Taking a closer look at a Decree, Judgement, and an Order written by Ashwin Pandey student of West Bengal National University of Juridical Sciences
Decree, judgment, and order are three concepts that are often confused during our reading of the civil procedure code, through this article we seek to take a closer look at all three in order to gain a better understanding of the same.
A decree is defined in the Civil Procedure Code under Section 2 (2), it refers to a formal expression of an adjudication which, as far the court delivering it regards, determines in a conclusive manner, the rights of the parties with respect to any or all of the matters in the suit. The decree could be final or preliminary. It is said to be preliminary when there is a need for further proceedings to take place before the suit can be dismissed, it can be passed in situations such as administration suits, suits filed for the dissolution of partnerships, partition or separate possession, the redemption of a mortgage, etc, and if the suit has been disposed of completely then the decree is said to be a final one. A decree ought to be filed within 15 days from the date of the judgment, and the person in whose favor the decree is passed is known as the decree-holder.
A decree is deemed to include the determination of any question as provided under Section 144 of the CPC as well as the rejection of a plaint. It may not, however, include any order of dismissal due to default, or any adjudication from which there lies an appeal as an appeal from the order. Further, if a matter is not judicially determined then it cannot be deemed to be a decree, this was stated in Madan Naik V Hansubala Devi.
Before we go any further it is important to understand what adjudication means. Adjudication refers to the legal process through which a dispute is resolved, it is the formal pronouncement of a judgment or decree by the court. It also implies the hearing by a Court of certain issues based on the evidence produced before it, this is done after the issuance of a notice. It was held in the case Deep Chand V. Land Acquisition Officer that an adjudication needs to be made by an officer of the court and if this is not the case then it cannot be recognized as a decree.
As discussed earlier, decrees can be either preliminary or final, but there can also arise a situation where they are part preliminary and part final. This happens when a court takes a decision to answer 2 questions through the same decree. For example, if there is a case where the suit is for possession of immovable properties along with mesne profits, then the first part of the decree is final whereas the second part is preliminary, this is because a final decree on mesne profits can only be given once an inquiry has been conducted.
In addition to part preliminary and part final decrees, there also exists something known as a deemed decree. This is an adjudication that does not fall under the formal definition of a decree as stated under Section 2(2) but they are still deemed to be decrees due to “legal fiction”, this concept was elaborated upon in East End Dwellings C. Ltd V. Fisbury Borough Council where the court stated that the term deemed is used here to create a legal fiction so that it is able to cover a subject it might not necessarily have been able to earlier. This position was once again reiterated in CIT V. Bombay Trust Corporation Ltd, where it was also added by the court that when a person has been deemed to be something, then what it means is that even though they might not be that thing, in reality, the act still treats them as if they were. It was further stated in B. Nukaraju V. MSN Charities that deemed decrees are not to be covered under Section 2(2) and due to this they will also not attract provision 96 of the CPC, hence a regular appeal cannot lie against a deemed decree, only a miscellaneous appeal is allowed.
A decree is extremely crucial, the CPC requires that a decree be passed in all of the suits. It is such an indispensable requisite because of the fact that it is based upon the judgment as well as the fact that it follows the judgment which makes it an essential component of the final outcome of the case. It is crucial to remember that an appeal lies only against a decree and not a judgment, this means that if a decree is absent then it will be difficult to put an appeal in motion.
There are certain elements that any decree ought to have, these elements are:
- There needs to be a formal expression of the adjudication.
- There cannot lie any decree without there being a suit. The adjudication needs to be given in a suit. A suit has been defined in Hansraj Gupta v. Official Liquidators of The Dehra Dun-Missoorie Electric Tramway Co. Ltd as a civil proceeding that was instituted through the presentation of a plaint. There also exist specific provisions that allow applications to be treated as suits such as in the Hindu Marriage Act and the Indian Succession Act.
- The decision must be complete and final by the court granting it, i.e., the court will not entertain any arguments towards changing the decision, this was stated by the High Court of Calcutta in the case Narayan Chandra V. Pratirodh Sahini.
- The matter under dispute needs to be the subject of the suit. And the decree must determine the rights of the parties.
A decree can undergo amendment through an application by the plaintiff or the respondent according to Section 152 of the CPC if there is a situation where there have been any clerical errors. It is important to remember that these amendments can only be made in cases of accidental omissions that might lead to gross negligence.
A judgment is defined under Section 2(9) of the CPC as the statement that is given by a judge on the basis of a decree or an order. It is what the judge observes with regards to all of the issues in a given case, this is why it consists of the facts of the case, the evidence presented, and the conclusion drawn by the court. It is in essence reasoning that the judge provides with regards to why and on what grounds the decree was passed along with the arguments provided by both sides, the conclusion that the court reached, and all relevant case laws. It is a part of the final stage of a suit and helps in determining the rights as well as liabilities of the parties.
