Text book on Civil Procedure Code

Burden ofp roc f

Prnhll'ms 011 111c•.,·11c· pn?fits m!,!,/itl
co-sha rer see k 111c• s11c• pnd its a~ai11sl !ht' o/ht!I' ('o-shar,·r in ll'l'<
Can a
/JOS ,\'t'S S ion j)

1\/o\'<1hle 1,ropt•r~11, Plew/e r, l'rC

'scrihed
Pub lic (?(l icer
ent is followed by n decree which
i) Dc crc l' - Bnsicnlly every civil judgm tion
tion of the rights of the purties. Sec
is its opcmting part or finul determina ion of
) of Civ il Pro ced ure Co de, def ine s dec ree. II mcuns the formul express
2(2 with
determines the rights of the purlies
nn udjudicntion which conclu sively to
troversy in the suit. 1t shull be deemed
reg ard to nil or nny of the matter in con n wit hin
and the clct erminntion of nny questio
. t~·includ e the rejection of a plaint .
lude:
,- eS ~cction 1441 but shall not inc an npp enl hes us nn appeal from an order
n) nny ndjudi cati on from which
b) any order of dismissal for dcfnull be
lanatio n: A dec ree mn y be eith er preliminary or fina l. A decree mny
Exp be
hnve lo be tak en before the suit can
preliminary when further procee din gs
disp ose d of. It is fina l wh en suc h ndjudicution completely disposes
comple tely
y or it may be partly final.
of the suit. It mny be partly prcliminm

Ess en tin I cle me nts of a decree:

cntion
1. Dec ree mu st be given aft er ndjudi given by the court
In order to be a decree, the decision must hav e been
udi cati on of the cnse Ad judicat ion means judicial determination o.,C..tllc
after adj
dication, 1{ must look like the court has
...mruter in disp ute on me rits . From adju ute.
e to decide or settle the matter in disp
applied its mind on the fac ts of tile cas e of the
suit due to default in appearanc
Thus whenever n court dismisses a as
t of prosecution, it cannot be term ed
parties or dismiss an appeal for wan
as the dec isio n is not given afte r adjudication. However when a court
decree icial
it would be a decree . Further sucb jud
dis misses a suit on merits of the case, it
decision is not given by a court, then
determination mu st be by a court. Jf
se as given under CPC.
cannot be adjudication in the strict sen of any
Ma dan Na ik v. Ha11s11bala De vi' -
If there is no judicial determination
ma tter in dis pute, it is not a decree. be by a
ice, .2. - Judicial determination mu st
De ep Ch and v. lan d Acquisition Ojj
is not n court is not a decree .
court. An ord er assed qy nn_o[(i.cq.r who n done 1r nuit -
2. uch ncJjudicntion must have bee
instituted on a plaint. Thus if the
. D~cre: can only be ~iv~n in an action n, it cannot be considered as a
a petitio
detcnnmat1on 1s on an apphcnhon or by
Suit is an nction instituted on a plaint
decree _un~c r the ~ ivil ~ro~edure Code. ress the injury to
l~e plam11ff pursu,mg, hrs righ
t and req ues ting the court to red -
- - -
him and enforce hrs righ ts.

\ lit I 'JI< I'-, ( f,1f,

'I I '/'I I '> <. 111111
42
 Text book on Civil Procedure Code

Hansraj v. Dehradun Mussoorie Tramways Co. Ltd 1- the Privy Council

defined the term suit as "a civil proceeding instituted by the presentation of a
plaint" ..
Exceptions
However there are certain enactments under which even decisions
given on appl~cati?ns are also treated as decrees. For example, proceedings
under the t\Lbib;aUon.,Act, Land Acquisition Act, Indian Succession Act, and
~ ct etc are i~stituted on applications or petitions only.
However, they are -ttatutozy smts and the decisions given there under are
~~ ~rees. Thus a proceeding which does not commence with a plaint
cannot be said to be a suit.
In Diwan Bros v. Central Bank of Jndia2, it was held that the decision
of a tribunal even though described as a decree under the Act is a decree passed
by a tribunal and not a court covered by section 2(2).
3, Rights of the parties must have been determined
The adjudication must determine all or anx_ of the matters in
controversy in the suit.~The word right means ~z@mtive rights and not merelx
'procedural ri h s. Again the determination must be the rights related to the
su ~ect matter of the suit. Such rights may relate to ~ . jurisdicti29,,
limitation etc. But if a matter is not related to matters in controversy, it cannot
-be considered as a determination in the case- like an order refusing to sue as an
indigent person, dismissal of a suit in default of appearance of parties or order
rejecting the application of a poor plaintiff to waive court fee etc.
The term matters in controversy refer to the subject matter of the suit with
reference to which some relief is sought. (Ahmed Musaji v. Hashim Jbrahim 3)
4. Such determination of rights must be conclusive
The determination of the rights in the adjudication must be conclus~.
This means that as far as the deciding court is concerned, it is their final
decision and nothing is left to be decided. One of the determining factors
whether a decision is a decree or not is the conclusiveness of the decision. Thus
any decision which does not conclusively determine the right of a party is not a
decree. For example in a suit for the dissolution and settlement rights of the
partners, if the court passes a decree of dissolution and further makes an order
with regard to assessment of accounts among the partners. The decision of
dissolution ordered by the court is conclusive and a decree whereas the order
with regard to settlement of accounts is not a conclusive decision or a final
determination of the matter.
However summary dismissal of an appeal under Order 41 of the Code
or holding that an appeal is not maintainable or dismissing a suit for want of
evidence or proof are decrees in as much as they conclusively decide the rights
of the parties in suit.
In Jethanand & son v. State of UP4it was held that the crucial point
which requires to be decided in such a case is whether the decision is final and

I AIR 1933 PC 63
2 1976 AIR 1503
3 (1915) 17 BOMLR432
4 1961 SCR (3) 754
43
 Tex t book on Cl\,il Prm;cdurc Cod e

\..Om,, lu., 1, c 111 c.,w nce Jnd -.,ub-.. 1ance. ,r 11 I-'>. 11

,~ a decree. 1l nor. 11 ,, 1101 ,I

Jccree ee only ,.,,hen all lhl

Ho,..,e, er. a dcc1-..1on can be co11.-,1dcrcd w, a decr
by the court
n,Jtt er, 111 con1 ro, cr<,y h,nc been finall y adj ud1ca1cd
part1 e:, co111.: lu.," cl
Only when a court determm e!> the ngh h of the
r!>y. 11 can be con.-,1den:d a, !
" 11h reg.i rd to all or any of the matter!> 1n co111 rovc
decree 1 dica tion
5. The re mus t be form al expr essio n of such adju
ib dcc151on 1n th
To be a decree: the court mu:, t fonna lly expre!>:,
manner pro" 1ded by law. Whateve r may be the deci
sion of tht.: coun : 11 mu~1 b:
end of the Judg ment. It abo
e~ pressed forma lly and separately drawn at the
on a matter pres t.:nled 10 the
means the dec1 s1on should be expressed or recorded
only be adj udicated funh cr
court for decision so much so that the decision can
by a higher court.
n up separatcly.1
The decree fo llows the Judgment and mus t be draw
Examples of deci sion s which are Decr ees
1) Order of abatement of suit
11) Dismissal of appeal as time barred
proo f
111) Dismissal of su it or appeal for want of evid ence or
I\<) Rejection of plaint for nonpayment of court fees
") Granting or refus ing to grant costs or 111sta llment
e
v1) Modification of scheme under secti on 92 or the Cod
, 11) Order holding appeal not maintainable
v111) Order holding that the right to sue does not survi ve
1x) Order holding that there is no cause of actio n
x) Order refus ing one of several reliefs

