Definition Part of The Code of Civil Procedure 1908. Section 2 , Code, Decree and Decree Holder
DEFINITIONS
(Section 2)
Section 2 of the Code of Civil Procedure 1908 deals with the definitions of various expressions used in the Code. The definition provides the meaning of the words used in the statute so as to avoid any uncertainty. A word which is defined in the Code shall bear the same meaning everywhere it appears in the Code provided that the context remains the same.
In Ramesh Mehta Vs. Sanwal Chand Singhvi AIR 2004 SC 2258, it was held by the Supreme Court that a definition is not to be read in isolation. It must be read in the context of the phrases which would define it.
The definitions provided in Section 2 of the Code opens with the words " In this Act, unless there is anything repugnant in the subject or context." It means that the definition of a particular expression given in this Act shall hold good as long as there is nothing otherwise in the context. In other words, if there is something repugnant in the subject or the context in which a particular word is used, then the meaning of that word is used, then the meaning of that word is likely to change.
Various expressions defined in Section 2 of the Code of Civil Procedure, 1908 are as under:-
1. Code:- [ Section 2(1)]:- " Code" includes rules;
Comment
The Code of Civil Procedure 1908 has been divided into two parts- Sections and rules. The Word " Code" includes not only Sections but also "Rules" contained in the First Schedule.
2. DECREE: [ Section 2(2)]:-
a. Meaning:- The adjudication of a Court of law may be divided into two classes
i. Decree; and ii. Orders.
Section 2(2) of the Code defines the term " decree" in the following words:-
(1) “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 determination of any questions 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";
Comments
Essential Ingredients of a decree:- The essential ingredients of a decree are
a. Formal Expression;
b. Adjudication by a Civil Court in a suit;
c. Conclusive determination of the rights of the parties; and
d. Matters in controversy in the suit.
In the absence of these ingredients there can be no decree.
A. Formal Expression:- A decree is essentially a formal expression of an adjudication by the court. Without formal expression, there can be no decree. An order is also a formal expression of decision of a Civil Court but it differs from a decree in the sense that a decree conclusively determines the rights of the parties with regard to all or any of the matters in controversy in a suit but an order does not. A judgment is not a formal expression at all, instead it is the statement of a judge as to the basis on which a decree is drawn-up or an order is passed.
A. Formal Expression:- A decree is essentially a formal expression of an adjudication by the court. Without formal expression, there can be no decree. An order is also a formal expression of decision of a Civil Court but it differs from a decree in the sense that a decree conclusively determines the rights of the parties with regard to all or any of the matters in controversy in a suit but an order does not. A judgment is not a formal expression at all, instead it is the statement of a judge as to the basis on which a decree is drawn-up or an order is passed.
Lecture No.3 on the Code of Civil Procedure, 1908
B. Adjudication by a Civil Court in a Suit:-
Adjudication :- Adjudication means a judicial finding in relation to the rights of the parties in a suit. In order to constitute a decree, there must be adjudication on disputed issues in a suit. In other words, unless there is a judicial finding in a controversy, an order passed shall not become a decree.
By a Civil Court:- It is essential that the dispute is adjudicated by a competent court of law since only a court is empowered to pass a decree in a matter before it. An order passed by an officer who is not a court, is not a decree.
In a Suit :- The existence of a Civil Suit is essential. Every Civil Suit commences with filing of a plaint. If there is no civil suit, then there can be no decree.
C. Conclusive determination of the rights of the parties:- In order to constitute a decree, the rights of the parties to the suit must be conclusively determined. Any order passed by a court in a suit cannot become a decree unless it determines the substantive rights of the parties. The right means rights of the parties in the subject matter of the suit. It includes the general rights such as rights relating to the status, jurisdiction, limitation, frame of suits for accounts etc. which have a general effect upon the proceedings in the suit. However, it does not include proceedings preliminary to the institution of a suit for example an application for leave to sue as a pauper and proceedings passed in execution as well as orders granting costs; an order of punishment for contempt etc.
D. Matters in Controversy in the suit:- The expression “ Matters in controversy” in the suit must not be understand as relating only to the merits of the case. It would cover any question relating to (i) the character and the status of a party suing; (ii) the jurisdiction of the Court, (iii) the maintainability of a suit; and (iv) other preliminary matter which necessitate adjudication before a suit is enquired into. However, it does not include proceedings preliminary to institution of a suit. Thus, an adjudication not relating to matters in controversy cannot be called a decree.
Classes of Decrees:
The Code recognizes the following classes of decrees:-
1. Preliminary Decree:
2. Final Decree;
3. Partly preliminary and partly final decree.
1. Preliminary Decree:- Where an adjudication decides the rights of the parties with regard to all or any of the matter or any of the matter in controversy in the suit, but does not completely dispose of the suit, then it is a preliminary decree.
A preliminary decree is passed in those cases in which the Court has first to decide/adjudicate upon the rights of the parties and has then to stay its hands for the time being, until it is in a position to pass a final decree in the suit.
