Tuesday, March 31, 2009

Judgment, Decree and Order

In our common usage, most of us use the term “judgment”, but what does it actually refer to? How is it different from a decree or an order? s.2(9) of the Code of Civil Procedure (CPC) defines a judgment. It states that a “judgment” means the statement given by the judge on the grounds of a decree or order. When is a judgment pronounced? S. 33 of the CPC tells us that a Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow. S.33 indicates that a decree follows a judgment.

From s.2(9), we understand that judgment is the statement of the Court on the grounds for having arrived at a decision. Every judgment delivered by a Court to which the CPC applies has to deliver a reasoned judgment. A judgment must contain the following components:
1. a crisp statement of facts of the case;
2. the points or issues for determination;
3. the decision on such issues and finally
4. the reasons for such a decision

Is this a mandatory requirement? Yes it is, but why? There are several reasons based on public interest and practical necessities. A judgment is meant to be adhered to by those to whom it applies and such people have a right to know the reasons of the Court for holding a particular point of view. This also helps them challenge the decision and the reasons for the decision in a higher forum. Again, when it goes to a higher forum, the appellate forum too has to have an opportunity to know the reasons for a decision which proves application of the mind by the Judge concerned. Must a judgment always be passed on all issues in a case? No, the decision or order of a Court on a preliminary issue too is a judgment.

Now, let us move to “decree”. S.2(2) defines decree to mean the formal expression of an adjudication which, so far as 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. “Formal expression” means the recordation of the ruling of the Court on the matter presented before it; “so far as the Court expressing it” alludes to the fact that the same issue cannot be adjudicated by or before the Court again but only before a higher forum i.e. an appellate forum (We shall discuss “review” of a decree in a later post). What is the starting point for a decree? It is the initiation of a suit from a plaint. Only a plaint may lead to a decree unless otherwise required by certain statutes under which an application is treated as a suit. Under Order 20, Rule 6 a decree must be drawn separately after a judgment. It must be understood that no matter what a particular document is ostensibly referred to as, if it starts with a plaint in a suit and fulfils the requirements of a decree, it shall be a decree.

The Code recognises certain categories of “deemed decrees”. A deemed decree is one which, though not fulfilling the essential features of a decree as required by the Code, has been expressly categorised as a decree by the legislature. The rejection of a plaint and the determination of questions under s.144 are “deemed decrees”. Only those rejections which are authorised by the CPC may be termed as decrees. What this means is an appeal may lie from the rejection of a plaint for a decree has been passed. Alternately, the Code does not bar remedying the situation by presenting a fresh plaint.

The difference between a preliminary and final decree though fairly straightforward has been the subject matter of debate. A final decree here means disposal of the suit; if a decree has been passed but the suit has not been completely disposed off, then the decree is a preliminary one. A preliminary decree is usually passed where the Court waits for the situation to mature itself to a stage where a final decree may be passed. It is usually passed in suits for possession and mesne profits, suits for pre-emption etc.

How is a decree different from an order? What is an order? S.2(14) defines order to mean the formal expression of any decision of a Court which is not a decree. The starting point for an order need not always be a plaint, it may be an application or petition. Though being a formal expression, it follows that an order need not conclusively determine the rights of parties on any matter in dispute. However, it may relate to the matters in controversy. There may be a preliminary decree, but not a preliminary order. Every decree is appealable but every order is not. Only orders under s.104 are appealable. Again, a second appeal lies to the High Court from a first appeal, but there is no second appeal from appealable orders.

3 comments:

  1. illustrations and examples would make concepts even more understandable. Allthough a very good explaination altogether.

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  2. Being a student of law i'll comment that even though you explained all three terms in detail yet the illustrations could provide more unequivocal understanding.

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  3. was an interesting read. cleared my confusion

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