WHAT IS A DECREE AND DIFFERENCE BETWEEN JUDGMENT, DECREE AND ORDER?

 The word Decree has its root in the old French word Decre, Decret and from Latin word Decretum which means something decided. It was a kind of commandment issued by the President or the highest command to do something or to prohibit something. We find traces of this word Decree in the history of world. The Rulers, dictators and Monarchs used to rule by Decree.

 Some of the classic examples of decree are;

One of the first examples of Rule by Decree was in the ancient Roman Republic when after assassination of Julius Caesar in 44 BC, his successor, Gaius Octavian (Augustus), General Mark Antony and succeeding Pontifex Maximus Aemilius Lepidus seized power in the Second Triumvirate, official recognized by the senate by the name of Lex Titia Decree.

The most prominent example in history is the Reichstag Fire Decree in Germany passed after the Reichstag building caught fire in the year 1933. German Chancellor Adolf Hitler convinced President Paul Von Hindenburg to invoke Article 48 of the Weimar Constitution and convinced him to issue a decree suspending basic civil rights indefinitely. The consequence was that the German authorities were able to constitutionally suppress or imprison their opposition, which in turn paved the way for the one party rule of Nazi Party. The consequent state of exception which suspended the Constitution without formally repealing it, continued until the end of the Third Reich in 1945.

There are other examples of Decrees in non-dictatorial regimes also.

Some of the democratic leaders for example ,the Presidents of Mexico, France and Argentina ruled by decree in national emergencies but subject to constitutional and other legal limitations. In case of France, this power has been used only once by Charles De Gaulle during the Algerian War.

Other modern political concepts, such as the French Decree, Orders in Council in British Commonwealth and executive orders in the United States are partially based on the notion of Decrees although they are far more limited in their scope and normally subject to judicial review.

In India during the Indian Emergency from the year 1975 to the year 1977, the Prime Minister of India Indira Gandhi had got the law passed that allowed her to Rule by Decree.

 In a democratic set up, a  Decree is a rule of law usually issued by the head of State in accordance with certain procedures .The Decree has the force of Law. Even the executive orders issued by the President are Decrees.

In the Code of Civil Procedure, 1908 the word Decree has been defined under Section 2(2) which is as under:-

“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 either be 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-

Any adjudication from which an appeal lies as an appeal from an order, or

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.”

 Thus from the definition it appears that a decree is a formal and authoritative order, especially one having the force of Law. A decree is a judgment of court that announces the legal consequences of the facts found in a case and orders that the court’s order/decision is carried out. A decree in Equity is a sentence or order of the court, pronounced on hearing all the points in issue and determining the rights of all the parties to the suit, according to equity and good  conscious . It is a declaration of the court announcing the legal consequences of the facts found with the procedural merger of law and equity.

Essential elements of a decree:-

 There are some mandatory elements of decree i.e. there must be a formal expression of adjudication. In simple terms to be a decree, the court must formally express its decision in the manner provided by law. A mere command of a judge cannot be a decree. The decree follows the judgment and must be drawn up separately. If a decree has not been drawn up, then there is absolutely no scope of filing an appeal from the judgment i.e. no appeal lies against the judgment, if the decree is not formally drawn upon the judgment.

 The important element of decree is Adjudication which   means judicial determination of the matter in dispute. Hence, if the decision of an administrative nature, then it cannot be considered as a decree. The adjudication must be about any or all of the matters in controversy in the suit. The court should resolve the matter of controversy, by applying the facts and the circumstances of the case therein.

The other important element of a decree is that this must have been given in a suit which commenced by filing of a plaint in a civil court. There cannot lie any decree without filing a suit.

However, there are certain enactments, the final adjudication of which is also treated as decrees such as, Hindu Marriage Act, Indian Succession Act. The suits filed under the provisions of these enactments are called statutory suits and the decisions given by the courts  are called Decrees.

