DEFINITIONS

In the complicated world of civil litigation, where disputes traverse from boardrooms to
courtrooms, the Code of Civil Procedure (CPC) stands as a beacon guiding the legal process. In the
legal proceedings where a plaintiff seeking justice, a defendant defending their rights, or a judge de -
livering verdicts, plays a crucial role.
At the heart of this complex framework lie the definitions that shape the very fabric of civil litiga -
tion. These definitions are not mere legal jargon but the keys to unlocking the procedural mysteries
of the court. From the plaintiff’s plaint that initiates the lawsuit to the decree that marks its resolu -
tion, each term carries significant weight and purpose.
In this exploration, we delve into the essential definitions under the CPC, each one a cornerstone of
civil procedure. Whether you’re navigating the intricacies of legal practice or simply curious about
how civil disputes are adjudicated, understanding these definitions will illuminate the path from the
initial filing of a suit to the final judgment, making the legal process clearer and more accessible.
In Section 2 of the Code of Covil Procedure, the following important definitions are given:
1. “CODE” - Section 2(1) of the Code of Civil Procedure, 1908 provides that the “code”
includes “rules”.
The definition of ‘Code’ under Section 2(1) of the Code of Civil Procedure, 1908 is self-explanat-
ory. It clarifies that whenever the term ‘Code’ is used in the Code of Civil Procedure, 1908, it refers
to the Code of Civil Procedure, 1908 as a whole. This includes all sections, orders, and rules con-
tained within the Code.
2. “DECREE” - Section 2(2) of the Code of Civil Procedure, 1908 defines “decree” in
the following words:
“‘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 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 dis-
poses of the suit. It may be partly preliminary and partly final.”
According to the Oxford dictionary, a ‘decree’ means “an official order from a leader or a govern-
ment that becomes the law.”
In law a ‘decree’ is defined as “a decision that is made in court”. But the Code of Civil Procedure,
1908 defines a ‘decree’ as “a formal expression of an adjudication which conclusively determines
the rights of the parties concerning all or any of the matters in controversy in the suit”.
In order that a decision of a court may be a “decree”, the following requirements must be present: 1
1
Vidyacharan Shukla v. Khubchand Baghel, AlR 1964 SC 1099 at p. 1113: (1964) 6 SCR 129; K.V. Muthu v. An-
gamuthu, (1997) 2 SCC 53 at pp. 57-58: AIR 1997 SC 628 at p. 631; K. Balakrishna v. Haji Abdulla, (1980) 1 SCC 321:
 I. There must be a suit;
II. There must be an adjudication on this suit;
III. The adjudication must have determined the rights of the parties with regard to all or any
of the matter in controversy in the suit;
IV. This determination must be of conclusive nature;
V. There must be a formal expression of such adjudication.
All the above requirements of a decree must be complied with for an adjudication to become a de-
cree. If a decree is not formally drawn up in terms of the judgement, no appeal shall lie from such
judgement. But, a mis-description of decision as an order which amounts to a decree does not make
it less than a decree.
Let’s understand all the above elements of a decree in details.
I. Suit: The expression ‘suit’ is not defined in the code. A suit under the code refers to “a
legal proceeding in a civil court initiated by one party (called plaintiff) against another
party (called defendant) for the enforcement of civil rights or redress of a civil wrong”.
In Hansraj Gupta versus Official Liquidators of The Dehra Dun-Mussoorie Electric
Tramway Co. Ltd. AIR 1933 PC 63 2 the privy council defined the term ‘suit’ as “The word
‘suit’ ordinarily means and apart from some context must be taken to mean, ‘a civil proceed-
ing instituted by the presentation of a plaint’”. This definition emphasizes that a suit refers
to “a formal civil legal proceeding initiated by filing a plaint, which is the written statement
of the plaintiff’s claim”.
It may, however, be noted that under certain enactments specific provisions have been made
to treat applications as suits, e.g. proceedings under the Indian Succession Act, the Hindu
Marriage Act, the Land Acquisition Act, the Arbitration Act, etc. They are statutory suits and
the decisions given thereunder are, therefore, decrees. Therefore, a proceeding which does
not commence with a plaint and which is not treated as a suit under any other Act, cannot be
said to be a “suit” under the Code also and the decision given therein cannot be said to be a
“decree” under Section 2(2) of the Code. Thus, a decision of a tribunal, even though de-
scribed as “decree” under the Act, is a decree passed by a tribunal and not by a court covered
by Section 2(2). [Diwan Bros. v. Central Bank of India, (1976) 3 SCC 800 at pp. 807-08:
AIR 1976 SC 1503 at p. 1518.]
II. Adjudication: An ‘adjudication’ refers to “the legal procedure by which a judge exam-
ines the evidence and arguments presented before him by the parties in a dispute and makes
a formal decision or judgement”. In other words, an adjudication means “judicial determin-
ation of a matter in dispute”.
For a decision of a Court to become a decree there must be adjudication in a suit and such
adjudication must have determined the rights of the parties with regard to all or any of the
matters in controversy in the suit and such determination must be of a conclusive nature.
Thus, rejection of application for condonation of delay under the Limitation Act, 1963 will

AIR 198oSC 214; Printers (Mysore) Ltd. v. CTO, (1994) 2 SCC434; Chandi Prasad v. Jagdish Prasad, (2004) 8 SCC
724; Rachakonda Venkat v. R. Satya Bai, (a2co3) 7 SCC 452; Paramjeet Singh v. ICDS Ltd., (2o06) 13 SCC 322: AIR
20o7 SC 168,S. Satnam Singh v. Surender Kaur, (2009) 2 SCC 562; Mangluram Dewangan v. Surendra Singh, (2011)
12 SCC 773.
2
See also, Pandurang Ramchandra v. Shantibai Ramchandra, 1989 Supp (2) SCC 627 at p. 639: AIR 1989 SC 2240 at p.
2248; Usmanali Khan v. Sagar Mal, AIR 1965 SC 1798 at p. 18o0: (1965) 3 SCR 201; Secy. to Govt. of Orissa v. Sarbe-
swar Rout, (7989) 4 SCC 578 at p. 581: AIR 1989 SC 2259 at p. 2261.
 not amount to a decree.
In Madan Naik v. Hansubala Devi, (1983) 3 SCC 15: AIR 1983 SC 676 it was provided
that if there is no judicial determination of any matter in dispute, it is not a decree. Thus, a
decision on a matter of an administrative nature, or an order dismissing a suit for default of
appearance of parties or dismissing an appeal for want of prosecution cannot be termed as a
decree inasmuch as it does not judicially deal with the matter in dispute. 3 Further, such judi-
cial determination must be by a court. Thus, an order passed by an officer who is not a court
is not a decree.4
[Note: Section 3 of the Limitation Act, 1963 provides that the section mandates the dismissal of any
suit, appeal or application if it is filed after the prescribed period, subject to the provisions related
to the condonation of delay.
Further, Section 5 of the Limitation Act, 1963 provides for the extension of the prescribed period in
certain cases if the applicant satisfies the court that he had sufficient cause for not preferring the
appeal or making the application within the period prescribed.]
In Mela Ram & Sons versus Commissioner of Income Tax AIR 1956 SC 367 the SC held
that “an order refusing to condone the delay and dismissing an appeal as time-barred does
not amount to a decree”. This is because it does not determine the merits of the case but
only the aspect of limitation.
In Vasudev Dhanjibhai Modi versus Rajabhai Abdul Rehman AIR 1970 SC 1475 the Su-
preme Court reiterated that “the rejection of an application for condonation of delay is not a
decree”. It emphasized that a decree must involve an adjudication of the rights of the parties
regarding the matters in controversy in the suit.
In Ganga Bai versus Vijay Kumar (1974) 2 SCC 393 the Court clarified that “an order re-
jecting an application for condonation of delay does not conclusively determine the rights of
the parties, and hence, cannot be considered a decree”.
In State of Maharashtra versus M/s. Hindustan Construction Company Ltd. (2010) 4 SCC
518 the Supreme Court held that “an order dismissing an application for condonation of
delay is only an order and does not amount to a decree as it does not adjudicate on the sub-
stantive rights of the parties”.
In Nandlal Bhandari Mills Ltd. versus Union of India AIR 1963 SC 384 The Court ob-
served that “an order of dismissal of an appeal due to delay, without entering into the merits
of the case, is not a decree”.
In Kandapazha Nadar versus Chitraganiammal, AIR 2007 SC 1575 the Supreme Court
held that “order allowing withdrawal of suit, without liberty to file fresh suit, is without any
adjudication thus does not constitute “decree””. [State of Rajasthan versus Rajpal Singh
Chauhan, AIR 2011 Raj 101; Ratan Singh versus Vijaya Singh AIR 2001 SC 279]
[Note: A decision on a matter of an administrative nature or an order dismissing a suit for default
of the appearance of parties or dismissing an appeal for want of prosecution cannot be termed as a
decree inasmuch as it doesn’t deal with the matter in dispute.]
III. Rights of parties in controversy: The adjudication must have determined the rights of the
parties with regard to all or any of the matter in controversy in the suit.

3
Motilal v. Padmaben, AIR 1982 Guj 254: (1982) 2 Guj LR 107: 1982 Guj LH 349.
4
Deep Chand v. Land Acquisition Officer, (1994) 4 SCC 99 at p. 102: AIR 1994 SC 1901 at p. 1903; Diwan Bros. v.
Central Bank of India, (1976) 3 SCC 8oo: AIR 1976 SC 1503..
  The word ‘Rights’ means “substantive rights of the parties and not merely pro-
cedural rights of the parties”.5 For e.g., rights of the parties inter se relating to
status, limitation, jurisdiction, frame of suit, accounts, etc. are “rights of the
parties” under this section.
The rights in matters of procedures are not included in it. For e.g., an order for dis-
missal of a suit for default of appearance, or an order dismissing an application for
execution for non-prosecution, or an order retusing leave to sue in forma pauperis, or
a mere right to sue, are not decrees as they do not determine the rights of parties.
 The expression ‘Parties’ means “parties to the suit”, that is plaintiff and defend-
ant.6 Thus, an order on an application by a third party, who is a stranger to the
suit, is not a decree. In interpleader suits, the contesting defendants will be
deemed to be parties to the suit.
 The term ‘Matters in controversy’ means “the subject-matter of the suit with ref-
erence to which some relief is sought.7 It encompasses the legal questions,
claims, and rights that form the basis of the litigation”.
IV. Determination which shall be conclusive: The determination of the rights involved, the
matter in controversy or dispute shall be conclusive in nature. 8 The expression ‘matters in
controversy’ refers to “the subject-matter of the suit with respect to which any relief is
sought and such matter which has been brought up for adjudication before the Court by the
pleading”. Thus, an interlocutory order which does not decide the rights of the parties fi -
nally is not a decree, e.g. an order refusing an adjournment, an order passed by the appellate
court deciding some issues and remitting other issues to the trial court for determination un-
der Order 41 Rule 23 of the Code etc. The crucial point which requires to be decided in such
a case is whether the decision is final and conclusive in essence and substance.
On the other hand, an order may determine conclusively the rights of the parties although it
may not dispose of the suit. Thus, an order dismissing an appeal summarily under Order 41
of the Code or holding it to be not maintainable or a decision dismissing a suit for want of
evidence or proof are decrees inasmuch as they decide conclusively the rights of the parties
to the suit.
The crucial point which requires to be decided in such a case is whether the decision is final
and conclusive in essence and substance. If it is, it is a decree, if not, it is not a decree.9
V. Formal expression: There must be a formal expression of the adjudication by the court.
So, the decree is one which indicates adjudication of rights of parties in a suit as prescribed
in law. The formal expression must be on purpose and given in the manner as provided by
law. As the decree follows the judgment it must be drawn separately. Thus, if a decree is not
formally drawn up in terms of the judgment, no appeal lies from that judgment. But the de-
cree need not be in a particular form.
The formal expression must be deliberate and given in the manner provided by law. The de-
cree follows the judgment and must be drawn up separately. 10 Thus, if a decree is not for-

5
Dattatraya v. Radhabai, AlR 1921 Bom 220: ILR (1921) 45 Bom 627.
6
Kanji Hirjibhai v. Jivaraj Dharamshi, AIR I976 Guj 152: (1975) 16 Guj LR 469; Venkata Reddy v. Pethi Reddy, AIR
1963 SC 992: 1963 Supp (2) SCR 616.
7
Ahmed Musaji Saleji v. Hashim lbrahim Saleji, (1914-15) 42 IA 91: AIR 1915 PC I16.
8
Narayan Chandra v. Pratirodh Sahini, AlR 1991 Cal 53.
9
Jethanand Sons v. State of U.P., AIR 1961 SC 794: (1961)3 SCR 754; Sukhdeo v. Govinda Hari, AIR I980 Bom 231;
Narayan Chandra v. Pratirodh Sahini, AlR 1991 Cal 53.
10
Or. 20 Rr. 6, 6-A, 7; seealso, Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 (577): (1969) 1 SCR 1006.
 mally drawn up in terms of the judgment, no appeal lies from that judgment. But the decree
need not be in a particular form. Thus, a misdescription of a decision as an order which
amounts to a decree does not make it less than a decree.
Here is the list of decisions which are decrees and which are not decrees.
Decisions which are “Decrees” Decisions which are not “Decrees”

Dismissal of appeal as time barred. Dismissal of appeal for default.

Dismissal of suit or appeal for want of evidence or proof. Dismissal of suit under Order 23 Rule 1.
Order holding that there is no cause of action. Order directing assessment of mesne profits.
Order holding appeal not maintainable. Order of remand.
Order holding that the right to sue does not survive. Order holding an application to be maintainable.
Order refusing one of several reliefs. Order refusing to set aside sale.
Order of abetment of suit. Order granting or refusing interim relief.
Granting or refusing to grant costs or instalment. Appointment of connissioner to take accounts.
