DECREE

A decree is one of the frequently heard terms in Civil Matters. The adjudication
of a courtroom of law is divided into decree and orders. The term “decree” has
been defined in section 2(2) of the Code of Civil Procedure, 1908. The decree is
a proper expression of adjudication by way of which the courtroom determines
the rights of parties concerning the matter in controversy or dispute. It can be
relating to any or all of the matter in controversy in the match.

Decree may be suggested best in the case of a healthy, i.e., civil proceeding
instituted through the presentation of a plaint.

The decree shall encompass the rejection of a plaint in figuring out any query
under Section 144, but excludes the following:

1. Any adjudication from which an attraction lies, together with, an

attraction from order.

2. Any order of dismissal for default.

The Explanation to this segment presents that a decree can either be

preliminary or final or in part initial and partly very last. Preliminary decrees are
those in which the in shape is not completely disposed of and further
proceedings may take place. The final decree is while the Court absolutely
disposes of the suit. This article describes all the aspects of a decree i.e, its
major elements, types, procedure to pass decree and various rules related to
decree with case laws.

Essentials Elements of A Decree

The decree is a decision of the court. For any decision of the court to be a
decree, the following essentials are required:

1. There must be an adjudication.

2. The adjudication must be done in a suit.

3. The adjudication must be determining the rights of the

parties concerning all or any of the matter at issue.

4. Such determination must be conclusive in nature.

5. There must be a formal expression of such adjudication

1. Adjudication

The most essential feature of a decree is that there must be an adjudication,

i.e., a proper decision of the Judge on the matter at issue. If there’s no judicial
determination, there’s no decree. And such decision must be gone by the Court.
Therefore, an order gone by a politician who isn’t a court can’t be termed as
decree. In Madan Naik v Hansubala Devi, the Supreme Court held that if the
matter isn’t judicially determined, it’s not a decree.[2]

2. Suit

It may be defined as a civil proceeding which is instituted within the Court of

Law by the presentation of a plaint. Thus, if there’s no lawsuit, there’s no
decree. There are some applications which are being treated as suit, such as,
proceedings under, the Indian Succession Act, the Hindu Marriage Act, the
Land Acquisition Act, the Arbitration Act, etc. Therefore, decisions given for
these matters are considered as decrees within the meaning of Section 2(2) of
Civil Procedure Code.[3] Additionally to the present, decisions held by the
tribunals are the decrees gone by the tribunal and not the Court decree.

3. Rights of the parties

The adjudication must determine the rights of the parties altogether or any of
the matters at issue. If the Court passes an order on procedural ground, such
order can’t be termed as a decree, such as, an order dismissing the suit for non-
appearance of the parties, or an order refusing to grant leave to sue as a paper,
etc.
The term parties mean parties to the suit, i.e., the plaintiff (the one that has
instituted the suit) and therefore the defendant (against whom the suit has
been filed). In Kanji Hirjibhai Gondalia vs Jivaraj Dharamshi, the Court held
that the term parties means the parties to the suit, i.e., the plaintiff and
therefore the defendant. Just in case the Court passes an order upon an
application of a stranger or a 3rd party during a suit, such order won’t be
considered as a decree.[4]

4. Determination must be conclusive

The judicial determination held by the Court of Law must be conclusive and
final concerning the rights of the parties to the suit. The provisional decisions
or the interlocutory orders can’t be termed as a decree as they’re not the
ultimate decision of the Court. Therefore, orders gone by the Court on certain
issues and remitting other issues to the court isn’t a decree because
it doesn’t determine the rights of the parties conclusively.

5. Formal Expression

There must be a proper expression of the adjudication. The Court must express
its decision formally in accordance with the provisions of law.

Classification of Decree-

The decree may be classified into:

1. Preliminary Decree

2. Final Decree

3. Partly Preliminary and Partly Final Decree

4. Deemed Decree

Preliminary Decree

The preliminary decree may be a decree where the Court decides the rights of
the parties concerning all or any of the matter in controversy
but doesn’t eliminate the suit finally.
Civil Procedure Code 1908 provides that, within the following suits a preliminary
decree could also be passed:

1. Suit for possession and Mesne profit (Order 20 Rule 12)

2. Administration Suits (Order 20 Rule 13)

3. Suits of pre-emption (Order 20 Rule 14)

4. Suit filed for dissolution of a partnership (Order 20 Rule 15)

5. Suits associated with accounts between the principal and agent (Order 20
Rule 16)

6. Suit for partition and separate possession (Order 20 Rule 18)

7. Suits associated with the foreclosure of a mortgage (Order 34 Rule 2)

8. Suits associated with the sale of the mortgaged property (Order 34 Rule
4)
 9. Suits for the redemption of a mortgage (Order 34 Rule 7)[5]

However, in Narayanan vs Laxmi Narayan AIR 1953, the Court held that the
above-mentioned list isn’t exhaustive, and therefore the Court may pass
preliminary decree during a suit not enlisted by the Code.