Exam ples of Decisions which are not decr ees

1) D1sm1ssal of appeal for defa ult
11 ) Appomtm ent of commiss ion to take acco un ts
111) Order of remand
'" ) Order gran ting or refusing mterim relief
") Return of plaint for presentati on to prop er court
. , 1) D1_sm1ssal of suit unde r Order 23 Rule J
"II) ReJect1on ~f applicat10n fo r condonation of delay
\ t11J Order hold 1~g an appli cation to be main tainable
1' 1 Order refus mg to set aside sale
,J Order directmg assessmen t of mesn e profits
.
In the case of matters as above ' th ese are not conclusive dec1 s1ons of
the <.ourt, determmm g nght s of th
clemenb of -.ecti on 2, 2 ) e parti es ao<l hence do not fulfill the essential
Dl\rnt!l<.al for defa ult mea ns th e d.1sm1ssal of the suit as the plamt1fr did
not appear befo re the court. l n sueh case s the dec1s · ·
t a decree i ion is not give n by the courts
J ter ad1udJCat1on hence ,1 is not

H hnl> I Ii u,,J I 1 " \ < I

110 16 ) 6<'((" 67'
'"'" r(lran druJw n
\Ji.,
•' II , , J.; 1,, A / ~ ,
\fon l,
'""'"'1,. J p un1a AuMa ri AIR 1969 '>C q~
'"JJ ,,,,, \IR 11/69 \fadJR Q
44

t
 Text book on Civil Procedure Code

A Com~ission can only be issued by the court for the purposes as

~j,·cn under scct10n 75 of the Civil Procedure Code. Moreover a judicial
function cannot be delegated to a commission and as such the appointment of a
commission to take accounts or for any other purposes under section 75 cannot
be considered as the final adjudication and hence not a decree under section
2(2).
Classes of decrees- The Code classifies decrees in to the following:
i) Preliminary decree
ii) Final decree
iii) Partly preliminary and partly final.
A decree is preliminary when a further procedure has to be taken before
the suit can be completely disposed off. The Code provides for passing of
preliminary decrees in the following suits:
i) Suits for possession of mesne profits Or. 20 R 12
ii) Decree in Administration suits O 20 R I3
iii) Suits for pre-emption O 20 R 14
iv) Decree in Suits for dissolution of partnership O 20 R 15
v) Decree in Suits for accounts between principal and agent O 20 R 16
vi) A decree in Suits for partition and separate possession O 20 R 18
vii) A decree in Suits for foreclosure of a mortgage O 34 R 2-3
viii) A decree in Suit for sale of mortgaged property O 34 R 4-5
ix) A decree in suits for redemption of mortgaged property O 34 R 7-8
x) A decree when set-off is allowed O 20 R.19
This list is however not exhaustive and the court may pass a
preliminary decree in cases not expressly provided for in the Code. (Moo/
Chand v. Director Consolidation/

Role of courts after preliminary decree

A preliminary decree conclusively determines the rights and liabilities
of the parties with regard to aU or some of the matters in controversy in the suit,
though it does not completely dispose of the suit. Further proceedings await the
suit to work out and adjust the rights of the parties. The Court cannot dismiss a
suit for default when once a preliminary decree is passed in a partition suit. The
parties to the suit have acquired rights or incurred liabilities under the decree.
They are final, unless or until the decree is varied or set aside. The law being so,
if the plaintiff does not take any steps after a preliminary decree is passed, the
Court should adjourn the proceedings sine die with liberty to the parties
concerned to end the inaction and suspended animation of the suit by activating
it by taking appropriate proceedings.

A preliminary decree cannot be executed

After the preliminary decree, the court needs to proceed with the matter
and give a final decree. For example in a suit for partition, the court has to pass
a preliminary decree for partition and thereafter the court needs to proceed with
the case and ascertain the share or right of each shareholder and give a final

l995 (2) Suppl. SCR 763

45
 I i: ,t l).,.,k 011 ( ·,vtl l'roccdurc Code

~,n,· \\ hJt 1, ni:\·u1.,t,lc 1, the fi1111 l di:cri:e 11ml the preliminary dee.rec '" 11111
"'' C'\. utulik I he ltlll\1\\ mt,t r.1,c hm , throw light 011 th1i;: .
\ rinal Jl'l:rcc pnKi:eJ11 1g 111uy he i111w11ed al any point nl time. ti.,1
lmllt.lll<ltl 1, pm, ,Jl-<l 1hcrdun: f lowevcr, whnt ca.n be executed_ i~ a final
~,·n.'\:'. anJ m,t J prchmm.,ry decree, unlc.'>'l and unttl final decree 111 a pan ,,f
1 •
th~ prdmm\Jf") Jc,:n.:c • • •
Proccctlmg, for :i final decree may be 1nillalcd al any pomt of time. NCJ
lurnl.ltH,n 1, pn'\ ,dcd thcrdorc . Howeve r. what can be executed ;., a fin;il
Ji.'\. "'l._ .111J not a pn.:lmunary decree, unless and until final decree i!, a pan of
th~ pn:limLflJJ) dccn.:c."

fio_aJ Dttree
When adjudication completely disposes of the suit such decree is final. A
fi11.1J decree may be said to become final in two ways:
i) The ttme for appeal has expired without any appeal being filed against
the preliminary decree or the matter has been decided by the highest
appellate court.
11 I As regards the court passing the decree, the same stands completely
disposed off.
II is in the latter sense the word decree is used in section 2(2).
Then a decree may be partly preliminary and partly final. For
example in a suit for dissolution of partnership and settlement of
accounts among the partners :
a) decrees dissolution of partnership
b) directs and enquiry in to settle the accounts between the
partners.
The former part of the decree is final , while the later part is only preliminary
because the final decree for settlement of accounts can be drawn only after
enquiry and the share of each partner is ascertained. ln such cases the decree is
part!) preliminary and partly final.
Important Points
I. Whether arbitration awards a decree?
fhl'I question came for decision in the case of Srei Equipment and
I , on,,. At Ltd v. Khyoda Apik and Ors3 and it was held that arbitral award
r..rnJin an award and docs not become decree as defined in Civil Procedure
r , d · Ir , , deemed to be a decree only for limited purpose of enforcement. for
h t.h prrx..cdural provi<;io n-; of CPC will be applicable. Moreover under special
tJturc, ..-,here order., were executable as decree of civil court, provisions of
1• 111m lk anu )'J of the Code relating to execution of decrees would
not be
i.,11lahk
In K11tuk Muhillflra flank Lill. v. Slvakama S1111d11ri & Ors .. the
11 r 1 1 ( 1 11u l hdd Iha!~

---- ----
/ 1 I '""''" I , n/1111R,1,, mu/ 0//1rr, ~ N. \'a/yo Bal (/Jmd) /,y LR,v. and A11r,tlter• (2003) 7
' f i
II , I,,, III ,, ,., 11,/ ~ I ' "'"" tf/,J,"' S11Jy11,I 1111,I Or.r. (2007) 2 SC(' 355
• I' , , ,, ' I ,
I JI I I I ► IJ Ill
46
 l "'' ho11L "" t " ti Ptt11 ,~1tu1 c < t,dc

\ n ~1., ~J\I l);l~WJ b, th~ 111h11r ul 111hun.sl 1-. dcl.nlt"d 111 Ix ,1 dcuc:.. 11.n<kr
''"dwn \fl ,,t the \ 1h1t1 u11u11 u11d I 11111. tl i.,111111 IHI
\ n a,, :mJ under " C\.llnn '" 111 lhL '' "' 1 , cquo1 tccl 111 1 du rt..t 111 the
l ,-.urt h.ll thl" l'"Jl'v,c, o l c , cu111u11 und lt ,r 1h,1t rutpo,t ulonc
tth.· cnl,11 \\.'11\\.'nt ,,1 un ,t\, ,nd lhruuyh 11•, c~c1.11111 111 1. m 1,._ lllc<.I
ann~htTC m the country \\here ,m:h dccn.:c cJn bt cxc1.uLCd ,md !here
1, •"-' ~'\tU1rc111cn1 lur ,1b1,11n111g a tmns tc r o l 1hc decree Imm the < ,,un.
\\ hi..h ,, ould h.l, c JUnsd1c11on over the Jrb1tral pru1.ccding-,