Rejection of plaint for non-payment of court fees. Return of plaint for presentation to proper court
Modification of scheme under Section 92 of the Code. Rejection of application for condonation of delay.

TEST
Whether or not an order of the court is a decree, the Court should take into account pleadings of the
parties and the proceedings leading up to the passing of an order. 11 With a view to find out the mean-
ing of the words in the order and to determine whether such order is a decree, the court often may
have to consider the circumstances under which the order was made and the words were used.12
CLASSES OF DECREES
There are mainly 3 kinds of Decree: (i) Preliminary decree (ii) Final decree and (iii) Partly Prelimi -
nary and Partly final decree.
1. Preliminary Decree: A preliminary decree is a kind of decree issued by a civil court un-
der CPC which decides the rights of the parties on some aspects of the matter in controversy,
but does not completely dispose of the suit.
[Where an adjudication decides the rights of the parties with regard to all or any of the matters in
controversy in the suit, but does not completely dispose of the suit, it is a preliminary decree.]
It is an interim decree that precedes the final decree and sets the stage for further proceedings to re-
solve remaining issues. It is passed in those cases in which the court has first to adjudicate upon the
rights of the parties and has then to stay its hands for the time being, until it is in a position to pass a
final decree in the suit. n other words, a preliminary decree is only a stage in working out the rights
of the parties which are to be finally adjudicated by a final decree.13 Till then the suit continues.14
Explanation added to section 2(2) also says, “Decree is preliminary when further proceedings have
to be taking before the suit can be completely disposed of”.
In Shankar versus Chandrakant AIR 1995 SC 1211 (1212), the Supreme Court stated:
11
Venkata Reddy v. Pethi Reddy, AIR 1963 SC 92: 1963 Supp (2) SCR 616; Hameed Joharan v. Abdul Salam, (2001) 7
SCC 573; Ratansingh v. Vijaysingh, (2001) I SCC 469: AIR 2001 SC 279; Shiv Shakti Coop. Housing Society v. Swaraj
Developers, (2003) 6 SCC 659: AIR 2003 SC 2434.
12
Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992: 1963 Supp (2) SCR 616; Bhogaraju Venkata Janaki Rama Rao v.
Board of Commrs. for Hindu Religious Endowments, AIR 1965 SC 231; Khushro S. Gandbi v. N.A. Guzder, (1969) I
SCC 358.
13
Mool Chand v. Director, Consolidation, (1995) s SCC 631: AIR 1995 SC 2493; Shankar v. Chandrakant, (1995) 3
SCC 413: AIR 1995 SC 1211; Hasham Abbas v. Usman Abbas, (2007) 2 SCC 355: AIR 2007 SC 1077.
14
Awadhendra Prasad v. Ragbubansmani Prasad, AlIR 1979 Pat so: 1978 BLJR 835; Paras Nath Rai v. State of Bihar,
(2012) 12 SCC 642: (2013) 2 SCC (Civ) 518.
“A preliminary decree is one which declares the rights and liabilities of the parties leaving the ac-
tual result to be worked out in further proceedings. Then, as a result of the further inquiries, con-
ducted pursuant to the preliminary decree, the rights of the parties are fully determined and a de-
cree is passed in accordance with such determination which is final. Both the decrees are in the
same suit. A final decree may be said to become final in two ways:
(i) When the time for appeal has expired without any appeal being filed against the prelimi-
nary decree or the matter has been decided by the Highest Court;
(ii) When, as regards the court passing the decree, the same stands completely disposed of.”
It is in the latter sense that the word ‘decree’ is used in Section 2(2) of the CPC.
[Note: preliminary decree is passed in those cases where proceeding in a suit is to be carried out in
two stages, first when rights of parties are to be adjudicated thereafter the stage when those rights
are implemented or given effect to.]
Features of Preliminary Decree
I. Interim nature: A preliminary decree is not the final commitment of the suit. It only ad-
dresses certain issues which needs to be settled before the disposal of final suit.
II. Decisive: A preliminary decree conclusively determines the rights and liabilities of the
parties concerning specific issues which needs to be settled first, while leaving other issues
open for further adjudication.
Provisions related to Preliminary Decree under CPC
I. Section 2(2) of Code of Civil Procedure, 1908: It defines a decree which includes prelim-
inary and final decree.
II. Order XX, Rule 18 of Code of Civil Procedure, 1908: It specifically provides for prelim -
inary decree in suits for partition and separation of shares.
Examples of Preliminary Decree
I. Partition suits: In a suit of partition of property, the court may pass a preliminary decree declaring
every party’s right and shares. Subsequently, a final decree can be passed, which finally determines
the rights and shares of the parties.
In Venkata Reddy versus Pethi Reddy AIR 1963 SC 992, the Supreme Court held that “a prelimin-
ary decree in a partition suit declaring the shares of the parties does not dispose of the suit com-
pletely but sets the stage for further proceedings leading to a final decree”.
II. Mortgage suits: In mortgage foreclosure suits, the court may issue a preliminary decree and order
the mortgagor to pay the due amount within a specified time period, failing which a final decree for
foreclosure or sale of mortgaged property is issued.
In Raghunath Singh versus Sunder Singh AIR 1965 SC 1364, the court issued a preliminary de-
cree for the redemption of a mortgage, ordering the mortgagor to pay the due amount within a spe-
cified period, failing which a final decree for foreclosure was issued.
III. Suits for Accounts: In suits where accounts need to be taken between parties (such as partner-
ship disputes), the court may pass a preliminary decree directing the taking of accounts and sub -
sequently pass a final decree based on the findings.
In Chandrani versus Kamal Rani AIR 1993 SC 1742, the court issued a preliminary decree in a
suit for dissolution of partnership and accounts, directing that accounts be taken between the part-
ners before a final decree based on the findings.
Importance and implication of Preliminary Decree
I. Clarification of Rights: Preliminary decrees help clarify the rights and obligations of the parties at
an early stage, facilitating smoother progress towards the final resolution of the suit.
II. Step-by-Step Adjudication: They allow for step-by-step adjudication in complex cases, ensuring
that each aspect of the dispute is thoroughly examined and resolved.
III. Binding Nature: While not a complete disposal of the suit, preliminary decrees are binding and
conclusive regarding the matters they address, providing a firm foundation for subsequent proceed-
ings.
Whether there can be more than one preliminary decree in the same suit?
There is a conflict of opinion with regards to whether there can be more than one preliminary de-
cree in the same suit. Some High Courts have taken the view that there can be only one preliminary
decree in a suit, whereas other High Courts have the view that there can be more than one prelimin-
ary decree in the same suit. However, it is also considered that there can be more than one prelimin -
ary decree in the same suit under certain circumstances where the complex cases arise in which
multiple issues need to be resolved sequentially. In these cases, the court can issue multiple prelim -
inary decrees to address different aspects of the case before the disposal of/passing of final decree.
For partition suits the debate is concluded. In partition suits, the court may first issue a preliminary
decree that declares the shares of each and every party. Subsequently the court may issue another
preliminary decree if necessary, during the partition process.
In Phoolchand versus Gopal Lal AIR 1967 SC 1470, it has been observed that there is nothing in
the Code of Civil Procedure which prohibits passing of more than one preliminary decree, if cir -
cumstances justify the same and it may be necessary to do so. But the above observations are re-
stricted to partition suits as the Court specifically observed, “We should however like to point out
that what we are saying must be confined to partition suits, for we are not concerned in the present
appeal with other kinds of suits in which preliminary and final decrees are also passed”.15
The question whether a decision amounts to a preliminary decree or not is one of great significance
in view of the provisions of Section 97 of the Code which provides that, “Where any party ag-
grieved by a preliminary decree...does not appeal from such decree, he shall be precluded from dis-
puting its correctness in any appeal which may be preferred from the final decree”.16
Since the passing of a preliminary decree is only a stage prior to the passing of a final decree, if an
appeal preferred against a preliminary decree succeeds, the final decree automatically falls to the
ground for there is no preliminary decree thereafter in support of it. 17 It is not necessary in such a
case for the defendant to go to the Court passing the final decree and ask it to set aside the final de-
cree.18
In Subbaiya Pandaram versus Mahammad Mustapha Maracayar (AIR 1923 PC 175) the Privy
Council acknowledged that “the Code does not preclude the passing of more than one preliminary
decree in a suit if circumstances necessitate it”.
15
Jadu Nath Roy v. Parameswar Mullick, (1939-40) 67 IA II: AIR 1940 PC I.
16
Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992: 1963 Supp (2) SCR 616; Mool Chand v. Director, Consolidation,
(T995) 5 SCC 631: AIR 1995 SC 2493.
17
Sital Parshad Saxena v. Kishori Lal, AIR 1967 SC 1236 at p. 1240: (1967) 3 SCR 101.
18
Venkata Reddy v. Pethi Reddy, AIR 1963 SC 992: 1963 Supp (2) SCR 616; Mool Chand v. Director, Consolidation,
(1995) 5 SCC 631: AIR 1995 SC 2493.
In Venkata Reddy versus Pethi Reddy AIR 1963 SC 992 the Supreme Court observed that “in suits
for partition and separate possession, the court may pass a preliminary decree determining the
shares of the parties, and subsequently, another preliminary decree may be passed regarding other
aspects such as mesne profits”.
In Shankar Balwant Lokhande versus Chandrakant Shankar Lokhande AIR 1995 SC 1211 the
Supreme Court ruled that “in a suit for partition, the court can pass a preliminary decree determin-
ing the shares of the parties and a second preliminary decree for partitioning the properties as per
the shares determined earlier”.
In Narayanan versus Laxmi Narayanan (2022) 4 SCC 67 the Supreme Court reiterated that “more
than one preliminary decree can be passed in a suit if the circumstances of the case so require, par-
ticularly in complex suits involving partition, administration, or accounting”.
The code provides for passing of Preliinary Decree in the following cases:
I. Suit for possession and mesne profit (Or. XX, R. 12)
II. Administration Suit (Or. XX, R. 13)
III. Suit for Pre-emption (Or. XX, R. 14)
IV. Suit for Dissolution of Partnership Firm (Or. XX, R. 15)
V. Suit for Accounts between Principal and Agent (Or. XX, R. 16)
VI. Suit for Partition and Separate Possession (Or. XX, R. 18)
VII. Suit for foreclosure of Mortgage (Or. XXXIV, R. 2-3)
VIII. Suit for Sale of Mortgaged Property (Or. XXXIV, R. 4-5)
IX. Suit for Redemption of Mortgage (Or. XXXIV, R. 7-8)
The above list is, however, not exhaustive and a court may pass a preliminary decree in cases not
expressly provided for in the Code.19
2. Final decree: A final decree is one which conclusively determines the rights of the parties
present in the legal dispute and disposes of all the issues in the suit, and nothing further re-
mains for the court to adjudicate or decide thereafter.
While the preliminary decree ascertains what is to be done, the final decree states the results
achieved by means of the preliminary decree. The preliminary decree is not dependant on the final
one, but the latter is really dependent and subordinate to the former, which is the not extinguished
by the passing of the final decree.
A decree may be said to be final in two ways:
I. When within the prescribed period no appeal is filed against the decree or the matter has
been decided by the decree of the highest court; and
II. When the decree, so far as regards the court passing it, completely disposes of the suit.
It is in the latter sense that the words “final decree” are used in CPC.

19
Narayanan Thampi v. Lekshmi Narayana lyer, AIR 1953 TC 220 at p. 222 (FB); Peary Mohan Mookerjee v. Manohar
Mookerjee, AIR 1924 Cal 160 at p. 162: 27 CWN 989; Union of India v. Khetra Mohan, AIR 1960 Cal 19o at p. 198;
Bhagwan Singh v. Kallo Maula Shah, AIR 1977 MP 257: 1977 MP LJ s83: 1977 Jab LJ 576 (FB).
In Parvathamma versus A. Muniyappa AIR 1997 Kant 370, it was provided that “Where an ap-
peal against a preliminary decree is not filed the rights determined therein become final and con-
clusive and the same cannot be questioned in the final decree”.
In Gulusam Bivi versus Ahamadasa Rowther AIR 1919 Mad 998, the High Court of Madras, refer-
ring to Rules 12 and 18 of Order 20 of the Code, stated:
“Neither rule contemplates more than one preliminary decree and one final decree in one suit. In
fact, the Code nowhere contemplates more than one final decree in one suit. To have two final de -
cree and to call the first one a final decree will be really a misnomer as it will not be final.”
In Kasi versus Ramanathan Chettiar (1947) 2 MLJ 523, the same court considered the question at
considerable length. The Court observed that there could be more than one preliminary decree and
more than one final decree in a suit.
Patanjali Sastri, J. (as he then was) rightly concluded the matter thus:
“The question is not whether the Code allows more than one preliminary decree or one final decree
to be made, but whether the Code contains a prohibition against the Court in a proper case passing
more than one such decree. We are unable to discover anything in the Code that can be construed
as such prohibition. On the other hand, as we have already observed, there are indications that the
Code contemplates more than one preliminary decree and one final or executable decree in a suit”.
Finally, in Shankar versus Chandrakant (1995) 3 SCC 413 at p. 418: AIR 1995 SC 1211 at p.
1214 the Supreme Court said:
“It is settled law that more than one final decree can be passed.”
3. Partly preliminary and partly final decree: A decree may be partly preliminary and
partly final. Such a ‘composite decree’ is passed in certain cases viz. in a suit for possession
of land and Mesne profits, the court orders possession of the land in suit in favour of the
plaintiff, and directs an enquiry into profits. The first part of the decree is final as it directs
delivery of possession to the plaintiff, while the second part is preliminary in as much as it
directs an enquiry as to Mesne profits.
Order XX, Rule 18 of CPC provides the procedure for passing preliminary and final decrees in par-
tition suits. It emphasizes that the court may pass a decree that is partly preliminary and partly final.
