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Synopsis

I. Introduction

II. Judgment

1. Definition of Judgment

2. Essentials of Judgment.

Balraj Taneja v. Sunil Madan (1999)

3. Distinction: Judgment and Decree

III. Decree

1. Definition of Decree

2. Essentials of a Decree

i. Adjudication

ii. Suit.

iii. Rights of Parties in Controversy

iv. Conclusive Determination

v. Formal Expression

5. Kinds of decree

i. Preliminary decree

Mool Chand v. Director, Consolidation (1995)

ii. Final Decree

iii.Partly Preliminary and Partly Final

6. Rejection of a plaint

7. Section 144

8. Amended degree

IV. Order

1. Definition of Order

2. Order Decree Similarities

3. Distinction between Order and Decree :

V. Amendment of Judgment Decree Order (Section 152)

I. Introduction

Courts of Law adjudicate by way of an order or a decree. The Civil Procedure Code expresses the difference between a decree and an order. Right to First and Second Appeal is determined by reference to a decree. The stage prior to the passing of a decree is Judgment.

II. Judgment

1. Definition of Judgment

Section 2(9), "Judgment" means the statement given by a judge on the grounds of a decree or order.

2. Essentials of Judgment.

Statement for the grounds of the decision is an essential element of a Judgment.

Every Judgment except that of a court of Small Causes should contain :

i. concise statement of the case,

ii. points for determination,

iii. decision thereon,

iv. reasons for such decisions.

Balraj Taneja v. Sunil Madan (1999)

The Supreme Court held that, a Judge cannot merely say, 'suit decreed' or 'suit dismissed'. The whole process of reasoning has to be set out for deciding the case one way or the other. The Judgment need not, however, be a decision on all the issues in a case.

3. Distinction: Judgment and Decree

A statement given by a Judge on the grounds of a decree or order means a Judgment. Decree does not require a statement by a Judge. Formal expression of an order in the Judgment is not necessasry. However, formal expression of adjudication is necessary in case of a decree. Judgment is passed prior to a decree. Decree follows after the pronouncement of the Judgment.

III. Decree

1. Definition of Decree

Section 2(2), "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 order, or

(b) 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 off. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.

2. Essentials of a Decree

i. Adjudication

Adjudication i.e. judicial finding to the matter in controversy, must exist in order to constitute a decision of court to be a decree. The matter in dispute should be judicially determined. Thus a decree must be passed by a Court in a suit.

ii. Suit.

The word suit is not defined in the code

Hansraj Gupta v. Official Liquidators of The Dehra Dun - Mussoorie Electric Tramway Co. Ltd.

The Lordships of the Privy Council have defined the term in the following Words - The words suit ordinarily really means a civil proceeding instituted by the presentation of a plaint.

iii. Rights of Parties in Controversy

The adjudication must decide rights of the parties regarding all or any of the disputes in the suit. Rights means substantive 'rights' and not merely procedural.

Parashuram v. Hirabai (1957)

The court observed that the expression "matter in controversy" refers to the subject matter of the suit with reference to which relief is sort.

iv. Conclusive Determination

Decision of the Court must be conclusive and final in nature. If the rights of the parties in a suit are not finally decided, it is not a decree.

Narayan v. Pratirodh (1991)

The court observed that, determination must be conclusive means that, it must be final and complete as regards the court which passes it.

v. Formal Expression

Formal expression of an adjudication is essential for every decree and all conditions of form must be complied with. Formal expression should be deliberate and in the manner provided by law. Therefore, a document will not amount to a decree unless formally drawn up.

Shakuntala Devi vs Kuntal Kumari (1969)

The court said that, the decree follows the Judgment and must be drawn up separately. If the decree is formally drawn up in terms of the Judgment then appeal lies from that Judgment.

3. Kinds of decree

i. Preliminary decree

Where the suit is not completely disposed off and the adjudication decides the rights of the parties only regarding one or any of the matters in controversy, it is called a preliminary decree.

Mool Chand v. Director, Consolidation (1995)

The Supreme Court said that a preliminary decree is only a stage in working out the rights of the parties which are to be finally adjudicated by a final decree.

ii. Final Decree

Decree may be said to be final in two ways:

i. When no appeal is filed against the decree within the prescribed period of time.

ii. When the suit is completely disposed off by the court passing the decree.

When a decree completely disposes off the suit and settles all questions in controversy between the parties and nothing remains to be decided, it is called a final decree.

iii.Partly Preliminary and Partly Final

A decree of a Court may be partly preliminary and partly final. Ex. In a suit for possession of immovable property with mesne profits, where the court -

i. Decrees possession of property, and

ii. Directs an enquiry into mesne profits.

The former part of the decree, where the possession part is decided, is final; while the latter part is only preliminary, where the court directs inquiry into mesne profits because the final decree for mesne profits, can be drawn only after enquiry, and the amount due to the plaintiff is ascertained. Therefore, even though the decree is only one, it is partly preliminary and partly final.

6. Rejection of a plaint

Order rejecting a Plaint is a decree and is appealable.

7. Section 144

On an application filed under section 144 of the Code for restitution, the court can decide any question on an application, and the same will be a decree. Therefore an order for restitution of costs, amounts to a decree.

8. Amended decree

An order passed by the court under section 92 of the code relating to the administration of Public Trust, modifying the scheme is a decree and constitutes an amended decree.

IV. Order

1. Definition of Order

Section 2(14), "Order" means the formal expression of any decision of a Civil Court which is not a decree. An order must contain a discussion of the question in issue and provide reason.

2. Order, Decree Similarities

The adjudication of a court of law may either be,

i. a decree, or

ii. an order,

and cannot be both.

Common elements.

i. relate to matters in controversy

ii. decisions given by a Court

iii. adjudications of a court of law

iv. formal expressions of a decision.

3. Distinction between Order and Decree :

i. In a suit there may be just one decree or a preliminary decree and a final decree. However there may be a number of orders passed in a suit without any restriction as to number of orders passed.

ii. A decree originates only after presentation of a plaint in a suit. Orders may not necessarily originate from a suit. It may originate from petitions or applications as well.

iii. There may be a preliminary decree but there cannot be a preliminary order.

iv. A decree conclusively determines the rights of the parties in a suit while an order may or may not conclusively determine such rights.

v. Every decree is appellable as per section 96 unless expressly provided while every order is not appeallable.Only orders specified in section 104 and Order 43, Rule 1 are appealable.

vi. According to section 100, second appeal may lie to a decree passed in first appeal however according to section 104 no second appeal lies in case of appealable orders.

V. Amendment of Judgment Decree Order (Section 152)

Clerical or arithmetical mistakes in Judgment, decrees or orders or errors arising there in from any accidental slip or omission may at anytime be corrected by the court either of its own motion or on the application of any of the parties.

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