Showing posts with label CPC. Show all posts

Saturday 9 July 2022

Commission for scientific investigation O26 R10A

The detailed provisions for issuing commands under Section 75 of CPC are set forth in Order 26 Rule-10A of CPC [1] which are as under;

"Rule 10A- Commission for scientific investigation-(1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice as to do, issue a Commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court.

(2) The provisions of rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9."

Commentaries:

A perusal of the rule shows that a discretion has been vested in the Civil Court to get any scientific investigation (Section 75 Clause (e)) conducted only if it needs necessary or expedient in the ends of justice. The basic rationale of this provision is that the Commission is going to held in extracting the truth. There is established procedure known to law that the Commissioner's report form part of the record and the same becomes evidence as a whole in the suit.[1]

It is not safe for a Court to act as an expert and to overrule the elaborate report of a Commissioner whose integrity and carefulness is unquestionable whose careful and laborious execution of task was proved by his report and who had not blankly adopted the assertions of either party.[1]

Report of a commission appointed by the Court is entitled to be accepted in its entirety as an evidence under Section 45 of the Evidence Act.

An order passed in the incidental proceedings will have a direct bearing on the result of the suit. [1]

Commissioner whose integrity is unquestionable his elaborate report cannot be overruled by the Court. [1] [2]

A document can be sent to the experts for examination and opinion about the date of printing and the period when it was circulated.[1][3]

Authorities:

[1] The Sunni Central Board Of Waqfs ... vs Gopal Singh Visharad [Allahabad High Court]

[2] AIR 1924 Cal.620, Amrita Sundari Versus Munshi

[3] In 2006 (4) Bom LR 336 Bapu Dhopndi Devkar v. S. Najaokar

Wednesday 18 May 2022

Procedure of Civil Suit 2

Vande Matram! Moot Court is a practical subject of Law. Many a times you have to perform Court Proceedings in your practical exams. For that many problems are given to you from your college and you have to represent your case either from side of plaintiff / applicant or from side of defendant / non-applicant. The moot court practical gives you experience of actual court proceedings.

Also you have to appear for a viva-voce for the subject. In viva-voce the examiner may ask you about the cases you have observed during your training with a law firm and some questions about the general things may be asked. Here are some short questions and answers which may be asked apart from problems of moot court you have solved or cases you have observed during your training with a law firm.

Read Q1 to Q10 Here

Q11) What is Written Statement?

Ans. When the notice has been issued to the defendant, he is required to appear on the date specified in the notice. Before such date, the defendant is required to record his written statement i.e. his barrier against the claim raised by offended party. If time is specified by the Court then written statement must be filed within such time otherwise within 30 days from date of administration of notice issued by the Court.

Q12) What is contained in a written statement?

Ans. The written statement should specifically deny the allegations, which defendant thinks are false. Any allegation not specifically denied is deemed to be admitted. The written statement should also contain verification from the Defendant, stating that, the contents of written statement are true and correct.

Q13) What is replication by plaintiff?

Ans. Replication is a reply, filed by the plaintiff, against the "written statement" of Defendant and it should also specifically deny the allegations raised by the Defendant in written statement. Anything which is not denied is deemed to be accepted. Once Replication is filed, pleadings are stated to be complete.

Q14) How documentary proofs are filed in a civil suit?

Ans. Filing of Other Documents as documentary proofs – In civil suit many of a time documentary proofs are very necessary. Once, the pleadings are complete, then both the parties are given opportunity to produce and file documents, on which they rely, and to substantiate their claims. Filing of Documents should be admitted and taken on record. These documents are nothing but the documentary evidences under the Evidence Act.

Q15) How documents are admitted to the record of the civil suit by the Court?

Ans. Once the documents are filed by the parties then

· Documents filed by one party may or may not be admitted by opposite party

· In case documents are denied by opposite party, then they can be admitted by the witness presented by party whose documents are denied

· Once the document has been admitted it shall form a part of the record of court, and all the details of suit such as name of parties, title of suit etc, shall be inscribed on the document

· Documents, which are rejected i.e. not admitted, are returned to the respective parties.

· It is necessary that document should be filed in "original", and a spare copy should be given to the opposite party.

Q16) How issues are framed by the Court?

Ans. Issues are framed by the Court as follows

· Issues are framed, keeping in view the disputes in the suit, and the parties are not allowed to go outside the purview of "Issues".