Examples of Partly Preliminary and Partly Final Decrees:
I. Partition Suits: In a partition suit the decree may declare the shares of all the parties. (Pre -
liminary decree) further, the court order the sale of some of specific properties of their divi-
sion is not possible. (Final decree)
II. Mortgage Suits: In the mortgage suit the decree may order an accounting to determine the
amount due. (Preliminary decree) and further it may confirm the mortgagee’s rights to fore-
close on the property if the amount is not paid. (Final decree)
In Ramnarayan versus Mt. Bhagwan Devi AIR 1957 SC 125 the Supreme Court held that “a de-
cree can be partly preliminary and partly final, especially in those cases in which some issues can
be conclusively decided while the other issues require further proceedings”.
In Sri Ram Pasricha versus Jagannath AIR 1976 SC 2335 the court recognized that “in certain
cases, which involves complex property matters, it might be necessary to pass a decree that is
partly preliminary and partly final to ensure a just and comprehensive resolution of all issues”.
Characteristics of a Partly Preliminary and Partly Final Decree
I. Final determination of some issues: Certain aspects of the case are resolved conclusively,
making that part of the decree final and executable.
II. Preliminary determination of other issues: Other aspects of the case are identified for fur-
ther inquiry or adjudication, making that part of the decree preliminary and requiring addi-
tional judicial steps before reaching a final resolution.
Legal Provisions under CPC
Order XX, Rule 18 under the Code of Civil Procedure (CPC) pertains to the passing of preliminary
and final decrees in partition suits, highlighting that the court may pass a decree that is partly pre -
liminary and partly final.
Examples of orders which are decrees:
The following have been held to be decrees within this sub-section:
 An order under s 24 of the Bombay Money Lenders Act, 1946 granting or refusing to
grant instalments for payment of the decretal amount. [State of Bombay versus Narayan
Pure, AIR 1960 Bom 334]
 An order rejecting the application of tenants under s 6 of the West Bengal Premises Rent
Control (Amendment) Act, 1950, for rescission of a decree in ejectment. [Gobardan
Dutta versus Pramoda, AIR 1953 Cal 412]
 An order under s 14 of the Religious and Charitable Endowments Act, 1863. [Ram
Narain versus Jai Narain, AIR 1961 All 125]
 An order transmitting a decree to the collector for execution under s 19 of the UP En-
cumbered Estates Act, 1934 with the information that the debt is reduced. [Chief In-
spector of Stamps versus Uggar Sen, AIR 1965 All 298]
 An order declaring the defendant a debtor under s 3 (c) of the Karnataka Debt Relief Act,
1976, with the consequence that the debt advanced to him stood discharged under s 4 (a)
of the Act is a decree. [Kariyaiah versus Puttathayamma, AIR 1977]
 A modification in a decree is also a decree. [Panneshwar Lal versus Gokula Nandan
Prasad, AIR 1984 Pat 344 (346-47)]
 An award under Pt III of the Land Acquisition Act by a civil court is by reason of s 26 of
that Act, a decree. [Louis Pascal versus Spl. Land Acq. Officer, (1970) 72 Bom LR 703]
 An order made in winding up proceedings under the Indian Companies Act, 1956.
[Pushpabai versus Offl. Liquidator, AIR 1970 Bom 271]
 An order setting aside an ex-parte decree is a decree and the plaintiff aggrieved by such
an order can appeal against it. [Bhim Rao versus Laxmibai, AIR 1966 Mys 112]
 The determination of a question under s 47 was expressly included in the definition of a
decree, although such determination was not made in a suit and sometimes not drawn up
in the form of a decree. [Shakuntala Devi versus Kantal Kumar, AIR 1969 SC 575]
 It is no longer so in view of deletion of the words s 47 or. A right of appeal had been
provided to a party litigant to go up in appeal against an order passed under s 47, before
the Amending Act of 1976, by virtue of the legal fiction introduced in the definition of
 the term decree as including any order passed in the execution proceedings. This right
had been taken away by a valid enactment and it no longer survived after the execution
was levied on 4 January, 1979, as the Amending Act had already come into force with ef-
fect from 1 February, 1977. No appeal would lie against any order passed under s 47 of
the Code of Civil Procedure. [Babulal versus Ramesh Babu Gupta, AIR 1990 MP 317]
 An order modifying a scheme under s 92 of the Code of Civil Procedure 1908, which is
part of a decree, constitutes an amendment in decree against which an appeal would lie.
[Bhogaraju v. J. Rama Rao versus Board of Commrs for Hindu Religious Endow-
ments, AIR 1965 SC 231]
 An order rejecting an application for modification of such a scheme. [Shree Kalimata
versus R.C. Chatterjee, AIR 1970 Cal 373]
 An adjudication under s 5 (2) of the Malabar Tenancy Amendment Act, 1956, is in sub-
stance the final adjudication of a matter in controversy and is a decree, although the pro-
ceedings thereunder were initiated by an application. [Vamanan Nambudiri versus
Narayan, AIR 1965 Ker 1]
 The High Courts of Gujarat and Punjab have taken the view, that adjudications under ss
911 and 13 of the Hindu Marriage Act, 1955, are decrees for the purposes of those provi-
sions only, but are not decrees within the meaning of this sub-section as they are not
passed in a suit. [Bai Umiyaben versus Ambalal, AIR 1966 Guj 139]
 An order rejecting a plaint is a decree and is not revisable under s 115 of the Code but
appealable under s 96 of CPC. [Meera Sinha versus Girja Sinha, AIR 2009 Pat 19]
 When a criminal case is referred by a criminal court and is settled by the Lok Adalat, its
award cannot be executed as a decree passed by a civil court. The reason behind this
view is that when a reference is made to Lok Adalat, that authority is exercising the
powers enjoyed by the reference court and can only pass such order which the reference
court was competent to pass. [K. N. Govindan Kutty Menon v. C.D. Shaji, AIR 2010
Ker 97]
Examples of orders which are not a decree
The following are instances of orders which are not decrees:
 An order rejecting an application for leave to sue in forma pauperis for no suit has till
then been filed. [Secretary of State versus Jillo, (1899) ILR 21 All 133]
 An order refusing leave to institute a suit for accounts of religious endowments. [Mozaf-
fer Ali versus Hedayet, (1907) ILR 34 Cal 584]
 An order on a petition to appoint a new member on the committee of a religious endow-
ment. [Minakshi versus Subramanya, (1888) ILR 11 Mad 26 (35)]
 An order under the Indian Trusts Act, 1882 dismissing an application for the removal of
a trustee. [Nathu Wilson versus Mcafee, (1897) ILR 19 All 131]
 An order on a settlement case under s 104 (2) of the Bengal Tenancy Act 3 of 1898 as the
proceeding is instituted not by a plaint but by an application. [Upadhya Thakur versus
Persidh Singh, (1896) ILR 23 Cal 723 (729)]
 An order made on an application to the District Court under s 84 (2) of the Madras
Hindu Religious Endowments Act 2 of 1927. [Rajagopala versus Hindu Religious En-
 dowments Board, AIR 1934 Mad 103]
 An order for ejectment in a proceeding under Ch-VII of the Presidency Small Cause
Court Act, 1882. [Madhav Prasad versus SG Chandravarkar, AIR 1949 Bom 104]
 An Award by the Calcutta Improvement Trust Tribunal. [A.K. Hossin versus Province
of Bengal, AIR 1942 Cal 569]
 An order rejecting a petition on the ground that the Madras Act IV of 1938 is not appeal-
able. [Lakshmi Devi versus Raja Rao, (1954) 2 Mad LJ 192]
 An order under s 7 of the Guardian and Wards Act, 1890 on an application under s 10 of
that Act. [Wahid versus Jabida Begum, AIR 1952 Nag 190]
 An order under s 10 of the Disabled Persons Act, 1951. [Punjab National Bank versus
Firm of Iswardas Kaluram, AIR 1957 Raj 146]
 An order passed on an application made to the Insolvency Court under s s 53 and 54 of
the Provincial Insolvency Act, 1920. [Lakshmi Devi versus Varada Reddi 1958 Andh
LT 896]
 An order granting interim relief under s 24 of the Hindu Marriage Act, 1955. [Mansingh
versus Siva Prabakumari, AIR 1960 Bom 315]
 An order passed on an application for restitution of conjugal rights, judicial separation,
declaration of nullity of marriage or divorce under ss 9 to 12 respectively of the said Act.
[Varalakshmi versus Veera Reddy, AIR 1961 AP 359]
 An order under s 34 of the Malabar Tenancy Act, [Nicholas versus Yasamma, AIR 1961
AP 359]
 An order under s 17 (1) of the Bombay Rents, Hotel and Lodging House Rates Control
Act, 1947, directing the landlord to restore possession of the premises to the tenant.
[Vishnumurthi versus Lakshminarayana, (1961) 63 Bom LR 106]
 An order passed under s 52 of the Malabar Tenancy Act 33 of 1951 for restoration of a
holding. [Choyikutty versus Vasu, (1962) Ker LJ 517]
 An award by the Debt Board under the Hydrabad Agricultural Debtors Relief Act, 1956.
[Dattu Apparao versus D.G. Shengde, AIR 1968 Bom 361]
 An order passed in proceedings under s 25 of the Guardian and Wards Act. [Kiran Devi
versus Abdul Wahid, AIR 1996 All 105]
 The award given by the motor accident claim tribunal does not have the status of a judg-
ment, decree or order as contemplated by the Code of Civil Procedure. [Oriental Insur-
ance Co. Ltd. versus Sardar Sadhu Singh, AIR 1994 Raj 44 (57)]
 An order refusing to wind up a company is not decree, since such an order does not adju-
dicate upon any right of a party. [Dundappa versus SG Motor Transport Co., (1966) 1
Mys LJ 786]
 A decision on a reference under s 49 (1) of the Land Acquisition Act. [Deepchand
versus LA Officer, AIR 1975 MP 55]
 Rejection of application for condonation of delay and consequent dismissal of appeal as
time barred. [Ratansingh versus Vijaysingh, AIR 2001 SC 279]
  Decision of water disputes tribunal as notified. [State of Andhra Pradesh versus State
of Karnataka, AIR 2001 SC 1560]
 Order passed by High Court under contempt proceedings on consent terms. [In Re:
Siddharth Srivastava, AIR 2002 Bom 494]
 Order of dismissal of suit for default or non-prosecution is not appealable as a decree.
[Firdous Omer versus Bankim Chandra Daw, AIR 2006 SC 2759]
DEEMED DECREE
The Code of Civil Procedure, 1908 is a statute which governs the procedure for civil litigation. A
“deemed decree” is one of the essential concepts covered under this statute. But before delving into
deemed decree, it is important to understand what constitutes a decree.
Section 2(2) of the Code defines a decree as “the formal expression of an adjudication which con-
clusively determines the rights of the parties with regard to all or any of the matters in controversy
in the suit.” It can be either preliminary or final or partly preliminary or partly final.
A decree is different from orders, as it conclusively resolve the matter.
Deemed decree
The literal interpretation of the word ‘deemed’ is “to consider”. Under the Code of Civil Procedure,
1908, a ‘deemed decree’ refers to “an order passed by the court of law” which is treated as decree
although it is not a decree in the conventional sense, but is treated as one due to specific provisions
for the purposes of appeal. A decree usually signifies a formal adjudication by a court whereas a
deemed decree is a similar concept which extends this definition under certain circumstances.
Deemed decree under CPC
The Code of Civil Procedure, 1908 does not expressly speaks about deemed decree but, in general,
the Code recognises it in many ways. Following are some instances of deemed decree:
I. Order rejecting a plaint (Order VII Rule 11 CPC): Order VII Rule 11 provides the grounds
on which a plaint can be rejected. It ensures that the rejection of a plaint is appealable as a
decree.
Now it is important to inspect why rejection of a plaint is considered as deemed decree un-
der the Code. As we see Section 2(2) of CPC which talks about “decree”, it clearly mentions
that the provision is deemed to be inclusive of:
i. Rejection of a plaint, and
ii. Determination of any question under Section 144 of the Code.
As we already know that for a decision to be a decree, (i) there must be an adjudication, (ii)
the adjudication must be done in a suit, (iii) it must determine the right of the parties, (iv) the
determination must be of a conclusive nature, (v) the adjudication of such judicial determin-
ation must be formally done in a suit.
For a decision of a court to be a decree these conditions must be satisfied. But if a plaint is
rejected by a court, then it implies that no adjudication has been taken place therefore, rejec-
tion of a plaint cannot be considered as a decree under Section 2(2) of the Code. Instead, it is
considered as deemed decree.
II. Determination of question under Section 144 of the Code: Section 144 of the Code deals
 with application for restitution. It provides that when a court determines any question under
Section 144 of the Code, such determination is deemed to be a decree under the Code.
If we look at Section 2(2) again, we can see that the determination of any question under
Section 144 of the Code is also deemed decree as expressly provided by Section 2(2).
III. Order under Section 47 of the Code: Section 47 talks about the questions to be determ-
ined by the court executing decree. An order passed under Section 47 is deemed to be a de-
cree, which ensures that it is appealable and subject to the same legal scrutiny as a formal
decree.
IV. Order dismissing suit under Order IX Rule 8 of the Code: Order IX rule 8 talks about the
procedure where only defendant appears. It provides that if the plaintiff fails to appear on the
date fixed for hearing of the suit and the defendant appears and contends that the suit should
be dismissed, the court may dismiss the suit under Order IX, Rule 8.
This order is considered deemed a decree for the purpose of appeal.
V. Order granting or refusing temporary injunction: Order XXXIX deals with cases in which
temporary injunction may be granted. An order granting or refusing a temporary injunction
under Order XXXIX rule 1 or 2 is deemed to be a decree for the purpose of appeal.
[The rejection of a plaint and the determination of questions under Section 144 (Restitution) are
deemed decrees. Similarly, adjudications under Order 21 Rule 58, as also under Order 21 Rule 98 or
1oo are deemed decrees.]
