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Decree, Order & Judgement
Decree
Defined u/s 2(2) of Civil Procedure Code, 1908. It means the formal expression of an
adjudication which conclusively determines the rights of the parties with regard to all or
any of the matter in controversy in the suit.
A decree may be either preliminary or final.
A decree is preliminary when a further procedure has to be taken before the suit can be
completely disposed off. When adjudication completely disposes of the suit such decree
is final.
It may be noted that the term decree doesnt include the following:
Any adjudication from which an appeal lies as an appeal from an order or
Any order or decision of the dismissal of the suit for default.
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.
A decree must be drawn separately after a judgment.
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 of facts are deemed
decrees.
Order
Defined u/s 2 (14) of the Civil Procedure Code. It means the formal expression of any
decision of the Civil 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.
Judgment
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Defined u/s 2 (9) of the Civil Procedure Code. It means the statement given by the Judge
on the grounds of a Decree or Order. Thus a judgment sets out the ground and the reason
for the Judge to have arrived at the decision.
Judgment is the decision of a court of justice upon the respective rights and claims of the
parties to an action in a suit submitted to it for determination State of Tamilnadu V. S.
Thangaval.
Judgment is the statement of the Court on the grounds for having arrived at a decision.
A judgment must contain the following components:
1.
2.
3.
4.
such suit is pending in the same or any other Court in India having jurisdiction to grant the
relief claimed or in any Court beyond the limits of India established or continued by the
Central Government and having like jurisdiction or before the Supreme Court.
The
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Example 1: -A was a trustee of a trust, after A's death B wrongfully takes the possession of
the trust property. C the son of A file a suit for recovery of possession of the property against
B as the legal heir of A in his individual capacity but C did not succeed. The C files another
suit for recovery of trust property against B in the capacity of trustee as he was appointed
trustee after the death of A. Whether second suit is barred?
First suite filed by C as individual capacity i.e. as legal heir where as second suit as a
capacity of trustee of the trust property- second suit is not barred by the doctrine of res
judicata.
Example 2: Finding incidentally does not operate as res judicata (Madhvi Amma Bhawani
Amma V. Kunjikutty P. M. Pillai.
Place of suing (Territorial) Section 15 to 18 / Court in which suits to be instituted?
(Matter relating to immovable property)
Every suit shall be instituted in the Court of the lowest grade competent to try it.
Subject to the pecuniary or other limitations prescribed by any law, the following suit shall
be institutes in the court with in the local limits of whose jurisdiction the property is situated
(Section 16):(a) For the recovery of immovable property with or without rent or profits,
(b) For the partition of immovable property,
(c) For foreclosure, sale or redemption in the case of a mortgage of or charge upon
immovable property,
(d) For the determination of any other right to or interest in immovable property,
(e) For compensation for wrong to immovable property,
(f) For the recovery of movable property actually under distraint or attachment,
A suit to obtain relief respecting or compensation for wrong to, immovable property be
instituted either in the Court within the local limits of whose jurisdiction the property is
situate or in the Court within the local limits of for gain or where the either party actually
and voluntarily resides or carries on business or personally works.
Suits for immovable property situate within jurisdiction of different Courts? (Section 17)
The suit may be instituted in any Court within the local limits of whose jurisdiction the
property is situate.
Provided that, in respect of the value of the subject matter of the suit, the entire claim is
cognizable by such Court.
Place of institution of suit where local limits of jurisdiction of Courts are uncertain? (Section
18)
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Any one of those Courts may, if satisfied that there is ground for the alleged uncertainty,
record a statement to that effect and thereupon proceed to entertain and dispose of any suit
relating to that property.
Provided that the suit is one with respect to which the Court is competent as regards the
nature and value of the suit to exercise jurisdiction.
Suits for compensation for wrongs to person or to movable? (Section 19)
Where a suit is for compensation for wrong done to the person or to movable property, if the
wrong was done within the local limits of the jurisdiction of one Court and the defendant
resides or carries on business or personally works for gain, within the local limits of the
jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either
of the said Courts.
Illustrations
(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.
(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A
either in Calcutta or in Delhi.
Other suits to be instituted where defendants reside or cause of action arises? (Section
20)
Every suit shall be instituted in Court within the local limits of whose jurisdiction:
The defendant, or each of the defendants where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or
personally works for gain; or
The cause of action, wholly or in part, arises.
Provided that the suit is one with respect to which the Court is competent as regards the
nature and value of the suit to exercise jurisdiction.
Explanation: A corporation shall be deemed to carry on business at its sole or principal
office in India or, in respect of any cause of action arising at any place where it has also a
subordinate office, at such place.
Illustrations
(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta,
buys goods of A and requests A to deliver them to the East Indian Railway Company. A
delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in
Calcutta, where the cause of action has arisen or in Delhi, where B carries on business.
(b) A resides at Simla, B at Calcutta and C at Delhi A, B and C being together at Benaras, B
and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and
C at Benaras, where the cause of action arose. He may also sue them at Calcutta, where B
resides, or at Delhi, where C resides; but in each of these cases, if the non-resident
defendants object, the suit cannot proceed without the leave of the Court.
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1. Discovery by the applicant of new and important matter or evidence which after the
exercise of due diligence was not with in his knowledge or could not be produced by
him at the time when the decree was passed or order made or
2. On account of some mistake or error apparent on the face of the record, or
3. for any other sufficient reason;
The court may make such order thereon as it think fit.
Revision (Section 15)
High court may call for record of any case which has been decided by any court subordinate
to such high court and in which no appeal lies thereto and if such subordinate court
appears:
To have exercised a jurisdiction not vested in it by law; or
To have failed to exercise a jurisdiction so vested or;
To have acted in the exercise of its jurisdiction illegally or with material irregularity.
The high court may make such order as it thinks fit.
The high court shall not vary of reverse any order made or any order deciding an issue in the
course of suit or proceeding except where the order if ht had been made in favour of the party
applying for revision would have been finally disposed of the suit or other proceedings.
The H.C. shall not vary or reversed any decree or order against which an appeal lies either to
the H.C. or any court subordinate thereto.
A revision shall not operate as a stay of suit or other proceeding before the court except
where such suit or proceeding is stayed by H.C.
Suit by or against a corporation / minor
(Company)Pleading may be signed and verified by Secretary, Director or principal officer
of Company
(Minor) Next friend of the minor- on satisfaction court may appoint a proper person to be a
guardian for the suit.
When minor attend majority minor will join the suit.
Summary Procedure
A procedure by way of summary suit applies to suits upon:
Bills of exchange or, Promissory notes
The summary procedures are applicable in the following courts:
High court, City civil court & Small courts.
The debt or liquidated demand in money payable by the defendant should arise on written
contract or an enactment or on guarantee.
Defendant is not entitled to define the suit unless he enters an appearance with in 10 days
from the service of summons.
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The summary suit must be brought with in one year from the date on which the debt
becomes due and payable, whereas the period of limitation for suit for ordinary case under
negotiable instrument is three year.
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Decree
Order
Judgement
Section 2(2)
Section (14)
Section 2(9)
Formal expression of an adjudication Formal expression of any decision of civil Statement given by judge on the ground of
which conclusively determine the right of court, which in not decree.
decree or order.
parties with regarding to the matter in
controversy in suit.
Decree
Judgement set out in the ground and the
Preliminary
reason for the judge to have arrived at the
decision.
Final
Decree & Order
Adjudicate and conclusively determine the Order does not do so.
right of the parties.
Always appealable, unless prohibited by Order not appealable unless permitted by
law.
law.
Second appeal permissible.
No second appeal permissible.
Decree
Always final
Preliminary
Final
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