Code of Civil Procedure, 1908 (CPC)
Important Definitions under Section 2 CPC: Decree, Judgment, Order and More
Section 2 of the Code of Civil Procedure, 1908 is the smallest section with the largest examination footprint. Whether an appeal lies, which appeal lies, when limitation begins, who may execute and against whom, all turn on the definitions of decree, judgment, order, decree-holder, judgment-debtor, legal representative and mesne profits. These notes take every definition in the syllabus in turn, with the essential elements, the classifications, the exclusions, the comparison tables and the landmark judgments that examiners expect to see cited.
Keep one organising idea in view: the Code attaches consequences to labels. The same judicial order may be appealable or unappealable, executable or not, depending only on whether it answers the definition of a decree in Section 2(2). Learning Section 2 is therefore not vocabulary work; it is learning where the doors of the Code open.
1. Decree: Section 2(2) CPC
§ 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. 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. |
The anatomy of a decree: essentials, kinds and exclusions under Section 2(2)
2. Essential Elements of a Decree
Five elements must concur before an adjudication is a decree, and an answer that names and applies all five is the standard expected.
i. There must be an adjudication. The court must judicially determine the matter; an administrative or ministerial act is not an adjudication. Dismissal of a suit for default of appearance, or for non-payment of court fee, involves no judicial determination of the controversy and is therefore not a decree.
ii. The adjudication must be in a suit. A suit, in the Code's ordinary sense, is a civil proceeding instituted by the presentation of a plaint. Proceedings begun by petition or application under special statutes are not suits, so their disposal yields no decree unless the statute so provides or the proceeding is expressly treated as a suit.
iii. It must determine the rights of the parties with regard to all or any of the matters in controversy. The rights must be substantive rights in the matter in dispute, not merely procedural ones; and the parties must be parties to the suit. An order on a stranger's application, or a purely procedural direction, fails this test.
iv. The determination must be conclusive. It must be final and binding so far as regards the court expressing it. An interlocutory order that keeps the matter alive before the same court is not conclusive; a decision conclusive for that court remains a decree even though appealable.
v. There must be a formal expression of that adjudication. The decree must be drawn up formally, in the manner the Code requires under Order XX Rule 6, and it follows the judgment. The absence of a formally drawn decree does not destroy the adjudication's character, but the formal expression is what is put into execution and what is appealed against.
📖 Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 The question concerned the nature of an order refusing to condone delay, and whether the resulting disposal answered the definition of a decree. The Supreme Court examined the elements of Section 2(2) and reiterated that adjudication, in a suit, conclusively determining the rights of the parties on a matter in controversy, with formal expression, are cumulative requirements. Rule: the character of a judicial order is determined by applying the five elements to its substance, not by the name the court or the office gives it. |
3. Preliminary Decree, Final Decree and the Partly Preliminary Decree
Preliminary decree
A decree is preliminary where further proceedings have to be taken before the suit can be completely disposed of: the court declares the rights of the parties but leaves work to be done before the suit ends. The Code contemplates preliminary decrees in, among others, suits for possession and mesne profits (Order XX Rule 12), administration suits (Rule 13), suits for pre-emption (Rule 14), dissolution of partnership (Rule 15), accounts between principal and agent (Rule 16), partition and separate possession (Rule 18), and suits on mortgages under Order XXXIV. The list is illustrative, not exhaustive: a court may pass a preliminary decree in other suits where the nature of the relief requires a two-stage disposal.
Final decree
A decree is final when the adjudication completely disposes of the suit. Finality may arrive in two ways: the decree may be final at once, where nothing remains to be done, or it may follow a preliminary decree, working out the rights already declared. A final decree must conform to the preliminary decree and cannot go behind it, since the preliminary decree, unless set aside in appeal, binds the parties and the court.
Partly preliminary and partly final decree
The same decree may be partly preliminary and partly final, as the Explanation expressly recognises. The classic illustration is a suit for possession of immovable property with mesne profits: if the court decrees possession and directs an inquiry into mesne profits, the decree is final as to possession and preliminary as to the profits.
More than one final decree, and more than one preliminary decree
Two settled propositions complete the topic. First, there may be more than one final decree in a suit, as in a partition suit where separate final decrees are drawn for different properties or parties; the once-popular contrary view was rejected in Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande, which also held that a partition decree becomes executable only when the final decree engrossed on stamped paper is drawn. Second, a court may in appropriate cases pass more than one preliminary decree, particularly in partition suits where events after the first preliminary decree, such as the death of a party, require fresh apportionment of shares: Phoolchand v. Gopal Lal.
