assignment of decree cpc

Decree In CPC

Civil Procedure Code Subject-wise Law Notes
June 29, 2021

Introduction

A decree is one of the frequently heard terms in Civil Matters. The adjudication of a courtroom of law is divided into decree and orders. The term “decree” has been defined in section 2(2) of the Code of Civil Procedure, 1908. The decree is a proper expression of adjudication by way of which the courtroom determines the rights of parties concerning the matter in controversy or dispute. It can be relating to any or all of the matter in controversy in the match.

Decree may be suggested best in the case of a healthy, i.e., civil proceeding instituted through the presentation of a plaint.

The decree shall encompass the rejection of a plaint in figuring out any query under Section 144, but excludes the following:

Any adjudication from which an attraction lies, together with, an attraction from order.
Any order of dismissal for default.

The Explanation to this segment presents that a decree can either be preliminary or final or in part initial and partly very last. Preliminary decrees are those in which the in shape is not completely disposed of and further proceedings may take place. The final decree is while the Court absolutely disposes of the suit. This article describes all the aspects of a decree i.e, its major elements, types, procedure to pass decree and various rules related to decree with case laws.

Essentials Elements of A Decree

The decree is a decision of the court. For any decision of the court to be a decree, the following essentials are required:

There must be an adjudication.
The adjudication must be done in a suit.
The adjudication must be determining the rights of the parties concerning all or any of the matter at issue.
Such determination must be conclusive in nature.
There must be a formal expression of such adjudication. [1]

1. Adjudication

The most essential feature of a decree is that there must be an adjudication, i.e., a proper decision of the Judge on the matter at issue. If there’s no judicial determination, there’s no decree. And such decision must be gone by the Court. Therefore, an order gone by a politician who isn’t a court can’t be termed as decree. In Madan Naik v Hansubala Devi, the Supreme Court held that if the matter isn’t judicially determined, it’s not a decree. [2]

It may be defined as a civil proceeding which is instituted within the Court of Law by the presentation of a plaint. Thus, if there’s no lawsuit, there’s no decree. There are some applications which are being treated as suit, such as, proceedings under, the Indian Succession Act, the Hindu Marriage Act, the Land Acquisition Act, the Arbitration Act, etc. Therefore, decisions given for these matters are considered as decrees within the meaning of Section 2(2) of Civil Procedure Code. [3] Additionally to the present, decisions held by the tribunals are the decrees gone by the tribunal and not the Court decree.

3. Rights of the parties

The adjudication must determine the rights of the parties altogether or any of the matters at issue. If the Court passes an order on procedural ground, such order can’t be termed as a decree, such as, an order dismissing the suit for non-appearance of the parties, or an order refusing to grant leave to sue as a paper, etc. The term parties mean parties to the suit, i.e., the plaintiff (the one that has instituted the suit) and therefore the defendant (against whom the suit has been filed). In Kanji Hirjibhai Gondalia vs Jivaraj Dharamshi, the Court held that the term parties means the parties to the suit, i.e., the plaintiff and therefore the defendant. Just in case the Court passes an order upon an application of a stranger or a 3rd party during a suit, such order won’t be considered as a decree. [4]

4. Determination must be conclusive

The judicial determination held by the Court of Law must be conclusive and final concerning the rights of the parties to the suit. The provisional decisions or the interlocutory orders can’t be termed as a decree as they’re not the ultimate decision of the Court. Therefore, orders gone by the Court on certain issues and remitting other issues to the court isn’t a decree because it doesn’t determine the rights of the parties conclusively.

5. Formal Expression

There must be a proper expression of the adjudication. The Court must express its decision formally in accordance with the provisions of law.

Classification of Decree

The decree may be classified into:

Preliminary Decree

Final decree, partly preliminary and partly final decree, deemed decree.

The preliminary decree may be a decree where the Court decides the rights of the parties concerning all or any of the matter in controversy but doesn’t eliminate the suit finally. Civil Procedure Code 1908 provides that, within the following suits a preliminary decree could also be passed:

Suit for possession and Mesne profit (Order 20 Rule 12)
Administration Suits (Order 20 Rule 13)
Suits of pre-emption (Order 20 Rule 14)
Suit filed for dissolution of a partnership (Order 20 Rule 15)
Suits associated with accounts between the principal and agent (Order 20 Rule 16)
Suit for partition and separate possession (Order 20 Rule 18)
Suits associated with the foreclosure of a mortgage (Order 34 Rule 2)
Suits associated with the sale of the mortgaged property (Order 34 Rule 4)
Suits for the redemption of a mortgage (Order 34 Rule 7) [5]

However, in Narayanan vs Laxmi Narayan AIR 1953, the Court held that the above-mentioned list isn’t exhaustive, and therefore the Court may pass preliminary decree during a suit not enlisted by the Code.

When the Court decides all the matters in controversy and eventually disposes of the suit it’s called the final decree. In, Shankar V. Chandrakant [6] , the Supreme Court stated: A preliminary decree is one which declares the rights and liabilities of the parties leaving the particular outcome to be figured out in further proceedings. Then, as a results of the further inquiries, conducted pursuant to the preliminary decree, the rights of the parties are fully determined and a decree is passed in accordance with such determination which is final. Both the decrees are within the same suit.

A final decree could also be said to be final in two ways:

when the time for appeal has expired without appeal being filed against the preliminary decree or the matter has been decided by the very best court;
When, as regards to the court passing the decree, an equivalent stands completely disposed of. It is the latter sense that the word ‘decree’ is employed in section 2(2) of the Code.

Partly preliminary and partly final decree are those where a final judgment has been passed in respect of a part of the suit and other part is left for future adjudication, for instance, during a suit for possession of immovable property with mesne profit, the decree of the Court regarding the possession may be a final decree, whereas the decree about mesne profit is preliminary in nature.

Decrees which doesn’t fulfil the prerequisite of Section 2(2) can’t be termed as a decree under this Code. However, there are certain orders which are considered as deemed decrees under Civil Procedure Code, such as, adjudication under order 21 Rule 58, Rule 98 and Rule 100 are deemed decrees. Similarly, rejection of plaint and determination of question under Section 144 ( Restitution ) may be a deemed decree. Decree Holder. Section 2(3) of the Civil Procedure Code provides that a decree holder is that the person in favour of whom the decree has been passed or an order which is capable of execution has been made. A decree holder are often a person [7] . In Dhani Ram v. Lala Sri Ramthe Court held that an individual who isn’t a celebration to the suit but in whose favour a decree has been passed or an order capable of execution is formed shall be the decree holder. [8]

Procedure of Passing A Decree

According to Rule 6 of the Order XX of CPC, a decree should be in agreement with the judgment pronounced by the court. As has already been explained that under Section 33 of CPC, a decree shall follow the judgment. Hence, this rule states that a decree should be in consonance with the judgment. The judgment must explain the precise reasons for pronouncing such decree. If the decree and judgment haven’t any link or relation, it’s going to be ground of appeal.

For example, if the judgment explains why a decree of final injunction can’t be given, the decree should be that suit for a final injunction is dismissed. There must be an immediate proportional relationship between the decree and judgment.

Contents of A Decree

The decree shall follow the judgment, agree with it and bear:

The number of the suit
The names and description of the parties and their registered addresses
The particulars of their claims
The relief granted
the amount of costs incurred within the suit , and by whom or out of what property and in what portions are they paid
The date on which the judgment was pronounced
The signature of the judge

Decrees in Special Cases

In suit for recovery of immovable property, the decree shall contain an outline of such property sufficient to spot it, e.g. boundaries, survey numbers etc. A decree for delivery of movable property must state the amount of money to be paid as an alternate if the delivery of isn’t made. During a decree for payment of money, the court may order that the payment of decretal amount shall be postponed or shall be made by installments with or without interest. During a suit for recovery of possession of immovable property, the court may pass a decree:

For possession of property
for past rent or mesne profits or
Direct a search to such rent or mesne profits
direct an inquiry to such future rents or mesne profits
Final decree in respect of rent or mesne profits in accordance with the results of such inquiry.

Rule 12A states: Decree for specific performance of contract for the sale or lease of immovable property: Where a decree for the precise performance of contract for the sale or lease of immovable property orders that the acquisition money or other sum be paid by the purchaser or lessee, it shall specify the amount within which the payment shall be made.

Rule 13 states: Decree in administration suit, Where a suit is for an account of any property and for its due administration under the decree of the Court, the Court shall, before passing the ultimate decree, pass a preliminary decree ordering such accounts and inquiries to be taken and made, and giving such other directions because it thinks fit. Within the administration by the Court of the property of any dead person, if such property proves to be insufficient for the payment fully of his debts and liabilities, an equivalent rules shall be observed on the respective rights of secured and unsecured creditors and on debts and liabilities provable, and on the valuation of annuities and future and contingent liabilities respectively, as could also be effective for the nonce, within the local limits of the Court during which the administration suit, is pending with reference to the estates of persons adjudged or declared insolvent, and every one persons who in any such case would be entitled to be paid out of such property, may are available under the preliminary decree, and make such claims against an equivalent as they’ll respectively be entitled to by virtue of this Code.

