Substantive and procedural laws are two branches of law from the jurisprudential standpoint, and the Civil Procedure Code belongs to the latter. Civil Procedure, in contradistinction to Criminal Procedure, deals with the steps that the parties-plaintiff & the defendant should take from the time of commencement of the Civil proceedings until its conclusion. The Civil Procedure Code was enacted in 1908 and came into force on 1st January 1909. The Civil Procedure Code neither devises nor takes away any right. It is proposed to regulate the procedures followed by the civil court.
The proper understanding of the Civil Procedure Code, 1908, and more precisely about the functioning of the courts is inadequate without comprehending the distinction between the legal terminologies of Order, Decree, and judgment.
The Author in this article will endeavor to explain the two terminologies; decree and order.
Section 2(2) of the Code defines "decree". Unless there is anything repugnant in this subject or context "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 determination of any question within section 47 or section 144." Definition of decree includes a preliminary decree and a final decree. There can be more than one preliminary/final decree in a suit. The decree might not include: 1. Any adjudication from which an appeal lies as an appeal from an order; 2. Any order of dismissal for default.
Illustration: In a suit between A and B wherein A claimed that a specific property ‘P’ belonged to him while B claims that the said property belonged to him. After considering all the arguments, the court will rule in the memento of either A or
B. The final verdict of the court regarding the above claim i.e., whether the property belonged to A or B is a decree.
- ESSENTIALS OF "DECREE"
1. There must be a formal expression of an adjudication
There must be a formal expression of an adjudication, i.e, the granting or refusing any reliefs claimed in the suit or appeal or other proceedings which may conform to the decision of suit and embodied in a formal declaration of the Court. In the case of Deep Chans vs Land Acquisition Officer, AIR 1994 SC 1901 the essential requirements of a decree were dealt with in detail. The Apex Court opined that to constitute a decision of a Court to be a decree, it must contain either of the following characteristics-
A. There must be an adjudication meaning thereby a judicial determination of the matter in dispute;
B. Decision on a matter of administrative nature is not a decree;
C. An order dismissing a suit for default of appearance of parties is not a decree;
D. Dismissal of an appeal for want of prosecution is not a decree;
E. Any judicial determination can only be called a decree when it is passed by a court. Any order passed by an officer below the rank of a court is not a decree.
F. The adjudication must have been given in a suit before the Court
There can be no decree unless there was a suit; the decree is the logical conclusion of the suit and bears the fruit of litigation. Suit though not defined in the Code may be taken to mean civil, revenue, or other proceedings which may be instituted by the presentation of a plaint or application which may amount to the plaint.
2. The adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit
An order of dismissal of the suit for default of appearance, an order dismissing an execution case for non-prosecution, an order amending an execution-petition, refusal of leave to sue in forma pauperis, decision on an application by a person to be added as a party to the suit on the ground of his interest in the subject matter of the suit, an order directing the assessment of mesne profits are not decrees because they do not determine the rights of the parties concerning any matter in controversy in the suit Gajraj Mati vs Shami Nath, (1916) 39 All 13:36 IC 307. But an order dismissing the suit on account of the failure of the plaintiff to furnish better particulars as ordered amounts to a decree. Madhya Pradesh State Co-operative Land Development Bank Ltd., Bhopal vs. J.L. Choksey, AIR 1980 MP 204.
3. Such adjudication must be conclusive
Such adjudication must be conclusive, i.e., it must be complete and final as regards the Court which passed it. The decree may conclusively determine the rights of the parties although it does not completely dispose of the suit. Srijib vs. Dandi Swami Juggannath Asram, 73 CLJ 532 (536): (41) AC 618.
