What is a Decree ?
It happens ever so often, in every profession, that when we start using a word in general parlance, we forget its theoretical value. One of the most important words in a civil lawyer’s repertoire is ‘decree’. In this article, I aim to brush up on the basics as to what exactly is a ‘decree’ as it is of fundamental value to daily court proceedings.
The Code of Civil Procedure, 1908, defines ‘decree’ as the formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit. A decree may be either preliminary or final. The right in question in a suit must be a substantive right and not merely a processual one, for a finding on a processual right is only to enable the court to inquire into the rights in controversy in the suit Dattatraya v Radhabai AIR 1921 Bom 220.
It is pertinent to note, by the said definition, that if the proceeding is not a suit, there cannot be a decree Dattu Aparao Machale v Digambar Govinda Shendge AIR 1968 Bom 361. Every suit has to be initiated by a plaint Venkata v Venkata 1899 ILR 22 Mad 265. However, by virtue of certain express provisions, adjudications in other proceedings may be taken as decrees. A divorce petition filed u/s 13 of the Hindu Marriage Act, 1955 cannot be treated as a plaint and the proceedings as a suit. Therefore, a final order passed under the said Act is not a decree Baby Deb v Ajit Deb AIR 2008 Gau 49. The award in an arbitration proceeding has the effective value of a decree Leela Hotels Ltd v Housing and Urban Development Corporation Ltd AIR 2012 SC 903.
It is also important to know that a decree passed contrary to law is not a nullity Director of Railway Movement (Coal) Eastern Railway, Calcutta v Akashwani Glass Works AIR 1985 All 314. However, this is subject to Section 44 of The Indian Evidence Act, 1872. A decree may be shown to have been passed by:
· A Court which lacks jurisdiction,
· Fraud,
· Collusion.
Let us now talk of preliminary decrees. An adjudication that finally determines the rights of the parties but does not completely dispose of the suit is a preliminary decree Venkata Reddy v Pethi Reddy AIR 1963 SC 992. Unless the preliminary decree is challenged in appeal, the rights so determined become final and conclusive and cannot be questioned in the final appeal Parvathmma v A Muniyappa AIR 1997 Ker 37. The final decree merely carries into fulfilment the preliminary decree S Bhavan Lokhande v Chandrakant Shanker Lokhande (1995) 3 SCC 413. Preliminary decree is not capable of execution, normally, till a final decree is passed A Akkukamma v G Papi Reddy AIR 1995 AP 166. Both the decrees are in the same suit and if the preliminary decree is set aside, the final decree is superseded Talebali v Abdul Aziz (1930) ILR 57 Cal 1013.
Every decree is subject to appeal from a court exercising original jurisdiction to a court authorised to hear appeals from the original court. This too must be noted to be a processual right and nobody can ever have a vested interest in processual rights.
We must also spare a moment to perceive the difference between an order and a decree. An order is defined as the formal expression of any decision of a civil court which is not a decree. Hence the contrast lies where an order does not conclusively determine the rights between the parties. The difference between the two however, will be subject to another article.