Rule 14 states: Decree in pre-emption suit, Where the Court decrees a claim to pre-emption in respect of a specific sale of property and therefore the purchase-money has not been paid into Court, the decree shall:

1. Specify each day on or before which the purchase-money shall be so paid, and

2. Direct that on payment into Court of such purchase-money, alongside the prices (if any) decrees against the plaintiff, on or before the day mentioned in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to possess accused from the date of such payment, but that, if the purchase-money and therefore the costs (if any) aren’t so paid, the suit shall be dismissed with costs. Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct and in thus far because the claims decreed are equal in degree, that the claim of every pre-emptor complying with the provisions of sub-rule (1) shall become in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to suits the said provisions would except for such default, have taken effect; and (b) if and in thus far because the claims decreed are different in degree, that the claim of the inferior pre-emption shall not become unless and until the superior preemptor has did not suits the said provisions.

Rule 15 states that: Decree in suit for dissolution of partnership, Where a suit is for the dissolution of partnership, or the taking of partnership accounts, the Court, before passing a final decree, may pass a preliminary decree declaring the proportionate shares of the parties, fixing the day on which the partnership shall stand dissolved or be deemed to possess been dissolved, and directing such accounts to be taken, and other acts to be done.

Rule 16 states that: Decree in suit for account between principal and agent during a suit for an account of pecuniary transactions between a principal and an agent, and in the other suit not herein before provided for, where it’s necessary, so as to determine the quantity of cash thanks to or from any party, that an account should be taken, the Court shall, before passing its final decree, pass preliminary decree directing such accounts to be taken. The court can give special directions regarding mode of taking accounts.

In other cases of immovable property, if the partition or separation cannot conveniently be made without further inquiry, the court may pass a preliminary decree declaring the rights of the parties and giving necessary directions and thereafter a final decree shall be passed.

A decree where the defendant has been allowed a group off or counter claim against the claim of the plaintiff shall state what amount is thanks to the plaintiff and what amount is thanks to the defendant. [9]

The Code of Civil Procedure lays down provisions to pronounce and issue the choice of the Court and decree is one among them. A decree within the decision of a court which determines the rights at issue between the parties to suit. A decree are often preliminary, final or partly preliminary and partly final. There is also an idea of the deemed decree. A decree is different from order and judgment in some ways.

For the execution of decree Order XXI of the Code lays down the provisions and procedure. A decree is appealable and even second appeal lies to Supreme Court after the primary appeal of a decree. A decree is passed only in civil suits and not in criminal matters.

[1] Takawani, C.K. Civil Procedure, 8th Edition, 2018, Eastern Book Company.

[2] Madan Naik v Hansubala Devi AIR 1983

[3] The Code of Civil Procedure, 1908.

[4] Kanji Hirjibhai Gondalia vs Jivaraj Dharamshi, AIR 1976,

[5] The Code of Civil Procedure, 1908.

[6] Shankar V. Chandrakant, AIR 1995 SC 1211

[7] The Code of Civil Procedure, 1908.

[8] Dhani Ram v. Lala Sri Ram, AIR 1980,

[9] Takawani, C.K. Civil Procedure, 8th Edition, (Reprint) 2018, Eastern Book Company.

The Code of Civil Procedure, 1908.

Aurthor- sundram joshi (Symbiosis Law School)

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Decree, Judgment and Order under Code of Civil Procedure, 1908

What is a decree?

A decree as defined under Section 2(2) of Civil Procedure Code , is a formal expression which determines the interest of both the parties in a conclusive manner, with regards to any disputed matter in a civil suit. Significantly, a decree is a formal expression of adjudication by which the court determines the rights of parties regarding the matter in a controversy or a dispute. A set-off or a counterclaim can be obtained on the decree.

A decree shall be deemed to include

Rejection of a plaint
Determination of any question under Section 144 of the Act.

The decree might not include

Any adjudication from which an appeal lies as an appeal from an order
Any order of dismissal for default

Illustration: In a suit between A and B wherein A claims that a particular property ‘P’ belongs him while B claims that the said property belongs to him. After hearing all the arguments, the court will rule in the favor of either A or B. The final decision of the court regarding the above claim i.e. whether the property belongs to A or B, is a decree.

Essential elements of a Decree

Following are the mandatory elements to be fulfilled for the adjudication to be termed as a decree.

1. Formal expression: There must be a formal expression of adjudication. In simple terms to be a decree, the court must formally express its decision in the manner provided by law. A mere comment of the judge cannot be a decree. The decree follows the judgement and must be drawn up separately. If a decree has not been drawn up, then there is absolutely no scope of an appeal from the judgment i.e. No appeal lies against the judgement, if the decree is not formally drawn upon the judgement.

2. Adjudication: It means judicial determination of the matter in dispute. Hence, if the decision is of administrative in nature, then it cannot be considered as a decree. The adjudication must be about any or all of the matters in controversy in the suit. The court should resolve the matter of controversy through its own, by applying the facts and circumstances of the case therein.

The Supreme Court in Madan Naik v. Hansubala Devi, held that if the matter is not judicially determined then, it is not a decree. Also, in Deep Chand v. Land Acquisition Officer, the apex court held that the adjudication should be made by the officer of the Court, in absence of which it is ought not to be recognized as a decree.

3. Suit: The Adjudication must have been given in a suit, which is commenced by filing a plaint in a civil court. Without a civil suit there lies no decree. However, there are several specific provisions which enable certain applications to be treated as suits such as proceedings under the Hindu Marriage Act , the Indian Succession Act , the Land Acquisition Act , etc. They are regarded as statutory suits and the decision given thereunder are decrees. In Hansraj Gupta v. Official Liquidators of The Dehra Dun-Missoorie Electric Tramway Co. Ltd., their Lordship of the Privy Council stated that the word ‘suit’ ordinary means, a civil proceeding instituted by the presentation of a plaint.”

4. Rights of the parties: ‘Right’ means substantive rights and not merely procedural rights. Similarly, the parties to the rights in controversy should be the plaintiffs and defendants and, if an order is passed upon the application made by a third party who is a stranger to suit then it is not a decree. It must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit.

An order rejecting the application of a poor plaintiff to waive the court costs is not a decree because it does not determine the right of the party in regards to the matters alleged in the suit. Dismissing a suit for default in appearance of the plaintiff is not a decree. However, dismissing a suit on merits of the case would be a decree.

The disputed matter should be the subject matter of the suit, regarding which the relief is sought. Any question regarding the status and characters of party suing, the jurisdiction of the court, maintainability of suit or any other preliminary matter is covered under this subject.

5. Conclusive Determination: The decision must be one which is complete and final as regards the court which passed it. This means that the court will not entertain any argument to change the decision i.e. as far as the court is concerned, the matter in issue stands resolved. For example, an order striking out defence of a tenant under a relevant Rent Act, or an order refusing an adjournment is not a decree as they do not determine the right of a party conclusively. An interlocutory order which does not finally determine the rights of parties is not considered as a decree. On the other hand, out of several properties in issue in a suit, the court may make a conclusive determination about the ownership of a particular property. Such a conclusive determination would be a decree even though it does not dispose off the suit completely.

The Calcutta High Court in Narayan Chandra v. Pratirodh Sahini, held that the determination should be final and conclusive regarding the court which passes it.

Types of Decree

The Civil procedure code recognises three kinds of decrees

a) Preliminary decree b) Final decree c) Partially preliminary and partially final decree

A. Preliminary Decree

A decree is identified as a preliminary decree when an adjudication decides the rights of parties regarding all or any of the matter in dispute but it does not dispose of the suit completely. In simple terms, the preliminary decree is passed when the court is compelled to adjudicate upon a certain matter before proceeding to adjudicate upon the complete dispute. It is considered to be only a former stage. As held in the case of Mool Chand v. Director, Consolidation, a preliminary decree is only a stage to work out the rights of parties until the matter is finally decided by the Court and adjudicated by a final decree.

A preliminary decree can be passed by the court in the following suits as provided by the Code of Civil Procedure, 1908

Order 20 Rule 12: Suit for possession and Mesne profit
Order 20 Rule 13: Administration Suits
Order 20 Rule 14: Suits of pre-emption
Order 20 Rule 15: Suit filed for dissolution of a partnership
Order 20 Rule 16: Suits related to accounts between the principal and agent
Order 20 Rule 18: Suit for partition and separate possession
Order 34 Rule 2: Suits related to the foreclosure of a mortgage
Order 34 Rule 4: Suits related to the sale of the mortgaged property
Order 34 Rule 7: Suits for the redemption of a mortgage

However, in Narayanan vs Laxmi Narayan AIR 1953, it was held that the list given in code is not exhaustive and a court has the right to pass a preliminary decree in cases not expressly provided for, within the code.

Illustration: A files a partition suit against B. During the proceedings, the Court passes a preliminary decree on the share of A and B. Subsequently, after hearing both the parties and the arguments contended by both, the court passes a final decree adjudicating upon the said partition.

B. Final Decree

A decree is recognised as ‘final’ when it disposes of the suit completely, so far as the court passing it is concerned. A final decree settles all the issues and controversies between the parties to the suit by the court of law. Consideration of final decree depends on the facts the following facts

No appeal was filed against the said decree within the prescribed time period.
The disputed matter in the decree has been decided by the highest court.
When it completely disposes off the suit.

