The essence of the distinction between decree and order lies in the nature of the decision rather than the manner of its expression.
As per Section 2(2), of the Civil Procedure Code defines the term. A decree is 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. It can be final or preliminary.
It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include –
- any adjudication from which an appeal lies as an appeal from an order, or
- any order of dismissal for default.
The word “deemed” usually implies a fiction whereby a thing is assumed to be something. According to the definition, the term decree shall be deemed to include the rejection of a plaint and the determination of any question within section 144.
For example, rejection of a plaint and the determination of questions under S. 144 (Restitution) are deemed decrees.
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.
The essential elements of a decree are as follows:-
- There must be an adjudication, i.e., a judicial determination of the matter in dispute. The administrate decision on any matter is not a decree.
- The adjudication must have been given in a suit. Suit means a civil proceeding instituted by the presentation of a plaint.
- It must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit.
- Such a determination must be a conclusive determination. There should be a conclusive decision and not merely an interlocutory order.
- There must be a formal expression of the adjudication.
Examples of decisions which are Decrees – Dismissal of appeal as time-barred, Dismissal or a suit or appeal for want of evidence or proof, Order holding appeal to be not maintainable.
Examples of decisions which are not Decrees – Dismissal of appeal for default, order of remand, order granting interim relief.
Kinds of Decree
- Party preliminary and partly final
- Deemed Decree
The term Order has been defined under section 2 (14), of the Civil Procedure Code as the formal expression of any decision of a Civil Court which is not a decree.
Orders are of two kinds, appealable orders and non-appealable orders.
The essential ingredients of an order are as follows
- It should be as the formal expression of any decision.
- The decision should be pronounced by the Civil Court.
- The formal expression should not be a decree.
III. Distinction Between Decree and Order
The essence of the distinction between decree and order lies in the nature of the decision rather than the manner of its expression. The main distinctions between the two are as follows:-
- A decree can only originate from a suit commenced by presenting a plaint. But an order may originate from any suit, it generally arises from a proceeding commenced on an application.
- A decree is an adjudication which conclusively determines the rights of the parties with regard to any or all matters in controversy. On the other hand, an order may or may not finally determine the rights of the parties.
- A decree may be preliminary or final but there is no such distinction in order.
- Except in certain suits where two decrees, one preliminary and the other final, are passed, in every suit, there is only one decree. On the other hand, many orders can be passed in a single suit.
- A first appeal always lies from a decree, unless otherwise expressly provided by section 96 of C.P.C. Appealability is the rule and Non – Appealability is the exception in the case of a decree. However, no appeal lies from an order, unless it is one of the appealable orders according to section 104 or Order 43 of C.P.C.
- In case of a decree, an aggrieved party has the right to second appeal on the grounds mentioned in section 100 of C.P.C. But in case of an appealable order, an aggrieved party does not have the right to the second appeal.