The other aspect of the Decree is that it decides the rights of the parties; rights means substantial rights and not merely procedural rights. Similarly, the parties to the suit should be the plaintiffs and defendants .If some stranger moves an application and an order is passed on that application, it is not a Decree. The Decree must have determined the rights of the parties with regard to all or any of the matter in controversy in the suit.

The disputed matter must be the subject matter of the suit regarding which the relief is sought. The subject matter of the suit is comprised of any question regarding the status and characters of the party, the jurisdiction of the court and maintainability of suit etc. etc.

From the end of the court, the decision must be conclusive and final adjudication of the matter between the parties. The court will not entertain any request to change its decision and as far as the court is concerned, the matter in issue is finally decided. During the course of adjudication many interim orders are passed by the trial court to meet the ends of justice but such orders do not amount to passing of the decree.

The decree is always passed after pronouncement of judgment. The decree shall agree with the judgment and I shall contain the number of suit, names and descriptions of the parties, their registered address and particulars of the claim and shall specify clearly the relief granted or the other determination of the suit. The court shall make every endeavor to draw the decree as expeditiously as possible and in any case within fifteen days from the date of pronouncement of judgment. The decree shall bear the day on which judgment was pronounced, and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he signs the decree.

When a decree is passed with regard to the recovery of immovable property, the decree shall contain a description of such property sufficient to identify the same and where such property can be identified by boundaries or by numbers in a record of settlement or survey, the decree shall specify such boundaries or numbers.

 Where the suit is for delivery of movable property, and the decree is passed with regard to delivery of movable property, the decree shall specify the amount of money to be paid as an alternative if delivery cannot be had.

The court may also direct the payment by way of installments in case of a Decree for payment of money.

HOW MANY TYPES OF DECREES ARE THERE?

There are three types of Decrees i.e. Preliminary Decree, Final Decree And Partly Preliminary and Partly Final Decree.

When the court decides all or any of the rights and interest of the matter in suit but does not decide the suit finally, the Decree passed in such situation is called Preliminary Decree.

The Preliminary Decrees are passed in certain types of cases as defined in Order 20 Rules 12, 13,14,15,16 and 18 of the Code of Civil Procedure, 1908. However this list is not exhaustive. Now we shall discuss what types of suits are there in which Preliminary Decrees are passed.

The suits in which the preliminary decrees are passed are;

 1. Suits for possession and mesne profits (O 20 R 12);

 2. Suit for Administration of any property ( O 20 R 13);

3. Suits for pre-emption (O20 R 14);

 4. Suits for Dissolution of Partnership (O20 R14);

5. Suits for Account between Principal and Agent (O 20 R 16);

6. Suits for Partition of Property or Separate Possession of a share therein (O 20 R 18) .

In addition to the suits mentioned in the preceding para, there are yet another set of suits in which the Preliminary Decrees are passed and those are defined in Order 34 Rules 2, 4 and 7 of the Code of Civil Procedure, 1908.

The other suits in which the Preliminary Decrees are passed are;

1. Suit for Foreclosure (O 34 R 2);

2. Suit for Sale (O 34 R 4) and

3. Suit for Redemption (O 34 R 7).

The Preliminary Decrees are passed by the courts in cases in which after deciding the rights and liabilities of the parties generally, some other acts of administrative nature and other assessments and calculations works and settlement of accounts are to be done after passing of the Preliminary Decrees and before passing of the Final Decrees.

Partly Preliminary and Partly Final

Sometimes court decides suit partly with regard to part of property while the suit with respect to remaining property remained pending, this is called the Partly Preliminary and Partly Final decree.

FINAL DECREE

 When the Decree disposes of the suit completely, and the settles all the issues in accordance with law, it is called final decree.

 How it is a Final Decree, the three things are to be seen:-

1.No appeal was filed against the said decree within the prescribed period of limitation;

2.The disputed matter in the decree has been decided by the highest court of the land;

3.When it completely disposes of the suit.