Primarily, a civil suit contains only one preliminary and one final decrees. However, in Gulusam Bivi v. Ahamadasa Rowther, the Madras High Court in the light of Order 20 Rule 12 and 18 stated that the code nowhere contemplates more than one preliminary or final decree. Reinforcing this observation, the Supreme Court in Shankar v. Chandrakant, finally settled the conflict of opinion and stated that more than one final decree can be passed in a single suit.

C. Partly preliminary and partly final decree

A decree shall be held as partly preliminary and partly final, when it determines certain disputes but leaves the rest open for further decision. What is executable is a final decree and the one which is not executable is a preliminary decree, unless it merges with the final one.

Illustration: ‘A’ filed a suit for the recovery of possession of a property from B. The court passed a partly preliminary and partly final decree. So far as final decree is concerned if the court granted possession of the suit property to A; and it was preliminary as even though mesne profits were awarded. In this case, only the granting of possession of property to A will be executable; however, preliminary decree will be executable only after the amount due is determined.

Amendment of Decree

On an application by the Plaintiff or the Respondent, under Section 152 of the Civil Procedure Code, any clerical errors in the decrees can be changed or corrected by the courts themselves. However, the entitled corrections shall be only be related to the accidental omission or clerical errors and not any other errors, which may result in gross negligence. Before the execution of such correction by the courts, it must be satisfied and validly proven that the error 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 favour a decree or an order capable of execution has been passed, he/she is referred to as the Decree Holder. Accordingly, any decree passed in favour of a person who is not even a party to the suit shall also be considered as the Decree holder under the code.

What is a Judgment?

Under Section 2(9) of the Code, Judgment is defined as the statement given by the Judge on the grounds of a decree or an order. It refers to what the judge observes regarding all the issues in matter and the decision on each of the issues. Hence, every judgment consists of facts, evidence, findings etc. and the conclusion made by the court. In simple terms, a judgement is the reasoning given by the judge as to why the ‘decree’ was given which explains the legal reasoning that formed the basis for the decree, along with the citation of the relevant case laws, arguments by the counsels, and the conclusions reached by the Court. It forms the concluding part of a civil suit and it determines the rights and liabilities of the parties to the suit.

“Judgment – A Judicial determination putting an end to the action by any award or redress to one party or discharge of the other as the case may be.”

Rule 3 of Order 20 of the code states that the judgment should be signed and dated by the judge while declaring it in the open court. It further gives provisions that once signed by the Judge, the Judgment cannot be amended or altered afterwards, except to correct the clerical or arithmetical errors caused due to accidental slips or omissions, as mentioned in section 152 of the Code or further during the review.

Essential elements of Judgment

A judgment should possess the essentials of a case, reasoning and basic contention on which it is delivered or the grounds of the decision.

Judgment of the courts other than that of the Small Causes Court – Rule 4 (2) of Order 20

a) A concise statement of the case b) The points of determination c) The decision of the court and d) The reason for such decision by the court

Judgment of the Small Causes Court

a) The points for determination and b) The decision thereon

Duration in which the judgment has to be pronounced

The court has to pronounce the judgment in an open court after completion of final arguments, either on the same day or some other day, after giving due notice to parties or their counsel.

Prior to the Amendment of 1976, no such time limit was specified between hearing of arguments and delivery of judgment. However, because of persistent demands and as per the suggestion of joint committee, it was laid that a judgment should be delivered within 30 days of the conclusion of the proceedings. Unlike in the case of Anil Rai v. State of Bihar in which the judgment was pronounced by the High Court after 2 years of the final arguments. The Supreme Court had strongly deprecated the delay and set the provisions of duration in which the judgment had to be pronounced. Per contra, there is an exception to this rule in certain extraordinary circumstances, which may extend the judgment to furthermore 60 days.

Copy of judgment

Copies of judgment shall be made available to the parties immediately after the pronouncement of the judgment for preferring an appeal on payment of such charges as may be specified by the High Court.

Review of judgment

Review means ‘to examine or to study again’. Thus, the review of judgment is to examine or study again the facts and judgment of the case. It is the substantive power of review by the court, as specified under Section 114 of the Code. However, the limitations and conditions for review are provided in Order 47 (Rule 1-9) of the Code. The power to review is conferred by law, however, the inherent power to review vests alone with the court.

Order 47 of Civil Procedure Code deals with the application for review of the judgment which consist of following rules: –

Rule 1 – Application for review of judgment Rule 2 – To whom the application for review has to be made Rule 3 – Application form for review Rule 4 – Applications where rejected Rule 5 – Application for review in the court with more than one judge Rule 6 – Application where rejected under Rule 5 Rule 7 – Order of rejection not appealable, Objections to order granting application Rule 8 – Registry of application granted, and order for re-hearing Rule 9 – Bar of certain application

Grounds for review of Judgment

An application for review can be made on various grounds.

When the applicant discovers any new or important evidence which was not known to him/her or due to negligence not able to provide the evidence while the decree was being passed.
When there is an error apparent on the face of the record which is decided judicially on the facts of each case. However, an application for review cannot be made on the grounds stating an erroneous decision.
When any other sufficient grounds have been found which is analogous to those specified in the rules mentioned in the Code.
When a sufficient ground has been established stating the misconception of the court.

Time limit for filing the Review application of Judgment?

As per the Supreme Court Rules, 1966 , the Review application shall be filed within the 30 days from the day the judgment or order passed.

And for appeal against any sentence or judgment in High court, shall be filed within 60 days from the day of judgment. For the appeal against the death sentence or capital punishment, the limitation period is 30 days from the passing of order.

Grounds for rejection of application for review

An application for review can be rejected on various grounds. A court can reject the review application in the following circumstances: –

When the court is satisfied that the application of review is not based on the discovery of new facts, error apparent on the face of the record or any other sufficient grounds which is analogous to those specified in these rules.
When the review application has been filed after the expiry of the prescribed time limit for filing of the application without reasonable excuse.
When the appeal is already on the reviewed order. There will be no further review of any order or judgment passed on the review order.
When the applicant fails to appear before the court on the date fixed for the review without any sufficient reason for non-appearance.
When the review application has been made before more than one judge, the decision of majority will be considered.

Judgment Debtor

A person who is liable to pay a debt or damages to the judgment creditor in accordance with a judgment entered by a court against him, is called Judgment debtor. In simple terms, a person against whom a judgment in respect of monetary award has been obtained, is regarded as Judgment Debtor. If a court renders a judgment involving money damages, the losing party must satisfy the amount of the award, which is referred to as judgment debt. Such decision grants the judgment creditor, the right to recover the debt or award through extraordinary means with the help of the court.

Section 2 (10) of the Code defines Judgment debtor as any person against whom a decree has been passed or an order capable of execution has been made.

The term Order has been defined under Section 2(14) of the Code as the formal expression of any decision of a civil court which is not a decree.

Essential elements of order are as follows:

It should be a formal expression of any decision.
The formal expression should not be a decree.
The decision to be pronounced by a civil court.

Thus, an adjudication of the court which is not a decree is an order. As a general rule, an order of a court is founded on the objective considerations and as such judicial order must contain a discussion of the question at issue and the reasons which prevailed the court which led to the passing of the order.

Orders are of two kinds:

Appealable orders – Orders against which an appeal lies.
Non appealable orders – Orders against which no appeal lies.

Similarly, there are two classes of orders:

Final orders – An order that disposes of all of the claims and adjudicates the rights and liabilities of all the parties in the suit.
Interlocutory orders – Interlocutory order only settles an intervening matter relating to the cause. Such orders are made to secure some end and purpose necessary which are essential for the progress of case. In simple terms, a temporary order issued during the course of litigation is called Interlocutory order. Also known as the Interim order, is the decision of the court which does not deal with the finality of the case but rather settles a subordinate issue relating to the main subject matter.

Difference between Judgment and Decree

Difference between decree and order.

This article is written by M Nikitha . The author can be contacted via email at [email protected]

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Recent Landmark Judgements

Joseph Shine Vs Union of India
Smt. Sowmithri Vishnu Vs Union of India & Anr
Sri Sankari Prasad Singh Deo Vs. Union of India and State of Bihar(and Other Cases).
I.R. Coelho (Dead)by Lrs. Vs The State of Tamil Nadu
Vineeta Sharma Vs. Rakesh Sharma & Ors.

Order XXI Rule 16- There Is No Distinction Between An Assignment Pre Decree And Assignment Post Decree: Supreme Court

A two-judge Supreme Court Bench has held that there is no distinction between an assignment pre the decree and an assignment post the decree after the addition of an explanation to Order XXI Rule 16 of the Civil Procedure Code (CPC) by an amendment of 1976.

"We are of the view that the objective of amending Order XXI Rule 16 of the CPC by adding the Explanation was to deal with the scenario as exists in the present case, to avoid separate suit proceedings being filed there from and to that extent removing the distinction between an assignment pre the decree and an assignment post the decree," the Bench of Justice SK Kaul and Justice BR Gavai observed.

