Preliminary Decree and Final Decree In CPC
In daily parlance, certain words appear to be familiar, but their purport, import and subtlety need to be understood, which requires extensive knowledge, skill of interpretation and ability to grasp the context. A layperson may find it difficult to understand the subtlety and the nuances of the words, but such ignorance is not excusable for a professional, particularly for a practicing lawyer. One word that often appears in legal proceedings or legal documents is ‘decree’, (Pharmaana in Hindi). Though ‘decree’ appears to be simple to understand, it is complex and requires to be understood in the context it is being used.
What is a Decree?
In earlier times, Kings passed decrees. Later society evolved and presently in democratic countries, the role of dispute resolution has been granted to the judiciary and the adjudication of disputes is the exclusive prerogative of Courts of law. After adjudication of disputes, Courts pass a final order or decree. Thus, we can fairly understand that Courts have the power to pass decrees.
Having understood the meaning of decree in normal parlance, it is necessary to understand the meaning of a decree in the legal context, more particularly under the various statutes.
Usually, the Civil Courts after adjudication of disputes before them are required to pass a final judgment and decree. Whereas Criminal Courts render judgment and sentence if any, but not a decree. Therefore, Civil Courts and Courts exercising original jurisdiction alone are empowered to pass Decrees.
Decree under the Code of Civil Procedure
As only in a civil suit, a decree can be passed, it is necessary to understand the law governing ‘Decree’[1] under the Civil Procedure Code, 1908 (“CPC”).
CPC is commonly understood to be a procedural law. However, the sections in CPC are substantial and the orders, rules, schedules etc. thereunder, are procedural. All civil proceedings commence with filing of a plaint and conclude with passing of judgment and decree. Judgment and decree are inter-connected. We cannot expect any Decree without there being a judgment.
A civil court, after final adjudication of the dispute between the parties in a suit, delivers judgment, either granting the reliefs sought for or dismissing the suit. Sometimes, it may partly allow or partly dismiss the suit. Then comes the necessity of drafting the Decree. The Decree is nothing but the operative portion of the judgment with additional information such as names of the parties, place of the Court, name of the judge, designation of judge, suit number, particulars and addresses of the parties, date of filing of suit, date of judgment, value of the suit, court fees, reliefs granted or rejected and costs if any imposed.
Section 2 (2) of CPC 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….”
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 settling all the matters in dispute between the parties. It may be partly preliminary and partly final.”
Decree & Order
It is necessary to understand the difference between an Order[2] and Decree.
Generally, every Decree is an Order, but all Orders are not Decrees. An Order can be passed as an interim measure or can be final. Orders can be passed in original suits or in original petitions under various special acts. In civil suits, as an interim measure, Courts are empowered to pass interim Orders. These Orders may or may not be appealable. However, whenever an Order is appealable, a decree will be drawn, for e.g., an application filed for interim injunction[3].
A Decree has the characteristic of finality, subject to any appeal preferred by the parties. But an Order may be final or interim, until the passing of a Decree, either preliminary or final.
The unique characteristic of a preliminary Decree is that after passing of the preliminary Decree, though the rights of the parties are conclusively determined, the suit is not disposed of until the final Decree is passed.
Preliminary & Final Decree
‘Preliminary Decree’ is not defined in the CPC. However, a passing reference is found in section 2 (2) of CPC, i.e., a Decree can be preliminary, final or partly preliminary and partly final. As the very name suggests, a preliminary Decree will not become final until a final Decree is passed. Therefore, after passing of a preliminary Decree and until the passing of a final Decree, a suit is said to be pending. For this reason alone, there is no applicability of the Limitation Act[4] for filing of an application for passing of final Decree. Upon passing of a preliminary Decree, the rights of the parties get crystalized but will materialize finally only when the final Decree is passed, which alone is executable.
For instance, in a suit for partition, a party is declared that he is entitled to half (½) a share in the suit properties. But actual demarcation and identity of his share will be determined in final Decree proceedings.
Only in certain civil cases, CPC requires for passing of preliminary Decree. Such suits are as mentioned below:
- Suits for partition and separate possession,
- Suits for possession and mesne profits,
- Mortgage suits,
- Administrative suits,
- Suits for pre-emption,
- Dissolution of partnership and rendition of accounts.
- Accounts between a principal and an gent
Can a Court pass more than one preliminary Decree?
This question was answered in the case of Phool Chand v. Gopal Lal[5], holding that the Court can pass any number of preliminary Decrees before passing of a final Decree. For example, in a suit for partition, in case of death of a party, the other parties are at liberty to approach the court and seek for a supplementary preliminary Decree seeking modification as per the situation after passing of preliminary Decree. However, such a situation is absent in suits other than partition suits, therefore, in other suits, chances of passing of more than one preliminary decree are remote.
A party, who suffers a preliminary Decree, but does not prefer any appeal against the preliminary decree, is precluded from challenging it once he opts to question the final Decree alone[6]. In such an event, the principle of waiver/estoppel is attracted and by implication, a party accepting the preliminary Decree and allowing it to become final, is estopped from disputing its correctness or its validity later in final decree proceedings or after passing of the final Decree.
[1]As defined under the CPC .
[2] Section 2(14) of CPC
[3] Order XXXIX Rule 1 & 2 of CPC
[4] Shubh Karan Bubna Vs. Sita Saran Bubna & Ors- 2009 (9) SCC 689
[5] Phool Chand v. Gopal Lal- AIR 1967 SC 1470 @ Para 7
[6] Section 97 CPC