..• \\ b ro • d ecree can be canceled on the ground of fra ud '? Or d f1:c,t

of rnod on judicial proceedings.
\\ hen there IS an allegation of fraud by non-d isclosure of necessary and
"t'«"&nl tacts or concealment of material fact~. it must be inquired mto. fl D
at1cr ~, 1dcnce 1.s led coupled with intent to deceive that a concl usion of
ad ,,'UIJ be am,cd at. A mere concealment or non-disclosure without intent
Jc,ccl\C or a bald allegation of fraud without proof and intenl to d<.:cc1vc
" lU!d 001 render n decree obtained by a party a~ fraudulent. To conclude m a
:..iru.et m.:umer that m every case where relevant facts arc not disclosed, the
.k(m: obcmed would be fraudulent, is stretching the principle to a vanishing

In Jud1c1o l proceedings. once a fraud is proved, all advantages gained

"ul\ in~ fraud can be taken away. In such an eventuality the questions of non-
\et.Uttng ul the ,tnlutory remedies or statutory bars like doctrine of res judicara
~ <: 1 JltrJctcd. Suppression of any material fact/document amounts to a fra ud
the ~ourt b cry court has an inherent power to recall its own order obtained
·~Jud a-. th~ order !>O obtained is non est2 .
I r.tUd J') an act of deliberate deception with a design to ~ccurc
lhmg v. h1c.h is otherwise not due. The expression "fraud" involves t\\ o
dmlmli. de1.c1t Jnd injury LO the person deceived. It is a cheating intended to
4I1 d ,JnWg1,;

\ trror in lhe name of parties or the property was in the name of

~ ,r,
f m.~ct thereof on decree passed? Or Effect of erroneous d«n·l•!
l11 /Jw/. ,'l1c/ ', ca.~e. the name of one of the !inns " ''" \\ rongl~
n nlloncd 111d 111 IJ~t 11 ,., the wife or
the rc~pondcnt, who wns thc propnctrcss
tht:reol w 11h whum there was no conll1ct or interest. rhc court ob,cf\ ~d that
thc\c 111 11ur wniprchcn\lon p<'r fl', would nut render tin: decree \ oid or
r apJhk ol nct. uuon '-,m.h crrnri, even ii ex ist, would not mfest thc decree
v.111J .in:, 11m d1Lt1ona l 11 J1 1rn11Ly or reduce it tu u nullity'. .
/\n I "<Cl. ll lln!-' ( ·ou rl con neith er tmvcl hchind the dccrL·c no r :,1t m
up~al 11\u tli l. , nn11.: or ra'l'i any order jcopnrdi:ting the ~1ghts of the part_1~s
tlu.: rc 1111du 11 1, rn dy 111 the 1,m1 tcd case.., when: the dccl\!c 1s by a court lucking.
11il1C"rcnt 1111 P,di l.1 11111 t>r 1.., a nu ll ity 11la1 the ... umc j1-, rcndcn.:d 11011 ('·' ' aml 1:- thu~

11,,,,, /l111\/,1//i1111 / /IJ//11 /1 1\ / '11 , hJILltllfll.l//11111. , 1111 (201 7 ) .! \ ( ( 7•>7

H, ,/,,,,.,/,, ,1, 11, \ / , \, 11 , 1 11111,,1 /frtlt/1 11: {),. , (201 fl) II \ ( ( Jin)
J /) ,1,,,,,,,., . ,,, 'I 1111/,,111/ 1 11/ '""''' ,\ I J, ( l t)OK) 12 ",( ( 411 1
\/, /t,.,t, .., , / 111 , 111,,,,, 11 ,. \ / ' /( \./1 ,1111 ll111•u1111un (201 7) '-i{'( (c 1v) l 'i::!
47
 Text book on Civil Proced ure Code

incapab le of executi on. An erroneo us decree cannot be equaled w ith one which
is a nullity '
Executi ng Court will have no jurisdic tion to entertai n an o bjection as to the
2
validity of the decree even on the ground of absence of jurisdic tion.

4. Can a matter conclusively decided in a prelim inary decree be re-

agitated in appeal against a final decree?
Under Section 97 CPC, a party aggriev ed by a prelimi nary decree docs
not appeal from it, he is preclud ed from disputin g its correctn ess in any appeal
which may be preferre d from the final decree. Th.is provisio n thus clearly
indicates that as to the matters covered by it, a prelimi nary decree is regarded as
embody ing the final decisio n of the court passing that decree3 Thus where a
prelimm ary decree decides a matter conclus ively and the aggriev ed person does
not file an appeal, he cannot be alJowed to raise objectio n to the preliminary
decree in appeal against the final decree.

5. Wheth er dismiss ing a writ in limine for securin g other remedy a

final order?
No, an order dismiss ing a writ petition in limine for availing other
existing remedy is not a final order.~ A decree must be a conclus ive decision
and all the essentia ls of the decree must be fulfilled . A decisio n to be a decree
must fulfill the followi ng elemen ts:
i) a decree must be given after adjudic ation
ii) adjudic ation must have been done in a suit
iii) rights of the parties must have been determi ned
iv) such determi nation must be conclus ive
A decisio n dismissing a writ petition in limine is neither a conclus ive
decisio n nor a decisio n given after adjudic ation. It determi nes the conclus ive
rights of the parties or a conclus ive determi nation. Hence such a decision
cannot be termed as a decree.

6. Wbetb er an order dismiss ing an appeal as time barred amoun ts to

a decre-e?
No, it cannot be conside red as a decree, it is merely an order as it is not
given on merits after adjudic ation.
ln order that decisio n of a Court should become a decree there must be
adj udicatio n in a suit and such adjudic ation must have determi ned the rights of
the parties with regard to all or any of the matters in controv ersy in the suit and
such determi nation must be of a conclus ive nature. If those parame ters are to be
applied then rejectio n of applica tion for condon ation of delay will not amount to
a decree. Conseq uently, dismiss al of an appeal as time barred is also not a
decree5

fl rJ
:;_ /1, uJ
i T ? ,i.1, H rJJ1nn 11 ' 'ur 1mlw <20171 7 SCC 342
~ 1'1111,,, r ron.d , r 11/)T I IP I%% PunJ l! J
P1J11,1" ~'"Yh • ViJa, 'l1ns h & Or,.A JR 200 I SC 279
1

48
 Text book on Civil Procedure Code

An order rejecting the Memorandum of Appeal following rejection of

application for condonation of delay in filing the appeal under Section 5 of the
Limitation Act, would not be a decree passed in Appeal and hence, Second
Appeal would not lie under Section l 00 CPC and order would be
revisable under Section 115 CPC. When once it is held that order dismissing
11ppcal as barred by time, is not a decree, the question of drawing a decree under
Order 41. Rule 35 would not arise and mere drawing of decree in the prescribed
fumt would not make such an order a decree and any decree drawn pursuant to
such an order is immaterial and would not debar the aggrieved party to file
Rcvision 1

7. Whether questions to be determined by executing court a decree?

Ans. All questions arising between the parties to the suit in which the decree
was passed, or their representatives, and relating to the execution, discharge, or
satisfaction of the decree, shall be determined by the Court executing the decree
and not by a separate suit and these are orders only. (Ram Niwas v. Mithan Lal)2
According to section 4 7, an executing court can only decide those
questions relating to execution, discharge, or satisfaction of the decree. These
are not questions related to the substantive rights of the parties. Moreover it is
not a decision given on a suit but on an application and hence it can only be
considered as an order only.

8. Can the decision be a decree when it was not drawn up?

In Kanji Hirajbhai Gondlia v. Jivaraj Bharamsh 3, the plaintiff sued for
possession and arrears of rent and the Trial Court held that the suit for
possession was not maintainable for want of a valid notice. The Trial Court
refused to draw up fonnal decree on the ground that a part of the suit had been
disposed of on a preliminary issue and the other part of the suit. viz. Suit for
rent was pending. The High Court on appeal held that the decision of the
learned trial Judge so far as the relief for possession was concerned was a
substantive decision or determination. It is a final adjudication between the
parties in respect of a suit for possession. Order of the learned trial Judge
conclusively detennined the rights of the parties on the question of eviction.
The Court further observed that an order passed by a Court is a decree or not
could not depend on the drawing up of a decree. If a Court did not draw up a
decree, it could not be said that the order of the Court by which rights of the
parties were finally adjudicated upon was not a decree.

