Distinguish between order, Judgment and Decree
Difference between judgement and order
INTRODUCTION
The decision given by the Court of law, are either decrees or orders. A decree always follow the Judgment, which is pronounced by the Court, after hearing the case and can either be declaratory or executory. Both decree and order are analogous to each other.
RELEVANT PROVISIONS
Following are the relevant provisions of C.P.C regarding the topic of decree and order.
- Sec 2(2) for decree and order
- Sec 2(14) for order
- Sec 2(9) for Judgment
Order 20 Rule 1 to 6 for Decree and Judgment
DEFINITION OF DECREE: U/S 2(2) of C.P.C
A decree may be defined as under.
“Decree means the formal expression of an adjudication which, so far as Court expressing it, conclusively determines the rights of the parties, with regard to all or any of the matter in controversy in the suit, and may be either preliminary or final.”
ESSENTIALS OF DECREE
Following are the essentials of a decree.
(i) Adjudication
The word adjudication refers to the judicial determination of a matter in controversy and includes an ex-parte determination For an adjudication to come into the scope of a decree, it must be made by a court.
(ii) Given in Suit
The word suit is not defined by the code. So it may be defined in a general sense.
“Any proceedings, which is instituted by the presentation of a plaint, or which is created as a suit by any law, than such proceedings will be deemed to be a suit.”
(iii) Determination of Rights of Parties
The adjudication must determine the rights of the parties. Parties refers to persons, who are on the record as plaintiff and defendant, and right has reference to substantive right.
(iv) Regarding all or any of the Matter in Controversy
The adjudication determining the right of parties must be with regard to all, or any of the matter in controversy. Its reference to the subject matter of the suit in dispute, and the decision of the Court may be with regard to even one matter in controversy.
(v) Conclusive
The decision should be conclusive, so far as the Court expressing it is concerned, and it may be conclusive even if the suit is still not disposed of i-c preliminary decree.
(vi) Formally Expressed
There must be formal expression of the adjudication. It should be precise and specify the relief granted or other determination of the suit and names and description of the parties.
II. KINDS OF DECREE
Decree may be classified into two kinds,
(i). Declaratory decree which is not capable of execution.
(ii) Executory decree which can be executed and enforced by the court.
III. CLASSES OF DECREE
Following are the different classes of decrees as contemplated by Sec. 2(2) of C.P.C
(i) Preliminary Decree
A preliminary decree declares rights and obligations of the parties leaving further matters to be determined in subsequent proceedings and it i, conclusive in nature.
(ii) Final Decree
A final decree is one which completely disposes of the suit so far as the Court passing it is concerned.
(iii) Partly Preliminary and Partly Final Decree
A decree, may be of such a kind which is final it part and partly preliminary.
Example:
In a suit, for recovery of possession of immoveable property and rent, the part of the decree, which directs delivery of possession of property is final but the part directing an inquiry as to rent or profit is preliminary.
(iv) Order Rejecting a Plaint
Sec. 2(2) declares that order rejecting a plaint is a decree, though there is no adjudication of the rights of the parties but by fiction of law, it is classed as decree.
(v) Determination of Questions under Certain Provisions of C.P.C
By virtue of Sec 2(2), all orders made u/s 144 and under Rules 60, 98,99, 101 and 103 of order 21 are decrees.
IV. DECREE NOT INCLUDE THE FOLLOWING
By virtue of sec 2(2), the decree shall not include the following:
(i) Appellate Orders
An Adjudication, from which an appeal lies, as an appeal from an order, is not a decree.
Example:
Questions to be determined by the executing courts, u/s 47, order.
(ii) Dismissal in Default
Orders of dismissal of suit, in default of appearance or non-prosecution, are not decrees i.e. orders passed under order 9 or 17 of C.P.C.
4. DEFINITION OF ORDER: u/s 2 (14) of C.P.C
“Order means the formal expression of any decision of a Civil Courts which is not a decree.”
ESSENTIALS OF ORDER
Following are the essentials of order.
(i) Decision
The expression decision refers to judicial
(ii) By Civil Court
The decision must be one of the Civil Court, and not of the administrative tribunals.
(iii) Formal Expression
Decision given by Court, must be formally expressed i-e. It must be in writing, precise and the language must be deliberate so that the execution would be possible.
(iv) Not a Decree
The definition of order, specifically excludes the decree from its ambit, and as such any adjudication of court which is decree, cannot be a order at the same time.
II. CLASSES OF ORDER
Following are the two kinds of order
i. Final Order
ii. Interlocutory order
5. JUDGMENT U/S 2 (9)
Judgment means the statement given by the judge of the grounds of a decree or order.
I. INGREDIENTS OF JUDGMENT
Following are the ingredients of a judgment
(i) Statement given by Judge
A judgment means the judicial decision of court or judge.
(ii) Need to be in writing
It is only after the judge has reduced his decision into writing that a judgment comes into existence. An oral pronouncement is not a judgment.
(iii) Grounds of decree or order
Every statement of grounds will not be a judgment but will be so only if such decisions can result in a decree or an order. Findings recorded by Trial Court without referring to any evidence of the parties and without discussing its legal effect after conscious application of mind would not withstand test of the word judgment as defined in section 2 (9) of CPC.
II. PRONOUNCEMENT OF JUDGMENT U/ORD. 2 RULE
On completion of evidence, the Court shall fix a date, not exceeding 15 days, for hearing of arguments of the parties.
III. JUDGMENT AND DECREE U/S 33
The Court after the case has been heard shall pronounce judgment and on such judgment a decree shall follow.
The evidence which person sought to produce must not be within the knowledge of that person seeking review after exercise of due diligence or he could not produce the same at the time when decree was passed or order made.(NLR 2006 Civil Pesh.46) 126
DIFFERENCE BETWEEN DECREE AND ORDER
Following are the differences between decree and order
(i) As to Nature
Every decree is an order, but every order is not a decree.
(ii) Appeal
Ordinarily appeal lies from every decree, but order are appealable only, if provided by Sec. 104 read with order 43
(iii) As To Second Appeal
A second appeal may lie against decree, but a second appeal shall not lie against an order passed in appeal.
(iv) Determination of Rights
Decree conclusively determines the rights of the parties, but order does not necessarily conclusively determines the rights of the parties.
(v) Classes
Decree is of five classes as provided u/s 2(2), while order may be of final or interlocutory.
(vi) Emergence
Decree cannot be emerged into an order, but every order in a case merge into a decree.
7. DIFFERENCE BETWEEN DECREE ORDER AND JUDGMENT
I. AS TO EXECUTION
It is the decree or order which is capable of execution and not the Judgment.
II. FORM
Decree and order always follow the Judgment while the judgment contains the grounds of both decree and order.
III. SUPERIORITY
Judgment is superior in form and if decree or order are not in accordance with it, they may be altered.
V. APPEAL
It is the decree or order which is appealable and not the judgment.
V. KINDS
Decree and order has different kinds but that is not a case with the judgment.
CONCLUSION
At the end, I may be said, that the decision given by the judge is called judgment which contains the grounds of decree and order.
Decree and order are analogous to each other, and by virtue of Sec. 36 of CPC provisions relating to the execution of decree are also applicable to orders. The importance of decree lies in a fact, that they are appealable and conclusively determine the rights of the parties, while it is not necessarily the case with the order but u/s 105 every order, whether appealable or not excepting appealable orders of remand, can be attacked in an appeal against the final decree.
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