· Issues may be of Fact or Law.

· At the time of passing final order, the court will deal with each issue separately, and will pass judgments on each issue.

Q17) How witness of person is taken in the court record?

Ans. If parties wish to produce some witness then

· The list of witnesses must be filed along with all the details such as name, age, occupation, address of correspondence, etc. within period as the court may fix or within the 15 days from date on which issues were framed by the Court.

· The parties may either call the witness by themselves, or can ask the court to send summons to them.

· In case court send summons to witness then the party which asked for such witness has to deposit money ' with the Court for their expenses, is known as "Diet Money".

· Any witness, who is not appeared before the court, if he is required by the court to do so, then the court may penalize in terms of fine.

· Finally on the date, the witness will be examined by both the parties

· Once, the Examination and Cross- Examination of witness is over, and also the admission and denial of documents, then the court will fix a date for final hearing.

Q18) How the final hearing will be conducted in a civil suit?

Ans. Final Hearing of a civil suit will be conducted by the court:

· On final hearing day, the final argument will take place

· The arguments should strictly be restricted to the issues framed

· Before the final Arguments, the parties with the permission of Court can amend their pleadings

· The court may refuse to listen for anything which is not contained in the pleadings

· Finally, the court will pass a "final Order", either on the day of hearing itself, or some other day which will fixed by the court.

Q19) What is certified copy of order?

Ans. Certified copy of order- It is the final order of court, and having the seal and stamp of court. It is useful, in case of Appeal or in case of execution of the order.

Thanks for reading till the end. Share this blog with your friends.

Tuesday 17 May 2022

Procedure of a Civil Suit 1

Q1) Is there any procedure laid down by statute to file a civil case or civil suit?

Ans. Yes, there is a procedure laid down by the Code of Civil Procedure 1908. If the process is not followed, then the Court Registrar has a right to dismiss the suit. But in general the objections are raised by the Registrar and the counsel for plaintiff has to remove these objections by doing the necessary as instructed by the Registrar.

Q2) What is the plaint?

Ans. Plaint is the written complaint or allegation.

Q3) Who is plaintiff and who is defendant?

Ans. One who files plaint is known as "Plaintiff" and against whom it is filed is known as "Defendant".

Q4) What are the contents of a plaint?

Ans. A plaint contains Name of the Court, Nature of Complaint, Names and Address of parties to the suit, the facts of the case, allegations made by plaintiff, prayer for relief and remedy, verification from plaintiff, stating that, contents of the plaint are true and correct.

Q5) What is Vakalatnama?

Ans. Vakalatnama is a written document, by which the person/party filing the case authorises the Advocate/Lawyer to represent on their behalf. However a person/party filing a case, May also represent their own case personally in any court and in this case he do not need Vakalatnama"

Q6) What are the terms of a Vakalatnama?

Ans. In general, a Vakalatnama may contain below terms:

· The client will not hold the Advocate responsible for any decision

· The client will bear all the costs and/expenses incurred during the proceedings

· The advocate will have right to retain the documents, unless complete fees are paid

· The client is free to disengage the Advocate at any stage of the Proceedings

· The Advocate shall have all the right to take decisions on his own in the court of Law, during the hearing, to the best interest of client

Q7) How to file a plaint?

Ans. After preparation of plaint of a civil suit it is to be filed before the Chief Ministerial Officer (Sherestedar) at the filing counter, along with appropriate court fee and process fee(For different types of documents, a person has to pay different amount of Court fees.) At least two copies of the plaint must be filed, the number of copies may vary depending upon the number of defendant parties.

Q8) What is Court Fee?

Ans. Court fees is a nominal percentage of the total value of the claim or the value of the suit. The requisite amount of Court fees and stamp duty is different for every suit, and the same is mentioned in the “Court Fees Stamp Act”.

Q9) What may happen on first day of hearing of a suit?

Ans. After filing a plaint the court proceedings are conducted. On the first day of hearing, if the court thinks there are merits in the case, it will issue notice to the opposite party, to submit their arguments, and fix a date.

Q10) What is the responsibility of plaintiff or his counsel after issuance of notice to opposite party by the Court?

Ans. When the notice is issued to the opposite party, the plaintiff is needed to do the following:

· File requisite amount of procedure - fee in the court.

· File 2 copies of plaint for each defendant in the court.

· Of, the 2 copies for each defendant, one shall be sent by Register/post/courier, and one by Ordinary post.

