What do you mean by decree and analyze its essential elements? When a decree is called final?

Question: What do you mean by decree and analyze its essential elements? When a decree is called final? [B.R.J 2011, CGJ 2010, Raj J 1986]

Or

What is a decree? Explain its essential elements. Distinguish between the preliminary decree and final decree. In what cases the preliminary decree is mandatory? [UPCJ 1987, Bihar 1986]

Find the answer to the mains question only on Legal Bites. [What do you mean by decree and analyze its essential elements? When a decree is called final?]

Answer

According to Section 2(2) of CPC, 1908, “decree” means the formal expression of an adjudication which, so far as regards the Court 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 a plaint and the determination of any question within section 144, but shall not include—

1. any adjudication from which an appeal lies as an appeal from an order, or
2. any order of dismissal for default.

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

Essential Elements include:

1. There must be an adjudication.

It means a judicial determination of the matter in dispute. Hence, if the decision is administrative in nature, then it cannot be considered a decree.

2. The adjudication should be done in a suit.

Without a civil suit, there lies no decree. The adjudication must have been given in a suit, which is commenced by filing a plaint in a civil court.

3. It must determine the rights of parties regarding the matter in dispute.

‘Right’ means substantive rights and not merely procedural rights. Similarly, the parties to the rights in controversy should be the plaintiffs and defendants and, if an order is passed upon the application made by a third party who is a stranger to suit then it is not a decree. It must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit.

4. The determination of the right should be of conclusive nature.

The decision must be one that is complete and final as regards the court which passed it. This means that the court will not entertain any argument to change the decision i.e. as far as the court is concerned, the matter in issue stands resolved.

5. There must be a formal expression of such adjudication.

There must be a formal expression of adjudication. In simple terms to be a decree, the court must formally express its decision in the manner provided by law. A mere comment of a Judge cannot be a decree. The decree follows the judgment and must be drawn separately.

I. Preliminary Decree

A decree is identified as a preliminary decree when an adjudication decides the rights of parties regarding all or any of the matter in dispute but it does not dispose of the suit completely. In simple terms, the preliminary decree is passed when the court is compelled to adjudicate upon a certain matter before proceeding to adjudicate upon the complete dispute.

A preliminary decree can be passed by the court in the following suits as provided by the CPC, 1908-

1. 1. Order 20 Rule 12: Suit for possession and Mesne Profits
   2. Order 20 Rule 13: Administration Suits
   3. Order 20 Rule 14: Suit of pre-emption
   4. Order 20 Rule 15: Suit filed for dissolution of a partnership
   5. Order 20 Rule 16: Suits related to accounts between the principal and agent
   6. Order 20 Rule 18: Suit for partition ad separate possession
   7. Order 34 Rule 2: Suits related to the foreclosure of a mortgage
   8. Order 34 Rule 4: Suits related to the sale of the mortgaged property
   9. Order 34 Rule 7: Suits for the redemption of a mortgage

II. Final Decree

A decree is called final when it disposes of the suit completely, so far as the court passing it is concerned. A final decree settles all the issues and controversies between the parties to the suit by the court of law. Consideration of final decree depends on the following facts-

1. 1. No appeal was filed against the said decree within the prescribed time period.
   2. The disputed matter in the decree has been decided by the highest court.
   3. When it completely disposes of the suit.

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