frequently heard terms in Civil Matters. The adjudication of a
court of law is divided into decree and orders. In this article, are going to discuss the decree. The
term “decree” has been defined under section 2(2) of the Code of Civil Procedure,1908. The
decree is a formal expression of adjudication by which the court determines the rights of parties
regarding the matters in controversy or disputes.
In a civil suit, after completion of trials, judgment is pronounced which is followed by the
Decree (Section 33 of the Civil Procedure Code, 1908 says decree is followed by the judgment).
Judgment forms the concluding part of the civil suit and it determines the rights and liabilities of
the parties whereas decree is its operating part and it has to be in harmony with the judgment.

DEFINATION:

Decree is defined under section 2(2) of Civil Procedure Code, 1908.

Decree is the formal expression of an adjudication which conclusively determines the rights
of the parties with regard to all or any of the matter in controversy in the suit. A decree may be
either preliminary or final. A decree is preliminary when a further procedure has to be

4
taken before the suit can be completely disposed off. When adjudication completely
disposes of the suit such decree is final.
It may be noted that the term decree doesn’t include the following:
• Any adjudication from which an appeal lies as an appeal from an order or
• Any order or decision of the dismissal of the suit for default.
“Formal expression” means the recordation of the ruling of the Court on the matter presented
before it, so far as the Court expressing it alludes to the fact that the same issue cannot be
adjudicated by or before the Court again but only before a higher forum i.e. an appellate forum. A
decree must be drawn separately after a judgment.
Deemed Decrees: A deemed decree is one which, though not fulfilling the essential features of a
decree as required by the Code has been expressly categorized as a decree by the legislature. The
rejection of a plaint and the determination of questions of facts are deemed decrees.

ESSENTIALS OF A DECREE:

1
In the case of VIDYACHARAN SHUKLA VS KHUB CHAND BHAGHEL, the Supreme Court
held that in order that decision of a court to be a decree upon the satisfaction of the following
elements:-
1. There must be adjudication.
2. Such adjudication must have been given in a suit.
3. It must have determined the rights of the parties with regard to all or any of the matter
in controversy in the suit.
4. Such determination must be of a conclusive nature; and
5. There must be formal expression of such adjudication.

2
In another case of Bal Kishan vs. Tulasi bai , the court held that order must satisfy the
requirements of section 2 (2) in order to become decree.

1 AIR 1964 SC 1099

2AIR 1987 MP 120

5
1. Adjudication

The most essential feature of a decree is that there must be an adjudication, i.e., a proper decision
of the Judge on the matter at issue. If there’s no judicial determination, there’s no decree. And
such decision must be gone by the Court. Therefore, an order gone by a politician who isn’t a
3
court can’t be termed as decree. In Madan Naik v Hansubala Devi , the Supreme Court held that if
the matter isn’t judicially determined, it’s not a decree.

4
In 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, absence of which it is not to be recognised as a decree.

2. Suit

It may be defined as a civil proceeding which is instituted within the Court of Law by the
presentation of a plaint. Thus, if there’s no lawsuit, there’s no decree. There are some applications
which are being treated as suit, such as, proceedings under, the Indian Succession Act, the Hindu
Marriage Act, the Land Acquisition Act, the Arbitration Act, etc they are regarded as statutory
suits therefore, decisions given for these matters are considered as decrees within the meaning of
Section 2(2) of Civil Procedure Code. Additionally to the present, decisions held by the tribunals
are the decrees gone by the tribunal and not the Court decree.

3. Rights of the parties

The adjudication must determine the rights of the parties’ altogether or any of the matters at issue.
If the Court passes an order on procedural ground, such order can’t be termed as a decree, such as,
an order dismissing the suit for non-appearance of the parties, or an order refusing to grant leave to
sue as a paper ,etc. The term parties mean parties to the suit, i.e., the plaintiff (the one that has
instituted the suit) and therefore the defendant (against whom the suit has been filed). In Kanji
5
Hirjibhai Gondalia vs Jivaraj Dharamshi , the Court held that the term party means the parties to
the suit, i.e., the plaintiff and therefore the defendant. Just in case the Court

3 AIR 1983 SC 676, 1983 (1) SCALE 382, (1983) 3 SCC 15

4 AIR 1965 MP 93
5 AIR 1976 Guj 152, (1975) 1 GLR 469

6
passes an order upon an application of a stranger or a 3rd party during a suit, such order won’t be
considered as a decree.

4. Determination must be conclusive

The judicial determination held by the Court of Law must be conclusive and final concerning the
rights of the parties to the suit. The provisional decisions or the interlocutory orders can’t be
termed as a decree as they’re not the ultimate decision of the Court. Therefore, orders gone by the
Court on certain issues and remitting other issues to the court isn’t a decree because it doesn’t
determine the rights of the parties conclusively.

5. Formal Expression

There must be a proper expression of the adjudication. The Court must express its decision
formally in accordance with the provisions of law.