· Such filing should be done within 7 days, from date of order/notice.

Thanks for reading till the end. Share this blog with your friends.

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Sunday 20 February 2022

An act in law

Vande Matram! This article is about General Clauses Act, 1897. This is the basis of the Interpretation of the statute.

(2) “act”, used with reference to an offence or a civil wrong, shall include a series of acts, and words which refer to acts done extend also to illegal omissions;

Short Q and A:

· What do you mean by an ‘act’ in law?

o As per the General Clauses Act, 1860 the meaning of the act is used with to an offence or a civil wrong.

· What is included in ‘act’ when it is used in law?

o An ‘act’ includes an offence or a civil wrong.

o There may be a series of offences or civil wrongs included in the term ‘act’.

o Also illegal omissions are included in the term ‘act’.

To know references used for this article and other articles related to this topic please:

Read More.

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Wednesday 17 February 2021

Affidavit: Uses and types.

Jay shree Ram friends! How are you?

Here are notes on use of an affidavit and all of its types depending upon its use. Please read till the end. To support me please share and follow this blog.

Introduction with meaning and definition of Affidavit

Essential Features of An Affidavit

The components of an Affidavit

Use of Affidavit: -

An Affidavit can be required as a piece of documentation in any dispute before a court.

In Indian law, although an affidavit may be taken as proof of the facts stated therein, the courts have no jurisdiction to admit evidence by way of affidavit.

Affidavit is not treated as "evidence" within the meaning of Section 3 of the Evidence Act.

However, it was held by the Supreme Court that an affidavit can be used as evidence only if the court so orders for sufficient reasons, namely, the right of the opposite party to have the deponent produced for cross-examination.

Therefore, an affidavit cannot ordinarily be used as evidence in absence of a specific order of the court. Means there should be a specific order of the Court to use an Affidavit as Evidence.

Types of affidavit

There are various occasions or circumstances when a person needs an affidavit for a specific purpose and for that reason there are multiple as listed below:

Name Change Affidavits

1. General Name Change Affidavit

2. Change of Name After Marriage Affidavit

3. Change of Name of Minor Affidavit

4. One and the Same Person Affidavit

Change of Signature Affidavit

Address Proof Affidavit

Proof of Date or Proof of Birth Affidavit

Income Proof Affidavit

Joint Affidavit for Registration of Marriage

Affidavit for No-criminal record

Affidavit for Claim Settlement in Bank

Affidavit for Issue of Duplicate Certificates/Documents/Mark lists

First Child Affidavit

Affidavit for Educational Loan

Anti Ragging Affidavit

Affidavit for gap in education/employment

Passport Affidavits – also known as Annexure; Annexure are to be made strictly according to the formats issued by the Ministry of External Affairs

LPG Annexure

Affidavit of Heirship

Affidavit of Identity Theft

Affidavit of Small Estate

Affidavit of Support

Affidavit of Residence

Affidavit of Service

Divorce Affidavit

Financial Affidavit

The common times when an individual uses an affidavit are:

Property disputes

Divorce proceedings

Debt cases

Bail pleas

Family law issues

Estate planning

Legal issues

Name change

Identify theft cases

Death

Date of birth proof

Bail affidavit

To issue a legal notice

House declaration

Loan agreement

Rent agreement

In cases (sometimes) for service of process business

What Happens On Filing Of A False Affidavit?

Swearing of a false affidavit can make a person liable to be charged under the Indian Penal Code for the offence of Perjury. It is a grave matter which warrants strict action.

Such provisions ensure that persons who swear untruths in affidavits are aware of the consequences and to prevent them from committing such offences.

Monday 8 February 2021

Preparation of Decree: O20 R6A

Code of Civil Procedure

¹[6A. Preparation of decree.—(1) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced.

(2) An appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the court shall for the purposes of rule 1 of Order XLI be treated as the decree. But as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose.]

Note 1. Subs. by Act 104 of 1976, s. 70, for “names and descriptions of the parties” (w.e.f. 1-2-1977).

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Drawing up of a Decree

Rule 6A Order XX of Code of Civil Procedure,1908 states that a decree shall be drawn within 15 days of the judgement. An appeal can be favoured or preferred without filing a copy of a decree if it is not drawn within 15 days of the judgement.

