The adjudication of court may be divided into two classes – degree and order .Section 2 clause 2 of the code of civil procedure 1908 defines decree. As per this definition decree means the formal expression of an adjudication which so far as regards the courts 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 plaint and the determination of any question within section 144 but shall not include
(1) any adjudication from which appeal lies an appeal from an order or
(2) any order of dismissal for defect.
Essentials of Decree.
on the basis of above definition, following are the essentials of decree.
- (i) There must be an adjudication,
- (ii) such adjudication must have been done in a suit,
- (iii) It must have determined the rights of the parties with regard to all or any of the matters in controversy ,
- (iv) Such determination must be of conclusive nature , and
- (v) There must be a formal expression of such adjudication.
There must be an adjudication.
The first essential of a decree is that there must be an adjudication. Adjudication means the judicial determination of a matter by Court. It means determination af any other matter which is not in judicial nature that will not be adjudication for example decision of administrative nature or an order of dismissal of suit for default for appearance of parties. These determinatoms can not be termed as decree because it does not deal with the matter in dispute judicially. So judicial determination of matter in dispute by a Court is an essential to be decree.
Such Adjudication must have been done in a suit.
Second essentiality of the decree is that adjudication must have been done in a suit by a court . The term ” suit ” has not been defined in the code. In the case of Hansraj Gupta v. official Liquidator of the Dehra Dun Mussoorie Electric Tramway Co. Ltd. AlR 1933 . Privy Council has defined in following terms – ” The Word suit ordinarily means and apart from some context must be taken to mean a civil proceeding instituted by the presentation of plaint. ” Order IV Rule 1 and section 26 deal with institution of suit , According to it every suit shall be instituted by the presentation of plaint. It means where there is no suit there is no decree. But there are certain statute which provide institution of suit by application (not by presenting plaint) for example in Hindu Marriage Act, Indian Succession. These suit are known as statutory suit and so decision given under these statue are also decree.
so for a suit it is essential that there must be presentation of plaint or there must be statutory provision.
It must have determined the rights of parties with regard to all or any of the matters in controversy in the suit.
The third essential of decree is the conclusive determination of the rights of the parties. Here rights means substantive rights of parties.
Such determination must be of conclusive nature.
Fourth essential of decree is that the determination of the Court must be of conclusive nature. It must be final. If the determination is not final it is not decree.
There must be formal expression of such adjudication.
Order 20 Rule 6 and 6 A says that the decree follows the Judgement and must be drawn separately. All the requirements of form must be complied.
Some illustrations of decree.
A. Order of abatement of suit
B. Order holding appeal not maintainable
C. Order holding that right to sue does not survive
D. Order that there is no cause of action
E. Dismissal of appeal as time barred
F. Rejection of plaint for noa payment of fee.
G. Dismissal of suit for want of evidence