Code of Civil Procedure, 1908 (CPC)
Decree, Judgment and Order Distinguished
Three definitions in Section 2 of the Code of Civil Procedure, 1908 govern almost every question about what may be appealed, what may be executed and what becomes final. A judgment is the statement of the grounds. A decree is the formal expression of an adjudication that conclusively determines the rights of the parties. An order is the formal expression of any decision that is not a decree. These notes take each definition, the tests that separate them, and the consequences that follow from placing a decision in one category rather than another.
The judgment, and the decree and order that flow from it
1. The Three Definitions
§ 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. |
§ Sections 2(9) and 2(14): judgment and order Section 2(9): judgment means the statement given by the judge of the grounds of a decree or order. Section 2(14): order means the formal expression of any decision of a Civil Court which is not a decree. The structure this creates. The judgment supplies the reasons; the decree or order is the formal expression of what was decided; and order is defined negatively, so the first question in any case is whether the decision is a decree. |
2. The Tests for a Decree
§ Five elements, all of which must be present • There must be an adjudication, that is, a judicial determination of the matter in dispute. An administrative or ministerial act of the court is not an adjudication. • It must be in a suit. A suit ordinarily begins with a plaint, though proceedings that statute requires to be treated as suits are included. • It must determine the rights of the parties with regard to all or any of the matters in controversy, and those rights must be substantive, not merely procedural. • The determination must be conclusive, so far as regards the court expressing it. A tentative or interlocutory view that leaves the matter to be decided later is not conclusive. • There must be a formal expression of the adjudication, drawn up as the Code requires under Order XX Rule 6. |
Decision | Decree or order? | Reason |
|---|---|---|
Dismissal of a suit after trial | Decree | An adjudication conclusively determining the rights of the parties in the suit |
Rejection of a plaint under Order VII Rule 11 | Decree | Expressly deemed a decree by Section 2(2), and therefore appealable under Section 96 |
Return of a plaint under Order VII Rule 10 | Order | It does not determine rights; it sends the plaint to the proper court, and is appealable under Order XLIII Rule 1(a) |
Dismissal for default under Order IX Rule 8 | Order | Expressly excluded from the definition of decree by clause (b) |
An order refusing to set aside an ex parte decree | Order | It is appealable under Order XLIII Rule 1(d), and clause (a) of the definition therefore excludes it from being a decree |
A determination of a question under Section 47 | Decree | Expressly included by Section 2(2), so questions relating to execution, discharge or satisfaction are determined by a decree |
An order granting or refusing a temporary injunction | Order | It does not conclusively determine rights in the suit, and is appealable only because Order XLIII Rule 1(r) names it |
A preliminary decree in a partition suit | Decree | It conclusively determines the shares, though further proceedings are needed to complete the suit |
3. Decree and Order Compared
Basis | Decree | Order |
|---|---|---|
Definition | Section 2(2): the formal expression of an adjudication conclusively determining the rights of the parties | Section 2(14): the formal expression of any decision which is not a decree |
Origin | Ordinarily arises in a suit commenced by a plaint | May arise in a suit or in a proceeding commenced by an application or a petition |
What it determines | Substantive rights of the parties in the matters in controversy | Procedural or ancillary matters, and it may or may not affect rights |
How many in a proceeding | Ordinarily one, though a preliminary and a final decree may both be passed | There may be many orders in a single suit |
Appeal | An appeal lies from every decree under Section 96, subject to Section 96(3) and (4) | An appeal lies only where Section 104 or Order XLIII Rule 1 names the order |
Second appeal | Available under Section 100 on a substantial question of law | Not available: Section 104(2) |
Execution | Executable under Section 36 and Order XXI | Section 36 applies the execution provisions to orders as far as applicable |
Preliminary and final | A decree may be preliminary, final, or partly both | The distinction does not apply |
4. Judgment Compared with Decree and Order
Basis | Judgment | Decree or order |
|---|---|---|
What it is | The statement given by the judge of the GROUNDS of a decree or order | The FORMAL EXPRESSION of what was decided |
Contents | Order XX Rule 4(2): a concise statement of the case, the points for determination, the decision on them, and the reasons | Order XX Rule 6: the number of the suit, the parties, the particulars of the claim, and the relief granted, with costs |
When | Pronounced in open court under Order XX Rule 1 | Drawn up thereafter, and bears the date on which the judgment was pronounced: Order XX Rule 7 |
Appeal | An appeal lies from the decree, not from the judgment as such | The appeal is against the decree, though the judgment supplies the grounds attacked |
Execution | Not executable by itself | The decree is executable, and orders as far as applicable |
If they differ | The decree must agree with the judgment: Order XX Rule 6A, and a discrepancy is corrected under Section 152 | A decree that omits a relief granted by the judgment is corrected as an accidental slip |
5. Why the Classification Matters
i. Appeal. From a decree, an appeal lies as of right under Section 96. From an order, only if Section 104 or Order XLIII Rule 1 names it, and no second appeal lies from an order at all.