Nature and scope of deemed decree
Whenever the legislature uses the word “deemed” in any statute in relation to a person or thing, it
implies that the Legislature, after due consideration, conferred a particular status on a particular per-
son or thing.20
Such statutory fiction created by the legislature cannot be ignored. The effect of such legal fiction
must be given. In East End Dwellings Co. Ltd. v. Finsbury Borough Council 1952 AC 109: (1951) 2
All ER 587 (HL)21, Asquith, J. rightly said, “The statute says that you must imagine a certain state of
attairs. It does not say that, having done so, you must cause or permit your imagıination to boggle
when it comes to the inevitable corollaries of that state of affairs.”
Rejection of plaint
Even though an order rejecting a plaint does not preclude the plaintiff from presenting a fresh plaint
on the same cause of action,22 Section 2(2) of the Code specifically provides that rejection of a
plaint shall be deemed to be a decree. The rejection of a plaint must be one authorised by the Code.
If it is not under the Code, the rejection will not amount to a decree.
An order returning a plaint or memorandum of appeal to be presented to the proper court is also not
a decree. The reason is that such an order does not negate any rights of a plaintiff or appellant and is
not a decision on the rights of parties. An order returning a plaint to be presented to the proper court
is an appealable order.23 The question whether an order is one of rejection or of dismissal of a suit or

20
Lucy Kochuvareed v. P. Mariappa Gounder, (1979) 3 SCC 150;see also, K. Kamaraja Nadar v. Kunju Thevar, AIR
1958 SC 687: 1959 SCR s83; M. Venugopal v. LIC, (1994) 2 SCC 323: AIR 1994 SC 1343: (1994) 27 ATC 84; State of
Maharashtra v. Laljit Rajshi, (2000) 2 SCC 699: AlR 2000 SC937.
21
see also, Cambay Electric Supply Industrial Co. v. CIT, (1978) 2 SCC 644: AIR 1978 SC 1099.
22
Or. 7 R. 13; see also, Shamsher Singh v. Rajinder Prashad, (1973) 2 SCC 524 at pp. 527-28: AIR 1973 SC 2384 atp.
2386.
23
Or. 43 R. I (a).
appeal must be determined with reference to the substance and not the form of the order.
Restitution
The determination of any question within Section 144 of the Code is expressly included in the
definition of “decree” though such determination is neither made in a suit, nor is it drawn up in the
form of a decree. Section 144 deals with restitution and determination of a question under that sec -
tion, and is included in the definition of “decree” for the purpose of giving a right of appeal. 24
Every order under Section I44, however, is not a decree. It is necessary that such order must have
decided the rights of parties with regard to matters in controversy in proceedings under that section.
In other words, it must be a final decision either granting a relief or refusing an application. Thus,
determination of a mere issue made prior to the passing of a final order or an order merely determ -
ining a point of law arising incidentally in the course of proceedings for determining rights of
parties is not a decree.
Execution
Prior to the Code of Civil Procedure (Amendment) Act, 1976, the determination of any question un-
der Section 47 was also expressly included in the definition of “decree”. The Joint Committee of
both Houses of Parliament was of the view that this provision was mainly responsible for delay in
execution of decrees. The Committee, therefore, recommended to omit the words "Section 47 or"
from the definition of “decree” and as such now a decision under Section 47 is not a decree and
consequently is not appealable as a decrees Under the New Code, now it will not be very difficult
for the decree-holder to get the fruits of a decree passed in his favour. It is, however, doubtful
whether the amendment has achieved its object.
Dismissal for default
The definition of “decree” does not include any order of “dismissal for default”. The words “dis-
missal for default” include, for want of prosecution of suit or appeal, default for non-appearance or
for other reasons.25
Appealable orders
The term “decree” expresslyexcludes an adjudication from which an appeal lies as an appeal from
an order. Such orders are specified in Section 104 and Order 43 Rule I of the Code.30 Thus, an or-
der returning a plaint for presentation to the proper court, or an order rejecting an application for an
order to set aside an ex parte decree, or setting aside or refusing to set aside a sale under Order 21,
or an order rejecting an application for permission to sue as an indigent person, etc. are appealable
orders and not decrees.
The distinction between a decree and an appealable order lies in the fact that in the case of a decree,
a Second Appeal lies in some cases,26 but no Second Appeal lies from an appealable order.27
Judicial Interpretations
In the case of East End Dwellings C. ltd. versus Finsbury Borough Council, 1952 AC 109 the
court by focusing on the term “deemed” made important observation about the interpretation of stat-
utory language. The court provided that, “when a a statute says something shall be ‘deemed’ to be
something else, it suggests that for the purposes of the statute, the thing is to be treated as that
other thing. However, it does not mean that the thing actually is the other thing, but merely that it
24
Mahijibhai Mohanbbai Barot v. Patel Manibhai Gokalbhai, AIR 1965 SC 1477.
25
Chunduru Venkata Subrahmanyam, re, AIR 1955 AP 74 (FB).
26
S. 100
27
S. 104(2)
should be treated as such within the context of the law”.
In the case of CIT versus Bombay Trust Corporation Ltd. AIR 1930 PC 54 the court focuses on the
construction of tax law provisions, including the use of the term “deemed”. The privy council in this
case held that “when a statute states that something shall be “deemed” to be something else, it im-
plies that the legislature is enacting a legal fiction and this legal fiction must be carried to its lo -
gical conclusion”. further, the privy council also stated, the Privy Council stated, “(W)hen a person
is ‘deemed to be’ something, the only meaning possible is that whereas he is not in reality that
something, the Act of Parliament or the Legislature requires him to be treated as if he were.”
In the case of Lucky Kochuvareed versus P. Mariappa Gounder AIR 1979 SC 1214 (1220) the
court while discussing about the finality and appealability of an order provide that certain judicial
orders are treated as deemed decrees, ensuring they have the same appealable status and enforceab-
ility as formal decrees.
In the case of Sunderabai versus Devaji shankar Deshpande AIR 1954 SC 82 while discussing
whether an order rejecting a plaint could be treated as a decree the Supreme Court held that an order
rejecting a plaint under Order VII rule 11 is a deemed decree and is appealable.
In the case of Narayan Chandra Ghosh versus Krishna Sundari Dassi AIR 1954 Cal 340 the issue
was whether orders under Section 144 could be considered as decree. The High Court of Calcutta
held that the orders under Section 144 are deemed decrees as they conclusively determine the rights
of the parties involved.
In the case of Phoolchand versus Gopal Lal AIR 18967 SC 1470 the court was dealing with ap-
pealability of orders under Section 47 of the Code. Here, the Supreme Court reiterated that orders
passed under Section 47 of the Code are deemed decrees.

Ex-parte Decree
The Oxford dictionary defines the literal meaning of a “decree” as “an official order from a leader
or a government that becomes the law.”
Further, the Code of Civil Procedure, 1908 defines a “decree” as ‘a formal expression of an adju-
dication that conclusively determines the rights of the parties concerning all or any of the matters
in controversy in the suit’. However, there are many instances where defendant/defendants does not
secure his presence at the time of hearing despite of multiple summons and notice being served to
him/them. In such cases, the court passes a decree by relying on the plaintiff’s version of the case
and on the evidences produces by the plaintiff. This decree which is passed in the absence of the de -
fendant is called an ex-parte decree.
In other words, an ex-parte decree is a judicial order passed by a court in the absence of one of the
parties, typically the defendant, who fails to appear despite being duly summoned.
Ex-parte is a latin phrase meaning “on one side only; by or for one party.”
Ex-parte is neither null nor void and inoperative; rather it is voidable unless it is annulled by the op-
posite party, i.e., the defendant, legally on valid grounds. Until then, it is operative and enforceable
like any other decree and is covered under a valid decree.
The case of Pandurang Ramchandra versus Shantibai Ramchandra AIR 1989 Bom 162 involved
an ex parte decree passed by the court in the absence of the defendant.
The central issue was whether the ex parte decree could be considered valid and enforceable despite
the defendant’s claim of improper service of summons. The court had to determine the decree’s
validity and the procedural fairness of the ex parte proceedings.
The Bombay High Court held that an ex parte decree, which is passed in the absence of the defend -
ant but in the presence of the plaintiff on the day fixed for hearing, is neither null nor void and inop-
erative. Instead, it is considered voidable unless annulled by the defendant on valid legal grounds.
Key points from the ruling include:
I. Nature of Ex Parte Decree: An ex parte decree is not inherently null or void. It remains op-
erative and enforceable until the defendant successfully challenges it through legal means.
The decree is treated as valid unless and until it is set aside by the court upon the defendant’s
application, demonstrating valid reasons such as non-service of summons or sufficient cause
for non-appearance.
II. Operative and Enforceable: The court emphasized that an ex parte decree is like any other
decree in terms of its enforceability. It grants the plaintiff the right to enforce the decree un-
less the defendant intervenes with a valid challenge.
The onus is on the defendant to annul the decree by proving procedural lapses or other justi-
fiable grounds that prevented them from appearing in court.
III. Voidable Nature: The ruling clarifies that while the decree is not void ab initio, it is void-
able. This means it stands as valid and enforceable unless the defendant takes action to have
it set aside.
The court’s decision highlights the importance of providing the defendant with a legal rem-
edy to challenge the decree, ensuring procedural justice and fairness.
The case of Begum Para Nasir Khan versus Luiza Matilda Fernandes AIR 1984 All 94, is a land-
mark judgement which emphasizes the importance of serving summons and upholding the prin-
ciples of natural justice. This case particularly focusing on the service of summons and the right of
the defendant to be heard before any decree is passed against them.
The primary issue in this case was whether a decree could be validly passed against a defendant
who claimed not to have been served with a summons, thus violating their rights to a fair hearing.
The court had to determine the validity of the ex parte decree in light of the alleged non-service of
summons.
The court held that the fundamental rule of law requires that every party must be given a fair oppor-
tunity to present their case. The service of summons is a crucial process that ensures this opportun-
ity is provided. Therefore, the court emphasized that no decree could be passed against a defendant
if:
I. No summons has been issued to them, or
II. They have not been given a chance to represent themselves.
The court reiterated that the issuance and proper service of summons are essential to the judicial
process, ensuring that the defendant is aware of the proceedings and has the opportunity to particip -
ate. Without this fundamental step, the proceedings and any resulting decrees are inherently flawed.
Legal framework
Order IX of Code of Civil Procedure, 1908
I. Order IX Rule 6(1)(a): Order IX Rule 6(1)(a) provides that if the plaintiff appears and the defend-
ant does not appear when the suit is called for hearing, and it is proven that the summons was duly
served, the court may proceed ex parte. This rule underscores the importance of due service of sum -
mons and the necessity for defendants to be present to defend their case.
II. Order IX Rule 7: Rule 7 provides the procedure in cases where the defendant was absent in the
previous hearing but appears in the subsequent hearing and gives a reasonable or good cause for his
absence in the previous hearing. It provides that in a situation where the court has adjourned the
hearing of the suit ex parte and the defendant provides a good cause for his absence, the court, on its
terms and conditions, may hear him and deal with the suit as if he had appeared on the date fixed
for hearing.
In the case of Arjun Singh versus Mohinder Kumar (1964) the Supreme Court held that if the de-
fendant is able to show any good or reasonable cause for his absence on the fixed day of the hear -
ing, he will not be penalised or forbidden to participate in further proceedings. However, he cannot
claim his position back as it was at the commencement of the trial. Rule 7 of Order 9 CPC is based
on the principle that the defendant has a right to defend himself until the suit is completely decided
by the court, and this must be understood liberally as held in East India Cotton Mfg. Co. Ltd.
Versus S.P. Gupta (1985).
III. Order IX Rule 13: Order IX Rule 13 lays down the procedure for setting aside an ex parte de-
cree. It allows the defendant to apply for setting aside the decree on the grounds that the summons
was not duly served or they were prevented by sufficient cause from appearing in court.
Order VIII Rule 10
Rule 10 Order 8 According to Rule 1 of Order 8 of the CPC, the defendant has 30 days from the
date the summons was served to provide a written statement. The court may extend this thirty-day
window to a maximum of ninety days following the date the summons was served. Rule 10 of Or-
der 8 gives the Court the authority to issue an Ex-Parte Decree if the defendant does not provide the
written statement within the allotted time. The court, in its discretion, can also grant adjournments
for special reasons before passing an ex parte decree, but it cannot be granted more than three times.
Execution of Ex Parte Decree
An ex parte decree, like any other decree, is executable. The decree-holder (plaintiff) can initiate
execution proceedings to enforce the decree. However, if an application to set aside the ex parte de-
cree is pending, the court may stay the execution proceedings until the application is resolved.
Implication of Ex-parte decree
I. For plaintiffs: An ex parte decree offers a remedy for plaintiffs when defendants intentionally
evade court proceedings. It ensures that cases are not indefinitely delayed and justice is not denied
due to procedural tactics.
II. For defendants: While ex parte decrees ensure the smooth progression of cases, they also pose a
significant risk to defendants who may have genuine reasons for non-appearance. The provision for
setting aside such decrees ensures that defendants are not unjustly penalized.
Setting aside an Ex-parte Decree
A defendant who has been subjected to an ex parte decree has the right to seek its annulment by
demonstrating a valid reason for their absence. The process involves several steps:
I. Filing an application: The defendant must file an application under Order IX Rule 13, supported
by an affidavit detailing the reasons for their non-appearance. This application should be filed
within 30 days from the date of the decree. In the case of more than one defendant, any one of them
can do so. In case of his death, his legal representatives can file the application. This application
must be filed in the court that passed this ex parte decree against him. However, if it is reversed or
modified by a superior court, then the application must be filed in that particular court.
II. Providing Notice: The court will issue a notice to the plaintiff, informing them about the applica-
tion. Both parties will be heard before the court decides whether to set aside the decree.