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Further reading:

Decree

Judgment

Difference between Judgement and Decree

Reference:

1) https://blog.ipleaders.in/judgement-and-decree-under-cpc/

Notice to Surety of His Liability Under a Decree: Appendix H: No. 13

Code of Civil Procedure

No. 13: NOTICE TO SURETY OF HIS LIABILITY UNDER A DECREE (Section 145)

(Title)

WHEREAS you .......................................... did on ............................................. become liable as surety for the performance of any decree which might be passed against the said ......................................................... defendant in the above suit; and whereas a decree was passed on the ...................... day of .......................... 20....... against the said defendant for the payment of ............................................................ and whereas application has been made for execution of the said decree against you:

Take notice that you are hereby required on or before the................... day of............................ 20...... to show cause why the said decree should not be executed against you, and if no sufficient cause shall be, within the time specified, shown to the satisfaction of the Court, an order for its execution will forthwith issued in the terms of the said application.

GIVEN under my hand and the seal of the Court, this........................... day of................ 20...

Judge.

Note: In original bare act of CPC the year of date is 19...... but as we are more than 20 years ahead of 20th century I just changed the year of the date in the given format. But complete date should be written as per the documentary evidences.

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It is general format for "Notice to Surety of His Liability Under a Decree." This is given by the Court under Section 145 of the CPC.

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Further Reading:

Section 145. Enforcement of liability of surety.

Decree

Liability under a decree

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Contribution Between Judgement-Debtors

Code of Civil Procedure

Liability under a decree:

Persons liable jointly and severally under a decree are in the same position as joint promisors.

All the liable persons will bound a contribution to the extent of their respective shares towards the discharge of the decree. e.g. If A and B are the persons liable jointly and their share is 20% and 80% respectively then A have to contribute 20% towards discharge of the decree and B have to contribute 80% for the same.

A co-debtor may not be liable to contribute if he shows that the other co-debtor had an amount of joint money sufficient to discharge the decree. e.g. If A and B are the persons liable jointly and their share is 20% and 80% respectively. If A proves that B is having joint money which is sufficient to discharge the decree then A may not be liable to contribute towards discharge of decree.

A decree-holder can recover his decretal debt from one or more or any of the judgment-debtors and the latter can compel contribution from the other judgment debtors, who have not been compelled to pay. e.g. D is a decree-holder who can recover his decretal debt from A, B and C who are the judgement debtors. If D recovers all of his decretal debt from A then A can compel the contribution from B and C.

In the absence of a contract to the contrary, the liability to contribute is not affected by the release of any judgment-debtor by the decree-holder.

Vayangara Vadaka Vittil Manja v Pariyangot Padingara Kurupath Kadugochen

The question as to whether there is any right of contribution as between persons against whom a joint decree has been passed depends upon the question whether the defendants, in the former suit were wrong-doers in the sense that they knew or ought to have known that they were doing an illegal or wrongful act. In that case, no suit for contribution will lie. If an act is manifestly unlawful, or the doer of it knows it to be unlawful as constituting either a civil wrong or a criminal offense, he cannot maintain an action for contribution or indemnity to him for the commission of such act is also void. Thus, where a decree for costs against two defendants jointly was executed against one of them, who had set up a false defense in the suit in collusion with the other, and the former sue the latter for contribution. It was held that the suit would not lie.

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Further reading:

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Reference:

1) Ipleaders

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The components of an Affidavit

Jay Shri Ram friends. How are you?

Here are notes regarding components of an affidavit. Please read and get your knowledge improved. To support me please follow and share this blog. Thank you!

For previous reading please visit:

Introduction with meaning and definition of Affidavit

Essential Features of An Affidavit

The components of an Affidavit: -

The document's component parts are typically as follows:

1) A commencement which identifies the "affiant or deponent of truth", generally stating that “everything in it is true, under penalty of perjury, fine, or imprisonment”;

2) an attestation clause, usually a jurat, at the end certifying that the affiant or deponent made oath and the date;

3) signatures of the author and witness.

4) If an affidavit is notarized or authenticated, it will also include a caption with a venue (place) and title in reference to judicial proceedings.

In some cases, an introductory clause, called a preamble, is added attesting that the affiant or deponent personally appeared before the authenticating authority.

For further reading please visit:

Affidavit: Uses and types

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Saturday 16 January 2021

Deemed Decree

Deemed Decree

As such the word deemed indicate it is not in actual but by statutory fiction for the purpose of extending meaning of the word decree which it does not expressly cover. So, a deemed decree is a decree because of this statutory fiction or legal fiction.

