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JUDGMENT AND DECREE[1]

QUESTION BANK

Define ‘decree’ and ‘distinguish between a decree and Order’.
Write a detailed note on Judgment.
What are the contents of a judgment and decree?
Give the definition of the decree and point out what are its essential elements.

SHORT NOTES

Distinguish between a decree and an Order.
Order and Judgment.
Order.
Decree.
Judgment.

SYNOPSIS

A]. JUDGMENT.

DEFINITION- .
ESSENTIALS (O. 20)-

III. ALTERATION OF JUDGMENT (O. 20 R. 3, S. 114, S. 152)-

PRONOUNCEMENT OF JUDGMENT (O. 20)-

B] DECREE-

DEFINITION (S. 2 (2)-
ESSENTIALS OF A DECREE-

1) There must be adjudication-

2) Such adjudication must have been done in a suit-

3) Determination of rights of parties-

4) Such adjudication must be conclusive-

5) Formal expression of adjudication-

III. CLASSES OF DECREES-

1) Preliminary decree-

2) Final Decree-

3) Decree partly preliminary and partly final-

DISTINCTION BETWEEN JUDGMENT AND DECREE-
ORDER-

1) Order: Meaning- 2) Decree and order-

A]. JUDGMENT.

I. DEFINITION-

Judgment is pronounced after the conclusion of a trial. The trial is concluded after hearing evidence from both parties to the suit and their arguments.

33 provides that the Court shall pronounce Judgment after the case has been heard, and on such Judgment, a decree shall follow.
2 (9) of the C.P.C defines ‘Judgment’, as a ‘statement given by the Judge of the grounds of a decree or order[2]’.

II. ESSENTIALS (O. 20)-

Every Judgment shall be dated and signed by the Judge in open Court at the time of pronouncement (R. 3).

Every Judgment other than that of the Small Cause Court should contain (1) a concise statement of the case, (2) the points for determination, (3) the decision thereon, and (4) the reason for such decision. However, the Judgment of a Small Cause Court may contain only points of determination and the decision thereon (R. 4). The Judgment of other Courts shall contain a concise statement of the case, the points for the decision, and the reasons for such decision. The decision on each issue must be given separately (R. 5).

The material evidence on each issue from both parties must be set out in the Judgment, along with reasons for its acceptance or rejection.

Wherever practicable, after the pronouncement of a Judgment, copies thereof should be made available to the parties immediately on payment of charges (O. 20. R.6-B).

III. ALTERATION OF JUDGMENT (O. 20 R. 3, S. 114, S. 152)-

Judgment, once signed, cannot be altered or added except clerical or arithmetical mistakes or errors arising out of accidental omission or on review.

IV. PRONOUNCEMENT OF JUDGMENT[3] (O. 20)-

1) The Court, after hearing the case, shall pronounce the Judgment at once in the open Court. However, if it is not pronounced at once and its pronouncement requires to be postponed, it should be pronounced within 30 days from the completion of the hearing. The period of 30 days may be extended up to 60 days (R. 1).

2) The Judgment may be pronounced by dictation in the open Court to a shorthand writer if the High Court has authorised the Court (R. 1 Sub. R.3). In such case, the Judge should sign a transcript of typing.

3) Already written Judgment may be pronounced in open Court, and it shall be sufficient to read out the findings of the Court on each issue and the final order passed in the case. Reading the whole Judgment is not necessary (R.1, Sub-R. 2).

4) A Judge shall pronounce a judgment written but not pronounced by his predecessor. (R. 2).

5) Where the issues have been framed, the decision on each issue must be given separately (R. 5).

6) Where the parties are not represented by pleaders, the Court should inform the parties as to the Court to which an appeal lies against the Judgment pronounced and the period of limitation for filing a such appeal (R. 5- A).

B] DECREE[4]–

I. DEFINITION (S. 2 (2)-

2 (2), of the Code defines ‘decree’ as follows-

‘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 S. 144 but shall not include-

(a) any adjudication from which an appeal lies as an appeal from the order or

(b) any order of dismissal for default.