TYPES OF DECREE:

The decree may be classified into:

1. Preliminary Decree
2. Final Decree
3. Partly Preliminary and Partly Final Decree
4. Deemed Decree

Preliminary Decree

The preliminary decree may be a decree where the Court decides the rights of the parties
concerning all or any of the matter in controversy but doesn’t eliminate the suit finally. Civil
Procedure Code 1908 provides that, within the following suits a preliminary decree could also be
passed:

1. Suit for possession and Mesne profit (Order 20 Rule 12)

2. Administration Suits (Order 20 Rule 13)

7
 3. Suits of pre-emption (Order 20 Rule 14)
4. Suit filed for dissolution of a partnership (Order 20 Rule 15)
5. Suits associated with accounts between the principal and agent (Order 20 Rule 16)
6. Suit for partition and separate possession (Order 20 Rule 18)
7. Suits associated with the foreclosure of a mortgage (Order 34 Rule 2)
8. Suits associated with the sale of the mortgaged property (Order 34 Rule 4)
9. Suits for the redemption of a mortgage (Order 34 Rule 7)
6
However, in Narayanan vs Laxmi Narayan AIR 1953 , the Court held that the above-mentioned
list isn’t exhaustive, and therefore the Court may pass preliminary decree during a suit not enlisted
by the Code.

Final Decree

When the Court decides all the matters in controversy and eventually disposes of the suit it’s
7
called the final decree. In, Shankar V. Chandrakant , the Supreme Court stated: A preliminary
decree is one which declares the rights and liabilities of the parties leaving the particular outcome
to be figured out in further proceedings. Then, as results of the further inquiries, 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. Both the decrees are within the same
suit.

A final decree could also be said to be final in two ways:

• when the time for appeal has expired without appeal being filed against the preliminary
decree or the matter has been decided by the very best court;
• When, as regards to the court passing the decree, an equivalent stands completely
disposed of.
It is the latter sense that the word ‘decree’ is employed in section 2(2) of the Code.

6 AIR 1953 All 713

7 1995 AIR 1211, 1995 SCC (3)413, JT 1995 (3) 186, 1995 SCALE (2)318

8
Partly Preliminary and Partly Final Decree

Partly preliminary and partly final decree are those where a final judgment has been passed in
respect of a part of the suit and other part is left for future adjudication, for instance, during a suit
for possession of immovable property with mesne profit, the decree of the Court regarding the
possession may be a final decree, whereas the decree about mesne profit is preliminary in nature.

Deemed Decree

Decrees which don’t fulfil the prerequisite of Section 2(2) can’t be termed as a decree under this
Code. However, there are certain orders which are considered as deemed decrees under Civil
Procedure Code, such as, adjudication under order 21 Rule 58, Rule 98 and Rule 100 are deemed
decrees. Similarly, rejection of plaint and determination of question under Section 144
(Restitution) may be a deemed decree. Decree Holder. Section 2(3) of the Civil Procedure Code
provides that a decree holder is that the person in favor of whom the decree has been passed or an
order which is capable of execution has been made. A decree holder is often a person. In Dhani
Ram v. Lala Sri Ramthe Court held that an individual who isn’t a celebration to the suit but in
whose favor a decree has been passed or an order capable of execution is formed shall be the
decree holder.

PROCEDURE FOR PASSING DECREE:

According to Rule 6 of the Order XX of CPC, a decree should be in agreement with the judgment
pronounced by the court. As has already been explained that under Section 33 of CPC, a decree
shall follow the judgment. Hence, this rule states that a decree should be in consonance with the
judgment. The judgment must explain the precise reasons for pronouncing such decree. If the
decree and judgment haven’t any link or relation, it’s going to be ground of appeal.

For example, if the judgment explains why a decree of final injunction can’t be given, the decree
should be that suit for a final injunction is dismissed. There must be an immediate proportional
relationship between the decree and judgment.

9
 CONTENTS OF DECREE:

The decree shall follow the judgment, agree with it and bear:

a. The number of the suit

b. The names and description of the parties and their registered addresses
c. The particulars of their claims
d. The relief granted
e. the amount of costs incurred within the suit , and by whom or out of what property and in
what portions are they paid
f. The date on which the judgment was pronounced
g. The signature of the judge

DISTINCTION:

Judgment And Decree Distinction:

1. Judgment is a statement given by a judge on the grounds of a decree or order. It is not necessary
for a judge to give a statement in a decree though it is necessary in a judgment.
2. It is not necessary that there should be a formal expression of the order in the judgment, though
it is desirable to do so. Rule 6 order 20 states that last paragraph of the judgment should state
precisely the relief granted.
3.A judgment contemplates a stage prior to the passing of a decree or an order and after the
pronouncement of the judgment, a decree shall follow.

Order and decree distinction:

1. A decree can only be passed in a suit which commenced by presentation of a plaint. An order
may originate from a suit by presentation of a plaint or may arise from a proceeding commenced
by a petition or application.
2. A decree is an adjudication conclusively determining the rights of the parties with regard to all
or any of the matters in controversy. An order on the other hand, may or may not finally determine
such rights.

10
A decree may be preliminary or final or partly preliminary and partly final, but there can’t be a
preliminary order.
1. Except in certain suits, where two decrees, one preliminary and other final are passed, in every
suit there can be only one decree; but in the case of a suit or a proceeding, a number of orders may
be passed.
2. Every decree is appealable, unless otherwise expressly provided, but every order is not
appealable. Only those orders are appealable as specified in this Code.
3. A Second Appeal lies to the High Court on certain grounds from the decree passed in the First
Appeal. Thus there may be two appeals; while no Second Appeal lies in case of Appealable
Orders.

11
 BIBLIOGRAPHY:

1. Takawani, C.K. Civil Procedure, 8th Edition, (Reprint) 2018, Eastern Book Company.
2. The Code of Civil Procedure, 1908.
3. https://lawbhoomi.com/decree-in-cpc/\
4. https://www.studocu.com/in/document/symbiosis-international-university/
civil-procedure-code/notes-on-decree/1734281

12