III. Sufficient cause: The term ‘sufficient cause’ is interpreted liberally to ensure justice. Common
reasons include non-service of summons, mistaken identity, illness, or other unforeseen circum-
stances. The court’s satisfaction with the cause is paramount.
IV. Terms for setting aside: The court may impose certain conditions, such as payment of costs to
the plaintiff, to compensate for any inconvenience caused. These conditions ensure that the process
is not misused by defendants seeking to delay the proceedings.
Ground for setting aside ex parte decree (with relevant provisions of CPC)
I. Sufficient cause: The defendant must show that there was a valid and reasonable explanation for
their failure to appear in court or respond to the summons. The cause shown must be sufficient in
the eyes of the court to justify setting aside the ex parte decree.
II. Mistake, Accident, or Inadvertence: The defendant may seek to set aside the ex parte decree on
the grounds of mistake, accident, or inadvertence. This could include situations where the defendant
did not receive proper notice of the proceedings, or there was a misunderstanding or error that led to
their non-appearance.
III. Non-service or irregular service of summons: If the defendant can demonstrate that the sum-
mons was not properly served upon them, or there were irregularities in the service process that pre-
vented them from attending court, it can be a ground for setting aside the ex parte decree.
IV. Illness or incapicity: If the defendant was unable to appear in court due to illness, physical inca-
pacity, or any other reasonable cause that affected their ability to attend the proceedings, it may con-
stitute sufficient cause for setting aside the ex parte decree.
V. Absence of Legal Representation: If the defendant did not have legal representation at the time of
the proceedings and can establish that they were unaware of the legal consequences or the necessity
of appearing in court, it may be considered a ground for setting aside the ex parte decree.
It is important to note that the defendant bears the burden of proving sufficient cause for their non-
appearance and the need for setting aside the ex parte decree. The court will evaluate the facts and
circumstances of the case and exercise its discretion in determining whether the grounds presented
by the defendant are sufficient to warrant the setting aside of the decree.
The time limit for filing an application to set aside an ex parte decree is generally 30 days from the
date of the decree. However, the court may extend this time limit if it is satisfied with the defend-
ant’s explanation for the delay.
Limitation period
Section 123 of the Limitation Act provides for the limitation in filing an application to set aside an
ex parte decree. For an ex parte judgment to be legally accepted, it must be contested within 30 days
of becoming known about it. On May 28, 1990, the petitioner in Gauhati University versus Nihar-
alal Bhattacharjee received a summons requiring him to appear the next day. Because there was in-
sufficient time for an appearance, the matter was postponed to July 19, 1990, in line with Rule 6 of
Order 5. The opposing party was not notified of the new date, though.
The Supreme Court decided that the statute of limitations could not begin to run until the petitioner
was made aware of the order since the summons was not properly served. Consequently, the order
was reversed as the petitioner filed it within the 30-day window.
In the case of Bhiwani Sahi Bishamber Dayal versus Deena, the Rent Controller overturned an ex
parte decree in a rental dispute case because an application was submitted within the statute of lim -
itations, even if adequate cause was not demonstrated. In addition, there was a fee levied by the
Rent Controller to set aside the ex parte decree.
Judicial interpretations
In the case of Ram Sagar and Ors. versus District Judge and Ors. MANU/UP/0712/2004 the
hon’ble Allahabad High Court observed that “a plain reading of proviso of Order IX Rule 13 of
C.P.C., shows that the irregularity in service shall not be a ground to set aside the ex parte decree or
award and in case the Court is satisfied that the defendant was having notice of the date of hearing
then the decree should not be set aside.
In the case of Saket Kumar versus Nitu Kumari MANU/BH/1614/2016, the hon’ble Patna High
Court observed that, “The law is well settled that in case of summons being not duly served, the
limitation would run from the date of knowledge to the party who makes application for setting
aside the ex-parte decree. Moreover, the court said that the suit may proceed ex-parte against the de-
fendant, only when it is proved by the plaintiff to the satisfaction of the court that the defendant did
not appear even though the summons was duly served.”
In the case of Sushil Kumar Sabharwal V. Gurpreet Singh and Ors. (2002) SCC OnLine SC
497 the hon’ble Supreme Court observed that “the second proviso to Rule 13 of Order IX CPC ad-
ded by the 1976 Amendment which provides that no court shall set aside a decree passed ex parte
merely on the ground that there has been an irregularity in the service of summons if it is satisfied
that the defendant had notice of the date of hearing and had sufficient time to appear and answer the
plaintiff’s claim. It is the knowledge of the “date of hearing” and not the knowledge of “pendency
of suit” which is relevant for the purpose of the proviso aforesaid”.
Furthermore, in the case of A. Murugesan versus Jamuna Rani 2019 SCC OnLine SC 200, the
hon’ble Supreme Court reiterated the observations made in the case of G.P. Srivastava versus R.K.
Raizada (2003) 3 SCC 54, and said that “Under Order IX rule 13 CPC an ex parte decree passed
against a defendant can be set aside upon satisfaction of the court that either the summons was not
duly served upon the defendant or he was prevented by any “sufficient cause” from appearing when
the suit was called on for hearing. Unless “sufficient cause” is shown for non-appearance of the de-
fendant in the case on the date of hearing, the court has no power to set aside an ex parte decree.
The words “was prevented by any sufficient cause from appearing” must be liberally construed to
enable the court to do complete justice between the parties particularly when no negligence or inac-
tion is imputable to the erring party. Sufficient cause for the purpose of order 9 Rule 13 has to be
construed as an elastic expression for which no hard-and-fast guidelines can be prescribed. The
courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and
circumstances of each case. The “sufficient cause’ for non-appearance refers to the date on which
the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other
circumstances anterior in time. If “sufficient cause” is made out for non-appearance of the defend-
ant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be
penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a
case where the defendant approaches the court immediately and within the statutory time specified,
the discretion is normally exercised in his favour, provided the absence was not mala fide or inten-
tional. For the absence of a party in a case the other side can be compensated by adequate costs and
the lis decided on merits”.
In the case of Subodh Kumar versus Shamim Ahmed and others Civil appeal nos. 802-803 of
2021 (arising out of SLP (C) Nos. 18118-18119 of 2019, the hon’ble apex court held that Applica-
tion under Order IX Rule 13 CPC can be allowed only when sufficient cause is made out to set
aside ex parte decree.
Moreover, in the case of M. Krishnappa versus Menasamma 2020 SCC OnLine Kar 1648, the
hon’ble Karnataka High Court held that “if the defendants entered appearance and did not contest
the case, then it will be treated as ex parte and therefore, the defendant can maintain a petition under
Order IX Rule 13.
Recently, in a case of Vishwa Bandhu versus Sri Krishna and Anr. Arising out of Special Leave
Petition (Civil) D.No.1855 of 2020, the hon’ble Supreme Court held that if defendant had refused
to accept summons, then he cannot seek setting aside of an ex parte decree. A bench of Justices
Uday Umesh Lalit and S Ravindra Bhat further observed that as per Order V Rule 9 (5) of the CPC,
inter alia, ‘if the defendant or his agent refuses to take delivery of the postal article containing the
summons then the court shall declare that the summons was duly served on the defendant’.
Can trial court consider the prayer of defendant to allow filing written statement after setting
aside ex-parte decree
In Sudhir Ranjan Patra (Dead) thr. LRs. & Anr. versus Himansu Sekhar Srichandan & Ors.
CIVIL APPEAL NO. 3641 OF 2022 Supreme Court of India was dealing with the petition challen-
ging the judgment and order dated 04.02.2022 passed by the High Court of Orissa at Cuttak, by
which, though the High Court has confirmed the order passed by the learned Trial Court setting
aside the ex-parte decree in exercise of powers under Order IX Rule 13 of CPC.
Background: The respondent No. 1 instituted a suit for declaration of his right, title, interest and
possession over the suit schedule land. The original plaintiff also prayed for a decree to declare that
original defendant No. 2 has no authority to alienate the suit land and also to declare that the two re-
gistered sale deeds are not binding on the plaintiff as well as proforma defendant Nos. 4 and 5.
However, in spite of several adjournments, appellants did not file written statement. When the suit
was called on for hearing, appellants were absent and therefore, were set exparte. Subsequently, the
appellants filed petition under Order IX Rule 13 of CPC to set aside the exparte decree along with
an application under Section 5 of the Limitation Act to condone the delay in filing the CMA. The
appellants also prayed to allow the filing of written statement and to take up the suit on merits. The
learned Trial Court allowed the CMA by condoning the delay.
Feeling aggrieved and dissatisfied with order passed by the learned Trial Court the respondent No. 1
filed before the High Court. By the impugned judgment and order, though the High Court has con-
firmed the order passed by the learned Trial Court condoning the delay and setting aside the ex-
parte decree.
Appellant’s contention: Learned counsel for the appellant submitted that the High Court has com-
mitted a grave error in passing the order that appellants herein defendant Nos. 2 and 3 cannot be
permitted to file their written statement. It was submitted that once the suit was restored to file by
setting aside the exparte decree which has been upheld by the High Court, thereafter, it was not
open for the High Court to pass a further order that on setting aside the exparte decree and restoring
the suit to file, defendant Nos. 2 and 3 cannot be permitted to file their written statement. It was
submitted that the impugned order passed by the High Court observing that defendant Nos. 2 and 3
cannot be permitted to file their written statement is beyond the scope and ambit of CMP filed be-
fore the High Court.
Respondent’s contention: Learned Counsel for the respondent submitted that despite the fact that a
number of opportunities were given to defendant Nos. 2 and 3 to file their written statement
between 2012 to 2017 (till the exparte decree was passed). Hence, the High Court was justified in
passing the impugned order by observing that defendant Nos. 2 and 3 cannot be permitted to file
their written statement on setting aside the exparte decree.
Learned counsel relied upon the case of Sangram Singh vs. Election Tribunal, Kotah and an-
other and Arjun Singh vs. Mohindra Kumar and others to contend that when an exparte decree is set
aside and the suit is restored to file, the defendants cannot be relegated back to the position prior to
the date of hearing of the suit and he would be debarred from filing any written statement in the
suit.
Supreme Court’s Observations: After hearing both the sides SC stated that however, it is true that as
per the law laid down by this Court in the case of Sangram Singh (supra) and Arjun Singh (supra)
when an exparte decree is set aside and the suit is restored to file, the defendants cannot be releg-
ated to the position prior to the date of hearing of the suit when he was placed exparte. He would be
debarred from filing any written statement in the suit, but then he can participate in the hearing of
the suit inasmuch cross-examine the witness of the plaintiff and address arguments.
SC opined that in the facts and circumstances of the case, the decisions of this Court in the case
of Sangram Singh (supra) and Arjun Singh (supra) shall not be fully applicable. In the present case
by filing the CMA under Order IX Rule 13, appellants herein - original defendant Nos. 2 and 3 not
only prayed to set aside the exparte decree but also prayed to allow them to file written statement.
SC stated that there was no order and/or decision by the learned Trial Court on the second prayer,
namely, to allow defendant Nos. 2 and 3 to file written statement or not. Therefore, once the exparte
decree is set aside and the suit is restored to file and even as per the decisions of this Court in the
case of Sangram Singh (supra) and Arjun Singh (supra) the defendants cannot be relegated back to
the position prior to the date of hearing of the suit in that case also, it should have been left to the
learned Trial Court to consider the prayer of defendant Nos. 2 and 3 whether to allow them to file
written statement or not, which was also prayed in CMA No. 31/2018.
Judgement: After evaluating submissions made by both the parties the SC held that “In view of the
above and for the reasons stated above, the impugned judgment and order passed by the High Court
to the extent of observing that though the exparte decree is set aside, defendant Nos. 2 and 3 cannot
be permitted to file their written statement is hereby quashed and set aside.”
Remedies available for the aggrieved person due to ex-parte decree
I. The party can file application under O.9 R.13, to set aside the ex-parte and to claim an opportun-
ity for the defendant to appear for the suit and the court to rehear the matter. However, he has to
prove either the summons has not duly served or the party has been unable to appear due to some
unforeseen or inevitable circumstance.
However, the burden of proof lies on the claiming party.
II. The aggrieved party also can go for appeal under sec.96 and sec.105 of CPC.
III. Can go for Revision under sec. 115.
IV. Can invoke writ jurisdiction under the constitution.
V. The party can proceed to set aside under sec.12 as the order has been obtained by fraud.
VI. At last, the party can also file an application as there was no principles of natural justice has
been followed “audi alteram partem”.
VII. However, the aggrieved party has to react within 30 days from the passing of decree or 30 days
from the knowledge about the order/decree.
Non-party rights and Ex-parte decrees
Generally, a non-party to a suit does not have the legal standing to seek the setting aside of an ex-
parte decree, as they were not directly involved in the proceedings. Only the defendant who was ab -
sent from the hearing and against whom the ex-parte decree was passed may apply for the decree to
be set aside.
There may be certain exceptions and situations where a non-party may have an interest in getting
the ex-parte decree set aside. These scenarios can include:
I. Representative suit: In a representative suit, where a party represents the interests of numerous in-
dividuals, a person who was not originally a party but whose interests are affected by the decree
may seek to set it aside.
II. Transferee of Interest: A person who has acquired an interest in the subject matter of the suit after
the passing of the ex-parte decree may be allowed to apply for setting aside the decree if they can
prove that they were not aware of the proceedings and have a legitimate interest in the case.
III. Fraud or collusion: In cases where the ex-parte decree was obtained by fraud or collusion, a
non-party whose interests are affected by the decree may seek its setting aside.
Relevant provisions
I. Order IX rule 13 CPC: This provision allows a defendant against whom an ex-parte decree has
been passed to apply to the court to have it set aside. The key point here is that it specifically men-
tions the defendant, implying that primarily, only parties to the suit (particularly the defendants)
have the right to apply for setting aside an ex-parte decree.