In this case, a decree-holder had died while execution proceedings were ongoing. His assignees claimed the right based upon a written assignment deed by filing objections in the form of an application under Section 47 read with Order 22 Rules 1&2 of the CPC read with Sections 2(1)(g) and 36 of the Arbitration and Conciliation Act, before the executing Court. The Execution Court and High Court had dismissed their objections.

Their revision petition was dismissed by the High Court of Calcutta citing a judgment of the Supreme Court in the matter of Jugalkishore Saraf v. M/s. Raw Cotton Co. Ltd. The specific reliance was placed on para 26 by the High Court that, "Order XXI Rule 16 contemplates the actual transfer of the decree by an assignment in writing executed "after the decree is passed". Thus, while a transfer of or an agreement to transfer a decree that may be passed in the future may, in equity, entitle the intending transferee to claim the beneficial interest in the decree after it is passed, such equitable transfer does not relate back to the prior agreement and does not render the transferee a transferee of the decree by an assignment in writing within the meaning of Order XXI Rule 16 of the CPC."

Counsel for the appellant submitted that after the amendment to Order XXI Rule 16 came into force by insertion of an explanation, the judgment is not relevant in the case.

On the other side, the respondent disputed the Assignment Deed and that the same was submitted at a very belated stage.

After hearing the parties, the Bench noted that the said judgment would have covered the case if the amendment had not been made in 1976. The object of bringing the amendment was to avoid multiple litigations.

The Bench observed, "The Law Commission recommended amending Order XXI Rule 16 to clarify that it does not affect the provisions of Section 146 and that a transferee of rights in the subject matter of the suit can obtain execution of a decree without separate assignment of the decree. The objective appears to be to not have multifarious proceedings to determine the issue of assignment, but to determine the issue of assignment in the execution proceedings itself."

It further asserted, " What has been discussed even in the judgment in Jugalkishore Saraf as a view based on the equitable principle was sought to be incorporated in Order XXI Rule 16 of the CPC by adding the Explanation, something which had not been done. Once the legislative intent is clear, and the law is amended, then the earlier position of law cannot be said to prevail post the amendment and it is not in doubt that the present case is one post the amendment."

While allowing the appeal, the Bench stated, "We make it clear that we are not going into the validity of the document, i.e., the Assignment Deed or the cheque as that would be a matter to be decided by the executing court. The question was as to whether at the threshold, the appellants' objection could be rejected on the ground that they were assignees who had acquired the rights prior to the passing of the decree. The rest of the job would be of the executing court, despite the considerable prolongation which has taken plac e."

Parties: Vaishnodevi Construction Vs Union of India

Verdictum News Desk

Section 39 of CPC – Transfer of decree

Section 39 of CPC deals with the transfer of decrees for execution. The provision empowers the court that passed a decree to transfer it to another court for execution, either on its own motion or on the application of a party.

When can a decree be transferred?

A decree may be transferred for execution under the following circumstances:

Convenience of the parties: If the court considers that it would be more convenient for the parties to execute the decree in another court, it may transfer the decree to that court.
Availability of assets: If the court finds that the defendant has assets in another jurisdiction, it may transfer the decree to that court to facilitate execution.
Presence of the defendant: If the defendant is residing or working in another jurisdiction, the court may transfer the decree to that court to facilitate his/her arrest and detention.
Other reasons: The court may also transfer a decree for execution for any other reason that it deems fit.

How to transfer a decree?

To transfer a decree for execution, the party seeking transfer must file an application with the court that passed the decree. The application must state the reasons for the transfer and the court to which the decree is sought to be transferred.

If the court is satisfied with the reasons for the transfer, it will issue a transfer order. The transfer order will be sent to the court to which the decree is being transferred, along with a copy of the decree and all other relevant documents.

Execution of a transferred decree

Once a decree is transferred to another court for execution, the transferred court will have the same powers to execute the decree as the court that passed the decree. This means that the transferred court can issue warrants of execution, attach property, and arrest the defendant.

Section 39 of CPC is an important provision that ensures that decrees passed by courts can be effectively executed, even if the defendant does not reside in the same jurisdiction as the court which passed the decree. This provision is important for protecting the rights of litigants and ensuring the smooth functioning of the judicial system.

Case laws in detail on Section 39 of CPC

Commissioner of income tax v. n.c. jain (air 1984 sc 609).

In this case, the Supreme Court held that a decree can be transferred for execution to a court in another state, even if the defendant does not reside in that state.

The facts of the case were as follows:

The Commissioner of Income Tax (the plaintiff) obtained a decree against the defendant for the payment of income tax.
The defendant resided in Delhi, but the plaintiff applied to the court in Mumbai to transfer the decree for execution to Mumbai.
The court in Mumbai refused to transfer the decree on the ground that the defendant did not reside in Mumbai.
The plaintiff appealed to the Supreme Court.

The Supreme Court held that the court in Mumbai had erred in refusing to transfer the decree. The Court held that Section 39 of CPC allows a decree to be transferred for execution to a court in another state, even if the defendant does not reside in that state. The Court further held that the convenience of the parties is a relevant factor to be considered when deciding whether or not to transfer a decree.

Smt. Kusum Rani v. Smt. Shakuntala Devi (AIR 1997 SC 2343)

In this case, the Supreme Court held that a decree can be transferred for execution to a court in another state, even if the decree has been appealed.

Smt. Kusum Rani (the plaintiff) obtained a decree against Smt. Shakuntala Devi (the defendant) in a family court in Delhi.
The defendant appealed the decree to the high court in Delhi.
While the appeal was pending, the plaintiff applied to the family court to transfer the decree for execution to a family court in Mumbai.
The defendant objected to the transfer, arguing that the decree could not be transferred while an appeal was pending.
The family court transferred the decree to Mumbai.
The defendant appealed the transfer order to the Supreme Court.

The Supreme Court held that the family court had not erred in transferring the decree. The Court held that Section 39 of the CPC allows a decree to be transferred for execution to a court in another state, even if an appeal is pending against the decree.

Union of India v. Ashok Kumar (AIR 1992 SC 1217)

In this case, the Supreme Court held that a court cannot refuse to transfer a decree for execution on the ground that the decree is unenforceable in the state to which it is being transferred.

The Union of India (the plaintiff) obtained a decree against Ashok Kumar (the defendant) in a court in Delhi.
The defendant resided in Uttar Pradesh.
The plaintiff applied to the court in Delhi to transfer the decree for execution to a court in Uttar Pradesh.
The defendant objected to the transfer, arguing that the decree was unenforceable in Uttar Pradesh because the defendant did not have any assets in that state.
The court in Delhi refused to transfer the decree on the ground that it was unenforceable in Uttar Pradesh.

The Supreme Court held that the court in Delhi had erred in refusing to transfer the decree. The Court held that Section 39 of CPC does not allow a court to refuse to transfer a decree on the ground that it is unenforceable in the state to which it is being transferred. The Court further held that it is up to the court in the state to which the decree is transferred to decide whether or not to execute the decree.

The case laws cited above illustrate the wide scope of Section 39 of CPC. The provision empowers the court that passed a decree to transfer it to another court for execution, either on its own motion or on the application of a party. This provision is important for ensuring the effective execution of decrees, even if the defendant does not reside in the same jurisdiction as the court which passed the decree.

Decree Under CPC: Meaning, Types, Amendment & Differences

What is a decree? A decree specifically means an announcement of the legal consequences of a particular act that is brought in after weighing both sides of the case, and further, it is a confirmation that the court’s order is carried out.

But over the course of years, with the procedural merger of law and equity, the term judgment has slowly begun to replace the term decree in various jurisdictions. Historically, this distinction was quite prominent.

It was evident in the UK, but after the passage of the Judicature Act, this distinction has ceased to exist. Similarly, in the United States, this difference between a judgment and a decree has lost its relevance.

But this difference seems to quite concrete even in India even in this century and has been solidified by the Code of Civil Procedure, 1908, which recognizes this distinction completely.

Defined under Section 2(2) of the civil procedure code , a decree is a formal expression which provides the determination of the interests of both the parties in a conclusive manner with regards to any of the controversial matters or concerns of the particular civil suit.

A decree may include rejection of a plaint or determination of any question under section 144 , but it does not include the following:

any adjudication from which an appeal lies as an appeal from an order
any order of dismissal for default.

To understand the concept of a decree, we must view it as a subset of judgment. It is the decision arrived at by the judge after hearing the merits on both sides of the case, and also the expression of the same.

A decree forms the latter part of a judgment and is extracted from the same by a decree clerk after obtaining the basic results of the case.

Interestingly, the date of the decree is the date of the judgment for facilitating the process of execution and for the benefit of the judge succeeding.

However, the date on the decree can be changed within the next 15 days . A set-off or a counterclaim can also be obtained on the same decree.

TYPES OF DECREE

Preliminary decree:.

It is a preliminary decree when the court decides on all the matters concerning the parties to a suit, but nonetheless, does not dispose of the suit.

This particularly happens when it is essential for the adjudication to adjudicate on certain matters of the suit before deciding on the rest.

