The adjudication by a Court of law may be divided into two parts:

1.          Decree and

2.          Order

The definition of “decree” is mentioned in section 2(2) of CPC which is given as under: -

Section 2(2) Decree: "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 [* * *] section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an 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;

Section 2(14) Order: "order" means the formal expression of any decision of a Civil Court which is not a decree;

NOTES: -

Main ingredients of Decree: -

1.          Formal expression of an adjudication in a suit.

2.          Conclusively determination of rights of the parties.

3.          Determination of all or any of the matters in controversy

4.          It may be preliminary or final

Meaning of the terms used in the definition of “Decree”: -

Formal Expression: - There must be formal expression of adjudication. All the requirements of form must be complied with. Decree must be drawn up separately after judgment.

Adjudication: - (judicial determination, deals with the matter in dispute). In case of administrative adjudication, it is not a decree. It may relate to a suit. Decree can be passed in Applications also like application under Hindu Succession Act, Hindu Marriage Act, Land Acquisition Act, Arbitration Act etc. Rejection of an application for leave to issue in forma pauperis is not a decree as there is no Plaint till the application is granted.

Conclusive: - It means final. The determination must be of conclusive/ final in nature. There may be some orders which determine the rights and liabilities of the parties and are called decree like orders dismissing an appeal summarily, dismissing suits for want of evidence etc. There may be interlocutory order like refusing an adjournment etc, they are not called as decrees.

Rights of the parties in controversy: - Rights means substantive rights of the parties. The rights in matters of procedure are not included in it. In case of dismissal of suit for non-appearance, since it does not determine the rights of the parties, therefore it cannot be termed as decree. The expression matters in controversy refers to the subject matter of the suit with reference to which some relief is sought. It is not necessary that it should be on merits of the case. It may relate to character and status of a party suing, to the jurisdiction of the Court, to the maintainability of a suit and to other preliminary matters which necessitate an adjudication before a suit is enquired into.  Interlocutory order in respect of procedure do not determine the rights of the parties therefore are not decrees. The proceedings preliminary to the institution of a suit also will not be included in the definition. 

TEST: - In order to decide whether an order is a decree or not, the Court should take into account pleadings of the parties and the proceedings leading up to the passing of an order.

The decree may be in regard to all or any of the matters in controversy. It is not necessary that decree must be passed in respect of the all the matters in controversy at one time.

Determination of any question u/s 144 will be included within the definition of decree.

Section 144 relates to restitution, which means restoring to a party the benefits which the other party has received under a decree subsequently held to be wrong. 

The word restitution means restoring to a party on the modification variation or reversal of a decree what has been lost to him in execution of the decree or in direct consequence of the decree.

The restoration follows automatically at the time of reversion of the decree.

Section 144 is applicable and applies to all the cases even if does not fall under it.

The jurisdiction of restitution is inherent in the Court including the higher Courts.

Essentials of Restitution u/s 144 CPC: -

1.          There must a judgment

2.          The benefit of erroneous judgment has been received by one party

3.          The erroneous judgment has been reversed set aside or modified.

Two Conditions: -

1.          The word party is not confined to mean only a technical party to the suit or appeal but includes any beneficiary under the final judgment

2.          He must have become entitled to any benefit by way of restitution or otherwise under the reversing decree or order. 

Note: -

1.          Restitution can be ordered against the legal representative also. 

2.          An application for restitution lies to the Court which has passed the decree or made the order.

3.          Proceedings of restitution are proceedings of execution. Governed by article 136 of Limitation act and the period is 12 years.

Exceptions: -

1.          Any adjudication from which an appeal lies as an appeal from any order

2.          Any order of dismissal of default

Types of decrees: -

1.          Preliminary

2.          Final

3.          Partly preliminary partly final

The decree is preliminary when further proceedings have to be taken place before the suit can be completely disposed of. It is final when such adjudication completely disposes off the suit. 

There is conflict whether there may be more than one preliminary decree in a suit. The Supreme Court specifically dealt with the partition suit in the case titled as “Phoolchand & Anr. vs Gopal Lal” [AIR 1967 SC 1470] and said that in such type of cases there is no prohibition in allowing more than one preliminary decree.

A decree may be partly preliminary and partly final i.e., in a suit for possession of immovable property with mesne profit where the Court, decrees possession of the property, and an inquiry into the mesne profits.

A final decree may be said to become final in two ways: -

1.          When the time of appeal has expired without any appeal being filed against the preliminary decree.

2.          Matter has been decided by the highest Court.

As per section 97, if no appeal against preliminary decree is preferred then he will be precluded from disputing its correctness at the time of final appeal.  If the preliminary decree is set aside, the final decree is automatically set aside and there is no need for explanation.

The Hon’ble Supreme Court in the case titled as “Bhivchandra Shankar More vs Balu Gangaram More & Ors.” [Civil Appeal No. 4669 of 2019] decided on

07.05.2019 has held: -

“…18. It is pertinent to note that as per Section 97 CPC where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. The object is that the questions decided by the Court at the stage of passing preliminary decree cannot be challenged at the time of final decree. If no appeal had been preferred against the preliminary decree, the suit filed by the respondents-plaintiffs being a suit for partition, the appellant would be deprived of the opportunity in challenging the decree on merits. In the interest of justice, the appellant and respondents No.14 and 15 are to be given an opportunity to challenge the ex-parte decree dated 04.07.2008 on merits, notwithstanding the dismissal of their application filed under Order IX Rule 13 CPC….”

Returning of plaint to be present in the proper Court is not a decree because it does not determine the rights of the parties concerned.

Dismissal in default: - It is not a decree as the same can be set aside under Order IX of the code.

There are some appealable orders Section 104 Order 43 deal with appealable orders like rejection of application for indigent person is appealable order.  Such orders cannot be treated as decrees.

The distinction lies in the fact that in the case of a decree, a second appeal lies in some cases, but no second appeal lies from an appealable order.

As mentioned above, as per definition of “Order” which is mentioned in section 2 (14) of CPC, it means the formal expression of any decision of a Civil Court which is not a decree. The order passed are in aid to the proper adjudication of the claims and disputes arising in the suit itself but does not determine the right of the parties conclusively.

Decree and Order both determine the rights of the parties. The essence of distinction lies in the nature of the decision whether it is an adjudication of a particular kind or not. Order 41 rule 11 dismissing the appeal without giving notice to other party is although order but is a decree whereas dismissal under 41(2) is not a decree. The question is one of substance only whether an adjudication is a decree or order. The order passed in a contempt proceeding is a judgment and not an order.

The rights in controversy must be substantive rights in regard to the subject matter of the suit and not merely procedural rights. 

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