II. Section 151 CPC (Inherent Powers of the Court): This section provides that nothing in the CPC
shall limit or otherwise affect the inherent power of the court to make such orders as may be neces-
sary for the ends of justice or to prevent abuse of the process of the court. This provision can some-
times be invoked by non-parties who are affected by an ex-parte decree, as the courts have the in-
herent power to make necessary orders in the interest of justice.
Judicial interpretations
In K. Surekha Reddy versus Chandraiah AIR 2011 (NOC) 192 AP The appellant filed application
to set aside the ex parte decree pleading that she was not even served with summons in the suit. The
respondent, on the other hand, pleaded that not only summons were served upon the appellant, but
also an advocate was engaged by her. The Trial Court dismissed the application on two grounds,
viz., (a) that no application was filed for condonation of delay, and (b) that the record discloses that
the appellant engaged an advocate in the suit, and thereafter remained ex parte.
The Court observed that so far as the first ground is concerned, though the limitation for filing an
application under Order IX Rule 13 C.P.C., is 30 days, from the date on which the ex parte decree
was passed, a different approach becomes necessary, in case the defendant, who suffered the ex
parte decree did not have any knowledge of the ex parte decree. In this regard, a distinction needs to
be maintained between the defendant who entered appearance in the suit, but was set ex parte, be-
fore the ex parte decree came to be passed, on the one hand; and the one, who was not served with
the summons at all, and accordingly was not aware of the ex parte decree.
In the first category of cases, the limitation for filing application starts from the date of ex parte de-
cree. The reason is that, once the defendant is served with summons, or has entered appearance, he
is supposed to be in the knowledge of the development, that takes place in the suit.
In the second category of cases, the Court cannot impute knowledge to him, as regards any step, in -
cluding the passing of ex parte decree. If it is established that a defendant was not served with sum -
mons at all, before the ex parte decree was passed, the limitation starts from the date of knowledge
of the ex parte decree, and not from the date of the decree. In the instant case, if the appellant
proves that she was not served with summons at all, the date of order becomes irrelevant.
As regards the second ground, it needs to be seen that the Trial Court proceeded on the assumption
that the appellant was served with summons and engaged an advocate also. When a specific plea
was raised by the appellant herein, that she was neither served with notice, nor did she engage an
advocate at all, the Trial Court was under obligation to verify the record, and come to a definite con-
clusion.
If vakalat is filed, the Court does not even have to verify whether summons were served, or not. It
proceeded on the assumption that the appellant had engaged an advocate.
Nowadays, it is not uncommon that plaintiffs, who are smart enough, resort to arrange for filing
vakalats on behalf of the defendants also, with the object of misleading the Court, and obtain an ex
parte decree. The Trial Court can verify the record and arrive at proper conclusions. Hence, the plea
is allowed, and the order is set aside. The matter is remanded to the Trial Court for fresh considera-
tion and disposal.
In G.P. Srivastava versus R.K. Raizada & Ors. (2000) 3 SCC 54 the Supreme Court emphasized
that the term “sufficient cause” should be construed liberally to advance substantial justice. The
court noted that denying a defendant the opportunity to contest a suit without examining the merits
of their absence would result in a miscarriage of justice.
In Parimal versus Veena (2011) 3 SCC 545 The court reiterated that the principles of natural justice
must be upheld. It ruled that if the defendant fails to prove sufficient cause for non-appearance, the
ex parte decree should not be set aside. The decision highlighted the balance between preventing
unnecessary delays and ensuring fair trial opportunities.
In Lal Devi versus Vaneeta Jain The Supreme Court observed that the passing of an ex parte decree
in a case where the defendant had duly instructed his counsel to appear, but the counsel could not
due to some unforeseen reasons, would be too harsh a consequence. The defendant cannot be made
to suffer an ex parte decree when he was not at fault.
In Mahant Shri Fatehgiri Ji versus M/s. Giri Nath Industries Suppliers The court relied on the
Supreme Court judgment in Arjun Singh v. Mohindra Kumar, which held that an application under
Order 9 Rule 7 CPC cannot be entertained after the conclusion of arguments and the matter being
adjourned for pronouncement of judgment.
In Sanjay Saxena S/o Shri B. B. Saxena versus Smt. Rohini Kutty W/o R. Mohan Kumar and
Sunil Kumar versus Praveen Chand Chowardia These cases illustrate that the courts have consist-
ently held that an application for setting aside an ex parte order cannot be entertained after the con -
clusion of arguments and the matter being adjourned for pronouncement of judgment. The appropri-
ate remedy at that stage would be an application under Order 9 Rule 13 CPC.
In Raj Singh versus Ramdiya, AIR 2004 MP 97 the Madhya Pradesh High Court held that a third
party, who is affected by an ex-parte decree, can approach the court under Section 151 CPC to set
aside the decree. The court recognized the inherent powers to address situations where the ends of
justice are at stake.
In R. Janakiraman versus State of Tamil Nadu, 2006 (2) CTC 635 The Madras High Court ruled
that if a third party, who is not a party to the suit, is adversely affected by an ex-parte decree, they
can seek to set it aside by invoking the inherent powers of the court under Section 151 CPC. The
court emphasized the need to prevent abuse of the court's process and to ensure justice.
In Smt. Sushil Kumari Sharma versus Union of India, AIR 2005 SC 3100 Although this case did
not directly deal with setting aside an ex-parte decree, the Supreme Court discussed the inherent
powers of the court to prevent miscarriage of justice and highlighted the importance of ensuring that
the judicial process is not abused.
 FORM - 1
________________________________________________________________________________
APPLICATION UNDER ORDER 9 RULE 13 CPC FOR SETTING ASIDE EX-PARTE DE-
CREE
IN THE COURT OF ..................................................
Suit No. .................................................. of 20..........
In the Matter of:
AB .....Plaintiff
Versus
CD .....Applicant/Defendant
Most Respectfully Showeth:
1. That the abovementioned suit was decreed ex-pane by this Hon’ble Court against the applicant/
defendant on ..................................................
2. That the applicant/defendant was not aware that the present suit has been instituted in this
Hon’ble Court as he had been out of station from .................................................. to
.................................................. in connection with his business.
3. That applicant/defendant came to know about the same when he returned back.
4. That an affidavit in support of the said fact is being filed by the applicant.
PRAYER
It is therefore most respectfully prayed that this Hon’ble Court may kindly set-aside the ex-pane de-
cree passed against the applicant/Defendant upon such terms and conditions as this Hon’ble Court
may deem fit and proper.
It is prayed accordingly. Applicant/Defendant
Place: ..................................................
Dated: ..................................................
 Sample of application under order 9 rule 13 cpc for setting aside ex-parte decree
________________________________________________________________________________
APPLICATION FOR SETTING ASIDE EX-PARTE DECREE UNDER ORDER 9 RULE 13
CPC
(APPLICATION FOR SETTING ASIDE EX PARTE DECREE UNDER ORDER 9 RULE 13
CPC)
IN THE COURT OF LD. CIVIL JUDGE, CENTRAL DISTRICT, TIS HAZARI IA No. XX/XXXX
IN
CIVIL SUIT XX/XXXX
IN THE MATTER OF:
ANTHONY GONSALVES ..... PLAINTIFF
VERSUS
ROBERT ..... DEFENDANT
MOST HUMBLY SHOWETH:
1. That the captioned suit is pending before this Hon’ble Court and pending for hearing on xx/xx/
xxxxx.
2. That this Application is being filed for setting aside ex parte decree dated xx/xx/xxxx passed on
account on non-appearance of the Defendant, when the suit was called for hearing.
3. That on xx/xx/xxxx, the Defendant has left from home in his car to appear before this Hon’ble
Court. Suddenly two brothers of the Plaintiff namely Amar and Akbar stopped the Plaintiff’s car,
damaged it and broke the glasses and threatened not to defend the case. The defendant attempted to
hire a taxi but unfortunately there was strike called by left political parties and no taxi was avail -
able. The Defendant travelled on foot for around 15 kilometers and finally reached the Court. It was
already 5 P.M. and court hearing was over.
4. The Defendant has already filed complaint against Amar and Akbar before the Police Station
xxxx. The Copy of complaint is attached herewith and marked as Annexure A.
5. That the Defendant was informed by the Court Staff that ex parte decree has been passed as the
Plaintiff has failed to appear before the Hon’ble Court.
6. That on the same day the Defendant directed his counsel to file Application for setting aside ex
parte decree.
7. That the Defendant is diligently defending the case and, in the past, never has failed to appear be-
fore this Hon’ble Court.
8. That non- appearance of the Defendant on xx/xxxx was not deliberate or intentional but on ac -
count of aforesaid reasons.
9. That the Defendant will be gravely prejudiced if the order dated xx/xxxx is not set aside.
PRAYER
In light of facts and circumstances of the case it is therefore prayed that this Hon’ble Court may be
pleased to:
(i) Set aside ex parte decree dated xx/xx/xxxx.
(ii) Pass any other order (s) /direction (s) as this Hon’ble Court may deem fit and proper in interest
of justice.
APPLICANT THROUGH ADVOCATE
DATED: ..................................................
PLACE: ..................................................
[Note: Application for setting aside ex parte decree has to accompanied by affidavit.]
https://mukeshsuman.com/application-for-setting-aside-ex-parte-decree-under-order-9-rule-13-cpc/

https://www.barelaw.in/legal-drafts/
 3. “DECREE-HOLDER” - Section 2(3) provides that the “decree-holder” means “any
person in whose favor a decree has been passed or an order capable of execution has
been made”.
“Decree-holder” means any person in whose favour a decree has been passed or an order capable of
execution has been made.
Elements of decree-holder
I. Any person: Plaintiff, Defendant or Third Party.
II. Decree: A decree passed in favor of that person.
Or
Order: An order capable of Execution is made in favour of that person.
The abovementioned definition provides that a decree-holder need not essentially be the plaintiff in
a suit. He can be either plaintiff or a defendant, for e.g., a decree of specific performance is capable
of execution by either plaintiff or the defendant. A person who is not even a party to the suit but in
whose favour an order capable of execution has been passed is also a decree-holder. [Dhani Ram
versus Lala Sri Ram, (1980) 2 SCC 162 at pp. 165-66: AR 1980SC I57 at pp. I59-61]
Where a decree for specific performance is passed, such a decree is capable of execution, both by
the plaintiff as well as the defendant, and, therefore, either of the parties is a decree-holder. Simil-
arly, if a decree confers upon someone a right to execute the decree, he is a decree-holder.
If a decree confers upon someone a right to execute the decree, he is a decree-holder. Conversely, if,
in an eviction order, time to vacate the premises is granted to the tenant, the landlord cannot be said
to be a decree-holder in the strict sense till the period is over and the decree becomes executable.
4. “DISTRICT” - Section 2(4) provides that the “district” means “the local limits of the
jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a “Dis-
trict Court”), and includes the local limits of the ordinary original civil jurisdiction of a
High Court”.
Although the definition under Section 2(4) provides for the expression “District” but it actually de-
fines district court. There has been consistent view of the Courts in India that the expression ‘dis-
trict Court’ will include the High Court having original jurisdiction.
In Balaji Raghavan versus Union of India (1996) 1 SCC 361 the Supreme Court discussed the ju-
risdictional scope of courts and clarified that “in certain context High Courts with the original ju-
risdiction can be considered equivalent to district courts”.
In Tirupati Balaji Developers Pvt. Ltd. Versus State of Bihar, (2004) 5 SCC 1 the Supreme court
held that “the High Court exercising original jurisdiction can be regarded as a district court in the
context of civil procedure”.
In Surendranath Khosla versus Commissioner of Income Tax (1976) 1 SCC 791 the Supreme
Court elucidated that the term “district court” could encompass High Courts with original jurisdic-
tion for certain statutory interpretations.
In B.P. Achala Anand versus S. Appi Reddy, (2005) 3 SCC 313 the Supreme Court interpreted the
term “district court” to include “the High Court in its original jurisdiction while dealing with a
specific statutory provision”.
The case of L. Chandra Kumar versus Union of India, (1997) 3 SCC 261 though primarily ad-
dressing the powers of administrative tribunals, this case touched upon the original jurisdiction of
High Courts, suggesting that for certain legal purposes, the High Courts can be seen as equivalent
to district courts.
5. “FOREIGN COURT” - Section 2(5) provides that the “foreign court” means “a court
situated outside India and not established or continued by the authority of the Central
Government”.
A court situated outside the territory of India or is not continued under authority of Central Govern-
ment, is a foreign court. So, where it is situated out of India or where it is not continued by authority
of Central Government, such court is considered to be foreign court.
In order to bring a court within the definition of a foreign court. Two conditions must be satisfied:
I. The court must be situated outside India; and
II. The court must not have been established or continued by the Central Government.
Thus, courts in England, Pakistan, United States of America, Burma, Canada, and Ceylon, those of
the Government, Privy Council are foreign courts.
6. “FOREIGN JUDGEMENT” - Section 2(6) provides that a “foreign judgement”
means “the judgement of a foreign court”.
A foreign judgment is one pronounced by foreign court. The nationality of a judgment or decree is
to be determined as on the date of its pronouncement and not afterwards. The crucial date to deter-
mine whether the judgment is of a foreign court, is the date of the judgment and not the date when it
is sought to be enforced or executed.28
A judgment of a court which was a foreign court at the time of its pronouncement would not cease
to be a foreign judgment by reason of the fact that subsequently the foreign territory has become a
part of the Union of India. On the other hand, an order which was good and competent when it was
made and which was passed by a tribunal which was domestic at the date of its making and which
could at that date have been enforced by an Indian court, does not lose its efficacy by reason of the
partition.29
In R. Vishwanathan versus Rukn-ul-Mulk Syed Abdul Wajid AIR 1963 SC 1 the Supreme Court
held that “the relevant date to determine the character of a judgment (whether it is a foreign judg-
ment or not) is the date when the judgment is delivered, not when it is sought to be enforced”.