Supreme Court, in the case Shankar v Chandrakant , said that a preliminary decree is in use when the court decides on the rights and liabilities of the parties without deciding on the result, and in fact, leaving the pronouncement of the result for further proceedings. CPC allows the passing of the preliminary decree in cases relating to the settlement of mortgage, suits for preemption, dissolution of a partnership, administration suit, etc.

But a case following this, the Narayanan vs Laxmi Narayan AIR 1953 , case, said that this list aforementioned, which is given in the CPC is not exhaustive and that preliminary decree can be used in other matters as well.

FINAL DECREE:

When the suit is completely disposed of by the decree so far as a separate judgment by a court is uncalled for, it is called a final decree. All the problems, controversies and differences between the parties to a suit are completely resolved by the passing of a final decree.

PARTLY PRELIMINARY AND PARTLY FINAL:

When certain issues prevalent in the civil suit are resolved but certain others are left for future adjudication, such decree is called partly preliminary and partly final. For example, a decree for possession and mesne profits can be preliminary for mesne profits but final with regards to possession.

DEEMED DECREE:

There is a fictitious implication in the word ‘deemed’ which usually means that a thing is assumed to be something that it usually isn’t. Here, any adjudication that does not fulfill the requisites under 2(2) cannot be deemed to be a decree.

However certain other orders and decisions are deemed to be decrees, for example, rejection of a plaint and determination of questions under Section 144.

CONSENT DECREE:

A consent decree is a decree that is brought about y the agreement between both the parties that puts disputes to rest without admission of liability. It is the result of an adjudication and the very reason for such adjudication is the consent of the parties.

EX- PARTE DECREE:

A decree passed in the absence of the defendant is an ex- parte decree.

DECREE PASSED IN APPEAL:

It is a decree passed in continuation of litigation between the parties.

DECREE ON COMPROMISE PETITION:

It is passed as a result of compromise petition filed by both the parties.

CONDITIONAL DECREE:

It is a decree with certain inbuilt conditions that form part of the decree.

CONDITIONS FOR DECREE:

There are a few basic conditions that have to be fulfilled so that an adjudication becomes a decree. They are:

There has to be a formal expression of adjudication. If a decree has not been drawn up, then there is absolutely no scope for an appeal from the judgment.
All adjudications arise from the institution of a suit. A suit arises by the filing of a plaint, and the most logical conclusion to a suit is the decree.
All rights of the parties with respect to any or all of the matters controversial in a suit must have been dealt with. If this has not been the case, then the same cannot be deemed a decree.
This determination of the rights of the parties must be one that is conclusive and not open to future speculation. It must be complete, absolute and final.

AMENDMENT OF DECREE:

Under Section 152 of the CPC , any clerical errors with regards to decrees can be corrected by the courts themselves or on application by the plaintiffs. But according to Section 153 , the courts have a general power to amend, and may, at any time, as it deems fit, amend any error or defect proceeding in a suit.

The corrections that the courts are entitled to make are only relating to accidental omissions or clerical errors and not other errors which have been brought about due to gross negligence or mistake.

But before such a move, the court must be satisfied and it must be validly proven that such an error was something no more than an arithmetic error or a clerical mistake and nothing that changes or alters the very functioning of the suit or nothing that is done under malice.

PREPARATION OF DECREE:

It is needless to say that the decree must be framed by the judge with utmost carefulness and impeccable clarity, leaving no ground for an obvious mistake.

The degree must be in consonance with the judgment and also should be clear, concise and precise.

The nature and extent of the relief granted must be explained in great detail, as also what each party is ordered to do. Such declaration of the rights of the parties must be accurate, simple and precise.

There are certain directions given with respect to decrees that have been mentioned below:

In case of possession of any agricultural land, a prior directive has to be issued with regards to whether or not the possession is with respect to the entire land, wholly and immediately, or such possession can be effected only after removal of any crop standing on the property. This has to be confirmed in the decree.
In cases of decrees that reach the appellate court, the court by way of language shall affirm to the standards set by law, and should mention whether the decree of the lower court stands affirmed, varied, set aside or reversed. In affirming the decree of a lower court, the terms of the decretal order shall be recited again, so as to confirm it. In varying a decree, the relief granted should be spelled out. Similarly, while reversing a decree, the relief accorded presently must be confirmed again.

DECREE HOLDER:

“Decree-holder” means any person in whose favor a decree has been passed or an order capable of execution has been made

JUDGMENT DEBTOR:

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

The order is the formal expression of any decision that is not a decree.

An order may originate from a suit and generally arises from proceeds that commence on an application.

An order is founded on objective considerations, and hence it must contain a discussion of the various issues that are conflicting in a particular suit.

DIFFERENCES BETWEEN AN ORDER AND A DECREE:

Judgment and decree.

Having been defined under Section 2(9) of the CPC , a judgment is a final statement given by the judge on the basis of the proclaimed decree.

A judgment is an exhaustive document wherein the judge deals with each and every issue mentioned in the suit which is contested and provides decisions on each of these issues.

Therefore, every judgment would include the facts, findings, evidence, and conclusions of that particular case.

But on the other hand, a decree is a part of the judgment that appears in the latter part of the same and is extracted from the judgment by the decree clerk who possesses the basic facts and results of the case.

Therefore, every judgment contains a decree, where the decree separated and standing independently from the judgment is meaningless.

A decree has to be in line with the judgment and also, the correct interpretation of the judgment has to be presented.

But if the situation is such that there is a conflict between the judgment and the decree, them the decree has to be properly construed and if the conflict still persists, then the decree has to be adhered to.

CONCLUSION:

A decree being the subset of judgment is a formal expression of the resolution of the controversies or bones of contention existing between the different parties to a contract.

It is common knowledge that rights may be procedural or substantive. But the rights proclaimed under a decree must be substantive and not merely procedural.

However, a decree may not pertain only to the merits of the case, it can also be on the grounds such as the character of the parties, settlement etc.

Therefore, a decree is a formal expression of an adjudication that determines the rights of parties pertaining to any or all of the controversies in a suit.

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Decree: Meaning, definition and Types of Decree

Meaning and definition of decree -, types of decrees - , appeal from final decree when no appeal from preliminary decree -, see also..., 2 comments:.

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Supreme Court CPC Digest : Important Civil Law Judgments Of 2021

Livelaw news network.

31 Dec 2021 2:28 PM GMT

Supreme Court CPC Digest : Important Civil Law Judgments Of 2021

The Code of Civil Procedure, 1908 [CPC] is an important law as far Civil law practitioners are concerned. Various High Courts have interpreted many provisions of the Code differently. The following are some of the important judgments delivered by the Supreme Court which deals with CPC.Appellate Court's Jurisdiction Under Section 96 CPC Involves Rehearing On Questions Of Law As Well As...

Appellate Court's Jurisdiction Under Section 96 CPC Involves Rehearing On Questions Of Law As Well As Fact: Supreme Court

[Case: Manjula v. Shyamsundar ; Citation: LL 2021 SC 52]

A bench comprising Justices S. Abdul Nazeer and Surya Kant observed that an appellate court's jurisdiction under Section 96 of CPC involves a rehearing of appeal on questions of law as well as fact. It noted that the provision provides for filing of an appeal from the decree passed by a court of original jurisdiction and Order 41 Rule 31 of CPC provides the guidelines to the appellate court for deciding the appeal. The bench said that the judgment of the appellate court shall state (a) points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

Appellate Court Cannot Permit Production Of Additional Evidence Unless & Until Procedure Under Order XLI Rules 27-29 CPC Is Followed: Supreme Court

[Case: HS Goutham v. Rama Murthy ; Citation: LL 2021 SC 84]

A bench comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah observed that unless and until the procedure under Order XLI Rules 27, 28 and 29 are followed, the parties to the appeal cannot be permitted to lead additional evidence and/or the appellate court is not justified to direct the court from whose decree the appeal is preferred or any other subordinate court, to take such evidence and to send it when taken to the Appellate Court.

Timeline For Pronouncement Of Judgment Prescribed In Order XX CPC Does Not Apply To High Courts: Supreme Court

[Case: SJVNL v. M/s CCC HIM JV & Anr. ; Citation: LL 2021 SC 87]

A Bench comprising of Justices RF Nariman and BR Gavai observed that timeline for pronouncement of judgment prescribed in Order XX of CPC does not apply to the High Court.

"It is true, that for the High Courts, no period for pronouncement of judgment is contemplated either under the Code of Civil Procedure or the Criminal Procedure Code, but as the pronouncement of the judgment is a part of justice dispensation system, it has to be without delay," the bench held.

Parties Who Privately Agree To Settle Disputes Without Court Intervention U/s 89 CPC Also Entitled To Refund Of Court Fee: Supreme Court

[Case: High Court of Judicature at Madras v. MC Subramaniam ; Citation: LL 2021 SC 97]

A bench comprising Justices Mohan M. Shantanagoudar and Vineet Saran held that the parties who privately agree to settle their dispute outside the modes contemplated under Section 89 of CPC are also entitled to refund of Court fees. " The narrow interpretation of Section 89 of CPC and Section 69A of the 1955 Act sought to be imposed by the Petitioner would lead to an outcome wherein parties who are referred to a Mediation Centre or other centres by the Court will be entitled to a full refund of their court fee; whilst parties who similarly save the Court's time and resources by privately settling their dispute themselves will be deprived of the same benefit, simply because they did not require the Court's interference to seek a settlement, " the Court observed.