9. Can the court pass two final decrees in one civil suit?
A decree can be preliminary, partly preliminruy and partly final or
final. There can be more than one preliminary decree in a civil suit however;
there cannot be more than one final decree in a civil suit. However, the AP
High Court in the case of Karumanchi Venkaiah and Others v. State of Andhra
Pradesh held that - as the definition of decree under Section 2(2) Civil

\tate of /{ui <~ On v. Raipal Singh Chau/um . Civil Misc. Application 329/201 l(HC ofRnj)
2 AIR 1979 l'unj. 262
1\IR I97r, C ,u1 152
49
 T<.:xl book on Civil Procedure Code
more than one decree, to say
ProcL·dun: Code itsl!lf indicates that there can be
can be either complete final
nlkr nny pn:liminnry decree already passed, there
depending upon the facts of the
1.kcrcc or pnrtl y final decree as the case may be
with reference to preliminary
case nnd scope of the finnl decree application
ee application so to pass and
decree or Jecrees for entertaining further final decr
or estate succeeded or survived
even niter preliminary decree any rights created
parties to preliminary decree
or from nny assignment, to those who were not
146 Civil Procedure Code
c, en. it is by their coming on record under Section
e Code so to apply for passing
nnd nn: under Order X.Xll Rule IO Civil Procedur
the same suit and not by any
of nny further preliminary or tinal decree in
scpnrntc suit or other proceedings •
1

rved that - where the

In Rahmar Bee v. Maqbool Ba,w - it was obse
ry decree a Commissioner can
rights of tJ1e parties are declared in the prelimina
the properties as per the rights
be appointed as per Order 20 Rule 18 to partition
specified in the preliminary
declared in the decree. When once the shares are
a Commissioner appointed for
decree. it is open to the defendants to have
erties as per the preliminary
allotment and separate possession of the prop
preliminary decree modified .
decree. In such a case, it is not necessary to get the
It is true that any number of final decrees can
be passed2·
decree may be partly
Girdhari Lal &Ors v. Gaja Nand and Ors -A
y one for partition, cannot be
preliminary and partly final and the suit, especiall
have been finally determined
said IQ be finally disposed of till all the questions
the passing of even more
between the parties. In special circumstances
ssitated. In a suit for partition
than one final decree in the same suit may be nece
erties but has also to adjust
the Court has not only to divide the common prop
their relation to the common
the equities arising between the parties out of
minary decree determines the
property, the property to be divided. The preli
ishes the basis upon which the
shares of the respective parties and thereby furn
other matters, in addition to
division of the property has to be made. There are
idered and decided before an
the shares of the parties, that have to be cons
would include all questions
equitable and final partition can be effected. They
ibution of the profits in the
of accountability between the parties, the distr
after the passing of the
properties realized pending the suit etc. Even
give appropriate directions
preliminary decree it is open to the Court to
or on the application of the
regarding all or any of these matters either suo motu
parties3
10. When a decree can be a nullity?
But a decree passed
A decree passed without jurisdiction is a nullity.
only be a nullity if it leads to
without pecuniary or tenitorial jurisdiction can
ed without subject matter
miscarriage of justice. However, a decree pass
jurisdiction is a nullity.
a decree passed by a
It is a fundamental principle well established that
its invalidity could be set up
Court without jurisdiction is a nullity, and that
or relied upon, even at the
whene ver and wherever it is sought to be enforced

\\P No I 601!!! or 2016. tlcc1d cd on July 12.

20 16 ( AP HC)
2 J9!19/2 JAPLJ 220
1 JLR 1974 Delhi 8(>-1
so
 rcxt hook on C1v1I Procedure l'o<lc
(_~\' ot ~,t'\:Uth,n nnd even m Cllllntcml pmcccdmgs. Such a defect cunnnl he
'-'\m,- J cH't\ hy ~·unsent nf pnrtic:.. 1
It ,s (I M.·ttk<l lnw tlrnl II decree passcu hy n court without jurisdiction
on the subJC-Ct mulh:r m on the gmtm,h, on which the <.lccrcc i:-. made which
~ to the rool of its j urisdiction or lucks inherent Jurisdiction is a corom
,.._ 1uJ1<-t.'. A lkl·rec pnsscd hy such a court is a nullity and is 11011 e.vt. It.'>
in\'3hd1ty can be set up whenever II is sought lo be cnforceu or is acted upon as
a found.1t1on for a right. even nt the singe or execution or in collateral
pn-"'---«-dmgs. rhc _defect of jurisdiction strikes ul the very authority of the court
2
10 p;i.c.s decn.-c which cunnot be cured by consent or waiver of the party.
l h)wevcr. in view of section 21-A inserted by way of amendment in the
,-car 1977. no decree passed by u civil court shall be set aside on objection a!> to
dle ploce of suing. No suit can be instituted to challenge the validity of such a
SWL
11. A decree holder need not be a party to suit
A decree-holder need not be a party to the decree. It is enough if the
<kcttt confers some right enforceable under the decree upon some persons
mentioned in it. The following decision in the case of Govindagouda
.\'arayanagouda v. Madhava Rao Narasinga Raoillustrates this point3 :
When the Government in pursuance of this law incurs costs in
defending a public Officer it has in a sense, an interest in the suit and by
implication it is entitled to be reimbursed of the costs incurred in the defence, if
lhe defence prevails. It was obviously for the considerations that the trial Court
m passing the decree ordered that the costs incurred in the defence of the suit
sbnlJ be payable to the Government. It cannot be denied that under the decree
the Government has been given a right to realize the decreed costs. Now when
there is a right there must be a remedy. The argument on behalf of the appellant
I.hat the right conferred by the decree is without remedy is untenable.
A person in whose favor an Order capable of execution has been made
15 also a decree-holder.

12. Can a decree bind a person who is not a party to the suit'?
A decree cannot bind a person who is not a party to the suit. However
under certain circumstances a decree can bind the legal representatives of the
pan1e5 According to section 50 Civil Procedure Code - where a judgment
debtor J1es without satisfying the decree, the decree holder may apply to U1e
decreeing coun to execute the same against the legal representative of the
deceased The liabi lity of such legal representative cannot exceed the value of
the: property he has received from the deceased and has not been disposed of.
The court may on the application of the decree holder compel such
kl.!JI rq1rc<,cntati vc lo produce such accounts as it thinks fit.
A decree fo r permanent injlmclion does 1101 lapse with the death of the
plJ1nt1II and 111.:ould be executed by heirs of decree holder'.

