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.

The Angrez

Welcome to our blawg “Civil Devil.” This forum is meant to be a platform for discussion, deliberation and demystification of the major civil laws of India. In this very first post, I would like to start off with a short note on the “Code of Civil Procedure”, the primary and foremost statute on adjective civil law in the country. No understanding of any law is complete without knowledge of its origins and the throes of its birth. Therefore, it is justified that the history of codification of the C.P.C be the theme of this post.

 

To understand the magnitude and importance of this time-tested and proven Act (C.P.C), we must travel back to the early 19^th Century, when the English were beginning to taste success and gaining more than a toehold in the Indian subcontinent. To be precise, it traceably started with ardent arguments about the future role of British governance in India before the British Parliament on 10^th of July, 1833, by a young English lawyer named Thomas Babington Macaulay. According to him the role of the British colonizers was "to give good government to a people to whom we cannot give a free government." At the heart of Macaulay's good but not free government stood what he saw as one of the England's greatest gifts to the people of India: the rule of law.

 

Later the same year, Macaulay set for Indian subcontinent, charged with the momentous task of codifying the law of India, defining in his own words as "one great and entire work symmetrical in all its parts and pervaded by one spirit." By that time the East India Co. already administered a vast number of regional legal sources in India, based on Roman principle of "justice, equity and good conscience," but it was Macaulay's aim to streamline the unwieldy and confusing system. Despite the apprehensions that codification would bring sub-continental chaos by replacing the arbitrary and personal will with the rational objectivity of a universal law, Macaulay found British Empire under obligation to the reform of Indian society and envisioned it as "an enlightened and paternal despotism."

 

With that effort, four Indian Law Commissions were set to work intermittently on the Anglo-Indian Codes from 1834 to 1879, which resulted in the three most important contributions i.e. Indian Penal Code (1860), the Code of Civil Procedure (1859), and the Code of Criminal Procedure (1861), which were the first three codes enacted by the Government of India.  The Royal Commission of England was working on a criminal code for England, and very unsurprisingly Macaulay first set himself to drafting the Indian Penal Code and submitted its draft in 1837 itself. However, the reforms in criminal law were believed to meet least social resistance because the principles are universally understood, the real challenge was the codification of civil laws, which according to Henry Maine touched upon "the local peculiarities of the country."

 

The codification process is certainly an integral part of nation-building since those times and is usually inspired by the ones already in successful existence. And without the exception, Colonial Indian Codifiers were inspired with the Livingston's Louisiana Code and Field's New York Code, well established before them. The challenging phase during uniform codification of civil and criminal laws in India, which continued for several years, was to convince their own fellow Englishmen in India to subject themselves to laws framed for the subject population. And the Great Rebellion of 1857 played a prominent role therein, which resulted not only in heightened racial animosities and substantial state restructuring, but also in a renewed commitment to institute a codified set of laws. Doubts are still posed as to whether the Rebellion was the cause or the effect of such drastic changes in the legal status. The original Code of civil Procedure (1859) went through several changes in light of the interest of East India Company, to come to its most modern form i.e. the 1908 Act.

 

Therefore, it can be said that the codification patterns of renowned English jurist Bentham, which involves eliminating and replacing the historical dead weight of the common law traditions with a complete set of knowable and understandable rules designed to guide conduct for all imaginable actions, worked well in India. Further, it is also well-known but little explored fact that whereas the English in England firmly opposed codification, the English in India radically transformed the legal landscape in a fashion that has largely outlived the departure of the colonial masters.

 

The C.P.C spells out the entire procedure to be followed in a civil suit. The procedure is, as very well said, a means towards the realization of justice i.e. machinery for achieving the goals embodied in the substantive law. The 1908 Code has been amended by the Amendment Act 1999 and the Amendment Act 2002, with effect from 1 July 2002, to address the concerns of expeditious adjudication and cutting down the time consumed in the disposal of civil cases. However, the basic idea behind any amendment to machinery provisions has been and should be that the “means should not defeat the end.”