ii. The exclusion in clause (a). Because the definition of decree excludes any adjudication from which an appeal lies as an appeal from an order, a decision cannot be both. Placing it in one category settles the route of challenge.
iii. Finality and res judicata. A decree conclusively determines rights, which is why Section 11 and the doctrine of merger operate on decrees, and why Section 97 requires a preliminary decree to be challenged when it is passed.
iv. Execution. Section 36 applies the execution machinery to orders as far as applicable, but the decree is the primary instrument, and Order XXI is written around it.
v. Limitation. The periods in Articles 116 and 117 run from the decree or order, so identifying which was passed fixes the starting point.
6. Landmark Points
- Section 2(2). A decree is the formal expression of an adjudication conclusively determining the rights of the parties in the matters in controversy, and may be preliminary or final or partly both.
- The inclusions and exclusions. The rejection of a plaint and a determination under Section 144 are decrees; an adjudication appealable as an order, and a dismissal for default, are not.
- Section 2(9). A judgment is the statement of the grounds of a decree or order, and its contents are prescribed by Order XX Rule 4(2).
- Section 2(14). An order is defined negatively: any decision of a civil court that is not a decree.
- Section 96 and Section 104. An appeal lies from every decree, and from an order only where the Code names it; Section 104(2) bars a second appeal from an order.
- Order XX Rule 6A with Section 152. The decree must agree with the judgment, and a discrepancy is corrected as an accidental slip.
7. Frequently Asked Questions
What is the difference between a decree and an order?
A decree is the formal expression of an adjudication that conclusively determines the rights of the parties in the matters in controversy in the suit. An order is the formal expression of any decision that is not a decree, and it usually deals with procedural or ancillary matters.
What is the difference between a judgment and a decree?
The judgment is the statement of the grounds, containing a concise statement of the case, the points for determination, the decision on them and the reasons. The decree is the formal expression of what was decided, drawn up afterwards and bearing the date of the judgment.
Is the rejection of a plaint a decree?
Yes. Section 2(2) expressly deems the rejection of a plaint to be a decree, so an appeal lies from it under Section 96. The return of a plaint under Order VII Rule 10 is by contrast an order, appealable under Order XLIII Rule 1(a).
Is a dismissal for default a decree?
No. Clause (b) of Section 2(2) expressly excludes any order of dismissal for default. The remedy is an application under Order IX Rule 9 to set aside the dismissal, and an appeal lies from an order refusing that application.
What are the essential elements of a decree?
An adjudication, in a suit, determining the rights of the parties with regard to the matters in controversy, conclusively so far as regards the court expressing it, and formally expressed as the Code requires.
Why does the classification matter?
Because it decides the route of challenge. An appeal lies from every decree under Section 96 and a second appeal on a substantial question of law, while an order is appealable only if Section 104 or Order XLIII Rule 1 names it and no second appeal lies at all.
What happens if the decree does not match the judgment?
The decree must agree with the judgment under Order XX Rule 6A. Where it does not, the discrepancy is an accidental slip and is corrected under Section 152, which may be done at any time by the court of its own motion or on application.
8. Related Topics in This CPC Series
- Section 33 and Order XX: Judgment and Decree
- Preliminary Decree and Final Decree under the CPC
- Appeals from Orders: Sections 104 to 106 and Order XLIII
- Sections 152 to 153B: Amendment and Correction of Proceedings