The case of Moloji Nar Singh Rao versus Shankar Saran AIR 1962 SC 1737 reinforces the im-
portance of the date of the judgment in determining its nature. In this case The Supreme Court of
India held that “the enforceability of a foreign judgment is determined by the law as it stood at the
date of the judgment, and not by the law prevailing at the time of enforcement”.
Thus, a judgment of a court which was a foreign court at the time of its pronouncement would not
cease to be a foreign judgment by reason of the fact that subsequently the foreign territory has be-
come a part of the Union of India or vice versa.
7. “GOVERNMENT PLEADER” - Section 2(7) provides that “government pleader” in-
cludes “any officer appointed by the State Government to perform all or any of the func-
tions expressly imposed by this Code on the Government Pleader and also any pleader
28
Raj Rajendra Sardar Moloji Nar Singh v. Shankar Saran, AIR 1962 SC 1737 at p. 1744: (1963) 2 SCR 577 at pp. 593-
94.
29
Kishori Lal v. Shanti Devi, AIR 1953 SC 441 at p. 442: 1953 Cri LJ 1923; Shitole case, AlR 1962 SC 1737; Lalji Raja
and Sons v. Hansraj Nathuram, (1971) I SCC 721.
 acting under the directions of the Government Pleader”.
Elements of Government Pleader
I. Any officer appointed by the State Government;
II. To perform functions imposed by the code on the Government Pleader;
III. Any pleader acting under the direction of the Government Pleader.
The definition of the term “Government Pleader” is an inclusive definition and, is to be read along
with Order XXVII, Rule 4 and Rule 8-B(c), clearly yields the inference that Government may en-
gage Government Pleaders.
8. “JUDGE” - Section 2(8) provides that “judge” means “the presiding officer of a Civil
Court”.
“Judge” means the presiding officer of a civil court. The expression “court” has not been defined
in the Code. According to the Concise Oxford Dictionary, court means “an assembly of judges or
other persons acting as a tribunal in civil and criminal cases”. In other words, it is “a place where
justice is judicially administered”.30
A Member of an Administrative Tribunal cannot be considered to be a Judge and their statements
cannot be treated to be decree and it may only be an order.
When a statute provides that a particular matter will be determined by a court, the officer presiding
over the said court will be deemed to exercise jurisdiction as a court and not as a persona designata.
But by the mere fact that, under the relevant statute, some functions are to be performed by a judi-
cial officer, it cannot be said that he is acting as a court.
9. “JUDGEMENT” - Section 2(9) provides that the “judgement” means “the statement
given by the Judge on the ground of a decree or order”.
A judgment is the final decision of the Court intimated to the parties and to the world at large by
formal “pronouncement” or “delivery” in open court.
It is a judicial act which must be performed in a judicial way. The decision which is so pronounced
or intimated must be a declaration of the mind of the Court as it is at the time of pronouncement.
The CPC defines the judgement as the statement given by a judge of the grounds of a decree or or -
der.
Elements of Judgement
I. A concise statement of the case;
II. The point for determination;
III. The decision thereon; and
IV. The reasons for such decision.
A judgment of a Court of Small Causes may contain only points (ii) and (iii). Sketchy orders which
are not self-contained and cannot be appreciated by an appellate or revisional court without examin-
ing all the records are, therefore, unsatisfactory and cannot be said to be judgments in that sense.
As the Supreme Court in Balraj Taneja versus Sunil Madan (1999) 8 SCC 396 at p. 415, a judge
30
E.D. Sinclair v. L.P.D. Broughton, ILR (1893) 9 Cal 341.
cannot merely say “Suit decreed” or “Suit dismissed”. The whole process of reasoning has to be set
out for deciding the case one way or the other. Even the Small Causes Court’s judgments must be
intelligible and must show that the judge has applied his mind. The judgment need not, however, be
a decision on all the issues in a case. Thus, an order deciding a preliminary issue in a case, e.g. con-
stitutional validity of a statute, is a judgment.
Conversely, an order passed by the Central Administrative Tribunal cannot be said to be a judgment,
even if it has been described as such. Similarly, the meaning of the term “judgment” under the Let-
ters Patent is wider than the definition of “judgment” under the CPC.
The Supreme Court in Surendra Singh versus State of Uttar Pradesh AIR 1954 SC 194 has laid
down the following basic principles about judgment:
(a) A judgment embodies the expression of the mind of the Court at the time of pronouncing
it in open Court. A draft prepared is not a judgment, however heavily or often it may have
been signed. It does not become a judgment, unless it is delivered in open Court with the in-
tention of making it the operative decision of the Court.
(b) Once pronounced, it becomes a judgment; but until signed, the judge may freely alter or
amend it or even change it completely without any further formality except notice to the par-
ties and a rehearing on the point of change, should that be necessary.
(c) But, after it has been signed, it shall not be altered or added to save as provided by sec -
tion 152 of the Code of Civil Procedure or on review small irregularities in the manner of
pronouncement or the mode of delivery, the manner in which it is to be recorded or the ways
in which it is to be authenticated, the signing or the sealing, all the rules designed to secure
certainty about its content and matter, do not matter. These can be cured. But what cannot
be cured is the ‘hard core’, e.g., the formal intimation of the decision and its contents for-
mally declared in a judicial way in open court.
Thus, a judgment contemplates a stage prior to the passing of a decree or an order, and, after the
pronouncement of the judgment, a decree shall follow. A judgment of a Court or a Tribunal should
contain concise statement of case, points of decisions, the reasons for such decisions and decisions
thereupon where the Tribunal failed to assign sufficient or cogent reasons in support or its findings.
DIFFERENCE BETWEEN
“JUDGEMENT” AND “DE-
CREE”

JUDGEMENT DECREE
Definition “Judgement” means “the statement “Decree” means the formal expres-
given by the judge on the ground of sion of an adjudication which con-
a decree or order” which adjudicates clusively determines the rights of the
all the issues concerning the suit and parties with regard to all or any of
specifies the rights and liabilities of the matter in controversy in the suit
the parties. and may be either preliminary or fi-
nal.
Legal Provision Section 2(9) of the Code of Civil Section 2(2) of the Code of Civil
Procedure, 1908. Procedure, 1908.
Content It includes facts of the case, issues It summarizes the decision, what re-
involved, evidence brought by lief is granted, who wins, and details
parties, detailed reasoning, legal on implementation.
principles, and analysis.
Nature Final Preliminary, Final or partly prelimin-
ary and partly final.
Passed in Both civil and criminal cases Civil cases only
Appealability No Yes
Sequence First Second (follows the judgement and
 is based on it.)
Execution Cannot be executed. Can be executed to enforce the
judgement.

[Note 1: Section 33: Judgement and decree, -The Court, after the case has been heard, shall pro-
nounce judgement, and on such judgement a decree shall follow.]
[Note 2: The Amendment Act of 1976 enacted Rule 6-A of Order 20 it provides that the last para-
graph of the judgement should state precisely the relief granted. Thus, a judgment contemplates a
stage prior to the passing of a decree or an order, and, after the pronouncement of the judgment, a
decree shall follow.]
10. “JUDGEMENT-DEBTOR” - Section 2(10) provides that “judgement-debtor” means
“any person against whom a decree has been passed or an order capable of execution has
been made”.
Judgement Debtor is a person against whom a decree/judgement is passed. He may be a party or
may not be a party to the suit. Where the decree is passed against a surety, he is a judgment-debtor
within the meaning of this section.
The primary obligation of a judgement debtor is to comply with the decree or judgement of the
court. It can include paying of some money to the judgement-creditor (the person in whose favor
the judgement was issued) or performing a specific act. If the judgement debtor fails to comply with
the judgement voluntarily, the judgement-creditor can initiate various legal processes to enforce the
judgement. These legal processes may include:
I. Attachment of property: The court can order the attachment of the judgement debtor’s
property to pay his unpaid debt amount.
II. Garnishment: The court may issue a garnishment order to seize funds directly from the
judgement debtor’s bank account or wages.
III. Sale of property: The attached property may be sold out to cover all his debts.
IV. Arrest and detention: In some cases, the court may order judgement-debtor’s arrest and
detention if he wilfully refuses to comply with the judgement.
Further, the judgement-debtor also has some rights which includes the right to receive notice of en -
forcement actions and the right to challenge the enforcement if there are valid grounds. Moreover,
he may also seek to have the judgement set aside or appealed if there are legal reasons to do so.
Elements of Judgement-debtor
I. Any Person Against whom a decree is passed;
Or
II. Against whom an order capable of Execution is made.
1. “LEGAL REPRESENTATIVE” - Section 2(11) provides that the “legal representat-
ive” means “a person who in law represents the estate of a deceased person, and includes
any person who intermeddles with the estate of the deceased and where a party sues or is-
sued in a representative character the person on whom the estate devolves on the death of
the party so suing or sued”.
The expression “legal representative” is inclusive in character, its scope is very wide and, thus, over
and above “a person who in law represents the estate of a deceased person”. It includes “a person
who intermeddles with the estate of a deceased and also a person on whom the estate devolves on
the death of the party suing or sued, where a party sues or is sued in a representative character”.31
Section 2(11) of the CPC, 1908 which defines “legal representative”, makes it abundantly clear that
persons other than legal heir can also be legal representative. Even an intermeddler with the estate
of deceased can also be allowed to represent the estate for the purpose of pending proceedings be-
fore the court. It is true that all legal heirs are, ordinarily, also legal representatives, but the converse
is not true. All legal representatives are not necessarily legal heirs as well.
The legal representative replaces the deceased party in the litigation. They are bound by the actions
of the deceased party and are entitled to continue the legal proceedings.
To bring a legal representative on record, and application must be made to the court, and necessary
documentation, such as death certificate of deceased person and proof of legal representation may
need to be provided.
The following persons are held to be legal representatives:
Executors, administrators, reversioners, Hindu coparceners, residuary legatees, etc.
12. “MESNE PROFITS” Section 2(12) provides that “mesne profits” of property refers
to “those profits which the person in wrongful possession of such property actually re-
ceived or might with ordinary diligence have received therefrom, together with interest on
such profits, but shall not include profits due to improvements made by the person in
wrongful possession”.
“Mesne profits” refers to those profits which a person in wrongful possession of property has re-
ceived or might have received together with the interest on such profits during the period of such
wrongful possession.
Mesne profits are important when someone is in the wrongful possession of other’s property. The
wrongful possession can be of many types. It can be illegal occupation staying beyond the lease pe -
riod, or encroachment of property.
The definition in section 2(12) makes it clear that wrongful possession of the defendant is the
essence of a claim for mesne profits and the very foundation of the defendant’s liability.
The liability to pay mesne profits goes with actual wrongful possession of the land. Therefore, a
person in wrongful possession and enjoyment of the immovable property is liable for mesne profits.
According to Section 2(12), interest is an integral part of mesne profits and has, therefore, to be al-
lowed in the computation of mesne profits itself. That proceeds on the theory that the person in
wrongful possession appropriating income from the property himself gets the benefit of the interest
on such income. Mesne Profits is the compensation due to a rightful owner deprived of possession
from person in wrongful possession. The expression has the same meaning in Section 144 of the
Code which deals with the restitution of property and recovery of mesne profits in cases of wrong -
ful possession. Further, Order XX, Rule 12 of the Code provides the procedure for a court to pass a
decree for mesne profits.
The following principles would ordinarily guide a Court in determining the amount of mesne prof-
its:
I. No profit by a person in wrongful possession;

31
BANCO National Ultramarino v. Nalini Bai Naique, 1989 Supp (2) SCC 275 at pp. 277-78: AIR 1989 SC 1589; Chir-
anjilal v. Jasjit Singh, (1993) 2 SCC 507.
 II. Restoration of status before dispossession of decree-holder; and
III. Use to which a decree-holder would have put the property if he himself was in posses-
sion.
Mesane profits are a sort of compensation that a person who is in wrongful possession of other’s
property has to pay for such wrongful occupation to the owner of the land. They are compensation,
which is penal in nature. It cannot be said the mesne profits are to be calculated on basis of the max-
imum rent that the landlord could have fetched if the premises were freshly let out.
The normal measure of mesne profits is the value of the user of land to the person in wrongful pos -
session. Normally, a person in wrongful possession of immovable property has to pay compensation
computed on the basis of profits he actually received or with ordinary diligence might have re-
ceived.
Against whom mesne profits can be claimed
Wrongful possession of the defendant is the essence of a claim for mesne profits and the very
foundation of the defendant’s liability therefor. As a rule, therefore, generally, a person in wrongful
possession and enjoyment of immovable property is liable for mesne profits.32 It is very clear that
mesne profits can be claimed with regard to immovable property only.
Thus, a decree for mesne profits can be passed against a trespasser, or against a person against
whom a decree for possession is passed, or against a mortgagor in possession of mortgaged property
after a decree for foreclosure has been passed against him, or against a mortgagee in possession of
property even after a decree for redemption is passed, or against a tenant holding over at will after a
notice to quit has been served upon him.
Where the plaintiff is dispossessed by several persons, every one of them would be liable to pay
mesne profits to the plaintiff even though he might not be in actual possession or the profits might
not have been received by him. The Court in such cases may hold all the trespassers jointly and sev-
erally liable, leaving them to have their respective rights adjusted in a separate suit for contribution;
or, may ascertain and apportion the liability of each of them.33
Assessment of mesne profits
Mesne profits being in the nature of damages, no invariable rule governing their award and assess-
ment in every case can be laid down and “the Court may mould it according to the justice of the
case”. In assessing the mesne profits, usually the court will take into account what the defendant has
gained or reasonably might have gained by his wrongful possession of the property.
In the case of Union of India versus Banwari Lal AIR 2004 SC 1983; (2004) 5 SCC 304 the Su-
preme Court explained that mesne profits are compensation to the real owner for the wrongful use
and occupation of their property by another.