Final Decree

When the Court decides all the matters in controversy and eventually disposes
of the suit it’s called the final decree. In, Shankar V. Chandrakant[6], the
Supreme Court stated: A preliminary decree is one which declares the rights
and liabilities of the parties leaving the particular outcome to be figured out in
further proceedings. Then, as a results of the further inquiries, conducted
pursuant to the preliminary decree, the rights of the parties are fully
determined and a decree is passed in accordance with such determination which
is final. Both the decrees are within the same suit.

A final decree could also be said to be final in two ways:

• when the time for appeal has expired without appeal being filed against
the preliminary decree or the matter has been decided by the very
best court;

• When, as regards to the court passing the decree, an equivalent stands

completely disposed of.
It is the latter sense that the word ‘decree’ is employed in section 2(2)
of the Code.

Partly Preliminary and Partly Final Decree

Partly preliminary and partly final decree are those where a final judgment has
been passed in respect of a part of the suit and other part is left for future
adjudication, for instance, during a suit for possession of immovable property
with mesne profit, the decree of the Court regarding the possession may be
a final decree, whereas the decree about mesne profit is preliminary in nature.

Deemed Decree

Decrees which doesn’t fulfil the prerequisite of Section 2(2) can’t be termed as
a decree under this Code. However, there are certain orders which are
considered as deemed decrees under Civil Procedure Code, such as, adjudication
under order 21 Rule 58, Rule 98 and Rule 100 are deemed decrees.
Similarly, rejection of plaint and determination of question under Section 144
(Restitution) may be a deemed decree.
Decree Holder. Section 2(3) of the Civil Procedure Code provides that a decree
holder is that the person in favour of whom the decree has been passed or an
order which is capable of execution has been made. A decree holder are often a
person[7]. In Dhani Ram v. Lala Sri Ramthe Court held that an
individual who isn’t a celebration to the suit but in whose favour a decree has
been passed or an order capable of execution is formed shall be the decree
holder.[8]

Procedure of Passing A Decree

According to Rule 6 of the Order XX of CPC, a decree should be in agreement

with the judgment pronounced by the court. As has already been explained that
under Section 33 of CPC, a decree shall follow the judgment. Hence, this rule
states that a decree should be in consonance with the judgment. The judgment
must explain the precise reasons for pronouncing such decree. If the decree
and judgment haven’t any link or relation, it’s going to be ground of appeal.

For example, if the judgment explains why a decree of final injunction can’t be
given, the decree should be that suit for a final injunction is dismissed. There
must be an immediate proportional relationship between the decree and
judgment.

Contents of A Decree

The decree shall follow the judgment, agree with it and bear:

a. The number of the suit

b. The names and description of the parties and their registered addresses

c. The particulars of their claims

d. The relief granted

e. the amount of costs incurred within the suit, and by whom or out of what
property and in what portions are they paid

f. The date on which the judgment was pronounced

g. The signature of the judge

Case laws-

What is Foreign Judgement under CPC?

The term “foreign judgment” is defined in Section 2(6) of the Code of Civil
Procedure as a judgment issued by a court outside India.

Section 13 of the Code outlines the criteria for recognising a foreign judgment,
which is a prerequisite for any enforcement proceedings. Unless a foreign
judgment meets the conclusiveness test outlined in Section 13, it cannot be
enforced.

What is a Foreign Court?

A “foreign court,” as defined in Section 2(5) of the Code of Civil Procedure,

refers to a court located outside India that is not established or continued by
the central government. Sections 13, 14 and 44 of the Criminal Procedure Code
govern foreign judgments.

Section 13 incorporates principles of private international law, stipulating that a

court will not enforce a foreign judgment if it is not from a competent court.
These rules are substantive and procedural in nature.

