Q: Define and distinguish between Order, Judgment and decree? What are the essential ingredients of decree, order and Judgment? Explain their kinds?

Ans:

Introduction:

     Decisions given by court of law are either decree or orders or Judgments. A Judgment is given in consequence of a decree and is pronounced by the court after hearing the case and can either be declaratory or executory. There are differences between order, decree and Judgment.

Relevant Provisions:

    Following are the relevant provisions of Civil Procedure Code regarding the topic of decree, order and Judgment.

                                    Sec 2(2) for decree 

                                    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:

               Decree means the formal expression of 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.

·         Given in Suit: The decree must have been expressed in a suit. Every suit is commenced by a plaint and where there is no civil suit there is no decree. Some proceedings commenced by an application are statutory suits that the decision is a decree.

·         Rights of Parties as to Matters in Controversy: The decision must have been expressed on the rights of the parties with regard to all or any of the matters in controversy in the suit.

·         Determination of Rights of Parties: The decision must be one which conclusively determines rights of the parties. Parties refer to persons, who are on the record as plaintiff and defendant.

·         Regarding all or any of The Matter in Controversy: The adjudication determines the rights of parties must be with regard to all or any of the matter in controversy. It 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.

·         Conclusively Determines: The expression implies that the decision must be one which is complete and final as regards the court which passed it. The decree may conclusively determine the rights of parties although it does not completely dispose of the suit.

·         Formal Expression: There must be formal expression of the suit adjudication. It should be precise and specify the relief granted or other determination of the suit and names and description of the parties.

Kinds of Decree:

               Decree may be classified into two kinds.

·         Declaratory Decree: It is not capable of execution. It merely declares the rights of the parties.

·         Executory Decree: Such decree is executed and enforceable by the court of Law.

Classes of Decree:

               Following are the different classes of decree as contemplated by Sec 2(2) of C.P.C.

·         Preliminary Decree: A preliminary decree declares rights and obligations of the parties leaving further matters to be determined in subsequent proceedings and it is conclusive in nature.

·         Final Decree: A final decree is one which completely disposes of the suit so far as the court passing it is concerned.

·         Partly Preliminary and Partly Final Decree: A decree may be of such a kind which is final in part and partly preliminary.

   Example: In a suit for recovery of possession of immovable 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.

·         Order Rejecting a Plaint: Section 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.

·         Determination of Questions under Certain Provisions of C.P.C: By virtue of Sec 2(2) all orders made u/s 144 and u/r 60, 98, 99, 101 and 103 of order 21 are decrees.

Decrees not include the Following:

               By virtue of Sec2 (2), decree shall not include the following.

·                     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 are orders.

·                     Dismissal in Default: Order of dismissal of suit in default of appearance of non-prosecution is not decree. I.e. orders passed under order 9 or 17 of C.P.C.

●     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:

·         Decision: the expression, “decision” refers to judicial determination of facts in accordance with evidence.

·         By Civil Court: Decision must be one of Civil Court and not of the administrative tribunal.

·         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.

·         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 an order at the same time.

Classes of Order:

        Following are the two Kinds of order.

·         Final Order

·         Interlocutory Order

JUDGEMENT

●     Definition u/s 2(a):

            Judgment means the statement given by the judge on the grounds of a decree or order.

Essentials of Judgment:

            Following are the essentials of a Judgment.

·         Statement Given by a Judge: A Judgment means the judicial decision of the court or Judge.

·         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.

·         Grounds of Decree or Order: Every statement of judge will not be a Judgment but will be o 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(a) of C.P.C.

Difference between Decree and Order

Following are the differences between Decree and Order.

·                     As to Nature: Every decree is and order, but every order is not a decree.

·                     Appeal: Ordinarily appeal lies from every decree, but order are appealable only, if provided by sec 104 read with order 43.

·                     As to Second Appeal: A second appeal may lie against decree, but a second appeal shall not lie against an order passed in appeal.

·                     Determination of Rights: Decree conclusively determines the rights of the parties, but order does not necessarily conclusively determine the rights of the parties.

·                     Classes: Decree is of five classes as provided u/s 2(2), while order may be of final or interlocutory.

·                     Emergence: Decree cannot be emerged into an order, but every order in a case can be merge into a decree.

Difference between Decree, Order and Judgment

·                     As to Execution: It is the decree or order which is capable of execution and not the Judgment.

·                     Form: Decree and order always follow the Judgment while the Judgment contains the grounds of both decree and order.

·                     Superiority: Judgment is superior in form and if decree or order is not in accordance with it, they may be altered.

·                     Appeal: It is the decree or orders which is appealable and not the judgment.

·                     Kinds: Decree and order has different kinds but that is not a case with the judgment.

Conclusion:

        In the conclusion I can say that decision given by the judge is called judgment which contains the grounds of the decree and order. Decree and order are analogous to each other. They are defined under section 2(2, 9, and 14). The importance of decree lies in fact that they are appealable and conclusively determine the rights of the parties. There is difference between order, decree and Judgment.