In the case of Fateh Chand versus Balkishan Dass, AIR 1963 SC 1405; (1964) 1 SCR 515 the
court emphasized that only reasonable compensation for actual loss suffered by the owner of im-
movable property could be awarded and the arbitrary or excessive amounts stipulated in contracts
would not be enforceable.
Test
The test to ascertain mesne profits is not what the plaintiff has lost by being out of possession but
32
Lucy Kochuvareed v. P. Mariappa Gounder, (1979) 3 SCC 15o; Chittoori v. Kudappa, AIR 1965 SC 1325: (1965) 2
SCR 661.
33
Lucy Kochuvareed v. P. Mariappa Gounder, (1979) 3 SCC 150 at p. 159: AIR 1979 SC 1214 at p. 1219.
what the defendant gained or might reasonably and with ordinary prudence have gained by such
wrongful possession.
Principles
The following principles would ordinarily guide a court in determining the amount of mesne profits:
(i) no profit by a person in wrongful possession;
(ii) restoration of status before dispossession of decree-holder; and
(iii) use to which a decree-holder would have put the property if he himself was in possession.
lllustration
Thus, in a suit for title and possession where the land is in the occupation of a tenant, mesne profits
should be awarded on the basis of rent and not on the basis of the produce or value of the property.
At the same time, however, mesne profits cannot be calculated on the basis of standard rent or max-
imum rent that a landlord could have received if premises were let out atresh. Though the amount of
standard rent is a relevant factor tor calculating mesne profits, it is not decisive.34
But when a person in wrongful possession plants indigo on the land and it is proved that a prudent
agriculturist would have planted sugarcane, wheat or tobacco, the mesne profhts should beassessed
on the basis of those more profitable crops.35
Interest
Since interest is an integral part of mesne profits, it has to be allowed in the computation of mesne
profits itself.36 The rate of interest is at the discretion of the court, subject to the limitation that the
said rate shall not exceed six per cent per annum. 37 Such interest can be allowed till the date of pay-
ment.38
Deductions
While awarding mesne profits, the court may allow deductions to be made from the gross profits of
the defendant in wrongful possession of the property, such as land revenue, rent, cesses, cost of cul-
tivation and reaping, the charges incurred for collection of rent, etc. In other words, mesne profits
should be net profits.39
13. “MOVABLE PROPERTY” - Section 2(13) provides that “movable property” in-
cludes growing crops.
14. “ORDER” - Section 2(14) provides that the “order” means “the formal expression
of any decision of a Civil Court which is not a decree”.
“Order” means the formal expression of any decision of a civil court which is not a decree. 40 Thus,
the adjudication of a court which is not a decree is an order.
Elements of order
34
Chander Kali Bai v. Jagdish Singh, (1977) 4 SCC 402: AIR 1977 SC 2262; Purificacao Fernandes v. Hugo Vicente de
Perpetuo, AIR 1985 Bom 202; Ratilal Thakordas Tamkhuwala v. Vithaldas, AIR 198s Bom I34.
35
Harry Kempson Gray v. Bhagu Mian, AlR 1930 PC 82.
36
Mahant Narayana Dasiee v. Tirumalai Tirupathi Devasthanam, AIR 1965 SC 1231 at p. 235: Lucy Kochuvareed v. P.
Mariappa Gounder, (1979) 3 SCC 150, paras 45, at pp. 54-58.
37
Mahant Narayan Dasjee case, AlR 1965 SC 123I at p. I236 (AIR).
38
Lucy v. Mariappa, (1979) 3 SCC 150, paras 45, at pp. 54-58.
39
Dakshina v. Saroda, (1892-93) 20 IA 160: ILR (1894) 21 Cal 142 (PC).
40
S. 2(14). See also, Vidyacharan Shukla v. Khubchand Baghel, AlR 1964 SC 1099 at p. 1113: (1964) 6 SCR 129.
 I. Formal expression: An order is a formal expression of the court of law which must be
written statement issued by a civil court, documenting its decision on a particular issue/case.
II. Different from decree: An order is different from decree. A decree is a formal expression
of a decision that conclusively determines the rights and liabilities of the parties with regard
to all or any of the matter in consideration. However, an order does not necessarily determ-
ine the final rights of the parties but addresses procedural or interlocutory matters in the
course of litigation.
Order and decree: Similarities
As discussed above, the adjudication of a court of law may either be (a) a decree; or (b) an order;
and cannot be both. There are some common elements in both of them, viz. (1) both relate to mat-
ters in controversy; (2) both are decisions given by a court; (3) both are adjudications of a court of
law; and (4) both are "formal expressions" of a decision.
Order and decree: Distinction
In spite of the above common elements, there are fundamental distinctions between the two expres-
sions:
I. A decree can only be passed in a suit which commenced by presentation of a plaint. An or-
der may originate from a suit by presentation ofa plaint or may arise from a proceeding com-
menced by a petition or an application.
II. A decree is an adjudication conclusively determining the rights of the parties with regard
to all or any of the matters in controversy; an order, on the other hand, may or may not fi -
nally determine such rights.
III. A decree may be preliminary or final, or partly preliminary and partly final, but there
cannot be a preliminary order.
IV. Except in certain suits, where two decrees, one preliminary and the other final are
passed, in every suit there can be only one decree; but in the case of a suit or proceeding, a
number of orders may be passed.
V. Every decree is appealable, unless otherwise expressly provided, [S. 96] but every order
is not appealable. Only those orders are appealable as specified in the Code. [S. 104, Or. 43
R. I]
VI. A Second Appeal lies to the High Court on certain grounds from the decree passed in
First Appeal. [S. 100] Thus, there may be two appeals; while no Second Appeal lies in case
of appealable orders. [S. 104(2)]
15. “PLEADER” - Section 2(15) provides that “pleader” means “any person entitled to appear
and plead for another in Court, and includes an advocate, a vakil and an attorney of a High
Court”.
The “pleaders” refers to a person who is authorized to appear and plead on behalf of a party in the
court. Order III of the Code recognized Agents and Pleaders. It says appearances, etc…, may be in
person, by recognized agent or by pleader.
16. “PRESCRIBED” - Section 2(16) provides that “Prescribed” means “prescribed by
rules”.
17. “PUBLIC OFFICER” Section 2(17) provides a “public officer” means “a person
 falling under any of the following descriptions, namely:
I. Every Judge;
II. Every member of [All India Service];
III. Every commissioned or gazetted officer in the military [naval or air] forces of
[the Union]
*** while serving under the Government
IV. Every officer of a court of Justice whose duty it is, as such officer, to investi -
gate or report on any matter of law or fact, or to make, authenticate or keep any
document, or to take charge or dispose of any property, or to execute any judicial
process, or to administer any oath, or to interpret, or to preserve order, in the
Court, and every person especially authorized by court of Justice to perform any of
such duties;
V. Every person who holds any office by virtue of which he is empowered to place
or keep any person in confinement;
VI. Every officer of the Government whose duty it is, as such officer, to prevent of-
fences, to give information of offences, to bring offenders to justice, or to protect
the public health, safety or convenience;
VII. Every officer whose duty it is, as such officer, to take, receive, keep or expend
any property on behalf of the Government, or to make any survey, assessment or
contract on behalf of the Government, or to execute any revenue process, or to in-
vestigate, or to report on, any matter affecting the pecuniary interests of the Gov-
ernment, or to make, authenticate or keep any document relating to the pecuniary
interests of the Government, or to prevent the infraction of any law for the protec-
tion of the pecuniary interests of the Government; and
VIII. Every officer in the service or pay of the Government, or remunerated by fees
or commission for the performance of any public duty.
“Public officer” means a person falling under any of the descriptions in Section 2(7) of the Code.
Thus, every Judge, every member of All India Service, every Gazetted Officer of Union, every of-
ficer of court of justice or of government, a Minister of a State, a Receiver, a village Headman, an
Officer in the Indian Army, a Sheriff of Bombay, a Bench Clerk of a civil court, an Inspector of Po -
lice, a Custodian of Evacuee Property, Provident Fund Commissioner, an Advocate engaged by the
Government on day fees, an Income Tax Officer, etc., are public officers. But a retired government
servant, a Port Commissioner, a Liquidator under the Co-operative Societies Act, a Chairman of a
Municipality, a Municipal Councillor, an officer of a corporation, etc. are not public officers.
According to Section 2(17) of the Code, a “public officer” refers to an individual who holds a pub-
lic office or position within a government or public authority. Under this sub-clause every officer in
the service or pay of the Government, or remunerated by fees or commission for the performance of
any public duty, is a public officer. Thus, where the Officers of the Corporation are in service and
pay of the Corporation and are paid out of the funds of the Corporation, they are not “Public Offi-
cers”.
18. “RULES” - Section 2(18) provides that the “rules” means “rules and forms contained in
the First Schedule or made under section 122 or section 125”.
The rules under CPC are intended to provide a framework for the conduct of civil suits and they are
important for ensuring consistency and fairness in the judicial process.
Sources of rules according to Section 2(18):
I. 1st Schedule: The First Schedule of CPC contains an extensive set of rules organized under
various orders. Each order deals with specific procedural aspects of civil litigation.
II. Rules made under section 122 of CPC: Section 122 empowers HC to make rules regulat-
ing their own procedure and the procedure of the civil courts subordinate to them, within the
framework of the CPC.
III. Rules made under section 125 of CPC: Section 125 allows the HC to make rules regard-
ing matters such as fees, costs, and the service of process.
19. “SHARES IN A CORPORATION” - Section 2(19) provides that “share in corporation”
shall be deemed to “include stock, debenture stock, debentures or bonds”.
20. “SIGNED” - Save in the case of a judgement or decree, includes stamped.
OTHER IMPORTANT TERMS
There are certain other terms. Though they are important, they have not been defined in the Code. It
has been rightly said that where a word is not defined in a statute, it is permissible to refer dictionar-
ies to find out sense in which it is understood in common parlance.
Lets consider some important terms not defined in the Code.
1. Affidavit: An affidavit is a declaration of facts, reduced to writing and affirmed or sworn before
an officer having authority to administer oaths. It should be drawn up in the first person and contain
statements and not inferences.
2. Appeal: The expression “Appeal” may be defined as “the judicial examination of the decision by
a higher court of the decision of an interior court”. It is a complaint made to a higher court that the
decree passed by a lower court is wrong. It is a remedy provided by law for getting the decree of a
lower court set aside. The right of appeal is a creature of a statute and unless it is granted clearly
and expressly it cannot be claimed by a person. Again, it is a vested right and can be taken away
only by a statutory provision, either expressly or by necessary implication.
3. Cause of action: Cause of action may be described as “a bundle of essential facts, which it is ne-
cessary for the plaintiff to prove before he can succeed”. A cause of action is the foundation of a
suit. It must be antecedent to the institution of a suit and on the basis of it the suit must have been
filed. If a plaint does not disclose a cause of action, a court will reject such plaint.
4. Caveat: According to its dictionary meaning, a “caveat” is an official request that a court should
not take a particular action without issuing notice to the party lodging the caveat and without afford-
ing an opportunity of hearing him.
5. Civil: The word “civil” pertains to rights and remedies of a citizen as distinguished from crim -
inal, political, etc. The expression “civil proceedings” covers all proceedings in which a party as -
serts civil rights conferred by a civil law.
6. Court: “Court” is a place where justice is administered. To be a court, the person constituting it
must have been entrusted with judicial functions.
The term “Court” in CPC refers to Civil Courts.
7. Defendant: Defendant means a person who defends or a person sued in a court of law by a
plaintiff. In every suit there must be two parties, namely, the plaintiff and the defendant. A defend-
ant is a person against whom a relief is claimed by a plaintiff.
8. Execution: Stated simply, “execution” means “the process of enforcing or giving effect to the
judgment, decree or order of a Court”.
9. Issue: According to Concise Oxford Dictionary, “issue” means “a point in question, an important
subject of debate or litigation”. Issues are of three kinds: (i) Issues of fact; (ii) Issues of law; and
(iii) Mixed issues of fact and law. Issues arise when a material proposition of fact or law is affirmed
by one party and denied by the other.
10. Jurisdiction: Stated simply, “jurisdiction” means authority to decide. “Jurisdiction” may be
defined to be the power or authority of a court to hear and determine a cause, to adjudicate and ex-
ercise any judicial power in relation to it. Jurisdiction means the extent of the authority of a court to
administer justice prescribed with reference to subject-matter, pecuniary value and territorial limits.
Consent can neither confer nor take away jurisdiction of a court.
11. Plaint: A “Plaint” is a statement of claim, a document, or a memorial by the presentation of
which a suit is instituted. It contains the grounds on which the assistance of a court is sought by a
plaintiff. It is a pleading of the plaintiff.
12. Plaintiff: Plaintiff is a person who brings a suit or commences an action against a defendant. It is
the plaintiff who approaches a court of law by filing a suit for reliefs claimed in the plaint.
13. Suit: The word “suit” ordinarily means a civil proceeding instituted by the presentation of a
plaint. In its comprehensive sense, the word "suit" is understood to apply to any proceeding in a
court of justice by which an individual pursues that remedy which the law permits.
14. Summons: A summons is a document issued from an office of a court of justice, calling upon
the person to whom it is directed to attend before a judge or an officer of the court for a certain pur -
pose. It is a written order that legally obligates someone to attend a court of law at a specified date.
When a plaintiff files a suit, the defendant must be informed about it. The intimation which is sent
to the defendant by the court is technically known as “summons”. A summons can also be issued to
witnesses. Service of summons can be effected in any of the modes recognised by the Code.
15. Written statement: Written statement may be defined as a reply of a defendant to the plaint filed
by a plaintiff. Thus, it is a pleading of a defendant dealing with every material fact of a plaint. It
may also contain new facts in favour of a defendant or legal objections against the claim of a
plaintiff. It is a pleading of a defendant.