Decree Under CPC: Meaning, Types, Amendment & Differences
What is a decree? A decree specifically means an announcement of the legal consequences of a particular act that is brought in after weighing both sides of the case, and further, it is a confirmation that the court’s order is carried out.
But over the course of years, with the procedural merger of law and equity, the term judgment has slowly begun to replace the term decree in various jurisdictions. Historically, this distinction was quite prominent.
It was evident in the UK, but after the passage of the Judicature Act, this distinction has ceased to exist. Similarly, in the United States, this difference between a judgment and a decree has lost its relevance.
But this difference seems to quite concrete even in India even in this century and has been solidified by the Code of Civil Procedure, 1908, which recognizes this distinction completely.
Defined under Section 2(2) of the civil procedure code, a decree is a formal expression which provides the determination of the interests of both the parties in a conclusive manner with regards to any of the controversial matters or concerns of the particular civil suit.
A decree may include rejection of a plaint or determination of any question under section 144, but it does not include the following:
- any adjudication from which an appeal lies as an appeal from an order
- any order of dismissal for default.
To understand the concept of a decree, we must view it as a subset of judgment. It is the decision arrived at by the judge after hearing the merits on both sides of the case, and also the expression of the same.
A decree forms the latter part of a judgment and is extracted from the same by a decree clerk after obtaining the basic results of the case.
Interestingly, the date of the decree is the date of the judgment for facilitating the process of execution and for the benefit of the judge succeeding.
However, the date on the decree can be changed within the next 15 days. A set-off or a counterclaim can also be obtained on the same decree.
TYPES OF DECREE
It is a preliminary decree when the court decides on all the matters concerning the parties to a suit, but nonetheless, does not dispose of the suit.
This particularly happens when it is essential for the adjudication to adjudicate on certain matters of the suit before deciding on the rest.
Supreme Court, in the case Shankar v Chandrakant, said that a preliminary decree is in use when the court decides on the rights and liabilities of the parties without deciding on the result, and in fact, leaving the pronouncement of the result for further proceedings. CPC allows the passing of the preliminary decree in cases relating to the settlement of mortgage, suits for preemption, dissolution of a partnership, administration suit, etc.
But a case following this, the Narayanan vs Laxmi Narayan AIR 1953, case, said that this list aforementioned, which is given in the CPC is not exhaustive and that preliminary decree can be used in other matters as well.
When the suit is completely disposed of by the decree so far as a separate judgment by a court is uncalled for, it is called a final decree. All the problems, controversies and differences between the parties to a suit are completely resolved by the passing of a final decree.
PARTLY PRELIMINARY AND PARTLY FINAL:
When certain issues prevalent in the civil suit are resolved but certain others are left for future adjudication, such decree is called partly preliminary and partly final. For example, a decree for possession and mesne profits can be preliminary for mesne profits but final with regards to possession.
There is a fictitious implication in the word ‘deemed’ which usually means that a thing is assumed to be something that it usually isn’t. Here, any adjudication that does not fulfill the requisites under 2(2) cannot be deemed to be a decree.
However certain other orders and decisions are deemed to be decrees, for example, rejection of a plaint and determination of questions under Section 144.
A consent decree is a decree that is brought about y the agreement between both the parties that puts disputes to rest without admission of liability. It is the result of an adjudication and the very reason for such adjudication is the consent of the parties.
EX- PARTE DECREE:
A decree passed in the absence of the defendant is an ex- parte decree.
DECREE PASSED IN APPEAL:
It is a decree passed in continuation of litigation between the parties.
DECREE ON COMPROMISE PETITION:
It is passed as a result of compromise petition filed by both the parties.
It is a decree with certain inbuilt conditions that form part of the decree.
CONDITIONS FOR DECREE:
There are a few basic conditions that have to be fulfilled so that an adjudication becomes a decree. They are:
- There has to be a formal expression of adjudication. If a decree has not been drawn up, then there is absolutely no scope for an appeal from the judgment.
- All adjudications arise from the institution of a suit. A suit arises by the filing of a plaint, and the most logical conclusion to a suit is the decree.