Enforcement of Foreign Judgements Meaning

Enforcement of foreign judgments is the process of recognising and giving

effect to a judgment or order issued by a court in one country in another
country. This process allows the successful party in a lawsuit to seek the
enforcement of the judgment in a different jurisdiction where the defendant’s
assets are located or where the judgment debtor resides.
For example, if a court in Country A awards damages to a plaintiff against a
defendant who resides in Country B, the plaintiff may seek to enforce the
judgment in Country B to recover the awarded damages. The process of
enforcement typically involves filing an application in the local court of
the jurisdiction where enforcement is sought, providing evidence of the foreign
judgment and complying with any procedural requirements specified by the local
laws

Object of Section.13 And 14

The primary objective of Sections 13 and 14 of the Code of Civil Procedure is to

provide a framework for the recognition and enforcement of foreign judgments
in India. These sections are based on the principle that when a court of
competent jurisdiction has adjudicated a claim, there is a legal obligation to
satisfy that claim.

Section 13 outlines the conditions under which a foreign judgment can be

recognised as conclusive in India. These conditions include that the foreign
court must have had jurisdiction, the judgment must be on the merits of the
case and it must not be contrary to Indian law or principles of natural justice.

Foreign Judgement When Not Binding- sec. 13

According to the Code of Civil Procedure, a foreign judgement is conclusive as

to any matter directly adjudicated on by it between the same parties or
between parties who claim to litigate under the same title.

However, there are some situations when a foreign judgement is not conclusive
in India, and these situations are:

1. Foreign Judgement Not by a Competent Court

It is a fundamental principle of law that a judgement or order passed by a court

with no jurisdiction is null and void. Thus, for a foreign court’s decision to be
binding on the parties in India, it must be rendered by a court of competent
jurisdiction.

2. Foreign Judgement Not on Merits

A foreign judgement on the merits of the case must have been rendered for it
to serve as res judicata. A judgement is said to be given on merits when,
after taking evidence and applying mind to the truth or falsity of the plaintiff’s
case, the judge decides the case one way or the other.

3. Foreign Judgement Against International or Indian Law

A decision based on an incorrect understanding of international law or a refusal

to recognise Indian law where such law is applicable is not conclusive (which
cannot be contradicted). However, the error must be visible on the surface of
the proceedings.

4. Foreign Judgement Opposed to Natural Justice

A court’s decision must be obtained after the proper judicial procedure has
been followed. The minimum requirements of natural justice must be met, such
as the judgement being delivered fairly, without bias, in good faith, and after
both parties have been heard. A judgement rendered without giving the
defendant notice of the suit or allowing him a reasonable opportunity to present
his case is contrary to natural justice.

5. Foreign Judgement Obtained by Fraud

A well-established principle of private international law is that a foreign

judgement obtained through fraud will not serve as res judicata. It is a well-
known proverb that fraud and justice never coexist.

6. Foreign Judgement Founded on a Breach of Indian Law

If a foreign judgement is based on a violation of any law in force in India, that

foreign judgement would not be enforced in India. Every case heard by an
Indian court must be resolved in accordance with the Indian laws.

In Satya vs Teja Singh (1974), the Supreme Court of India held that it is
implicit (implied or understood) that foreign law and foreign judgement would
not offend against the Indian public policy.

Presumption as to Foreign Judgement- sec. 14

Section 14 of the Civil Procedure Code states that upon producing any document
purporting to be a certified copy of a foreign judgement, the court shall
presume that a court of competent jurisdiction pronounced such judgement
unless the contrary appears on the record or is proven.

Case laws-

Introduction
The two strong principles used in India for this are Res judicata and Res sub
judice. These act as the gatekeepers for judicial discipline. One principle stops
the court from hearing the matters which are already decided, while the other
puts the cases on hold which are still pending in one court.

Res judicta-

Res means things and judicta means adjudicated is a fundamental doctrine

based on the principle of conclusiveness of the judgement and finality of
litigation.

Res judicata is derived from the Latin word for a matter which is already
judged. Section 11 of the Code of Civil Procedure, 1908, states that “If a
matter has already been clearly discussed and decided in a previous case
between the same people in a court, then no court can hear the same issue
again in a new case.” This is the basic idea behind the legal principle of res
judicata — it prevents people from filing the same case again and again once it
has been properly settled.

“One suit and one litigation is enough for single dispute” – Mehoughter

It is based on the maxim “interest republica ut sit finish litium”.

It means it is to the interest of states that there should be an end to litigation.

Applicability of Res judicata

Res judicata is a legal principle that means once a court has given a final
decision on a matter, the same issue cannot be brought before the court again
by the same parties. It helps avoid repeated cases on the same topic and
ensures that court decisions are respected. This rule is used in civil cases;
during the enforcement of court orders; in tax disputes; in labour or industrial
matters; in administrative decisions; and even in some temporary orders if they
settle key issues.