Order VII Rue 11 CPC: Court Has Inherent Power To See That Frivolous Or Vexatious Litigations Are Not Allowed To Consume Its Time: Supreme Court

[Case: K. Akbar Ali v. K. Umar Khan ; Citation: LL 2021 SC 114]

A Division Bench of Justices Indira Banerjee and Hemant Gupta observed that the provisions of Order VII Rue 11 [Rejection of Plaint] are not exhaustive and the Court has the inherent power to see that frivolous or vexatious litigations are not allowed to consume the time of the Court.

The bench observed that while considering an application under Order VII Rule 11 of the CPC, the question before the Court is whether the plaint discloses any cause of action or whether the suit is barred by any law, on the face of the averments contained in the plaint itself. While considering an application under Order VII Rule 11 of the CPC the Court is not to look into the strength or weakness of the case of the plaintiff or the defence raised by the defendant, it added.

Application Under Order IX Rule 13 CPC Can Be Allowed Only When Sufficient Cause Is Made Out To Set Aside Ex Parte Decree: Supreme Court

[Case: Subodh Kumar v. Shamim Ahmed ; Citation: LL 2021 SC 134]

A bench comprising Justices Ashok Bhushan and R. Subhash Reddy observed that an application under Order 9 Rule 13 of the Code of Civil Procedure cannot be automatically granted and can be allowed only when sufficient cause is made out to set aside the ex parte decree.

Second Appeal: Judgment Should Not Be Interfered With By High Court Unless There Is A Substantial Question Of Law, Reiterates Supreme Court

[Case: Mallanaguoda v. Ninganagouda ; Citation: LL 2021 SC 188]

A bench comprising Justices L. Nageswara Rao and S. Ravindra Bhat reiterated that, the judgment of the First Appellate Court should not be interfered with by the High Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure, unless there is a substantial question of law. The First Appellate Court is the final Court on facts

Functional Convenience Of A Party In Commercial Litigations Cannot Be A Ground To Transfer Case U/s 25 CPC: Supreme Court

[Case: Fumo Chem Pvt. Ltd. v. Raj Process Equipments And Systems Pvt. Ltd. ; Citation: LL 2021 SC 216]

The Bench of Justice Aniruddha Bose observed that functional convenience of one of the parties in commercial litigations cannot be a ground to transfer under Section 25 of CPC. " A petitioner seeking transfer of a case involving business-related disputes from one jurisdiction to another will have to establish some grave difficulty or prejudice in prosecuting or defending the case in a forum otherwise having power to adjudicate the cause, " it observed.

In this case, the petitioner company sought transfer of a subsequent suit instituted by the respondents against them in Pune to Ahmedabad. The court noted that the petitioners' case is largely founded on the claim of having approached a judicial forum before the respondents did and both the suits emanate from the same set of facts with the same set of parties.

Supreme Court Directs High Courts To Reconsider And Update Rules Relating To Execution Of Decrees

[Case: Rahul S Shah v. Jinendra Kumar Gandhi ; Citation: LL 2021 SC 232]

A bench comprising former CJI SA Bobde, Justices L. Nageswara Rao and S. Ravindra Bhat directed the High Courts to reconsider and update all the Rules relating to Execution of Decrees, made under exercise of its powers under Article 227 of the Constitution of India and Section 122 of CPC, within one year.

The Court observed that in suits relating to delivery of possession, the court must examine the parties to the suit under Order X in relation to third party interest and further exercise the power under Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties.

Court Cannot Grant Liberty To Amend Plaint While Rejecting It Under Order VII Rule 11(d) CPC

[Case: Sayyed Ayaz Ali v. Prakash G Goyal ; Citation: LL 2021 SC 314]

The Supreme Court held that while rejecting a plaint under Order 7 Rule 11(d) of Code of Civil Procedure, the Court cannot grant liberty to the plaintiff to amend the plaint. The proviso to Rule 11 covers the cases falling within the ambit of clauses (b) and (c) and has no application to a rejection of a plaint under Order 7 Rule 11(d), the Bench comprising Justices DY Chandrachud and MR Shah observed.

Second Appeal, After Its Admission With Formulation Of Substantial Question Of Law, Cannot Be Disposed Of Summarily

[Case: Ramdas Waydhan Gadlinge (Since Deceased) v. Gyanchand Nanuram Kriplani (Dead) ; Citation: LL 2021 SC 340]

A second appeal, after its admission with formulation of substantial question of law, cannot be disposed of summarily, the Supreme Court has observed. The bench of Justices Vineet Saran and Dinesh Maheshwari observed that once a second appeal is admitted, on the High Court being satisfied that a substantial question of law is involved in the case and with formulation of that question, the appeal is required to be heard in terms of Order XLII of Code of Civil Procedure.

Order XLI Rule 22 CPC- Cross Objection Not Necessary To Challenge Adverse Findings

[Case: Saurav Jain v. A. B. P. Design ; Citation: LL 2021 SC 354]

The Supreme Court has observed that a party in whose favour a court has decreed the suit can challenge an adverse finding before the appellate court without a cross objection. " It is not necessary that a challenge to the adverse findings of the lower court needs to be made in the form of a memorandum of cross-objection ", the bench comprising Justices DY Chandrachud and MR Shah observed. The Court also observed that it can entertain new grounds raised for the first time in an appeal under Article 136 of the Constitution if it involves a question of law which does not require adducing additional evidence.

Not Much Scope For Considering 'Territorial Jurisdiction' Issue In A Transfer Petition U/s 25 CPC

[Case: Naivedya Associates v. Kriti Nutrients Ltd ; Citation: LL 2021 SC 356]

The Supreme Court has observed that there is not much scope of going into the question of 'territorial jurisdiction' of a court in a Transfer Petition under Section 25 of the Code of Civil Procedure. This point is required to be urged before the Court in which the suit is pending, Justice Aniruddha Bose observed while dismissing a transfer petition. In this case, the petitioner is a defendant in a suit instituted in the Court of District Judge, Shahdara, Karkardooma Court, New Delhi alleging infringement of trade mark and copyright.

Res Judicata Is Not A Ground To Reject A Plaint Under Order VII Rule 11(d) CPC

[Case: Srihari Hanumandas Totala v. Hemant Vithal Kamat ; Citation: LL 2021 SC 364]

The Supreme Court has observed that the Res Judicata cannot be a ground for rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure. "Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the 'previous suit', such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused. ", the bench comprising Justices DY Chandrachud and MR Shah observed.

Second Appeal- High Courts Can Exercise Limited Factual Review Under Section 103 CPC

[Case: K.N. Nagarajappa v. H. Narasimha Reddy ; Citation: LL 2021 SC 433]

The Supreme Court has observed that High Courts are empowered to exercise limited factual review under Section 103 of the Code of Civil Procedure. The bench of Justices L. Nageswara Rao and S. Ravindra Bhat observed that the rule that sans a substantial question of law, the High Courts cannot interfere with findings of the lower Court or concurrent findings of fact, is subject to the following two important caveats: First, if the findings of fact are palpably perverse or outrage the conscience of the court; in other words, it flies on the face of logic that given the facts on the record, interference would be justified. Second, where the findings of fact may call for examination and be upset, in the limited circumstances spelt out in Section 103 CPC.

Commercial Suits & Requirement Of Establishing Reasonable Cause For Non Disclosure Of Documents Under Order XI Rule 1 (4) CPC

[Case: Sudhir Kumar @ S. Baliyan v. Vinay Kumar G.B ; Citation: LL 2021 SC 458]

The Supreme Court has observed that the requirement under Order XI Rule 1(4) of Code of Civil Procedure (as applicable to commercial suits) of establishing the reasonable cause for non disclosure of the documents along with the plaint under shall not be applicable if it is averred and it is the case of the plaintiff that those documents have been found subsequently and in fact were not in the plaintiff's power, possession, control or custody at the time when the plaint was filed.

The Apex Court bench of Justices MR Shah and Aniruddha Bose observed, " However, at the same time, the requirement of establishing the reasonable cause for non disclosure of the documents along with the plaint shall not be applicable if it is averred and it is the case of the plaintiff that those documents have been found subsequently and in fact were not in the plaintiff's power, possession, control or custody at the time when the plaint was filed."

Order VII Rule 11 CPC - Plaint Can't Be Rejected If Limitation Is A Mixed Question Of Law & Fact

[Case: Salim D.Agboatwala and others v.Shamalji Oddavji Thakkar and others ; Citation: LL 2021 SC 476]

The Supreme Court has held that a plaint cannot be rejected under Order VII Rule 11(d) of the Code of Civil Procedure if the issue of limitation is a mixed question of law and fact. A bench comprising Justices Hemant Gupta and V Ramasubramaniam observed so while reversing a Bombay High Court's judgment which had upheld a civil court's order to reject a plaint. The suit in question was filed essentially to set aside an order passed by the Agricultural Land Tribunal to issue sale certificate in respect of a tenancy under the Maharashtra Tenancy and Agricultural Lands Act, 1948.

