concept of Decree and Order under Code of Civil Procedure

-

Concept of Decree and Order under Code of Civil Procedure

Decree:- Section 2(2) of the Civil Procedure Code,1908 define the term “Decree” as Decree means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section-144, but shall not include-
(a)  any adjudication from which an appeal lies as an appeal from an order, or
(b)  any order of dismissal for default.
Essential elements of a Decree:-The important/essential elements of a decree are -----
1.  There must be formal expression of an adjudication.
2.  There must be adjudication of the rights of the parties with regards to the dispute.
3.  It must conclusively determine the rights of the parties.
4.  Adjudication must be in a suit.

Order:- Section 2(14) of the Code of Civil Procedure,1908 defined the term Order as “Order” means the formal expression of any decision of a civil court which is not a decree.
Decree V/S Order
                 DECREE
              ORDER
In a decree the rights of the parties are finally determined
An order may or may not finally determine the rights of the parties.
Decree is originated from a suit.
Order may originate from a suit or from any application filed by the parties.
Decree may be Preliminary or final.
There is no such distinction.
Normally decrees are appealable.
Only those orders mentioned in order 43, rule 1 are appealable.
Except in certain cases in every suit there is one decree.
In a suit number of orders may be passed.
In case of decree Second appeal lies to the High Court under Section-100, C.P.C. on the question of law.
There is no provision of second appeal in case of order.



Similarities between Decree and Order  
1.  Both relates to matters in controversy.
2.  Both are decision given by a court.
3.  Both are adjudication of a court of law.
4.  Both are formal expression of a decision.
Deemed decree:-
The orders which partakes all the characters of a decree or which conclusively determines the rights of the parties is termed as deemed decree.
Examples:- The following orders are to be treated as decrees:-
1.  An order of rejection of plaint under Order VII, rule 11, CPC
2.  An order relating to determination of question under section 144, CPC.
3.  An order under Order XXI, rule 58, CPC.
4.   An order under Order XXI, rule 98, CPC.
5.  An order under Order XXI, rule 100, CPC.

Preliminary decree:-
Decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It may be partly preliminary and partly final.
Preliminary decrees are passed in suit for dissolution of partnership (Order XX, rule 15), suit for accounts between the principal and agents (Order XX, rule 16), Administrative Suit (Order XX, rule 13), Partition Suit (Order XX, rule 18), Foreclosure Suit (Order XXXIV, rule 2), Suit for Sale (Order XXXIV, rule 4), Redemption Suit (Order XXXIV, rule 7), and Pre-emption suit (Order XX, rule 14).

                   Preliminary Decree V/S Final Decree
Preliminary Decree
Final Decree
Preliminary Decree passed under special circumstance in specified suit.
Generally, in a suit a single decree is passed and that is the final decree.
There may be more than one preliminary decree in a suit.
But there cannot be more than one final decree in a suit.
Preliminary Decree are passed in suit for recovery of possession, mesne profits etc.
After passing of such preliminary decrees the court is to pass final decree on application of either of the parties to the suit.
Preliminary decrees are passed after conclusion of trial.
Obviously, final decrees are passed after preliminary decrees and that too after conclusion of trial but a separate legal procedure is to be followed.
After passing of preliminary decrees there is no scope to re agitate the liability and maintainability of such decrees before the court which is passed it save and except in case of review.
The legality and maintainability of preliminary decrees can be re-agitated before making such decrees final.
An appeal lies against preliminary decree.
A revision lies against final decree where preliminary decrees are made final.
    


Comments

Post a Comment

Popular posts from this blog

IHERING’S SOCIAL INTEREST THEORY: A CRITICAL STUDY

-
Image
IHERING’S SOCIAL INTEREST THEORY: A CRITICAL STUDY INTRODUCTION:-         Ihering was educated at berlin in Germany. He was professor at Basel. His spirit of law was published in four volumes during 1852-1865.later,he published his principle work which translated as ‘Law As Means To An End ‘in 1913.In this work he criticised the nation of individual freedom and liberty as advocated by Kant and Bentham as they had divorce legal theory from social realities .He thus opposed the doctrine of individualism which ,in his view was incompatible to the cause of social justice.Ihring opined that social interest of the society must gain priority over individual interest and the purpose of law should be to protect the interest of the society. His legal philosophy on sociological aspects of law. [1]          Ihering laid the foundation of modern sociological jurisprudence by this insistence on treating law as one of the important ...
Read more

Note on Appeal by Special Leave

-
Image
A Note on Appeal by Special Leave The Supreme Court of India is the Apex Court of India and is the final interpreter of the Constitution and the law. The Court is also known as the guardian and protector of the people’s Fundamental Rights. The Supreme Court is the final Court of Appeal in all Civil, Criminal and other matters and thus helps in maintaining a uniformity of law throughout the territory of India. The Court is held to be the ultimate repository of all judicial powers at National level by virtue of it being the summit Court at the pyramidal height of Administration of Justice in the country and as the upholder and final interpreter of the constitution of India and defender of the fundamental of Rule of Law. The court is duty bound to uphold the constitutional values and enforce constitutional limitations, as the ultimate interpreter of the Constitution ( I.R. Coelho VS State of T.N., AIR 2007 SC 861 ). Articles-132 to 134 and 136 of the Constitution of...
Read more

Introduction PIL in Indian Legal System

-
           PUBLIC INTEREST LITIGATION INTRODUCTION                              Public Interest Litigation which means "litigation in the interest of public". The undeveloped concept of public interest litigation can be traced in the system of ‘ actio popularis ’ of Roman law which permitted anyone in the society to initiate an action for a public delict in the court of law or to bring an action of restitution or injunction for the protection of public property or a religious charitable property. Thus the system of ‘ actio popularis ‘of Roman law can be described as historical basis of the present form of public interest litigation. The Bhopal Gas Disaster (Processing of claims) Act, 1985 which enabled the Union Government to file claims for damages on behalf of the gas victims exhibits a good example of R...
Read more