📖 Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992 The question was whether a preliminary decree which had not been appealed against remained open to challenge when the final decree was passed, or whether it had become conclusive. The Supreme Court held that a decree is final for the purposes of Section 2(2) when, so far as the court passing it is concerned, it conclusively determines the rights of the parties on the matter in controversy, and it does not lose that character merely because further proceedings remain or an appeal is available; a preliminary decree not appealed against therefore becomes final and binds the parties at the final decree stage. Rule: conclusiveness is judged from the standpoint of the court that passed the order, not from the ultimate end of the litigation. |
4. Deemed Decrees and Matters Which Are Not Decrees
Deemed decrees
Some adjudications are not decrees in nature, but the definition expressly includes them, and the inclusion matters because it carries with it the right of appeal under Section 96. Two are named in Section 2(2): the rejection of a plaint under Order VII Rule 11, and the determination of any question within Section 144, that is, an order on an application for restitution. Elsewhere the Code gives certain adjudications the force of a decree, notably determinations of claims and objections to attachment under Order XXI Rule 58 and adjudications on applications by purchasers or persons dispossessed under Order XXI Rules 98 and 100. Note the amendment history: before 1976, Section 2(2) also included the determination of questions under Section 47, relating to execution, discharge and satisfaction; the Amendment Act of 1976 deleted that limb, so such determinations are today orders, not decrees.
Matters which are not decrees
Adjudication | Why it is not a decree |
|---|---|
Dismissal of a suit for default of appearance (Order IX Rule 8) | Expressly excluded by clause (b) of Section 2(2); no adjudication on the matters in controversy |
Any adjudication from which an appeal lies as an appeal from an order | Expressly excluded by clause (a); its remedy lies under Section 104 and Order XLIII |
Orders on interlocutory applications (injunctions, receivers, amendment of pleadings) | Not conclusive determinations of the rights in controversy; they regulate the progress of the suit |
Return of a plaint for presentation to the proper court (Order VII Rule 10) | Decides no right in controversy; the suit survives, merely elsewhere |
Determination of a question under Section 47, after 1976 | Deleted from the definition by the Amendment Act 104 of 1976; now an order |
Administrative or ministerial acts of the court | No judicial adjudication at all |
5. Judgment: Section 2(9) CPC
§ Section 2(9), CPC 1908 “judgment” means the statement given by the Judge on the grounds of a decree or order. |
The judgment is the reasoning; the decree is the result formally expressed. By Order XX Rule 4(2), a judgment of a court other than a Court of Small Causes must contain a concise statement of the case, the points for determination, the decision on those points, and the reasons for that decision, while a Small Causes judgment need only state the points and the decision. Every decree must be preceded by a judgment, but a judgment may also support a mere order, which is why Section 2(9) speaks of the grounds of a decree or order. On the original side of the chartered High Courts, where the Letters Patent give a further appeal against a “judgment”, the word bears its own, wider Letters Patent meaning, as explained in Shah Babulal Khimji v. Jayaben D. Kania, and that meaning should not be confused with Section 2(9).
6. Order: Section 2(14) CPC
§ Section 2(14), CPC 1908 “order” means the formal expression of any decision of a Civil Court which is not a decree. |
The definition is residual: what is not a decree, and is a formal expression of a civil court's decision, is an order. The practical consequence is the right of appeal. A decree carries a first appeal as of right under Section 96; an order is appealable only if it is listed in Section 104 or Order XLIII Rule 1, and otherwise can be challenged only in an appeal against the final decree under Section 105, or by revision under Section 115 where its conditions are met.