A Decree is formal expression of the adjudication.

The adjudication arises from the institution of suit and institution of suit starts from presentation of plaint and a decree is the final outcome of the suit.

In a Decree all the rights of the parties must have been addressed to, dealt with, in accordance with law on the basis of evidence brought on the file by the parties.

The court must decide the suit in such manner that no further doubts remains in the mind of the parties, with respect to their rights and liabilities.

It must be complete and final between the parties.

HOW THE JUDGE WILL PREPARE THE DECREE?

The judge must prepare the decree with total clarity without leaving any space for doubt.

The decree must be in total consonance with the judgment.

The decree must be clear and concise.

The decree must clearly specify the description of the suit property with maximum detail so as to leave no space regarding the identity of the suit property between the parties.

The decree must state clearly what relief has been given to which party and must clearly mention the rights and liabilities of the parties.

WHAT IS JUDGMENT?

Section 2(9) of the Code of Civil Procedure, 1908 defines the Judgment which is given below:-

“Judgment means the statement given by the Judge on the grounds of a decree or order”

It is a statement given by the Judge which includes facts, evidence, reasoning, finding etc., and legal reasoning given by the judge why he is giving such decree.

A Judgment is the judicial determination putting an end to the action by any award or redress to one party or discharge of the other.

Essential elements of Judgment (Order 20 Rule 4(2) of the Code of Civil Procedure, 1908.

The essential elements of Judgment are the following:-

1.There should be a  concise statement of the case;

2.There should be points of determination;

3.There should be a decision of the court;

4.There should be proper reasoning for such decision.

WHAT IS ORDER

The order has been defined Under Section 2(14) of the Code of Civil Procedure,1908 which is as under:-

“The order means the formal expression of any decision of a Civil Court which is not a decree”

The Order originates from suit and generally arises on the applications filed during the pendency of suits such as order passed Under Order 39 Rule 1 and 2, Order 26 Rule 9, Order 6 Rule 17, order 1 rule 10 and under other provisions of the Code of Civil Procedure, 1908.

WHO IS DECREE HOLDER?

 The Decree holder has been defined Under Section 2(3) of the Code of Civil Procedure, 1908 which is given hereunder:-

“The decree holder means any person in whose favour a decree has been passed or an order capable of execution has been made.”

WHO IS THE JUDGMENT DEBTOR?

The Judgment Debtor is defined in Section 2(10) of the Code of Civil Procedure,1908 which is given  hereunder:-

“Judgment Debtor means any person against whom a decree has been passed or an order capable of execution has been made.”

The Judgment Debtor is a person against whom a judgment and Decree has been passed.

DIFFERENCE BETWEEN A DECREE AND AN ORDER

Section 2(2) defines the decree whereas section 2(14) of the Code of Civil Procedure, 1908 defines the Order;

A decree clearly ascertains the rights of the parties whereas the Order may or may not do so;

There can be only one decree in a suit but there can be more than one Order in a suit;

The decree can be preliminary, partly preliminary partly final and final whereas there is no such thing in the case of order;

The decree is generally appealable whereas the order may or may not be appealable.

If the Decree is further challenged in appeal and the appellate court decides the appeal, it will say in clear language that the Decree of the trial court is affirmed or set aside. In case the appellate court varies the Decree it will clearly state what is varied from the Original Decree.

A Divorce Decree sets out the conclusion of the court relating to the facts asserted as grounds for the divorce .and it subsequently dissolves the marriage.

In some areas of the law, the term Decree is either more common or preferred as in probates of estates, domestic relations (divorce), admiralty law, and in equity (court’s rulings or prohibiting certain acts).

There may be Final or Interlocutory Decree of Divorce, Final Decree of distribution of dead person’s assets.

It can be either interlocutory or final. The former is given on some plea or issue, which does not decide the main question; the latter settles the matter in dispute, and a final decree has the same effect as a Judgment of law.

