A court returns a memo of appeal to be presented before a proper court- whether it is an order or decree?

Question: A court returns a memo of appeal to be presented before a proper court- whether it is an order or decree?

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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 –

(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal or 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.”

It is evident from a bare reading of the definition that a decree has the following essential elements;

(i) There should be an adjudication;

(ii) the adjudication should determine the rights of the parties regarding all or any of the matters in controversy;

(iii) the adjudication should be in a suit; and

(iv) the adjudication should be formal and conclusive so far as that court is concerned.

From the above definition, it is clear that when a court returns a memo of appeal to be presented before a proper court, then it cannot be said that the court has made any formal adjudication or conclusively determines the rights of the parties in the suit or proceeding. Hence, returning of memo of appeal by the court falls within the category of order and not of the decree.

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