Code of Civil Procedure, 1908 (CPC)
Preliminary Decree and Final Decree Distinguished
Some suits cannot be decided in a single step. A court may be able to say who is entitled and in what share long before it can say which piece of land goes to whom or how much is due on taking accounts. The Code of Civil Procedure, 1908 provides for that in the Explanation to Section 2(2): a decree is preliminary when further proceedings must be taken before the suit can be completely disposed of, and final when the adjudication completely disposes of it. These notes cover the distinction, where the Code provides for two decrees, and the consequences, including the trap in Section 97.
The preliminary decree, the stage between, and the final decree
1. The Definition
§ The Explanation to Section 2(2), CPC 1908 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. |
§ Three points that follow • Both are decrees. A preliminary decree is a decree within Section 2(2), so an appeal lies from it under Section 96, and it is as much an adjudication of rights as a final decree. • The test is not importance but completeness. A preliminary decree may decide the hardest questions in the case; what makes it preliminary is that something remains to be done before the suit is over. • A single decree may be both. Where a court decrees possession at once and directs an inquiry into mesne profits, the decree is partly final as to possession and partly preliminary as to profits. |
2. Where the Code Provides for Two Decrees
Provision | What the preliminary decree does | What remains for the final decree |
|---|---|---|
Order XX Rule 12: possession and mesne profits | Decrees possession, and directs an inquiry into mesne profits | Ascertains the mesne profits and decrees the amount |
Order XX Rule 13: administration suit | Directs accounts and inquiries into the estate | Declares what is due and directs distribution |
Order XX Rule 14: pre-emption | Declares the pre-emptor's right and fixes the amount and the day for payment | Decrees possession on payment, or dismisses the suit on default |
Order XX Rule 15: dissolution of partnership | Declares the dissolution, fixes the date, and directs accounts | Settles the accounts and distributes the property |
Order XX Rule 16: accounts between principal and agent | Directs accounts to be taken | Declares the balance due and decrees it |
Order XX Rule 18: partition | Declares the shares of the parties | Divides the property by metes and bounds, ordinarily through a commissioner under Order XXVI Rule 13 |
Order XXXIV: mortgage suits | Takes an account, declares the amount due and fixes a day not less than six months for payment | Foreclosure, sale, or reconveyance, according to whether the mortgagor paid |
3. The Consequences
§ Section 97: the point of no return Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. Why it exists. The final decree merely works out what the preliminary decree declared. If the declaration could be attacked afterwards, the work of the intermediate stage, often years of accounts, commissions and allotments, would be wasted. The practical effect. A party who disagrees with the shares declared in a partition suit, or with the amount found due in a mortgage suit, must appeal then. He cannot wait for the final decree and argue the point there. |
§ Four further consequences • The final decree must conform to the preliminary decree. It gives effect to what was declared, and cannot enlarge or vary it; a court that finds the preliminary decree unworkable must have it corrected or set aside by the proper proceeding. • Execution ordinarily follows the final decree, because only that decree quantifies what is to be done. A preliminary decree may be executable to the extent that it grants immediate relief, as where possession is decreed at once. • More than one final decree may be passed in a single suit where the subject matter is dealt with in parts, as in a partition where different properties are allotted at different times. • A preliminary decree survives an amendment of the final decree, and where a final decree is set aside the preliminary decree ordinarily stands, the proceedings resuming from the intermediate stage. |
4. The Two Compared
Basis | Preliminary decree | Final decree |
|---|---|---|
What it does | Declares the rights of the parties and directs the further proceedings needed | Works out those rights and completely disposes of the suit |
Does the suit end? | No. Further proceedings must be taken | Yes, so far as the matters it covers are concerned |
Is it a decree? | Yes, within Section 2(2), and appealable under Section 96 | Yes, and appealable under Section 96 |
Execution | Only to the extent it grants immediate relief | The ordinary instrument of execution, since it quantifies the relief |
How many | Ordinarily one in a suit | There may be more than one where the subject matter is dealt with in parts |
If not appealed | Section 97: its correctness cannot be disputed in the appeal from the final decree | The decree becomes final between the parties |
Relationship | Governs what the final decree may do | Must conform to it and cannot enlarge or vary it |
5. Landmark Points
- The Explanation to Section 2(2). A decree is preliminary where further proceedings must be taken before the suit can be completely disposed of, final where the adjudication completely disposes of it, and it may be partly both.
- Both are decrees, and an appeal lies from each under Section 96.
- Section 97. A party who does not appeal a preliminary decree is precluded from disputing its correctness in the appeal from the final decree.
- The final decree must conform to the preliminary decree, and cannot enlarge or vary what was declared.
- More than one final decree may be passed where the subject matter is dealt with in parts.
- The Code provides for two decrees in Order XX Rules 12 to 18 and in Order XXXIV, covering mesne profits, administration, pre-emption, partnership, accounts, partition and mortgages.
6. Frequently Asked Questions
What is the difference between a preliminary and a final decree?
A preliminary decree declares the rights of the parties but leaves further proceedings to be taken before the suit can be completely disposed of. A final decree works out those rights and completely disposes of the suit.
Is a preliminary decree appealable?
Yes. It is a decree within Section 2(2), so an appeal lies from it under Section 96. More than that, it must be appealed then: Section 97 precludes a party who does not appeal it from disputing its correctness in the appeal from the final decree.
In which suits are two decrees passed?
Chiefly those in Order XX Rules 12 to 18: possession and mesne profits, administration, pre-emption, dissolution of partnership, accounts between principal and agent, and partition; and in mortgage suits under Order XXXIV.
Can there be more than one final decree in a suit?
Yes, where the subject matter is dealt with in parts. In a partition suit, for example, different properties may be allotted at different times, each allotment being worked out by a separate final decree.
Can a decree be partly preliminary and partly final?
Yes. The Explanation to Section 2(2) says so expressly. The usual example is a decree granting possession at once while directing an inquiry into mesne profits, which is final as to possession and preliminary as to the profits.
Must the final decree follow the preliminary decree?
Yes. The final decree gives effect to what the preliminary decree declared and cannot enlarge or vary it. A court that finds the preliminary decree unworkable must have it corrected or set aside by the proper proceeding, not depart from it.
7. Related Topics in This CPC Series
- Decree, Judgment and Order Distinguished
- Section 33 and Order XX: Judgment and Decree
- Order XXXIV: Suits Relating to Mortgages
- First Appeals: Sections 96 to 99A and Order XLI