, II Ill ,1 11 p l, \ ( /1,11110 11 /'111 111111, /\Ill 1954 SC 340

' lrir,1111,/11/ \ i,, 1/11/ c,,,, ·11A,1 , ./11 1111 S1111,:lt 1111</ Orf, 1933 SC<.' (2) 507
\IJI I'll I K 1111 ~77
I, 1/ l,ui,,,, , 1,/11•,1 \ ( //Ill II (20 I 7) 4 sec 'J7
51
 I l ' \I hnuk LIil ( ·,vii Pruccume l'uuc
In /'1,1/t/,,1t 1111 ld,>!1/ \ (11J11•11 1hc Pl111n1dl ubLumecJ u decree auuinr,i
lh\ \kh.'11.l.1111 . \\·, 11 .11111111-! lh\· l,1\ll't ln11n ,1h, 1rucl111g lhe uccc!..~ to lighl a11d air
h 1 he, "111<l,1\\, \ hl' pln11111 I I upphcd lur cxccullun pmy111g 1ha1 lhc pur11on of
\h\ ,kkn<l,11\1 \ h\111,c "h1d1 llh,1rne1cd her wmdowi, should be pulled dow
\\ luk 1h1, ,1pplio 1IH111 "11, pcnd111g the JdcmJunl d1cJ a11J his son and heir w:~
t'if\'11~1\I ,,n th\· !\'\'Old I hl' lowl.'.r t'uurl-; dircclcu lhul lhc decree should be
~ \ 1..'\' \ll\.'\l u~ pm~cll for nnd directed the appcllunt (the son and heir of
the
J\'\'\.'~\M'd dcfrmlm\l) l\l pull down 1h1.: obslrucling portion of lhc house
in
\\lll' ~ll\'Tl with111 ,1 ll" l'I\ time. It wns 1.:on1cndcd for the appellant lhul the original
<ldt·n,l.1111 h,\\ mg died. the injun1.:1ion cuuld nol be enforced against his son (the
.tppdbnt) m, an lllJUtlct1un docs not run wilh the land 1
h \\1lS hclJ thnt having regard lo lhc provisions of Section SO, the
10Jut1ctmn ordered against the deceased defendant might be enforced against his
~l,n ru1J ht!> kgnl representative. But a decree for injunction cannot be enforced
.1gamst ., purchaser of lhc property from the defendant or against a person who
1s nol his legal representative. The plaintiff obtained a decree restraining the
defendant in his use of certain land and applied for execution. Meanwhile the
1.md hnd been sold in execution of another decree against lhe defendant and the
purchaser at lhc Coun sale obtained possession .
TI1e Supreme Court observed lhat a decree for injunction can also be
c.,ecutcd against legal representatives of the deceased judgment-debtor, in view
of the specific provisions contained in section 50 of the Code of Civil
Procedure . When the right litigated upon is heritable, the decree would not
normally abate and can be enforced by legal representatives of decree-holder
and against the judgment-debtor or his legal representatives. It would be against
the public policy to ask the decree-holder to litigate once over again against the
legal representatives of the judgment-debtor when the cause and injunction
. ,
SUf\'l\'CS-
The plaintiff !hereupon appealed that the purchaser should be made a
party to the execution proceedings and that execution should go against him as
well as against the defendant but it was held that no order for execution could
be made. II could not go on against the defendant as all his interest in the land
had been sold in execution of a decree, and it could not go on against the
purchaser as an injunction does not run with the land.
The Court further clarified that - a decree for injunction does not run
with the land and in the absence of any statutory provision, such a decree cannot
be enforced against the surviving members of a joint family or against a
purchaser from judgment debtor. But where the sons of the judgment debtor arc
brought on lhe record as bis legal representatives under Section SO, the decree
can be executed against them and so also against the transferees from the legal
rcprc,enU111 vc~. under Section 52, Trnnsfer of Property Act. On the same
pnnc1plt'. \ 11 . • 1h01 1hcy arc bound by the result of the execution procee?i~1gs
under ~1:cllnn ~2. fruru;fcr of property Act, the transferees from the ongmal
1uJ gm~n t Jcbll1r dunnKthe pcndcncy of lhc cxeculion proceedings againsl him,

fl I

52
 Text book on Civil Procedure Code

~on be held to be similarly bound and arc liable to be proceeded agai nst in
• I
c-.:ecut1on .
In Manila/ Lalluh/,ai Patel v. Kikkahhai lalluhhai- It was held that
"'here a decree for an injunction has been passed against the father, the son not
being joined as a party, and the father dies during the pendency of the execution
proceedings. the decree can be enforced under Section 50 ere against the son
as his legal representative by proceeding under Order 21, Rule 322·

:"'o limitation period for execution of preliminar y decree of partition

There is no limitation for execution of preliminary decree for partition.
This was held by the court in the case of Venu v. Ponnusamy Reddiar - "in our
opinion a preliminary decree for partition crystallizes the rights of parties for
seeking partition to the extent declared, the equities remain to be worked out in
final decree proceedings. Till partition is carried out and final decree is passed,
there is no question of any limitation running against right to claim partition as
per preliminary decree. Even when application is filed seeking appointment of
Commissioner, no limitation is prescribed for this purpose, as such, it would not
be barred by limitation, dispute continues till preliminary decree culminates in
3
to final decree".
The logic is that that the preliminary decree does not completely
cuspose of the suit. The suit continues till the final decree is passed and the suit
remains pending till the passing of the final decree.
It is correct law that in a suit for partition, after the passing of a
prelimfoary decree it is the duty of the court to pass a final decree and what is
called an application for final decree is but a reminder to the court of its duty. If
4
so. it is the court's duty to give notice to the parties.

What is the difference between a void decree and an illegal decree?

A decree is void when it is a nullity. It is to be avoided and it does not
exist in the eyes of law. For example, a decree passed against a minor or a
decree passed in violation of subject matter jurisdiction is a nullity and void.
Once it is established to the satisfaction of the Court that a decree is a nullity its
existence can be ignored by the Court, particularly in collateral proceedings
where it is sought to be used or relied upon.
An illegal decree is a decree passed in violation of existing law. Illegal
means a decree not passed in accordance with the procedure laid down by law.
For example, a consent decree passed by a court later on turns out to be
cmmeou~. This cannot be a nullity; it is only irregular or illegal which can be
c,orrected ,n appeal. A decree suffering from illegality or irregularity of
procedure cannot be termed as incapable of execution by the executing court.
The remedy of a person aggrieved by such a decree is to have it set aside in duly
con-.titutcd legal proceedings or by a superior court failing which he must obey
!ht.: command of the decree. A decree passed by a court of competent

/1 ,f
. ,r, I'J 12 llomh.,y 41<2
• 117<.,< r Online\< 'i l k
11

t/,,,m,, /ll11/\ u n1 1/ m m,1 J<J( 'J K1. r l I 729

53

J,
 ·1ex l book 0 11 Civil Procedure Code

1urn.d1e.:111m i.:11111101 hi.; di.;1111ded ol' 11s eflicncy by nny collalern l atluck or Ill
111c1< Icn111 I proceedin gs.
There 1s II world of' d1ffore11ce belwccn 11 'nullily' 1111d un 'illegul' deer•.
/\ decree which 1s 11 1111ll11y (void) c1111 be ignored. In lilct, 11 docs not ex1'it 111 ~c.
eye or lnw. U111 1h111 b 1101 lhe cnse wilh 1111 illegnl decree. ·1 hal decree c:xiHt" le
. ' I I ·
' 10 procccc1111gs I ' •l111
I I1e eye ol lnw till 11 1s set 11-;1t i.; ,y 11ppropn11 .

Void nnd void11ble di.;cree

The difference between II void decree, I und a voidable decree is lh·
. lhc cuse of a void . decree, tI1c uccrce , ' I ,l(
will le 111
,I
uoes not cx1s1 111 t 1c eye of' la
1111d 11111y be co1uplctc ly ignored. 111 the case of' 11 voidable decree, the decree~ 1
. I b ~
vn lid for nil 111tcnls 1111<.l purposes and goes Iong 11s 11 111s 110 1 cen duly avoided
by th~ pnrty havi ng the right lo avoid it und wit hin the period of limiLation
prescribed for the purpose.

Difference hclwccn 1111 irrcgulnrily irnll nullity

An irreg11l11rity is only a deviation from the accepted norms which need
not affect the va lidity of the decree but a nullity is a defect which makes the
proceedings invalid. For example, if' the courls admit and adjudicate a claim
which is beyond lhcir subject mailer jurisdiction, it is not an irregularity il is a
defect that makes the decree invalid. 1-lowcvcr. ir the court having no lerrilorial
jurisdiction admits and adjudicates a claim by mistake, it is an irregularity that
usually docs not affect the validity of' the decree unless iL leads lo failure of
justice.
In Jls/111tosh Sidkar v. Belwri Lal, the court observed thaL no hard and
fast line can be drawn between a nullity and an irregulnrity. An irregulari ty is a
deviation from a rule of law which docs not take away the foundation or
authority for the proceedin g, or apply lo its whole operation, whereas a nullity is
a proceeding that is taken without any foundation for it, or is so essentially
defective as to be of no avai l or effect whatever, or is void and incapable of
being validated.2
It is difficult sometimes to distinguish between an irregularity and a
nullity; but the safest rule to determine what is an irregularity and what is a
nullity is to sec whether the party can waive the objection, if he can waive it, it
3
amounts to an irregularity; if he cannot, it is a nullity.
Illustration: Section 239 of the Rajasthan Land Revenue Act provided that
auction sale after attachment shall be conducted by the Collector or Asst.
Collector. The auction was however, conducted by the Land Revenue Officer
and it was challenged that the sale was a nullity. Applying the above test, the
court observed that the Land Revenue Inspector was not competent to make a
sale under that section and the question of incompetence of the person making
the sale strikes at the very root of tbe act done by him, The parties could not
have waived the absence of a sale by a competent authority , namely, the
4
Collector or the Assistant Collector, specially authorized in that behalf.