- CLASSES OF DECREES
1. Preliminary decree;
2. Final decree;
3. Decree partly preliminary and partly final;
4. Order rejecting plaint; and
5. Determination of a question within Section 47 or Section 144.
- A DECREE MUST SATISFY THE FOLLOWING TESTS:
1. There must be an adjudication,
2. Such adjudication must have been given in suit,
3. It must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit,
4. Such determination must be conclusive and
5. There must be a formal expression of such adjudication.
Certain examples of decrees constitute an order denying one of the many reliefs sought, an order that appeal is not maintainable, a plaintiff repudiated for want of court-fees, etc. However, orders like relinquishing an order setting aside the sale, orders forbidding an interim relief are not decrees.
- AMENDMENT OF DECREE
Under Section 152 of the Civil Procedure Code, on an application by the Plaintiff or the Respondent, any clerical glitches in the decrees can be changed or amended by the courts themselves. However, the entitled corrections shall be only be associated with the accidental omission or clerical errors and not any other errors, which may end in gross negligence. Before the execution of such correction by the courts, it must be satisfied and validly established that the erroneousness was nothing more than a clerical one or an arithmetical one.
- DECREE HOLDER
Under Section 2(3) of the Civil Procedure Code, any person in whose favor a decree or an order competent of execution has been relinquished, he/she is regarded as the Decree Holder. Accordingly, any decree passed in the favor of a person who is not even a party to the suit shall also be recognized as the Decree holder under the code.
The term Order has been defined under Section 2(14) of the Code as the formal expression of any ruling of a civil court that is not a decree.
- ESSENTIAL ELEMENTS OF ORDER:
1. It should be a formal expression of any decision.
2. The formal expression should not be a decree.
3. The decision to be pronounced by a civil court.
Therefore, an adjudication of the court which is not a decree is an order. As a prevailing rule, an order of a court is established on objective considerations, and as such judicial order must include a discussion of the question at issue and the reasons which prevailed in the court which further led to the passing of the order.
- KINDS OF ORDERS:
1. Appealable orders – Orders against which an appeal lies.
2. Non-appealable orders – Orders against which no appeal lies.
Likewise, there are two classes of orders:
1. Final orders
An order which disposes of all of the claims and adjudicates the rights and liabilities of all the parties in the suit.
2. Interlocutory orders
Interlocutory order solely settles an intervening matter correlating to the cause. Such orders are made to secure some end and purpose necessary which are indispensable for the progress of the case. In simple terms, a temporary order announced during litigation is called Interlocutory order. Also known as the Interim order, is the decision of the court which does not administer with the finality of the case but rather resolves a subordinate issue relating to the main subject matter.
DECREE AND ORDER—DISTINCTION.
As the words "formal expression" appear in the definitions both of decree and order in this section, the presence or absence of formal expression cannot be the true criterion of the difference between the two. The essence of the distinction lies in the nature of the decision—whether it is an adjudication of a particular kind or not—rather than in the manner of its expression.
(1) Every decree is appealable except a consent decree whereas every order is not appealable except as specified in section 104(1) and O XLIV, the rule I of Code of Civil Procedure, 1908.
(2) There is a provision of a second appeal from the decree passed in the first appeal on certain grounds, whereas no second appeal lies even in case of appealable orders.
(3) A decree adjudicates and conclusively determines the rights of the parties concerning all or any of the matters in controversy, whereas an order may or may not finally determine the rights of the parties.
(4) A decree may be either preliminary or final or both, whereas an order cannot be preliminary.
(5) In a suit only one decree is passed, whereas orders may be passed more than once in the same proceedings. CONCLUSION
It is very important to know the definition of "decree" because the right of first appeal and second appeal is determined by reference to it only. Every adjudication of a Court of law would be either "decree" or "order" but it cannot be both. Whether the adjudication, in any case, is a decree or order must be tested not by reference to general principles but by the expression of the Code, construed in its plain and obvious sense.
1. MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th edition
2. THE CODE OF CIVIL PROCEDURE, 1908 By Justice P.S. Narayana Judge, Assisted by P. Jagadish Chandra Prasad Advocate.