A deemed decree is one which, though not fulfilling the essential features of a decree as required by the Code has been expressly categorised as a decree by the legislature. The rejection of a plaint and the determination of questions of facts are deemed decrees.

An adjudication which does not formally fall under the definition of decree stated under Section 2(2) of the Code of Civil Procedure but due to a legal fiction, they are deemed to be decrees are considered as deemed decrees.

As mentioned under sec-2(2) that the rejection of plaint and determination of any questions under section 144 of the code shall deemed to be a decree but shall not include:

(a) any such sentence (adjudication) from which it appears that an appeal lies as an appeal from an order, or

(b) any such order of discharge (dismissal) of default.

Rejection of plaint and determination of the issue of restitution of decree are deemed decree. Also, an adjudication under Order XXI Rule 58, Order XXI Rule 98 and Order XXI Rule 100 are also deemed decrees.

For more reading please visit

Code of Civil Procedure

Section 2. Definitions.

Section 144. Application for restitution.

Difference between Judgement and Decree

Reference:

1) https://blog.ipleaders.in/judgement-and-decree-under-cpc/

2) https://blog.ipleaders.in/introducing-decree/

3) https://www.icsi.edu/docs/portals/25/CPC%20Notes-Amish%20Shah.doc#:~:text=Decree%2C%20Order%20%26%20Judgement-,Decree,be%20either%20preliminary%20or%20final.

4) http://mja.gov.in/Site/Upload/GR/Title%20NO.217(As%20Per%20Workshop%20List%20title%20no217%20pdf).pdf

5) http://www.legalservicesindia.com/article/1783/Understanding-of-the-term-Decree,-Order,-Judgment-and-Mesne-Profit.html

Friday 15 January 2021

Judgment

Code of Civil Procedure

Bare Act:

(9) “judgment” means the statement given by the Judge of the grounds of a decree or order;

Part in red is reproduced as it is from the bare act.

Introduction:

The word ‘judgement’ is derived after combining two words namely, judge and statement. It is result or conclusion of act of judging. The Court, after the case has been heard, shall pronounce judgement. A judgement contains facts of the case, the issues involved, the evidence brought by the parties, finding on issues (based on evidence and arguments). Every judgement shall include a summary of the pleadings, issues, finding on each issue, ratio decidendi and the relief granted by the court. A judge in the judgement pronounced, always states the reasons for such a decision.

Pronouncement of judgment:

Pronouncement of a judgement means that after the hearing is completed i.e. after the Court has heard the pleadings of the parties, the judgement shall be announced by the Judges in an open Court, either at once or at some future day, after providing due notice to the parties or their learned counsels.

If a judgement is not pronounced immediately then it must be pronounced within 30 days from the date of the conclusion of hearing. However, sometimes it so happens that due to exceptional and some extraordinary reasons like a bank holiday, strike or some other situation it may be delivered within 60 days from the conclusion of the hearing. It is not mandatory for a judge to read out the whole judgement and it would be enough if only the final order is pronounced. The judge shall put the date on which the judgement was pronounced along with his signature. After the Amendment Act of 1976, the time limit was provided between the hearing of the arguments and the pronouncement of the judgement. Prior to this amendment no time limit was provided as such. Such a time limit was provided because there was indefinitely continuous imposition from all over India.

Pronouncement of judgment:

Rule 2 Order XX of Code of Civil Procedure, 1908 provides a judge with the right to pronounce the judgement which is already written but is not pronounced by his predecessor.

Copy of the judgment:

Once the judgement is pronounced the copies of that particular judgement should be immediately made available to the parties on payment of costs as specified. The costs for the copy of judgment may be specified in the rules and orders made by the High Court (H.C.). High Court can make such rules and orders as per the provisions specified in Order XX Rule 6B of the Code of Civil Procedure, 1908.

Contents of the judgement: -

According to Rule 4 Order XX of Code of Civil Procedure, 1908:

Judgements of a Court of Small Causes shall contain the points for determination and the decision thereon. While the judgments of other Courts shall contain: (a) summary of the pleadings i.e. a concise statement of the case; (b) issues i.e. the points for determination; (c) findings on each issue and the decision thereon; (d) ratio decidendi (reasons for such a decision); and (e) the remedy i.e. the relief granted.