J1,~1m:rSl11,:h v. /'11.l'hpa. AIR 1969 PH 397

2 ILi{ 35 Cnl 6 1 111 pugc 72
I / 1,/111,' 1' v /{111·1·1•// , ( 1841 ) 9 Duwl 487
G111wrl, /{11111 v C11ll<'clurr111tl 01:1, 1985 \V LN UC 1)0
54
-
Text book on Civil Procedure Code

Deemed Decrees
A deemed dccret.: is ono which fulls short or the essential clement s or a
d •crcc. ll docs not fulfill the essential features of a decree as required ~nder the
C1.:l,dc. 1lowever ccrlnin decisions of the court by legal fiction arc considered as
lk cincd decrees. They an::
) Rejectio n of a plnint
:,) Octcnnination or questions under section 144 (applica tion for
rcstin1tio n)
•Sl•crion I 44 provides that when the court determin es any q11esJion in an
:,piilicatio1~ for !·esfitlllio 11,_the sam_e ~s deeme~I to be a de_cre~. (B11t ii 11111st be a
; / decis1cm either gra11r111g a relief or ref 11s111g the app/icat ,011))
1110 .
11
,) Adjudic ation under Order 21 Ruic 58 (adjudication of claims to or
objections to attachment of property)
iv) Adjudication under Order 21 Rule 98 or I00. (Orders after
adjudication)
Now. why should the rejection of a plaint be considered as a decree
when it is not given on merits? The reason is unless the decision is considered
as a decree: there cannot be an appeal from the decision.
It is an inclusive definition and the rejection of the plaint by legal
fiction has been deemed a decree. Once it is held that the rejection of the plaint
is a decree, the natural corollary of the same shall be that an appeal would lie. In
view of the language of Section 2 (2) of the Code, order rejecting the plaint has
got 10 be treated as decree. Thus on principles the rejection of a plaint, being
; decree. there is no escape from the conclusion that an appeal would lie. 1
ln CIT v. Bombay Trust C01poratio112 - the Privy Council stated that
when a person is deemed to be somethin g the only meaning possible is that
whereas he is not in reality that something, the act of Parliament or the
Legislature requires him to be treated as if he were.
Further, in Lucy Kochuvareed v. Mariappa Gow1de1J. it was held that
- whenever the legislature uses the word ' deemed' in any statute in relation to a
person or thing, it implies that the legislature after due consideration, conferred
a particular status on a particular person or thing. Such a statutory fiction
created by the legislature cannot be ignored. The effect of such legal fiction
must be given.
The rules in relation to rejection of a plaint are based as much on
substantive grounds as on procedural reasons. Elaborate

The problem is based on Section 2(2) of Civil Procedure Code, which defines
decree. A decree is the formal expression of an adjudication which conclusively
determin es the rights of the parties with regard to all or any of the matter in
controve rsy in the suit. It shall be deemed to include:
1) the rejection of a plaint and
ii) the detennination of any question within section 144. Thus rejection
of a plaint is considered as a deemed decree under section 2(2).

\fcera Sinlw , G1rp 1 S111/rn, A IR 2009 PATNA 19

:! ( 193R) 6 ITR 445
J 1979 lJl SCR 58
55
 I ex t book on C1v1l Procedure Code
ntial elements of a
/\ de,·med dtcrcc JI> one: which fa lls short of the esse
a decree as required under me
di!<.rr.c It ,uie11 not tulfill Lhe essential ftatures of
Lieat.ed hke a decree for specific
( mk Jlowever, the J'arl1ament wanted it to be
purpo5t:5. a decree othetwLSC the
·1lie rejcc twn of a plaint i'i Lo be comidered as
there cannot be an appeal from
agllj ,eve, ! p i:r lliHI will bt with 0ut any remedy as
tht: de..c1!lion.
of the plain t by legal
ft ;., an inclusive definition and the reJec Uon
that the rejection of the plaim
fiwo n li:-1:, been ,foemed a decree. Once JI is held
rs a dead !, the natural corollary of the same shall
be that an appeal would lie. In
e, order rejec ting the plaint has
vir.w of rhe languagt of Section 2 (2) of the Cod
the rejection of a plaint, being
gcJt 111 be treated aB decree. Thus on prin ciples 1
et, thi.:rc i::i no escape from the conc lusion that an appeal would lie.
a deu
Council staled that
In CIT 11. /Jomhay Trust Corporauon - the Privy
2

only meaning poss ible is Lhat

when a ptr1>011 ib deemed to be somethin g the
the act of Parliament or the
whr. n:a:, Ile ih nut in reality that something,
.
/..egu,laturc ri;quire3 him UJ be lfeated as if he were
f 11rthr:r, in /,ur:y Kochuvareed v. Mar iapp a Gounder3, it was held Lhat
any statute m relation to a
Wht 11evf;f the legislature use~ the word deem ed in
due consideration, conferred
pr.rwn or tiring, it implie•, that the legis lature after
H parti cular statu -s on a parti cula
r person or thing. Such a statutory fiction
effect of such legal fiction
cn:atcd by tl1e lcginlalurc cann ot be ignored. The
Jr11J j l he given.
Order 2 (14)
An order i'i the formal expression of any decis
ion of the Civil Court
t of a decree is an order. An
wlw:h i'i 11ot a decree. Any decision that falls shor
n in an applicati on or petition.
ordc: r need not be given in a plaint; it may be give
but it differs from a decree as it is
I .ike a decn:c ,t i'l aho a form al expression,
the parties. However, it is
1101 th,: c:onclU!,ivc determin ation of the rights of
crs in controversy in the suit.
11npn1Lant tlrat an CJrdc: r must also relate to the mart
A 1101h i:;r diffcrencc is that usually an appeal is
not allowed from orders
ion I04 of the Code provides
,mies!! !ipccifica lly provided under the Code. Sect
arc appcalablc:
c:e1llllll exccp1ion11 a·, under. The following orders
tious claims.(Sec-
1. Order which impo<;c<; cost in rc'ipcct of fa lse or vexa
35-A)
of public nuisance
2. Onkr refus ing t.o grant leave Lo institute suit in case
and public. charitic'i. (Sec 91 and 92)
t, attac hment, or
J. Order relating Lu compensation for obta ining arres
inj u11ctio11 r,n i11, ufficicnl grounds. (Sec 95)
or detention in civil
4. /\n order impo .,iug a fine or direc ting the arrest
ntion is in exec ution
p, i•1on of pcr~on <;XCcpt where such arrest or dete
uf' a decree.
is allowed unde r the
J. A11y order ma<l c under rule<; from wh ich an appeal
Code.

~1,,,."1 .\111/111 v r,11111 s·,,,1111, Am 2oo•i P/\l NA J?