Core elements of Res judicata

• Former suit

• Competent Court

• Directly and Substantially

• Constructive Res Judicta

• Relief neither granted nor refused

• Representative proceeding

• Exectution Proceeding

Exceptions to Res judicata

There are a few exceptions to the Res judicata principle, such as:

1. If the earlier judgement was based on lies or hiding facts, res judicata
won’t apply.

2. If the court didn’t actually decide the case based on its facts, then the
earlier decision doesn’t stop a new case.

3. If a special leave petition was rejected without any clear judgement, it

doesn’t count as a final decision.

4. If the new case is about a different issue or reason, res judicata won’t
apply.

5. If the earlier court didn’t have the proper authority, its decision doesn’t
block a new case.

6. If the new case raises a legal question, it can still be heard.

 7. If the earlier order was only temporary or interim, it doesn’t stop future
cases.

8. If the law has changed and given someone new rights, they can file a case
even if one was filed earlier.

9. If the old case was dismissed because no one showed up, res judicata
doesn’t apply.

10. If no one brings up the res judicata rule, the court won’t apply it on its
own.

Case laws-

Satyadhyan Ghosal vs. Deorajin Debi (1960)

The court in this case ruled that once an issue is settled in execution
proceedings, it cannot be raised again due to Res Judicata.

Mathura Prasad vs. Dossibai N.B. Jeejeebhoy (1970)

In this case it was stated that new legal arguments on the same issue won’t
bypass Res judicata if the matter was already settled earlier.
Basis Res judicata Res sub judice

Legal Section 11 of Code of Civil Procedure, 1908 Section 10 of Code of Civil

Procedure, 1908
provision

Objective The main objective is to prevent the litigation The main objective is to prevent
two proceedings at the same time.
of cases which are already decided.

Applicability This doctrine is only applicable when final While this doctrine is applicable
when the court proceeding is still
adjudication of the case has been done.
going on.

Nature Res judicata is substantive in nature. Res sub judice is procedural in

nature.

Effects of The subsequent suit is barred fully. The subsequent suit is temporarily
stayed.
the
principle

Defence of In a case that has already been decided, A written statement about a
pending lawsuit cannot be used as a
written written statements can be used to show that
valid defence.
statement the matter was already settled earlier and
cannot be raised again.

Relevance This doctrine can be applied to both appeals This doctrine applies to lawsuits
only, which also includes appeals.
and suits. The scope is very broad.

Concerned This rule applies only after a final decision has The same people (or those
representing them) must be
parties been made on the same issue between the same
involved in both ongoing cases.
people.

Revocation This doctrine cannot be waived if the parties If there is mutual consent
between the parties then this
to the suit want to.
principle can be renounced.
Jurisdiction If a case about a particular issue between the If a case about the same issue
between the same people is
of the same people has already been decided by a
already going on in the same court
court court, then the same issue cannot be taken to
or another court that has the
court again by those same people. authority to hear it, then a second
case on the same matter cannot be
started until the first one is
finished

Difference between Res judicata and Res sub judice

Res subjudice-

The rule of Res sub judice means under the judgement. This rule helps in
preventing the new suits from being filed when there is already an ongoing suit
which is pending a decision on the similar case or same issue. The main aim is to
avoid duplication and ensure that the court can address one issue at one time.

Applicability of Res sub judice

Res Sub Judice applies to both suits and appeals to ensure consistency and avoid
conflicting decisions. It prevents multiple courts from hearing the same matter
at the same time, reducing confusion and saving judicial time.

Essential elements-

• Same parties on person claiming under law.

• Same subject matter directly and substantially in issue.
• Competent Court
• Same title
• Institution of subsequent suit is not barred but trial of the suit barred.

Exceptions to Res sub judice

The exceptions to Res sub judice are:

1. The rule of res sub judice doesn’t apply if each case is about completely
different matters.
If the cases have some common and some different issues, the rule might
not apply.
2. If the same people are involved but the issues are different, the rule
won’t stop the second case.

3. You don’t have to raise every issue from the first case in the second one
for Section 10 to apply.

Case laws-

Virendra Kumar Saklecha vs. Jagjiwan Choudhary (1982)

The Supreme Court in this case said if the same issue between the same
parties is already in court, then no new case should be filed. This rule
stops people from dragging the same matter to different courts.

Ameer Trading Corporation Ltd. vs. Shapoorji Data Processing Ltd. (2004)

The court in this case ruled that when an issue is already before an
arbitrator, parties shouldn’t start the same fight in court. It helps
prevent double hearings and confusion.