Alteration of a judgement

Once a judgement is dated and signed by the judge it can only be altered or amended if:

The clerical errors i.e. the errors made by clerks; or
arithmetical errors i.e. errors made in numbers such as addition, subtraction, multiplication and division; or
errors due to accidental slips or omissions, i.e. errors took place when some essential element is left unnoticed etc. occur while drafting the judgment.

These errors in the judgment can be amended as per Section 152 of CPC after review of the said judgment as per Section 114 of CPC.

Further Reading:

Section 2. Definitions.

Section 33. Judgment and decree.

Section 114. Review.

Section 152. Amendment of judgments, decrees or orders.

Decree

Judgment

Difference between Judgement and Decree

Order XX Rule 2: Power to pronounce judgment written by Judge’s predecessor.

Order XX Rule 4: Judgments of Small Cause Courts and Other Courts.

Order XX Rule 6B: Copies of judgments when to be made available.

Reference:

1) https://blog.ipleaders.in/judgement-and-decree-under-cpc/

Judgments of small cause Courts and other courts: O20 R4

Code of Civil Procedure

²4. Judgments of Small Cause Courts.—(1) Judgments of a court of Small Causes need not contain more than the points for determination and the decision thereon.

(2) Judgments of other Courts.—Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.

Note: 1. The provisions of rules 1, 3, 4 and 5 are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925 (U. P. Act 4 of 1925), s. 16 (2).

Contents of the judgement: -

According to Rule 4 Order XX of Code of Civil Procedure, 1908:

Judgments of a Court of Small Causes shall contain the points for determination and the decision thereon. While the judgments of other Courts shall contain: (a) summary of the pleadings i.e. a concise statement of the case; (b) issues i.e. the points for determination; (c) findings on each issue and the decision thereon; (d) ratio decidendi (reasons for such a decision); and (e) the remedy i.e. the relief granted.

Further Reading:

Section 2. Definitions.

Section 33. Judgment and decree.

Judgment

Order XX Rule 2: Power to pronounce judgment written by Judge’s predecessor.

Order XX Rule 4: Judgments of Small Cause Courts and Other Courts.

Order XX Rule 6B: Copies of judgments when to be made available.

Reference:

1) https://blog.ipleaders.in/judgement-and-decree-under-cpc/

Decree

Code of Civil Procedure

Bare Act:

Section 2 Sub-section (2) “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 ¹*** 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;

Note: 1***: The words and figures “section 47 or” omitted by s. 3, ibid., (w.e.f. 1-2-1977).

Part in red is reproduced as it is from the bare act.

Introduction:

The term decree can be termed as the judicial decision in a litigated cause rendered by a Court of equity. It is the determination of a cause in a Court of admiralty or Court of probate. The decree shall follow on judgment pronounced by Court after hearing the case/suit. Thus a decree is based upon judgment. Section 33 of the Code of Civil Procedure describes the term ‘Judgement and Decree’ together.

A decree always follows judgement and is based upon a judgement. It is divided into three types unlike judgement which is final in itself. A decree may be final or preliminary. It is a formal declaration or adjudication and is conclusive in nature. A decree may be delivered with an order. The decree contains the outcome of the suit and conclusively determines the rights of the parties with regard to the issues in dispute in the suit. After passing the decree, the suit stands disposed of since the rights of the parties are finally determined by the court.

For the execution of decree Order XXI of the Code lays down the provisions and procedure. A decree is appealable and even second appeal lies to High Court after the first appeal of a decree. A decree is passed only in civil suits and not in criminal matters.

According to Section 2(2) of the Code of Civil Procedure,1908 decrees are divided into three categories: a) Preliminary decree, b) final decree, c) partly preliminary and partly final decree.

The necessity of a Decree

The Code of Civil Procedure requires the passing of a decree in all the suits. A decree is based upon judgement and it also follows a judgement which is the reason why it is an indispensable and essential requisite. The decree is indispensable or an absolute requisite. It is an essential part of the ultimate outcome of the suit. An appeal can be made against a decree and not against a judgement. If the decree is absent an appeal cannot be ‘put in motion’.

Drawing up of a Decree

For more reading please visit

Code of Civil Procedure

Section 2. Definitions.

Section 33. Judgment and decree.

Section 144. Application for restitution.

Order XX Rule

Difference between Judgement and Decree

Deemed Decree

Reference:

1) https://blog.ipleaders.in/judgement-and-decree-under-cpc/

2) https://blog.ipleaders.in/introducing-decree/