I II 'J1 HJ 6 11 I{ ,1,1~
l l'J'l'J /lJ ',( I! 1k
56
 Text book on Civil Procedure Code

{An example of abatement is when a court case is stopped due to the

1em1ination of a law suit.}

Order 43 Rule 1: Appeal from orders

An appeal shall lie from the following orders namely: -
( I) an order under Rule l O of Order VU returning a plaint to be presented
to the proper court except where the procedure specified in Rule I0-A
of Order VU has been followed;
(2) an order under Rule 9 of Order IX rejecting an application (in a case
open to appeal) for an order to set aside the dismissal of a Suit;
(3) an order under Rule 13 of Order IX rejecting an application (in a case
open to appeal) for an order to set aside a decree passed ex parte;
(4) an order under Rule 21 of Order XI;
(5) an order under Rule 34 of order XXI on an objection to the draft of a
document or of an endorsement;
(6) an order under Rule 72 or Rule 92 of Order XXI setting aside or
refusing to set aside a sale;
(7) an order rejecting an application made under sub-rule (I) of Rule 106
of Order XXl , provided that an order on the original application, that is
to say, the application referred to in sub-rule (1) of rule 105 of that
order is appealable
(8) an order under Rule 9 of Order X:Xll refusing to set aside the
abatement or dismissal of a suit;
(9) an order under Rule IO of Order XXIl giving or refusing to give leave;
( I0) an order under Rule 2 of Order XXV rejecting an application (in a
case open to appeal) for an order to set aside the dismissal of a suit;
( 11) an order under Rule 5 or Rule 7 of Order XXXIII rejecting an
application for permission to sue as an indigent person;
( 12) an order in interpleader suits under Rule 3, Rule 4 or Rule 6 of Order
XXXV;
(13) an order under Rule 2, Rule 3 or Rule 6 of Order XXXVIll;
( 14) an order under Rule I, Rule 2, Rule 2A Rule 4 or Rule IO of Order
XXXIX;
( 15) an order under Rule I or Rule 4 of Order XL;
( 16) an order of refusal under Rule 19 of Order XLI to re-admit, or under
Rule 21 of Order XLI to re-hear, an appeal;
(17) an order under Rule 23 or Rule 23-A or Order XLI remanding a case,
where an appeal would lie from the decree of the Appellate Court;
( 18) an order under Rule 4 of Order XLVII granting an application for
review.
Difference between Decree and Order
There are several common elements between an order and a decree as under:
a) both are related to matter in controversy,
b) both are decisions given by the court,
c) both are adjudications,
d) both are formal expressions of court.
However, a Decree and Order differ with each other as under:

57
 Text book on Civil Procedure Code

Decree - S. 2(2) Order S. 2(14)

Can only be passed in a suit instituted by C an be passed in a suit institutc"cti;-
the presentation of a plaint. the presentation • . of a plai nty
. .
a pp 1,cation, or petition. '
Contains conclusive determination of a May or may not finally determ~
n.g I1t. a
right
May be final , preliminary, or partly Cannot be a preliminary order. -----
preliminary - partly final.
In general, there can only be one decree :here ~an be any number of ord--;;
or at the most one preliminary and one 111 a SUit.
final decree in a suit.
Every decree IS appealable unless an Only those orders which arc -
appeal is expressly ba1Ted. specified as appealable in the Code
are aooealable.
A second appeal may lie against a decree There IS no second appeal for
to a High Court on certain grounds. orders

Section 2(3) - Decree Holder - means any person in whose favor a decree has
been passed or an order capable of execution has been made.
Section 2(4) - District - means the local limits of the jurisdiction of a principal
Civil Court of original jurisdiction (hereinafter called a "District Court "), and
includes the local limits of the ordinary original civil jurisdiction of a High
Court.
Section 2(5) - foreign Court - means a Court situated outs ide India and not
established or continued by the authority of the Central Government.
Section 2 (6) - Foreign Judgment- means the judgment of a foreign Court:
Section 2 (7) - Govt. Pleader- includes any officer appointed by the State
Government to perform all or any of the functions expressly imposed by this
Code on the Government Pleader and also any pleader acting under the
directions of the Government Pleader.
Section 2(8) - Judge- means the presiding officer of a Civil Court.
iv) Judgment - is defined u/s 2 (9) of the Civil Procedure Code. It means
the statement given by the Judge on the grounds of a Decree or Order. Thus a
judgment sets out the ground and the reason for the Judge to have arrived at the
decision.
Judgment is the decision of a court of justice upon the respective rights
and claims of the parties to an action in a suit submitted to it for determination -
(State of Tamilnadu v. S. Thangava[) 1.
Judgment is the statement given by the court explaining the grounds of decision
or how the court has arrived at the decision. A judgment must contain the
following components:
I. A brief statement of facts of the case;
2. The points or issues to be determined by the court;
3. The decision taken by the court on such issues;

<t 997) 2 sec 349

58
 Tex t book on Civil Procedure Code
··
-I The rcm,on!-. give n by lhc court 11c0 r ,,uuch dcc1s1on. · ge
A,1 d
v• S11111·1 IYllJ I h · n was whether a Jud
In Balra; Tan. eia • an , t e que stio
oning and it wa!I held that - a judge cannot
• :1

t:ould dispose of a suit without reas•d"

~ y ~u · it d1'sm
•• ,·1 dec reed ". or "su ·
· 1·ssc . Th e whole process of reasoning has to
judgment of a Court of Small Cau ses
bt: <;d ou~ for ?c~idm g the case. Even the
the judge has applied his mind. The
m~ t be m1clhgible and mus t show that a case. Thus an
udgm ent_ e
n_cd not l~o":'ever _be a deci sion on all the issues in
1 - for example constitutional validity
order dec rd,_ng ~ prehmmary issue in a case
of a suitutc IS a Judgment.
is not to be considered as a
However, an order passed by a tribunal if
Judgment. An order passed by the CAT cannot be said to be a judgment even
2
t! has been described as such .
Judgment and decree distinction
judgment that conclusively
A decree is the concluding part of the
s to be expressed formally whereas
dete rmines the rights of the parties and need
rt for the decree. It need not be
judgment is the reasoning given by the cou
relief granted. Usually a judgment
formally expressed and it state precisely the
done by the court in the case
precedes a decree. It includes everything
Further there are judgments in civil
beginning from the framing of legal issues.
ed in civil cases only.
and criminal cases whereas a decree is pass
LegaJ Heir
Section 2(11) - LegaJ Representative and
2 ( 11) of CPC, legal representative
Legal Representative - According to Section
means a person:
person,
I. who in law represents the estate of a deceased
who files a suit in a representative cha ract er
2.
3. a representative of a legal representative
a stranger who may be in
Thus Legal Representative includes even
without claiming any title thereof
actual possession of the deceased's estate
esentative:
The following are the examples of a legal repr t debtor' s property
I. A stranger in possession of deceased judgmen
on's property
2. Executors and administers of deceased pers
l representative and a legal
However, there is difference between lega
administers an estate, and a legal
heir - legal representative is the person who
by a will as one who is entitled to
heir is someone designated by the law or
l heir inherits the estate of a person
receive something from the estate. A lega
l process.
who died by relationship, descent, will or lega
heir ship of a deceased party
The concepts of legal representative and
one as a legal representative, it is
are entirely different. In order to constitute
interest in the estate. The executors
unnecessary that he should have a beneficial
though they may hav e no beneficial
and adminis trators are legal representatives
deceased claiming title in himself
interest. Trespasser into the property of the
a legal representative. On the other
independently of the deceased will not be

I AIR 1999 SC 3381

2 Staie of TN, .. TTtanga1'C'I, ( 1997) 2 SCC
349
59
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I I ' ', Ill , l
 Text book on Civil Procedure Code

I. Suit for cjcclmcnl or recovery ol' possession of immova ble property

from a person in possess ion without title, together with n claim for pm,I
or pnst nnd future mes11e profits.
1 A. suit fo~ pn~ition by one or more tenants in common aga inst others
with n clntm tor account of past or past and future profits.
J. Suits for partition by a member of joint Hindu family with a claim for
an account from the manager.
Further, it was held that - In the first case, the possession of the
dcfendnnl not being lawful, the plaintiff is entitled to recover mesne profits such
pro lits being really in the nature of damages.
In the second case the possession and receipt of profits by the
defendant not being wrongful the plaintiffs remedy is to have an account of
such profits making all just allowance in the favor of the collecting tenant in
common .
In the third case the plaintiff must take the joint family property as it
exists at lhe date of the demand for partition and is not entitled to open up past
account or claim relief on the ground of past inequality of enjoyment of the
profit, except where the manager has been guilty of fraudulent conduct or
misappropriation. The plaintiff would however, be in the position of the tenant
in common from the date of severance in status and his right would have to be
worked out on that basis.

Principles to be applied in awarding mes11e profits

The Court must apply the following settled principles to award mes11e profits:-
!. the profit to be taken into account is that made by a person in wrongful
possession;
2. the aim should be restoration of status before dispossession of the
Decree- holder;
3. the use to which the decree-holder may have put the property if he
himself was in possession is relevant only as evidence of what the
defendant might with reasonable diligence have received.