Decree vs Order: the comparison
Basis | Decree, Section 2(2) | Order, Section 2(14) |
|---|---|---|
Origin | Passed in a suit instituted by plaint | May arise in a suit or in a proceeding begun by petition or application |
Nature of determination | Conclusively determines the rights of the parties on matters in controversy | May or may not finally determine such rights; often procedural |
Kinds | Preliminary, final, or partly preliminary and partly final | No such classification; an order is final or interlocutory in a general sense |
Number in a suit | Ordinarily one decree, though there may be preliminary and final decrees | Any number of orders may be passed in one suit |
Right of appeal | Appealable as of right under Section 96 unless barred | Appealable only if listed in Section 104 or Order XLIII Rule 1 |
Second appeal | Second appeal lies under Section 100 on a substantial question of law | No second appeal from an appellate order: Section 104(2) |
Decree vs Judgment: the comparison
Basis | Judgment, Section 2(9) | Decree, Section 2(2) |
|---|---|---|
Meaning | The statement of the Judge on the grounds of a decree or order | The formal expression of the adjudication itself |
Content | The reasoning: case, points, decision and reasons (Order XX Rule 4) | The relief granted, drawn up in the prescribed form (Order XX Rules 6 and 7) |
Sequence | Pronounced first | Follows upon and must agree with the judgment; bears the date of the judgment |
Execution | Not executable as such | Executable; it is the decree that is put into execution |
Appeal | The appeal is against the decree, not the reasoning | The subject of the appeal under Section 96 |
7. The Parties to a Decree: Decree-Holder and Judgment-Debtor
Decree-holder, under Section 2(3), means any person in whose favour a decree has been passed or an order capable of execution has been made. Two points repay attention: the person need not be a party to the suit, so a transferee of a decree or a person in whose favour an executable order is made qualifies; and an order capable of execution, such as an order for costs, suffices even though it is not a decree. Judgment-debtor, under Section 2(10), means any person against whom a decree has been passed or an order capable of execution has been made. Here the person must be a party against whom the decree runs; the legal representative of a deceased judgment-debtor is not himself a judgment-debtor, but is liable in execution under Section 50 to the extent of the property of the deceased that has come into his hands.
8. Legal Representative: Section 2(11) CPC
§ Section 2(11), CPC 1908 “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. |
The definition is wide and inclusive, and deliberately so, because its purpose is to ensure that litigation survives the litigant. It covers three classes: those who represent the estate in law, such as executors, administrators and heirs; intermeddlers, that is, persons who deal with the estate without title, described in the older law as executors de son tort; and, in representative litigation, the person on whom the character devolves. A legal representative's liability is limited to the estate of the deceased that has come to his hands, and the concept works throughout the Code: substitution under Order XXII, execution against representatives under Section 50, and the definition of a party for the purposes of res judicata.
📖 Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique, AIR 1989 SC 1589 The question was whether a person claiming an interest in the estate of a deceased party, though not an heir in the strict sense, could be brought on record as a legal representative. The Supreme Court held that the definition in Section 2(11) is inclusive in character and wide in ambit, intended to cover every person who in law represents the estate of the deceased or intermeddles with it, and even persons who claim under a title derived from the deceased may fall within it; the court's inquiry at the substitution stage is summary and does not decide title conclusively. Rule: Section 2(11) is construed liberally so that the suit does not fail for want of a representative, and the determination of representative status for procedure does not adjudicate ownership. |
9. Mesne Profits: Section 2(12) CPC
§ Section 2(12), CPC 1908 “mesne profits” of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession. |
Four features follow directly from the words. First, liability attaches to wrongful possession: a person in lawful possession, however unprofitable his occupation to the owner, owes no mesne profits. Second, the measure is what he actually received or might with ordinary diligence have received, so deliberate under-exploitation is no defence. Third, interest on those profits is an integral part of mesne profits and not a separate claim. Fourth, profits attributable to improvements made by the wrongful possessor are excluded, since the owner should not profit from another's expenditure. Procedurally, mesne profits are dealt with under Order XX Rule 12, which permits a decree for possession with an inquiry into mesne profits, producing the classic partly preliminary and partly final decree.
