Friday, 11 May 2018

Good article on Decree as per Civil procedure Code

Decree S 2(2) of CPC

The term decree is defined as the formal expression of an adjudication which as far as regards the court expressing it, conclusively determines the rights of parties with regard to all or any of the matters in controversy in the suit.

ESSENTIAL ELEMENTS OF DECREE

In order that a decision of a court may be a decree, the following five essential requirements must be satisfied:
1) There must be an adjudication that is a judicial determination of the matter in dispute.
2) The adjudication must have been given in a suit.A proceeding which does not commence with plaint is not a suit, and decision given therein will not be a decree.Thus an application for leave to sue by an indigent person is not a suit,as the application becomes a suit only after leave is granted, and order passed on such an application is not a decree.
It may be noted that there are certain proceedings under other Acts which, according to specific provisions in such Acts are to be regarded as suits under this code.Thus proceedings under the Indian succession Act,Guardian and wards Act and provincial insolvency Act are statutory suits,and hence the decisions therein are decrees.
3) It must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit. The words “rights of the parties” mean substantive rights arising between parties,as for instance, question relating to status,jurisdiction and so on.Therefore, orders of mere procedure do not affect substantive rights.Thus, an order of dismissal for default of appearance is not a decree.So also,an order granting leave to withdraw suit with liberty to file a fresh suit is not a decree.
4) Such determination must be a conclusive determination.
5) There must be a formal expression of the adjudication, namely, all the requirements of form must be complied with.

Thus it has been held that the following is not decrees, Viz-

A) an order directing stay of a suit.
B) an order remanding a suit for fresh disposal,and
C) an order returning plaint for presentation to proper court.
Types of decrees:

a) Preliminary decree- A decree is preliminary when the adjudication ,though it conclusively determines the rights of the parties with regard to some of the matters in controversy in the suit,does not completely dispose of the suit, and further proceedings have to be taken before suit can be completely disposed of .In other words, a preliminary decree is one which declares the rights and liabilities of the parties,leaving the actual result to be worked in further proceedings.Later, further inquiries are held pursuant to the preliminary decree and the rights and liabilities of parties are finally determined. A decree is then passed in accordance with such determination and that is the final decree.

b) Final decree: A final decree is one which completely dispose of a suit that is when nothing further remains to be decided.

c) Order rejecting plaint is a decree.

d) Determination in application for restitution U/S 144 of CPC -When court decided any question on such application,the same is deemed to be a decree.

Decree does not include appealable orders.
Order returning plaint is order and not a decree.
Every order in execution proceeding is not a decree.

Decree holder: S 2(3) of CPC.
Decree holder means any person in whose favour a decree has been made.

Judgment debtor: S 2 (10) of CPC.

Judgment debtor means any person against whom a decree has been passed or an order capable of execution has been made.

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