It is stated in Rule 3, Order 20 of the CPC that the judgment needs to be signed as well as dated whilst it is being declared in the open court by the judge. It also goes on to state that once it has been signed by the judge, it cannot undergo amendment unless there is a situation where a clerical error has been made, as clarified in Section 152.
Any Judgment in a court other than a court of small causes needs to have the essential elements of a case, the point of contention, the final decision arrived at by the court as well as the reasons provided for the same. This has been laid down in Rule 4(2), Order 20.
In the case of a Court of small causes, the judgment needs to contain the points on which the determination was reached as well as the decision of the court. It is essential to remember that a judgment cannot merely be a suit decreed or suit dismissed, it needs to provide proper reasoning for the same, the Supreme Court laid this down in Balraj Taneja V. Sunil Madan.
On completion of the final arguments, the court needs to give its judgment either on the same day or on another day, but this can only be done after giving proper notice to the parties. Before the code underwent amendment in 1976, there was no specified time period within which the judgment needed to be delivered, but post the amendment it was laid down that the judgment ought to be pronounced within 30 days from the hearing of the final arguments and the completion of the proceedings. This amendment needed to be brought due to cases such as Anil Rai V State of Bihar in which it took the High Court 2 years to pronounce their judgment once they had heard the final arguments. If there exist extraordinary circumstances then the deadline of 30 days can be shifted to 60 days.
Once the judgment has been pronounced, copies of the same need to be made available to the parties in order to prefer appeals once payments, as specified by the court, have been made.
A judgment can also undergo review, as stated in order 47 of the CPC, on various grounds, some of these grounds include the discovery of new evidence, an error apparent on the face of it, or any other sufficient grounds. The Supreme Court Rules state that the application needs to be filed within 30 days from when the judgment was passed, this figure goes up to 60 days in the case of the High Court. If there is a situation where a death sentence has been given, the application needs to be passed within 60 days.
Once a judgment has been made, the party that becomes liable to pay damages to the other party is known as the judgment debtor, and the party to whom the payment is made is known as the judgment creditor. If a circumstance arises where the judgment debtor is refusing to pay the judgment creditor, the latter has the right to employ extraordinary means with the assistance of the court in order to get the damages. The judgment debtor has been defined in Section 2 (10) of the CPC.
Order finds its definition in Section 2 (14) of the CPC. It states that an order is a formal expression of a decision by a civil court that is not a decree. Generally, an order of a court finds its basis in objective considerations and hence it needs to contain discussions on the issue at hand and the reasoning followed by the court to pass the order.
Order and decree do have certain similarities such as the fact that both are given by courts, both are adjudications, and they both represent the formal expression of a decision.
However, they differ on the grounds such as: –
- Decrees can only be passed in suits that have commenced before the plaint was presented whereas an order might originate from a suit through the presentation of a plaint, and it may also arise through proceedings that commenced through a petition.
- A decree conclusively determines the rights of the parties involved with regards to any or all of the matters, an order might or might not give a final determination of such rights.
- While a decree can be preliminary, an order cannot.
- Barring exceptional circumstances, a suit can only have one decree, but multiple orders can be passed.
- Unless it has been expressly stated, every decree in a suit can be appealed against, however not all orders can be appealed against, that can only happen for specific orders.
- A second appeal can lie in case of an appealable decree; however, no such second appeal shall be permitted in case of an order.
Hence, through the course of the article, we have taken a close look at decrees, orders, and judgments individually in order to gain a better understanding of each of these concepts. The differences between these concepts can now be briefly listed as shown below:
|Finds its definition in Section 2(9) of the CPC.||Is defined in Section 2(2) of the CPC.||Is defined in Section 2(14) of the CPC.|
|A judgment cannot be appealed.||Not all orders can be appealed against, only specific orders are appealable.||A decree is appealable.|
|Judgments are not capable of execution.||As stated in the judgment of the case Govindagouda Narayanagouda vs Madhava Rao Narasinga Rao, an order is “no doubt capable of execution”.||Decrees are capable of execution.|
|Judgments are always final.||An order cannot be preliminary.||A decree can be final, preliminary or part preliminary.|
|Judgment is defined as the statement that is given by a judge on the basis of a decree or an order.||Order is defined as the formal expression of the decision of a civil court that is not a decree.||A decree is a formal expression of an adjudication which, as far the court delivering it regards, determines in a conclusive manner, the rights of the parties with respect to any or all of the matters in the suit.|
|The judgment is composed of the grounds of a decree.||The adjudication of the court which is not a decree is an order.||The decree follows the judgment.|
|The judgment is given at the final stage of the case.||An order can be passed at any stage during the case.||The decree is given at the final stage of the case.|