The Code provides for passing of preliminary decree in the following suits:-
1. Suits for possession and mesne profits O20, R 12.
2. Administration Suits O20, R 13.
3. Suits for pre-emption O20, R 14.
4. Suits for dissolution of partnership O20, R 15.
5. Suits for accounts between principal and agent O20, R 16.
6. Suits for partition and separate possession O20, R 18.
7. Suits for foreclosure of a mortgage O34, R2-3.
8. Suits for sale of mortgaged property O34, R4-5.
9. Suits for redemption of a mortgage O34, R7-8.
The above list, is however not exhaustive and a court may pass preliminary decree in other cases as well.
There was a conflict of opinion as to whether there can be more than one preliminary decree in the same suit. Some High Courts have taken the view that there can be only one preliminary decree in a suit while other High Courts have held that there can be more than one preliminary decrees.
But the Supreme Court has concluded this controversy by observing that there is nothing in the CPC which prohibits passing of more than one preliminary decree in the case of “Phoolchand Vs. Gopal Lal AIR 1967 Sc 1470” but this observation of the Supreme Court is restricted only to partition suits and not other type of suits.
2. Final Decree :- A Final decree is one which completely dispose of a suit and finally settles all questions in controversy between the parties and nothing further remains to be decided thereafter.
Thus, in a suit for recovery of money, if the amount found due to the decree holder is declared and the manner in which the amount is to be paid has also been laid down, then the decree is a final decree.
In “Shankar Vs. Chanderkant AIR 1995 Sc 1211” the Supreme Court said “It is a settled law that more than one final decrees can be passed.”
3. Partly preliminary and partly final decree:- A decree may be partly preliminary and partly final, e.g.in a suit for possession of immovable property with mesne profits, where the court:-
a. Decrees possession of the property;and
b. Directs an enquiry into the mesne profits.
The formal part of the decree is final, while the latter part is only preliminary because the final decree for mesne profits can be drawn only after enquiry and the amount due is ascertained. In such a case, even though the decree is one, but is partly preliminary and partly final.
Deemed Decree
If an adjudication not fulfilled the ingredients of Section 2(2) of the Code, then that adjudication cannot be termed as decree. But by the legal fiction, certain orders and determinations are deemed to be “decree” under the code. The rejection of a plaint and the determination of questions under section 144 ( Restitution) are deemed decrees under section 2(2) of the Code. Similarly, adjudication under Order 21 Rule 58 as also Under Order 21 Rule 98 or 100 are also deemed decrees under the Code.
Rejection of Plaint :- The definition of “ decree” provides that the rejection of a plaint shall be deemed to be a decree. Such adjudication, therefore is applicable as a decree. An Order rejecting a plaint for a failure to pay an additional Court fee as required by the Court, is a decree. An Order rejecting a plaint is a decree and such decree is revisable under section 115 but appealable under section 96 of the code.
Dismissal for default:- The definition of “ decree” does not include any order of “dismissal for default”. The words “ dismissal for default” include, for want of prosecution of suit or appeal, default for non- appearance or for other reasons.
Appealable Orders :- The term " decree" expressly excludes an adjudication from which an appeal lies as an appeal fro an order. Such orders are specified in Section 104 and Order 43 Rule 1 of CPC 1908. Thus, an order returning a plaint for presentation to the proper court or an order rejecting an application for an order to set aside or refusing to set aside a sale under Order 21 or an Order rejecting an application for permission to sue as an indigent person, etc are appealable Orders and not decrees.
The distinction between a decree and an appealable order lies in the fact that in case of a decree a second appeal lies in some cases under section 100 CPC but no second appeal lies from an appealable order. [ u/s 104(2)].
Important Note:-
1. Final decree cannot be amended.
2. Final decree cannot go behind the preliminary decree on a matter determined by the preliminary decree.
3. The preliminary decree is not dependent on the final decree but the final decree is dependent on and subordinate to the preliminary decree.
4. Final decree does not extinguish the preliminary decree but gives effect to it.
5. As per Section 97 of the Code “ Where any party aggrieved by a preliminary decree passed after the commencement of this code does not appeal from such decree, then he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.”
Now let us see the next video that is Lecture No. 4 on CPC 1908.
Now let us see the next video that is Lecture No. 4 on CPC 1908.
Decree Holder [ Section 2(3)]
“Decree Holder” means any person in whose favour a decree has been passed or an order capable of execution has been made.”
It is not essential that a decree holder is party to the suit. Even a decree may be drawn up in favour of such a person who is not joined as a party in the suit. In that case, such person acquires the status of a decree holder and becomes entitled to execute the decree.
The term “ decree holder” is also not confined only to a plaintiff. A decree for specific performance may be executed by the plaintiff as well as by the defendant and the defendant in such a case is “decree Holder”.
A transferee is not a decree holder unless he has been recognized by the court. 
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