In some countries as France, some acts of legislature, or of the sovereign which have the force of law, are called decision; as the Berlin and Milan decrees?

A  Decree, however, is different from court order. A Decree is more of an announcement of situation at hand.” You are officially divorced. “You are officially the parents of your adopted child. An order, on the other hand, lays out the behaviors and events that the court demands to be followed upon the entry of that order. For example decree does not handle child support and how it should be paid out, while a court order does.

A Decree is different from the order of the court. A Decree is a kind of announcement of a situation existing at the moment such as,” You are officially divorced from each others.”  “ You are the officially declared as parents of your adopted child.”

On the other hand an order set out the behavior and the events, the court demands to be followed upon passing of the order

Adoption Decree declares the adoptive parents the official parents of a child to be adopted. An adoption decree makes the child as legally their as if the child was naturally born to them. At this point, a new birth certificate is issued wherein the adoptive parents are shown the parents of the adopted child.

Interlocutory decree:- Is issued while a case is still ongoing. It is a temporary order and it is not meant to be finalized until enough time has passed to determine whether the order is working out for both the parties. If so, then the order will be made final at a later date. Cases that typically see interlocutory Decrees being issued include cases involving custody, divorce and adoption.

DIFFERENCE BETWEEN JUDGMENT AND DECREE

The Judgment is defined in Section 2(9) whereas Decree is defined in Section 2(2) of the Code of Civil Procedure, 1908.

In Judgment, there is formal expression of the conclusion of the court whereas it concludes in Decree.

The judgment contains the grounds of a Decree whereas the Decree follows the Judgment.

The Judgment may be passed in civil as well as in criminal cases whereas the Decree is passed in civil cases only.

The judgment is not capable of being executed whereas the Decree is capable of being executed.

DECREE NISI

Nisi is a Latin word which means unless .The Decree Nisi is a court order which has to be finalized. Decree Nisi is typically issued so as to allow for changes in accordance with evidence pop up during the pendency of the case.

 Every decree for a dissolution of marriage made by a High Court not being a confirmation of a decree of a District Court, shall, in the first instance, be a Decree Nisi, not to be made absolute till after the expiration of such time, not less than six months from the pronouncing thereof, as the High Court, by general or special order from time to time, directs. Section 16 of THE INDIAN DIVORCE ACT, 1869 provides such kind of Decrees.

Hindu Marriage Act, 1955 does not provide for a Decree Nisi in the first instance. On the other hand, under Section 21 of the Act, the procedure is left to be governed by the Code of Civil Procedure, 1908, subject to the provisions of the Act and to such rules as this High Court may make in this behalf. In the absence of any such provisions or rules in this behalf, the Decree in a suit for dissolution or nullity is at once final, though, before granting such a decree, the law enjoins on the Court the duty to be satisfied on certain points enumerated in Section 23 of the Act , such as the petitioner has not been accessory to or connived at or condoned the act or acts complained of, or that the petition is not collusive, or that it is not unnecessarily or improperly delayed, and that there has been made every endeavor to bring about a reconciliation. Under Section 18 of the Act, such decrees have been made appealable, and it has also been provided by  Section 15  that when a marriage has been dissolved by a Decree of divorce and either there is no right of appeal against the decree, or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again, provided that it shall not be lawful for the respective parties to marry again unless at the date of such marriage at least one year has elapsed from the date of the decree in the court of the first instance. This Section 15 has limited in operation to a marriage dissolved by a Decree of divorce and has no application to a marriage annulled by a decree of nullity. Consequently, the limitations to re-marriage provided by Section 15 have no application to a Decree of nullity.

RAKESH KUMAR SHARMA,

 ADVOCATE

PUNJAB AND HARYANA HIGH COURT, CHANDIGARH,

EMAIL: rakesh1569@yahoo.com

Mob:-6280805261,9417425853.