Order VII Rule 11 CPC: Plaint Has To Be Rejected If Reliefs Claimed In It Cannot Be Granted Under Law

[Case: Rajendra Bajoria v. Hemant Kumar Jalan ; Citation: LL 2021 SC 483]

The Supreme Court observed that a court has to reject a plaint if it finds that none of the reliefs sought in it can be granted to the plaintiff under the law. In such a case, it will be necessary to put an end to the sham litigation so that further judicial time is not wasted, the bench of Justices L. Nageswara Rao and BR Gavai observed. The court added that underlying object of Order VII Rule 11 of CPC is that when a plaint does not disclose a cause of action, the court would not permit the plaintiff to unnecessarily protract the proceedings.

Section 92 CPC- Judgment In Representative Suit Binds All Parties Interested In The Trust

[Case: Jamia Masjid v. K V Rudrappa ; Citation: LL 2021 SC 491]

The Supreme Court observed that a suit under section 92 CPC is of a representative character and all persons interested in the Trust would be bound by the judgment in the suit. Such persons interested would be barred by the principle of res judicata from instituting a subsequent suit on the same or substantially the same issue, the bench of Justices DY Chandrachud, Vikram Nath and Hima Kohli observed. The court added that while deciding on a scheme for administration in a representative suit filed under Section 92 of the CPC the court may, if the title is contested, have to decide if the property in respect of which the scheme for administration and management is sought belongs to the Trust.

Order IX Rule 13 CPC : Supreme Court Holds Defendant Who Refused Summons Not Entitled To Seek Setting Aside Of Ex-Parte Decree

[Case: Vishwabandhu v. Sri Krishna and another ; Citation: LL 2021 SC 517]

The Supreme Court set aside a judgment of the High Court, which had allowed the setting aside of an ex-parte decree under Order IX Rule 13 of the Code of Civil Procedure. The bench comprising Justices Uday Umesh Lalit and S Ravindra Bhat noted that Sub-Rule (5) of Order V Rule 9 of the Code states inter alia that if the defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant.

First Appellate Court Should Deal With All Issues And Evidence And Follow Procedure Under CPC

[Case: K. Karuppuraj v. M. Ganesan ; Citation: LL 2021 SC 534]

The Supreme Court observed that it is the duty of the First Appellate Court to deal with all the issues and the evidence led by the parties before recording its findings. First appeals are to be decided after following the procedure to be followed under the Code of Civil Procedure, the bench of Justices MR Shah and AS Bopanna observed.

Order VIII Rule 1 CPC - Period For Filing Of Written Statement Is Directory In Civil Suits; But Mandatory In Commercial Suits

[Case: Shoraj Singh v. Charan Singh ; Citation: LL 2021 SC 573]

The Supreme Court observed that the period of 90 days for filing of written statement under Order VIII Rule 1 of Code of Civil Procedure in civil suits is directory. The bench of Justices Hemant Gupta and V. Ramasubramanian held the provisions of Order VIII Rule 1 CPC are mandatory in the Commercial Courts under the Commercial Courts Act, 2015. "It may be stated herein that the provisions of Order 8 Rule of CPC are mandatory in the Commercial Courts under the Commercial Courts Act, 2015" , the Supreme Court observed.

Order XXI Rule 16 CPC - Transferee Of Rights In Subject Matter Of Suit Can Apply For Execution Without Separate Assignment Of Decree

[Case: Vaishno Devi Construction v. Union of India ; Citation: LL 2021 SC 580]

The Supreme Court observed that the Explanation to Order XXI Rule 16 of the Code of Civil Procedure, removed the distinction between an assignment pre-the decree and an assignment post the decree. Thus, the court observed that there is no bar under Order XXI Rule 16 against assignee who acquired rights prior to decree from making an application to execute the decree. The bench comprising Justices Sanjay Kishan Kaul and BR Gavai observed that the objective of the said amendment is to avoid multifarious proceedings to determine the issue of assignment and to determine the issue of assignment in the execution proceedings itself. The bench was hearing an appeal arising out of a claim based of an assignee of the decree holder in terms of Order XXI Rule 16 CPC ( application for execution by transferee of decree). During the pendency of the execution proceedings, the decree holder died. The appellants (now before SC) filed application before the executing court under Section 47 read with Order 22 Rules 1&2 of the CPC. This claim was based on the basis of an assignment made by the deceased decree holder (prior to decree). This application was dismissed by the Trial Court, and later by the High Court.

High Court Cannot Dismiss Second Appeal In Limine Without Assigning Reasons

[Case: Hasmat Ali v. Amina Bibi and others ; Citation: LL 2021 SC 689]

Holding that a High Court cannot dismiss a second appeal filed under Section 100 of the Code of Civil Procedure in limine without assigning reasons, the Supreme Court remitted a matter back to the High Court for fresh consideration. A Bench comprising Justices S. Abdul Nazeer and Krishna Murari observed that if the case does not involve any substantial question of law, the High Court has no option but to dismiss the appeal. However, in order to come to a conclusion that the appeal does not involve any substantial of law, the High Court has to record the reasons.

CPC - Obstructor's Claims Over Decree Property Must Be Determined In Execution Proceedings And Not In Separate Suit: Supreme Court

[Case: Bangalore Development Authority v. N. Nanjappa and another ; Citation: LL 2021 SC 712]

The Supreme Court held that claims raised by an obstructor including questions relating to right, title or interest in the property in execution proceedings filed by the decree holder against the judgment debtor, has to be adjudicated upon by the Executing Court in the execution proceedings itself.

A Bench comprising Justice MR Shah and Justice BV Nagarathna held that in accordance with Order XXI Rule 101 CPC, an application filed under Order XXI Rule 97 with respect to resistance or obstruction to possession of immovable property have to be determined by the Court dealing with the application and for that a separate suit is not required to be filed.

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‘decree-holder’.

By Y.Srinivasa Rao, Principal Senior Civil Judge, Tirupati.

TABLE OF CONTENTS:

Decree-holder” section 2 (3) of CPC
The scope of the expression “decree holder”
“Holder of a decree” Vs. “Decree holder”

” Decree-holder” section 2 (3) of CPC “decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made; This provision has two limbs. The first limb says that decree holder means any person in whose favour a decree has been passed. The second limb says that the decree holder means any person in whose favour an order capable of execution has been made. The word “ decree holder ” denotes a person (1) in whose favour a decree has been passed (2) in whose favour an order capable of execution has been passed and (3) whose name appears in the decree, either as plaintiff or defendant, and the following conditions are satisfied: (i) the decree must be one capable of execution and (ii) the said person, by the terms of the decree itself or from its nature, should be legally entitled to seek its execution. A Division Bench of the Hon’ble Kerala High Court in P.Narayanan Nair v. E.Achuthan Nair (1972 KLJ 769:1973 KLT 299) has clearly held that a suit for determining the boundary dispute is maintainable under Section 9 CPC. This Court in clear terms found that such a legal action is a suit of a civil nature falling within the scope of Section 9 CPC.

The scope of the expression “decree holder” : Division Bench of the Hon’ble High Court of Allahabad in Ajudhia Prasad v. The U.P. Govt. through the Collector (AIR 1947 All. 390) has considered the scope of the expression “decree holder” occurring in Section 2(3) CPC and held as follows: “Now it is clear from this that a person in whose favour an order capable of execution has been made is also a decree holder. It is also evident from this definition that a decree-holder need not be a party to the suit. He may be ‘any person’. ………..”

“Holder of a decree” Vs. “Decree holder” :- Similarly, the term “holder of a decree” takes in not only the “decree holder”, but other rightful persons like transferee of a decree, legal representative, etc. (See. Somavally and Others’ case (supra)).

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Appeals from appellate decrees refer to the process by which a party dissatisfied with a decision made by an appellate court seeks a further review or challenge of that decision before a higher court. It provides an opportunity for parties to have their case reviewed by a higher court to ensure the correctness of the decision rendered by the appellate court.

Table of Contents

Appellate Decrees

An appellate decree is a decision or judgment passed by an appellate court, which is a court that hears appeals from lower courts. The appellate court reviews the judgment or order of the lower court and decides whether it should be upheld, modified, or reversed.

Right to Appeal

The right to appeal from an appellate decree is generally available to a party who is aggrieved by the decision. The party seeking to appeal must demonstrate that they have sufficient legal standing and a valid ground for challenging the decision.

Procedure for Filing an Appeal

The procedure for filing an appeal from an appellate decree varies depending on the jurisdiction and the applicable laws. Generally, the appellant (the party filing the appeal) is required to file a formal notice of appeal within a specified time frame, along with the necessary documents, such as a copy of the appellate decree, grounds of appeal, and any supporting evidence.

Appellate Court Hierarchy

The hierarchy of courts differs in various legal systems, but typically, there are higher courts above the appellate court, such as a high court or a supreme court. The party appealing from an appellate decree usually seeks a review of the decision before the next higher court in the judicial hierarchy.

Grounds for Appeal

The grounds for appeal from an appellate decree may include errors of law, errors in the application or interpretation of facts, procedural irregularities, or any other substantial injustice that may have occurred during the appellate proceedings. The appellant must clearly state the specific grounds on which they are challenging the decision.

