Ingredients of Decree and related judicial cases

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Author : Akash Shah
Published on : October 11, 2012


  
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Ingredients of Decree and related judicial cases

Decree
The adjudications of a court of law may be divided into two clauses (1) decree & (2) order.

Section 2(2) of the code define term “decree” in following words;

“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 matter 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 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 disposed of the suit. It may be partly preliminary and partly final.”

Essential Elements of Decree
Their 5 main element of decree if they are not present then decree is not their. Following are the element of the decree.
1. There must be an adjudication.
2. Such adjudication must have been done in suit.
3. It must have determined the rights of the parties with regards to all or any of the matters in controversy in the suit.
4. Such determination must be of a conclusive nature, and
5. There must be a formal expression of such adjudication.

Adjudication–
For a decision of a court to be a decree, there must be an adjudication, i.e. a judicial determination of the matter in dispute. If there is no judicial determination of any matter in dispute, it is not a decree. Thus, a decision on a matter of an administrative nature, or an order dismissing a suit for default of appearance of parties or dismissing an appeal for want of prosecution cannot be termed as a decree inasmuch as it dose not judicially deal with the matter in dispute. Further, such judicial decision determination be by a court. Thus, an order passed by an officer who is not a court is not a decree.

Suit –
The expression “suit” is not defined in the code. But in Hansraj Gupta v. Official Liquidators of The Dehra Dun-Missoorie Electric Tramway Co. Ltd., Their Lordship of the Privy Council Have defined the term in the following words, “The word 'suit' ordinary means and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint.” Thus, every suit is instituted by the presentation of a plaint. It means that when there is no civil suit, there is no decree. Thus, rejection of an application for leave to sue in forma pauperis is not a decree, as there is no plaint till the application is granted.

It may, however be noted that under certain enactment specific provisions have been made to treat applications as suits, e.g. proceedings under the Indian Succession Act, the Hindu Marriage Act, the Land Acquisition Act, etc. They are statutory suits and the decision given thereunder are, therefore, decrees. Therefore a proceeding which dose not commence with a plaint and which is not treated as a suit under any act, cannot be said to be suit under the code also and the decision given therein cannot be said to be a “decree” under section 2(2) of the code. Thus, a decision of a tribunal, even though described as a decree under the act, is a decree passed by a tribunal and not by a court covered by section2(2).

Rights of parties in controversy –
The adjudication must have determined the right of the parties with regards to all or any of the matters in controversy in the suit. The word “right” means substantive rights of the parties and not merely procedural rights. Thus, rights of the parties inter se relating to status, limitation, jurisdiction, frame of suit, account, etc. are “rights of the parties” under this section. The rights in matters of procedure are not included in it. Thus, an order for dismissal of a suit for default of appearance, or an order dismissing an application for execution for non-prosecution, or an order refusing leave to sue in forma pauperis, or a mere right to sue are not decrees as they do not determine the rights of parties.

The term “parties” means parties of the suit, i.e. the plaintiff and the defendant. Thus, an order on an application by a third party, who is a stranger to the suit, is not a decree. In inter-pleader suits, the contesting defendants will be deemed to be parties to the suit.

The expression “matters in controversy” refers to the subject-matter of the suit with reference to which some relief is sought. At the same time , however, it should not be understood as relating solely to the merits of the case. It would cover any question relating character and status of a party suing, to the jurisdiction of the court, to the maintainability of a suit and to other preliminary matters which necessitate an adjudication before a suit is enquired into. Interlocutory orders on matters of procedure which do not decide the substantive rights of the parties are not decrees. Similarly, the proceedings preliminary to the institution of a suit also will not be included in the definition.

Conclusive determination –
Such determination must be of a conclusive nature. In other words, the determination must be final and conclusive as regards the court which passes it. Thus, an interlocutory order which dose not decide the rights of the parties finally is not a decree, e.g. an order refusing an adjournment or an order striking out decree of a tenant under the relevant Rent Act, or an order passed by the appellate court deciding same issue and remitting other issues to the trial court for determination under order 41 rule 23 of the code are not decrees because they do not decide rights of parties conclusively.

On the other hand an order may determine conclusive the rights of the parties although it may not dispose of the suit. Thus, an order dismissing the appeal summarily under order 41 of the code or holding it to be not maintainable or a decision dismissing a suit for want of evidence or proof are decrees in as much as they decide conclusively the rights of the parties to the suit.

The crucial point which require to be decided in such a case is whether the decision is final and conclusive in essence and substance. If it is, it is a decree, if not, it is not a decree.

Formal expression –
There must be a formal expression of such adjudication. All the requirement of form must be complied with. The formal expression must be deliberated and due in the manner provided by law. The decree follows the judgement and must be drawn up separately. Thus, if the decree not formally drawn up in form of judgement, no appeal lies from that judgement. But the decree need not be in a particular form. Thus, a mis description of a decision as order which amounts to a decree dose not make it less than a decree.

Now let us take some decision which are decree and which are not decree.

Decision which are decree.
1. Order of abatement of suit.
2. Dismissal of appeal as time barred.
3. Dismissal of suit or appeal for want of evidence or proof.
4. Rejection of plaint for non-payment of court fees.
5. Granting or refusing to grant costs or installment.
6. Modification of scheme under section 92 of the code.
7. Order holding appeal not maintainable.
8. Order holding that the right to sue does not survive.
9. Order holding that there is no cause of action.
10. Order refusing one of several reliefs.

Decision which are not decree.
1. Dismissal of appeal for default.
2. Appointment of commissioner to take account.
3. Order of remand.
4. Order granting or refusing interim relief.
5. Return of plaint for presentation to proper court.
6. Dismissal of suit under order 23 rule 1.
7. Rejection of application for condonation of delay.
8. Order holding an application to be maintainable.
9. Order refusing to set a side sale.
10. Order directing assessment of mesne profit.

Contents of decree
The decree shall agree with the judgement, it shall contain the number of the suit te name and description of the parties, there registered address, and particulars of the claim and shall specify clearly the relief granted or other determination of the suit.

The decree shall also state that the amount of cost incurred in the suit, and by whom or out of what property and in what proposition such cost are to be paid.

The court may direct that the cost payable to one party by the other shall be set of against any sum which is admitted or found to be due from the former to the latter.

Conclusions
The meaning and content of decree can easily understand by above chapter and I have also taken some of the judicial decision for example in this topic as without proper example it is not possible to complete the project. I have also taken one decree for the reference in this project. This make project very clear about the topic and what decree and clears all the doubts from the mind of general people.

My out come of hypothesis is positive but I also came to know about various other parts of the decree which will help me lot in my feature.

# Takwani, c.k. Civil Procedure, eastern book company, .16

Authors contact info - articles The  author can be reached at: akashshah@legalserviceindia.com