10. Foreign Court, Foreign Judgment and Other Definitions
Term | Definition under Section 2 | Point to remember |
|---|---|---|
Foreign Court, s. 2(5) | A Court situate outside India and not established or continued by the authority of the Central Government | Both limbs must be satisfied; a court set up abroad by the Central Government is not foreign |
Foreign judgment, s. 2(6) | The judgment of a foreign Court | Its conclusiveness and the six exceptions are governed by Section 13; enforcement under Sections 13, 14 and 44A |
District, s. 2(4) | The local limits of the jurisdiction of a principal Civil Court of original jurisdiction, called the District Court, including the local limits of the ordinary original civil jurisdiction of a High Court | Links the definition of District Court to the hierarchy in Section 3 |
Judge, s. 2(8) | The presiding officer of a Civil Court | The office, not the individual; it is the court that acts |
Public officer, s. 2(17) | Persons falling within the enumerated classes, including judicial officers, officers of a Court of Justice, commissioned officers, and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of a public duty | Attracts the protections of Section 80 (notice) and Sections 79 to 82 (suits by or against public officers) |
Pleader, s. 2(15) | Any person entitled to appear and plead for another in Court, including an advocate, a vakil and an attorney of a High Court | Relevant to appearance under Order III and to service and signing of pleadings |
Movable property, s. 2(13) | Includes growing crops | An inclusive definition; standing timber, growing crops and grass are treated as movable, the general law of property supplying the rest |
Decree-holder, s. 2(3) and Judgment-debtor, s. 2(10) | In whose favour, and against whom, a decree is passed or an executable order made | Both extend to executable orders, not only decrees |
Two of these definitions carry consequences well beyond Section 2. A foreign judgment under Section 2(6), delivered by a foreign court under Section 2(5), is conclusive between the parties under Section 13 except on the six enumerated grounds, among them want of jurisdiction, judgment not on the merits, breach of natural justice, fraud, and refusal to recognise Indian law where applicable; and under Section 44A a decree of a superior court of a reciprocating territory may be executed in India as if passed by a District Court here. The definition of public officer in Section 2(17) governs who may claim the protection of the two months' notice under Section 80 for acts purporting to be done in official capacity.
11. Landmark Judgments on the Definitions in Section 2
- Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992. Conclusiveness is judged from the standpoint of the court passing the order; an unappealed preliminary decree binds at the final decree stage.
- Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande, (1995) 3 SCC 413. A partition decree is executable only when the final decree engrossed on stamped paper is drawn; more than one final decree is possible.
- Phoolchand v. Gopal Lal, AIR 1967 SC 1470. A court may pass more than one preliminary decree, notably in partition suits where later events alter shares.
- Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8. The word judgment in the Letters Patent bears a wider meaning than Section 2(9); trial-stage orders affecting valuable rights may be appealable.
- Custodian, BANCO National Ultramarino v. Nalini Bai Naique, AIR 1989 SC 1589. Section 2(11) is inclusive and liberally construed; substitution does not decide title.
- Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575. The five elements of Section 2(2) are cumulative and are applied to substance, not nomenclature.
12. Frequently Asked Questions on Section 2 Definitions
What is a decree under Section 2(2) of the CPC?
A decree is the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties on all or any of the matters in controversy in the suit. It may be preliminary or final, includes the rejection of a plaint and determinations under Section 144, and excludes adjudications appealable as orders and dismissals for default.
What are the essential elements of a decree?
Five: an adjudication; in a suit; determining the rights of the parties with regard to matters in controversy; a conclusive determination so far as the court expressing it is concerned; and a formal expression of that adjudication.
What is the difference between a decree and an order?
A decree arises in a suit and conclusively determines rights in controversy, can be preliminary or final, and is appealable as of right under Section 96 with a second appeal under Section 100. An order is any formal decision that is not a decree, may arise in any proceeding, is appealable only if listed in Section 104 or Order XLIII Rule 1, and carries no second appeal.
What is the difference between a judgment and a decree?
The judgment is the Judge's statement of the grounds of a decree or order, that is, the reasoning; the decree is the formal expression of the adjudication, that is, the result. The judgment comes first, the decree follows and must agree with it, and it is the decree that is executed and appealed against.
What are deemed decrees under the CPC?
Adjudications that are not decrees by nature but are treated as such: the rejection of a plaint under Order VII Rule 11 and determinations of questions under Section 144, both named in Section 2(2). Determinations under Order XXI Rules 58, 98 and 100 are given the force of a decree by those rules. Section 47 determinations ceased to be decrees after the 1976 amendment.
What are mesne profits under Section 2(12)?
Profits which a person in wrongful possession actually received, or might with ordinary diligence have received, from the property, together with interest on those profits, but excluding profits due to improvements made by that person.
Who is a legal representative under Section 2(11) CPC?
A person who in law represents the estate of a deceased person, including an intermeddler with the estate and, in representative litigation, the person on whom the estate devolves. The definition is inclusive and liberally construed, and liability is limited to the estate that comes to the representative's hands.
13. Related Topics in This CPC Series
- Subordination of Courts under the CPC
- Pecuniary Jurisdiction of Civil Courts: Section 6
- Jurisdiction of Civil Courts: Section 9 and the Bar of Suits
- Jurisdiction: Meaning, Types and Inherent Lack of Jurisdiction