- All rights of the parties with respect to any or all of the matters controversial in a suit must have been dealt with. If this has not been the case, then the same cannot be deemed a decree.
- This determination of the rights of the parties must be one that is conclusive and not open to future speculation. It must be complete, absolute and final.
AMENDMENT OF DECREE:
Under Section 152 of the CPC, any clerical errors with regards to decrees can be corrected by the courts themselves or on application by the plaintiffs. But according to Section 153, the courts have a general power to amend, and may, at any time, as it deems fit, amend any error or defect proceeding in a suit.
The corrections that the courts are entitled to make are only relating to accidental omissions or clerical errors and not other errors which have been brought about due to gross negligence or mistake.
But before such a move, the court must be satisfied and it must be validly proven that such an error was something no more than an arithmetic error or a clerical mistake and nothing that changes or alters the very functioning of the suit or nothing that is done under malice.
PREPARATION OF DECREE:
It is needless to say that the decree must be framed by the judge with utmost carefulness and impeccable clarity, leaving no ground for an obvious mistake.
The degree must be in consonance with the judgment and also should be clear, concise and precise.
The nature and extent of the relief granted must be explained in great detail, as also what each party is ordered to do. Such declaration of the rights of the parties must be accurate, simple and precise.
There are certain directions given with respect to decrees that have been mentioned below:
- In case of possession of any agricultural land, a prior directive has to be issued with regards to whether or not the possession is with respect to the entire land, wholly and immediately, or such possession can be effected only after removal of any crop standing on the property. This has to be confirmed in the decree.
- In cases of decrees that reach the appellate court, the court by way of language shall affirm to the standards set by law, and should mention whether the decree of the lower court stands affirmed, varied, set aside or reversed. In affirming the decree of a lower court, the terms of the decretal order shall be recited again, so as to confirm it. In varying a decree, the relief granted should be spelled out. Similarly, while reversing a decree, the relief accorded presently must be confirmed again.
“Decree-holder” means any person in whose favor a decree has been passed or an order capable of execution has been made
“Judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made.
The order is the formal expression of any decision that is not a decree.
An order may originate from a suit and generally arises from proceeds that commence on an application.
An order is founded on objective considerations, and hence it must contain a discussion of the various issues that are conflicting in a particular suit.
DIFFERENCES BETWEEN AN ORDER AND A DECREE:
|BASIS FOR COMPARISON||DECREE||ORDER|
|Defined in||Section 2(2)||Section 2(14)|
|Ascertainment of rights||Clearly ascertains rights||May or may not ascertain rights|
|Number||There is only one decree||There can be many orders|
|Type||Can be preliminary, final, partly preliminary or partly final||Can only be final.|
|Appeal||Normally appealable unless barred by law.||Appealable or non- appealable|
JUDGMENT AND DECREE
Having been defined under Section 2(9) of the CPC, a judgment is a final statement given by the judge on the basis of the proclaimed decree.
A judgment is an exhaustive document wherein the judge deals with each and every issue mentioned in the suit which is contested and provides decisions on each of these issues.
Therefore, every judgment would include the facts, findings, evidence, and conclusions of that particular case.
But on the other hand, a decree is a part of the judgment that appears in the latter part of the same and is extracted from the judgment by the decree clerk who possesses the basic facts and results of the case.
Therefore, every judgment contains a decree, where the decree separated and standing independently from the judgment is meaningless.
A decree has to be in line with the judgment and also, the correct interpretation of the judgment has to be presented.
But if the situation is such that there is a conflict between the judgment and the decree, them the decree has to be properly construed and if the conflict still persists, then the decree has to be adhered to.
A decree being the subset of judgment is a formal expression of the resolution of the controversies or bones of contention existing between the different parties to a contract.
It is common knowledge that rights may be procedural or substantive. But the rights proclaimed under a decree must be substantive and not merely procedural.
However, a decree may not pertain only to the merits of the case, it can also be on the grounds such as the character of the parties, settlement etc.
Therefore, a decree is a formal expression of an adjudication that determines the rights of parties pertaining to any or all of the controversies in a suit.