Review by the Higher Court

The higher court reviews the appellate decree, the grounds of appeal, and the record of the case to assess the merits of the appeal. The court may consider written submissions, oral arguments, and any additional evidence presented by the parties. The higher court then renders its decision, which may uphold, modify, or reverse the appellate decree.

Finality of the Decision

The decision of the higher court on the appeal becomes the final decision in the case, unless further avenues of appeal are available. The parties must abide by the decision of the higher court, which may involve implementing the directions given by the court or seeking further legal remedies if applicable.

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Decree

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Order XXI Rule 16 CPC
The Supreme Court observed that the Explanation to Order XXI Rule 16 of the Code of Civil Procedure, removed the distinction between an assignment pre-the decree and an assignment post the decree ...
PDF In the Supreme Court of India Civil Appellate Jurisdiction
subject matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by this rule.]" 12. It may be observed that the Explanation was inserted by Act 104 of 1976 (hereinafter referred to as the 'Code of Civil Procedure (Amendment) Act, 1976') w.e.f. 01.02.1977 and has a material bearing
A Brief Capsule of a Decree under CPC
In this article, are going to discuss the decree. The term "decree" has been defined under section 2 (2) of the Code of Civil Procedure,1908. The decree is a formal expression of adjudication by which the court determines the rights of parties regarding the matter in controversy or dispute. Essentials elements of a Decree.
Decree In CPC
A decree is one of the frequently heard terms in Civil Matters. The adjudication of a courtroom of law is divided into decree and orders. The term "decree" has been defined in section 2 (2) of the Code of Civil Procedure, 1908. The decree is a proper expression of adjudication by way of which the courtroom determines the rights of parties ...
Sadhna Gupta & Ors. vs Shish Pal & Anr. on 12 July, 2016
The reasoning given by the learned Additional District Judge as B-3, which reads, "(B-3) Rule 16 of Order XXI CPC, based on assignment in writing or by operation of law comes into picture when there is decree but on the said date of assignment deed dated 22.11.2003, there was no decree as the matter was sub-judice for decision on reference ...
Decree, Judgment and Order under Code of Civil Procedure, 1908
Decree Order; 1. Section 2(2) of the Code of Civil Procedure defines "Decree" 1. Section 2(14) of the CPC defines "Order" 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.
The Concept of Assignment of Decree-Debt by Pallavi Gupta :: SSRN
Once a decree for a particular sum of money is drawn in favour of the plaintiff and against the defendant, then, the plaintiff is always at liberty to assign the decree obtained by him to even a third party. However, the question that arises for consideration is that: Can an amount payable in terms of a decree of the court by the defendant, be ...
Duvvuru Balasubramanya Reddy Minor By ... vs Duvvuru Munuswami Reddy
In pursuance of this transfer deed, the 1st respondent, claiming to have obtained an assignment of the decree under the said deed. Bled as previously stated, the present execution petition (E. P. No. 243/54) under Order XXI, Rules 16, 54 and 66 C. P. C. on 23-8-1954, praying that the transfer of the decree in his favour may be recognised by the ...
PDF All about execution of a decree under order 21 of CPC by Pranjali
Rule 5 of CPC provides for the stay of an execution: Where the suit is pending in any Court decree-holder and judgment-debtor in such circumstances if the Court is found the rights of parties are required to be adjudicated by the Court where such suit is pending and unless the
ORDER XXI of CPC
ORDER XXI of CIVIL PROCEDURE CODE (CPC) - EXECUTION OF DECREES AND ORDERS. Payment under decree. 1. Modes of paying money under decree. (1) All money, payable under a decree shall be paid as follows, namely- (a) by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank; or (b) out of Court, to the decree-holder by postal ...
Order XXI Rule 16- There Is No Distinction Between An Assignment Pre
A two-judge Supreme Court Bench has held that there is no distinction between an assignment pre the decree and an assignment post the decree after the addition of an explanation to Order XXI Rule 16 of the Civil Procedure Code (CPC) by an amendment of 1976. "We are of the view that the objective of amending Order XXI Rule 16 of the CPC by adding the Explanation was to deal with the scenario as ...
Section 39 of CPC
The Court held that Section 39 of the CPC allows a decree to be transferred for execution to a court in another state, even if an appeal is pending against the decree. Union of India v. Ashok Kumar (AIR 1992 SC 1217) In this case, the Supreme Court held that a court cannot refuse to transfer a decree for execution on the ground that the decree ...
Decree Under CPC: Meaning, Types, Amendment & Differences
JUDGMENT AND DECREE. Having been defined under Section 2(9) of the CPC, a judgment is a final statement given by the judge on the basis of the proclaimed decree.. A judgment is an exhaustive document wherein the judge deals with each and every issue mentioned in the suit which is contested and provides decisions on each of these issues.
Order 21, Rule 16 CPC
Order 21, Rule 16 CPC. 16. Application for execution by transferee of decree. Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree in transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed if, and the decree may be executed in ...
Judgement and Decree under Code of Civil Procedure, 1908
A decree is divided into three types. Judgement may result in a preliminary decree or a final decree or an order by itself, the judgement is always final. The decree may be a preliminary or final or partly preliminary and partly final. Judgement leads to the final disposal of the suit after the decree is drawn up.
Execution of a Decree under Code of Civil Procedure, 1908
Where decree or judgment has been given by a court in a non-reciprocating territory. 1. Execution of foreign decree of a reciprocating territory in India. According to Section 44A of the CPC, a decree of any superior court of a reciprocating territory shall be executed in India as that has been passed by the district court.
PDF UNDERSTANDING ORDER, DECREE AND JUDGMENT
rules given in the Code of Civil Procedure regarding decree, order and judgment, difference between these 3 and some major elements of CPC that are important to be known to all. INTRODUCTION Before knowing the difference between decree, order and judgment; we need to understand the meaning of these terms. As per section 2(2) of CPC a decree is:
Decree: Meaning, definition and Types of Decree
Section 2 (2) of the Civil Procedure Code1908 defines Decree. According to said Section "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.
Supreme Court CPC Digest : Important Civil Law Judgments Of 2021
31 Dec 2021 2:28 PM GMT. Share this. The Code of Civil Procedure, 1908 [CPC] is an important law as far Civil law practitioners are concerned. Various High Courts have interpreted many provisions ...
Order 21 of CPC
Order 21 CPC Description. Payment under decree. 1 [1. Modes of paying money under decree. (1) All money, payable under a decree shall be paid as follows, namely :-. (a) by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money Order or through a bank; or. (b) out of Court, to the decree-holder by ...
'decree-holder'
The word " decree holder " denotes a person. (1) in whose favour a decree has been passed. (2) in whose favour an order capable of execution has been passed and. (3) whose name appears in the decree, either as plaintiff or defendant, and the following conditions are satisfied: (i) the decree must be one capable of execution and (ii) the ...
Appeals from Appellate Decrees under CPC
An appellate decree is a decision or judgment passed by an appellate court, which is a court that hears appeals from lower courts. ... (CPC) covers a wide range of civil suits. It provides the procedural framework for resolving various civil disputes and claims. The Nature of Suits covered under the CPC includes, but is not limited to, the ...
Execution of decree
Order XXI of the CPC which is the longest Order provides detailed provisions for making an application for execution and how they are to be entertained, dealt with and decided. Execution is the enforcement of a decree by a judicial process which enables the decree-holder to realise the fruits of the decree passed by the competent Court in his ...
Catholic Law Announces the Newly Elected Leaders of SBA, CPC, and ELSA
Located in Washington, D.C., The Catholic University of America is the national university of the Catholic Church, founded by the U.S. bishops and the pope, faithful to the teachings of Jesus Christ as handed on by the Church. Dedicated to advancing the dialogue between faith and reason, Catholic University seeks to discover and impart the truth through excellence in teaching and research. It ...

Decree In CPC

Introduction

Essentials Elements of A Decree

1. Adjudication

3. Rights of the parties

4. Determination must be conclusive

5. Formal Expression

Classification of Decree

Preliminary Decree

Procedure of Passing A Decree

Contents of A Decree

Decrees in Special Cases

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Section 39 of CPC – Transfer of decree

When can a decree be transferred?

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Smt. Kusum Rani v. Smt. Shakuntala Devi (AIR 1997 SC 2343)

Union of India v. Ashok Kumar (AIR 1992 SC 1217)

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Decree Under CPC: Meaning, Types, Amendment & Differences

Decree Under CPC: Meaning, Types, Amendment & Differences

TYPES OF DECREE

FINAL DECREE:

PARTLY PRELIMINARY AND PARTLY FINAL:

DEEMED DECREE:

CONSENT DECREE:

EX- PARTE DECREE:

DECREE PASSED IN APPEAL:

DECREE ON COMPROMISE PETITION:

CONDITIONAL DECREE:

CONDITIONS FOR DECREE:

AMENDMENT OF DECREE:

PREPARATION OF DECREE:

DECREE HOLDER:

JUDGMENT DEBTOR:

DIFFERENCES BETWEEN AN ORDER AND A DECREE:

CONCLUSION:

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Appellate Decrees

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