Explanation– A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.

For example, in a suit for partition court in its Judgment would lay down issues, and reasons for allowing partition. It gives detailed Judgment on allowing partition. In its Judgment, it also lays down that A is entitled to get ½ share in Gat no. 161 and 159, and B is entitled to get the remaining ½ in both these ancestral properties. The Judgment may run in a number of pages.

However, the last part of the Judgment regarding the allotment of shares between A and B determines their right conclusively, and therefore, this part of the judicial decree is drawn. Thus, the decree is an executable part of the Judgment, which has determined the parties’ rights.

Thus, in the decree, only part from Judgment, i.e. ‘A is entitled to get ½ share in Gat no. 161, and 159 and B is entitled to get remaining ½ in both these ancestral properties’, would come.

Thus, if the suit is rejected or dismissed, no question of drawing a decree would come because there is nothing to execute.

II. ESSENTIALS OF A DECREE-

Followings are the essentials of the decree-

1) There must be adjudication[5]–

Adjudication means ‘a judicial determination of the matter in dispute. Such determination must be by a Court.

2) Such adjudication must have been done in a suit[6]–

A suit means ‘a civil proceeding instituted by the presentation of a plaint’.

3) Determination of rights of parties[7]–

The adjudication must have determined the parties’ rights with regard to all or any of the matters in controversy in the suit. ‘Right of parties’ here means the substantive rights of the parties and not procedural rights. Thus, the rights of parties relating to the status, jurisdiction, frame of the suit, account, limitation etc., are substantive rights. In contrast, an order relating to the dismissal of the suit for non-appearance of the plaintiff, an order dismissing an execution case for non-prosecution, an order amending an execution petition, refusal to sue as forma pauperis[8], or mere right to sue, etc., do not determine the rights of the parties with regard to the matter in controversy in the suit.

The term ‘matter in controversy’ refers to the subject matter of the suit with reference to which some relief is sought.

Following are some of the decisions which are held decrees-

1) Discharge of the defendants for want of cause of action.

2) Order dismissing the appeal for non-payment of additional court fees.

3) Rejection of application for the final decree, where heirs of the deceased plaintiff are not brought on record.

4) Order dismissing the suit against the wrongly impleaded defendant.

5) Order of abatement of a suit.

6) Order of dismissal of the appeal as a time-barred.

4) Such adjudication must be conclusive[9]–

The determination of the parties’ rights must be final or conclusive. The decree may determine the parties’ rights, although it does not completely dispose of the suit. Similarly, the determination of questions relating to the restitution proceedings (under S. 144) is also a decree. Thus, an interlocutory order that does not decide the parties’ rights finally is not a decree.

5) Formal expression of adjudication[10]–

There must be a formal expression of the adjudication. It must be in the form as required by law. The decree follows judgment and requires a separate drawing. If there is no separate decree from Judgment, no appeal shall lie.

In M/s Jethanaad v. State of U.P[11]

Supreme Court laid down three important ingredients of a decree, viz-

(i) the adjudication must be given in the suit, (ii) the suit must start with a plaint and culminate in a decree, and (iii) the adjudication must be formal and final and must be given by a civil or revenue Court.

III. CLASSES OF DECREES-

1) Preliminary decree[12]–

Where adjudication decides the rights of the parties with regard to all or any of the matters in controversy in the suit but does not completely dispose of the suit, it is a preliminary decree.[13]. Where it completely disposes of the suit, it is a final decree. The function of the final decree is merely to restate and apply with precision what the preliminary decree has ordained.

Preliminary decrees are passed in suits for possession and mesne profits, administration suits, pre-emption suits, suits for dissolution of the partnership, accounts between the principal and agent, partition suits, mortgage suits, suits for foreclosure, redemption suits, suits for sale, etc.

2) Final Decree[14]–

It is a final decree Where adjudication decides the parties’ rights and completely disposes of the suit. In other words, a final decree is one which completely disposes of a suit and finally settles all questions in controversy between parties, and nothing further remains to be decided thereafter.

