Law to Justice Article,Uncategorized Decrees in law of civil procedure

Decrees in law of civil procedure

Decrees in the law of civil procedure

According to clause 2 of section 2 of the Code Civil Procedure, 1908, the term decree has been defined as decree 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. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144’

Essential elements of a decree:

ONE

A decree is a formal expression of an adjudication.

What is an adjudication?

Adjudication implies a judicial determination of a matter in dispute so only when a judge has applied his mind in a proceeding or in a dispute only then it amounts to an adjudication. A decision on a matter of administrative nature will not amount to adjudication because the judge has not applied his judicial mind in that matter and therefore in that case it cannot be called an adjudication.

 

Before adjudication, there must be a formal expression of that adjudication.

What is formal adjudication?

This means that the decree must be drawn in the terms of judgement. If a decree is not formally drawn in the terms of the judgement, no appeal lies from this judgement.

There are certain enactments under which applications are treated as suits or proceedings are treated as suits.

For example proceedings under the Succession Act, Hindu Marriage Act.

Under all these enactments the application is treated as a suit and the final adjudication of all amounts to a decree.

TWO

There must be a conclusive determination of the right of the parties:

What kind of Rights?

Substantive and procedural rights, not mere procedural rights but both substantive as well as procedural rights are required or are included under the definition of the decree.

 

The right of the parties inter se relating to the jurisdiction, limitation, status, maintainability of suit which has a general effect on the proceedings in a suit is substantive rights therefore where an order has been passed for dismissal of the suit for default of appearance of parties that will not amount to a decree because no substantive determination of the right of the parties has been done therefore in that case that it does not amount to a decree.

With regard to all or any of the matters in controversy, these all have to be done in the matter in controversy in the suit.

What is the matter in controversy?

Matter in controversy refers to the subject matter of the suit in reference to which some relief is sought by parties, so again what is matter in controversy is regarding the question of jurisdiction, maintainability, the status of the parties, the character of the parties all these questions are the matters in controversy in a suit however if there is an interlocutory order with regard to the matters of procedure which do not determine the substantive right of the parties, in that case, we cannot say that it is a decree.

When does a decree become a nullity?

If a court having no inherent jurisdiction passes a decree that decree is nullity however if a court erroneously passed a decree or there is an error in a procedure and adopted by the court in the passing of decree that decree cannot be called nullity.

According to clause 2 of section 2 decree are three kinds:

  1. Preliminary decree;
  2. Final decree; and
  3. Partly preliminary and partly final also called a composite decree.

There are certain deemed decrees which include rejection of the plaint.

What is a preliminary decree?

This means that further proceedings have to be taken in a suit before final disposal of the suit, so where the decree conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit but does not come completely disposes of the suit that would amount to a preliminary decree.

What is a final decree?

It is a step next to the preliminary decree where the preliminary decree makes out or works out the rights; the final decree adjudicates the matter.

Preliminary decree ascertains what is to be done, and the final decree says the result which has been received by way of the preliminary decree.

A preliminary decree is not dependent upon a final decree but a final decree is dependent on a preliminary decree and is subordinate to a preliminary decree.

However, after the passing of a final decree, the preliminary decree does not extinguish.

Example:

Let’s suppose there is a partition suit so preliminary decree declares the right of parties and what final decree will do? It will divide the property specifically by inheritance law as per the right which has been already declared by the preliminary decree and therefore the suit will be completely disposed of and after that, the executable decree will be made by the court.

A preliminary decree can be granted, inter alia, in certain matters of preemption suit, dissolution of partnership suit, and suit for possession and mesne profit.

Composite decree:

For example:

Let’s suppose there is a suit for possession and mesne profit so in that case if the court grants the possession of the land in favor of the plaintiff and directs an inquiry in regard to the mesne profit that will amount to a composite decree.

-The End-

Nayem H Ovi| LinkedIn| Facebook

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