Code of Civil Procedure, 1908 (CPC)
Decree and Deemed Decree Distinguished
Section 2(2) of the Code of Civil Procedure, 1908 does two things. It defines a decree by its essential characteristics, and it then adjusts that definition, pulling two things in that would not otherwise satisfy it and pushing two things out that might. A deemed decree is something the Code treats as a decree although it does not answer the definition, and it is deemed so for a reason: so that an appeal lies. These notes cover the definition, the inclusions and exclusions, and the practical tests that follow.
The definition of a decree, what is deemed into it, and what is pushed out
1. The Definition and Its Adjustments
§ Section 2(2), CPC 1908 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. |
§ The five essentials of a decree proper • An adjudication, that is, a judicial determination of the matter in dispute, not a ministerial or administrative act. • In a suit, ordinarily one begun by a plaint, or a proceeding that a statute requires to be treated as a suit. • Determining the rights of the parties with regard to all or any of the matters in controversy, and those rights must be substantive. • Conclusively, so far as regards the court expressing it, so that a tentative or interlocutory view does not qualify. • Formally expressed, drawn up as Order XX Rule 6 requires. |
2. The Two Deemed Decrees
§ Rejection of a plaint: Order VII Rule 11 Why it is not a decree on ordinary principles. A plaint may be rejected because it discloses no cause of action, or is undervalued, or is insufficiently stamped, or is barred by law. In none of those cases has the court determined the rights of the parties in the matters in controversy; it has declined to entertain the suit in its present form. Why it is deemed one. So that an appeal lies under Section 96. A plaintiff whose claim has been shut out at the threshold should have a remedy, and a full appeal is the appropriate one. The companion rule. Order VII Rule 13 provides that the rejection of a plaint does not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. So the deemed decree gives a right of appeal without extinguishing the claim. |
§ Determination of a question within Section 144 What Section 144 covers. An application for restitution where a decree or order has been varied, reversed, set aside or modified. Why it is not a decree on ordinary principles. The determination is made on an application in the proceeding, not in a suit, and it works out the consequences of a reversal rather than deciding the matters in controversy. Why it is deemed one. Again, so that an appeal lies. A restitution order may involve substantial sums, in interest, mesne profits and compensation, and the Code treats it as important enough to carry a full right of appeal. Note the contrast with Section 47. Questions determined under Section 47, relating to the execution, discharge or satisfaction of a decree, are no longer deemed decrees: the words were omitted from Section 2(2) by the Amendment Act of 1976, so an order under Section 47 is now an order and not appealable as a decree. |
3. The Two Exclusions
Exclusion | What it covers | Why it is excluded |
|---|---|---|
Clause (a): an adjudication appealable as an appeal from an order | Decisions named in Section 104 or Order XLIII Rule 1, such as an order refusing to set aside an ex parte decree or refusing to set aside an abatement | So that a decision cannot be both a decree and an order; the route of challenge is settled by placing it in one category |
Clause (b): an order of dismissal for default | A dismissal under Order IX Rule 8 for the plaintiff's non-appearance, and similar dismissals | There has been no adjudication of rights at all; the remedy is an application under Order IX Rule 9 to set aside the dismissal |
4. Practical Tests
Decision | Classification | Route of challenge |
|---|---|---|
Rejection of a plaint, Order VII Rule 11 | Deemed decree | Appeal under Section 96; a fresh plaint is also open under Order VII Rule 13 |
Return of a plaint, Order VII Rule 10 | Order | Appeal under Order XLIII Rule 1(a); the plaint is presented to the proper court |
Dismissal for default, Order IX Rule 8 | Neither decree nor deemed decree | Application under Order IX Rule 9; an appeal lies from an order refusing it, under Order XLIII Rule 1(c) |
Dismissal of a suit after trial | Decree | Appeal under Section 96, and a second appeal under Section 100 |
An order on a restitution application under Section 144 | Deemed decree | Appeal under Section 96 |
A determination under Section 47 | Order since 1976 | Appealable only if it falls within Section 104 or Order XLIII Rule 1 |
An order granting a temporary injunction | Order | Appeal under Order XLIII Rule 1(r); no second appeal |
5. Landmark Points
- Section 2(2). A decree is the formal expression of an adjudication conclusively determining the rights of the parties, preliminary or final or partly both.
- Deemed in: the rejection of a plaint, and the determination of any question within Section 144.
- Pushed out: any adjudication appealable as an appeal from an order, and any order of dismissal for default.
- The purpose of deeming is to make an appeal available where the ordinary definition would not.
- Order VII Rule 13. The rejection of a plaint does not preclude a fresh plaint on the same cause of action.
- Section 47 orders are no longer deemed decrees, the words having been omitted from Section 2(2) in 1976.
6. Frequently Asked Questions
What is a deemed decree?
Something the Code treats as a decree although it does not satisfy the ordinary definition. Section 2(2) deems the rejection of a plaint and the determination of any question within Section 144 to be decrees, so that an appeal lies from them under Section 96.
Why is the rejection of a plaint a deemed decree?
Because it does not determine the rights of the parties in the matters in controversy; it declines to entertain the suit in its present form. It is deemed a decree so that a plaintiff shut out at the threshold has a full right of appeal.
Does the rejection of a plaint bar a fresh suit?
No. Order VII Rule 13 provides that the rejection of a plaint on any of the grounds in Rule 11 does not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.
Is an order under Section 47 a deemed decree?
Not since 1976. The words including the determination of any question within Section 47 were omitted from Section 2(2) by the Amendment Act of that year, so such a determination is an order and appealable only if Section 104 or Order XLIII Rule 1 names it.
Why does the definition exclude adjudications appealable as orders?
So that a decision cannot be both a decree and an order. Clause (a) makes the two categories mutually exclusive, which settles the route of challenge: Section 96 for a decree, and Section 104 with Order XLIII Rule 1 for an order.
Why is a dismissal for default excluded?
Because there has been no adjudication of the rights of the parties at all; the suit was dismissed because the plaintiff did not appear. The remedy is an application under Order IX Rule 9 to set aside the dismissal, and an appeal lies from an order refusing it.
7. Related Topics in This CPC Series
- Decree, Judgment and Order Distinguished
- Order VII: The Plaint, Return and Rejection
- Restitution under Section 144
- Questions Determined by the Executing Court under Section 47