Ordinarily, there will be only one final decree in a suit. However, if there are two or more causes of action, there may be more decrees than one.

3) Decree partly preliminary and partly final-

A decree may be partly preliminary and partly final. Thus, where in a suit for possession of immovable property with mesne profits, the Court- (a) decrees possession of the property; the decree is final and (b) directs an enquiry into the mesne profits; the decree is preliminary.

IV. DISTINCTION BETWEEN JUDGMENT AND DECREE[15]–

There are the following differences between ‘judgment’ and ‘decree’ viz-

1) ‘Judgment’ means “the statement given by a judge of the grounds of a decree or order”, whereas, ‘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 does not contain statements, unlike Judgment.

2) ‘Judgment’ is pronounced prior, and decree is accordingly drawn subsequently.

V. ORDER[16]–

1) Order: Meaning-

During the pendency of a suit, the Court has to pass a number of orders.

According to S. 2 (14) of the Code, ‘Order’ means ‘the formal expression of any decision of a civil court which is not a decree. In other words, the adjudication of a Court, which is not a decree, is an order.

A decision to be an order-

a) must be a formal expression of a decision;
b) the decision must be of a civil Court,
c) the decision must not be a ‘decree’ (within the meaning of S. 2 (2) of the Court.).

2) Decree and order-

A ‘decree’ and ‘an order’ are both formal expressions of a decision of the Civil Court. Still, a decree conclusively determines the rights of the parties concerning all or any of the matters in controversy in a suit. On the other hand, ‘an order is a decision made during the progress of a case, either prior or subsequent to the final Judgment. An ‘order’ is the determination of the Court upon some subsidiary or collateral matter arising in action, not disposing of the merits but adjudicating a preliminary point or directing some steps in the proceedings.

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[1]न्यायनिर्णय आणि हुकूमनामा [ न्याय और हुक्मनामा]

[2] ‘न्यायनिर्णय’ म्हणजे हुकूमनाम्याच्या किंवा आदेशाच्या कारणांचे न्यायाधिशाने केलेले विवेचन [ “निर्णय” का अर्थ किसी डिक्री या आदेश के कारणों की न्यायाधीश द्वारा व्याख्या से है]

[3] न्यायनिर्णयाची घोशना [निर्णय की घोषणा]

[4] हुक्मनामा

[5] काहीतरी निवाडा असला पाहिजे [कुछ निर्णय होना चाहिए]

[6] निवाडा दाव्यामध्ये झालेला असावा [फैसला मुकदमे में होना चाहिए]

[7] निवाडयामध्ये पक्षकारांचा हक्क निष्चित झालेला असावा [पुरस्कार में पार्टियों के अधिकार का पता लगाया जाना चाहिए]

[8] गरीब म्हणुन दाव्याचा खर्च भरण्यात सुट मागण्याचा अर्ज फेटाळल्यास [यदि वाद लागत के भुगतान से छूट मांगने वाला गरीब के रूप में किया आवेदन खारिज कर दिया जाता है]

[9] निवाडा निर्णायक स्वरूपाचा असावा [फैसला निर्णायक होना चाहिए]

[10] निवाडा साच्याप्रमाणे असावा [अधिनिर्णय की एक औपचारिक अभिव्यक्ति होनी चाहीये]

[11] AIR 1988 Supreme Court 794.

[12] प्राथमिक [प्रारंभिक हुकूमनामा]

[13] In Venkara Reddy v. Pethi Reddy (1963 S.C. 992).

[14] अंतरिम हुकूमनामा,

[15] न्यायनिर्णय व हुकूमनामा फरक [निर्णय और हुकूमनामा के बीच अंतर]

[16] ‘आदेश’ म्हणजे हुकूमनामा सोडून इतर दिवाणी न्यायालयाच्या कोणत्याही निर्णयाची रितसर घोषणा [“आदेश” का अर्थ डिक्री के अलावा सिविल कोर्ट के किसी निर्णय की औपचारिक घोषणा है]