Burden of proof - In case of mesne profits, the burden of proof is on the

plaintiff or in order to claim mesne profits the claimant has to prove the
following:
i) that be was lawful owner of the property
ii) that he was deprived of it by another person without lawful excuse

PROBLEMS ON MESNE PROFITS

1. A person in wrongful possession of land plants indigo on the land with
the object to use it at a nearby factory. It is proved that a prudent
agriculturist would have planted sugarcane, wheat or tobacco and have
earned more thereby what mes11e profit can be granted to the owner?
The problem is based on section 2(12) of the civil procedure Code.
Mesne profit is the profit derived by a person in wrongful possession of such
property. It includes actual profits derived by such person or such amount he
might have received with ordinary diligenc e along with interest. Howeve r it
61
 Toxl hook 011 l'lvil Procedure C'mJc

Sutt fur CJcclmcnt or recovery of p0Nscssiu11 ul 11nr11ov11bl!.! pmpi.:1ty

rwm n porson in posscssiu11 wi thou t thlc, togctlier wi ll, 11 du1111 lo, pu1;1
or past nnd ruturc 111<'.me proliti;,
1 A suit for pnrtition by unc or rnorc lcn1111ts III commo11 uguinHI otltcrn
with a claim for nccount ol' pnsl or pnHt and future pro lit,;.
-'· Suits for partition by n member of joinl Hindu family wi ll, a cluirn for
:111 account from the manager.
Further. it was held that - In lhc first cusc, the possc1:1s ion or the
defendant 1101 being luwrul, the plaintiff is entitled to recover me.rne profi ts 1:iuch
profits being really in the nature or dnmagcs.
In the second case the possession and reccipl or proliLc; by the
defendant not being wrongful the pl:linliffs remedy is to have an account nl
such prolits making all j ust allowance in Ll1e favor of tJ1c collecting tenant in
common.
In the third case the plaintiff must take the joint family properly as it
exists al the date of the demand for partition and is not entitled to open up past
account or claim relief on the ground of past inequality of enjoyment of' the
profit. except where the manager has been guilty of fm udulent conduct or
misappropriation. The plaintiff would however, be in the position of the tenant
in common from the date of severance in status and his right would have to be
worked out on that basis.

Principles to be applied in awarding mes11e profits

The Court must apply the following settled principles to award mesne profits:-
1. the profit to be taken into account is that made by a person in wrongful
possession;
2. the aim should be restoration of status before dispossession of the
Decree- holder;
3. the use to which the decree-bolder may have put the property if he
himself was in possession is relevant only as evidence of what the
defendant might with reasonable diligence have received.

Burden of proof - In case of mesne profits, the burden of proof is on the

plaintiff or in order to claim mesne profits the claimant has to prove the
following:
i) that he was lawful owner of the property
ii) that he was deprived of it by another person without lawful excuse

PROBLEMS ON MESNE PROFITS

I. A person in wrongful possession of land plants indigo on the land with
the object to use it at a nearby factory. It is proved that a prudent
agriculturist would have planted sugarcane, wheat or tobacco and have
earned more thereby what mes11e profit can be granted to the owner?
The problem is based on section 2( 12) of the civil procedure Code.
Mesne profit is the profit derived by a person in wrongful possession of such
property. It includes actual profits derived by such person or such amount he
might have received with ordinary diligence along with interest. However it

61
 l
Text book on Civil Procedure Code

Jocs not include protils derived by the illegal occu

pier ~om any Improvements
made to such property. The fundnmcntal object of
pasSmg me:me profits is 10
com pens ate the actunl owner of the property for
all the loss he has su~cred.
It ,s m the nuturc of damages and the right to sue for
mesnc profits 1s a right to
sue for damages. The asse ssment of mcs,w profits
is not what the plaintiff has
lost but what the defendant has gained by his wrong
possession.
The Andhrn Pradesh High Court in Mahan/ Narayana
Dossjee Va 111 v
The Board of Tms tces 1• observed that under the expr
ess tenns of the definition
mcsnc profits are profits received by a person in wron
gful possession and the;
are made up of two item s:
li) profits received by him or might have been rece
ived by him with
ordinary diligence and
(ii) interest on such profits.
The above problem is similar to the case of
Han y K. Gray v.
Bhag11mia112that a person in wrongful possession plan
ts indigo on the land with
the object to use it at a nearby factory and it
is proved that a prudent
agriculturist would have planted sugarcane, wheat,
or tobacco. Then the mesne
profits should be assessed on the basis of those more
profitable crops, i.e wheat.
tobacco or sugarcane. However, rejecting this view
, it was held that mesne

I profits include the profits derived by the person in

what the displaced person would have gained with
been displaced .
illegal occupation and not
the use of land had he not
2. Can a co-sharer seek 111es11e profits against
the other co-sharer in
wrongful possession?
The problem is based on section 2( 12) of the civil
procedure Code.
M esne profit is the profits derived by a pers
on in wrongful possession of such
property. It includes actual profits derived by such
person or such amount he
might have received with ordinary diligence along with
interest.
The problem is based on the decided case of Sham
bhu Day al Kheta11
&Others v. Motilal M11raka and others in which
it was held that the possession
of a co-sharer can never be wrongful within Sec.
2( 12) as he has a right and
interest in every inch of the undivided property. Ther
efore one co-sharer cannot
claim 111es11e profits against the other on the ground
that he was in wrongful
possession 3.
Thus the possession of the defendant cannot be calle
d as a wronaful
possession within the meaning of Section 2 ( 12)
CPC as he had a right ~nd
interes~ in the undivided property. In such circumsta
nces, necessary ingredient
for claim of 111es11e profit under the said provision is
lacking in the present case.
Sect!on 2(13) - Movable property - includes grow
ing crops
Section _2 (15) - Plea~er - means any person entit
led to appear and plead for
another m Court, and includes an advocate , a vaki
l and an attorney of a High
Court.
Section 2(16) - Prescribed - means prescribed by mies

A IR IIJ59 AP64
2 AIR 1930 PC 82
3 A IR l 1JXO PATN A 10(1

62
 Tc,i bllol,.. on Cl\ 11 Procedure Code

Srdion 1(17)- Puhlic Officl•r - 1111:an, J pcr,on fnlhng under uny or the
h'lll'" mg Jl·,l·npt "'n,. nmncly.-
p) l·,c~ Judge.
1r ) c, c~ tnl·mh-:r llf the lndmn Civil Service:
td c, c~ ~omtmssinnc<l or ga1cth:d oniccr in the military
id) l'\C~ nni~l·r of n Court of Justice whose duty it is. as such officer. to
in, \.'Stigatc or report on any muller or lnw or fact. or to make.
:rnthcnt1cntc or keep nny document. or 10 take charge or dispose of any
pn.'pcrty. or to execute nny judicial process, or to administer any oath,
l,r to interpret . or to preserve order. in the Court. and every person
especially authorized by a Court of Justice to pcrfom1 any of such
duties:
td c, Cl)' person who holds any office by virtue of which he is empowered
to place or keep any person in confinement:
( f) every officer of the Government whose duty it is, as such officer, to
prevent offences. to give information of offences, to bring offenders to
justice. or to protect the public health, safety or convenience;
tg.) every officer whose duty it is. as such officer, to take, receive, keep or
expend any property on behalf of the Government, or to make any
survey, assessment or contract on behalf of the Government, or to
execute any revenue-process , or to investigate, or to report on, any
matter affecting the pecuniary interests of the Government or to make,
authenticate or keep any document relating to the pecuniary interests of
the Government, or to prevent the infraction of any law for the
protection of the pecuniary interests of the Government; and
(h) every officer in the service or pay of the Government, or remunerated
by fees or commission for the performance of any public duty
Section 2 (18}- Rules - means rules and forms contained in the First Schedule
or made under section 122 or section 125
Section 2(19) - Share in Corporation - shall be deemed to include stock.
debenture stock, debentures or bonds.
Section 2 (20) - Signed - save in the case of a judgment or decree, includes
stamped.

63