Q;1 Define and distinguish between decree, judgment and order.

Ans;

1. INTRODUCTION

The code of civil procedure is the foundational procedural law governing civil courts in Pakistan. In
the civil administration of justice decision is the final part of process of civil adjudication, judgment,
decree and order are three formal expressions of that decision. Decree, judgment and order are
three distinct terms used under civil procedure code 1908 and in the processes of adjudication of a
matter in controversy before civil courts.

2.RELEVANT PROVISIONS

DECREE 2(2) CPC

JUDGMENT 2(9)

ORDER 2(14).

3. (1) DECREE DEFINITION

A) SECTION 2(2) OF CPC

Decree means a formal expression of adjudication which conclusively determine the rights of
parties with regard to all or any of matters in controversy in suit and it may be either preliminary
or final.

B) Black law Dictionary.

Decree is the declaration of court, announcing the legal consequences of fact found.

(II) Essential elements of Decree

In order that the decision of court may be decree there must be following essential elements,

 There must be adjudication.

 The adjudication must be given in suit.
 It must have determined the rights of parties with regard in all or any of matter in
controversy in suit.
 Such determination must be conclusive determination.
 The adjudication must be formal and final must be given by the civil court or revenue court.

(III) KINDS OF DECREE

A Decree may be either

1) Preliminary decree
2) Final decree
3) Partly preliminary and partly final decree.

1)PRELIMINARY DECREE

A decree is a preliminary when further proceedings has been taken before the suit can be
completely disposed of.
2) Final Decree

When the adjudication is completely disposes of the suit it is final decree.

3)Partly preliminary and partly final decree

A decree is partly preliminary and partly final when in same suit court conclusively determine the
rights of parties regarding some of matter in controversy (making that part final, white
simultaneously leaving other matters for further proceedings and adjudication (making that part
preliminary).

Example

1 Suit for immoveable property and mesne profit

In above case possession of property is final part of decree and while decree for mesne profit is
preliminary until the final amount is determined.

2. Suit for dissolution of Partnership and Accounts.

Final part: The court may pass a decree declaring the partnership dissolved and determining the
shares of partners in dissolving firm, which is conclusive determination of their rights.

Preliminary Part: It directs the accounts of the partnership to be taken; its accounting part is
preliminary.

2(I)) JUDGMENT DEFINITION

b) SECTION 2(9) OF CPC

Judgment is the statement given by judge of the ground of decree and order.

b) Black law Dictionary

Judgment is official and authentic decision of court of justice upon the rights and claims of parties to
a suit therein submitted to the determination.

(II) Essential Elements of Judgment.

 It must be in written.
 It must be given by judge. (Presiding officer of civil court).
 The judgment should state the grounds for decision and the evidence and how it support to
decision.
 Such decision should be resulted in a decree or an order.
 It should be pronounced in open court after the completion of evidence.
 For the purpose of interpretation judgment must be read as a whole.
 The language of judgment must be English or court language.
 It must be read over to the parties and must be given in the presence of both parties to the
suit.

3: KINDS OF JUDGMENT

Civil procedure code 1908 provides only one kind of judgment. i.e Foreign judgment under section
2(6) as any judgment given by the foreign court situated beyond the limits of Pakistan and not
established by the federal Govt.
3: ORDER DEFINITION

A) SECTION 2(14) OF CPC

Order means the formal expression of any decision of civil court which is not a decree.

B) BLACK LAW DICTIONARY

A directive issued by a judge or a court that requires a party to do something (such as paying money,
appearing in court, or following a specific procedure) or refraining from doing something (such as
stopping a certain action or behaviour).

4: ESSENTIAL OF ORDER

 It must be formal expression and not final decision.

 It must be made by the judge of civil court.
 It must be in writing.
 It need not be conclusive in nature.
 There must be a judgment before an order is passed.
 It must be capable of execution.

5: KINDS OF ORDERS

An order can be either

1 Final order

2 Interlocutory order

1) FINAL ORDER.

This is a ruling or decision by a court that concludes a case or a particular matter in a case. It is the
final step in the legal proceedings, and it usually resolves the issue.

2) TEMPORARY OR PRELIMINARY ORDER:

A decision made by a judge or court that is temporary in nature, typically made before the final
resolution of a case. These orders are meant to maintain the status quo until the final decision is
made.

 Example: A temporary restraining order (TRO) might be issued to prevent harassment or

harm before a full hearing is held.

6) DEFFENCE BETWEEN DECREE, JUDGMENT AND ORDER.

FEATURE DECREE JUDGEMNET ORDER

NATURE Conclusively determine Statement of reason Formal expression of
the rights of parties in for a decree and order. decision not amount
suit. the a decree.
SCOPE Determine the rights of Explain the basis for often deal with the
parties. the decision. procedural and
interlocutory matters.
FORM Must follow the Must contain specific Formally expressed
judgment, formally drawn details(case, points, may or may not detail.
up and signed. decision, reason.)
 APPEALABILITY Generally appealable as Not directly May or may not be
matter of rights(first appealable; an appeal appealable, depending
appeal, Second appeal.) lies from decree or on specific provisions
order based on the of CPC under section
judgment. 104 read with order 43
rule 1.
FINALITY Can be final and No finality itself; May or may nor be
Preliminary, but supports the finality of final; can be
determines the rights decree or order. interlocutory or
conclusively, final(e.g, dismissal of a
suit for default).
RELATION Follow the judgment; Proceed the decree or Can be passed at
basis for execution. order, provides the various stages of a suit
reasoning. may or mat not lead to
a decree.
EXECUTION Executable as a matter of Not Executable. Executable if or directs
law payment of money or
delivery of property.

Q2: What is law regarding stay of suit of proceedings under CPC 1908 when the suit already
instituted in the court.

1) INTRODUCTION

Section 10 of code 1908, stay the proceeding when a suit is already instituted in the
competent court and is not finally decided. Section 10 is an express bar on jurisdiction of civil
court which only stay the proceedings but does not bar the institution of suit.

2) DOCTRINE OF SUB RESJUDICE

The Doctrine of RESJUDICE contain in section 10 of CPC, means to any subject matter which
is under consideration before the court which is not final.

3) ESSENTIAL CONDITION OF SECTION 10

Before invoking the provision of section 10 the following conditions must fulfilled.

I) The matter in issue in the subsequent suit is also directly and substantially in issue in the
previously instituted suit.
a) MATTER DIRECTLY IN ISSUE
Means a matter which must in the Former suit have been alleged by one party and either denied or
admitted expressly or impliedly by other party.

b) MATTER INSUBSTANTIALLY IN ISSUE

Any matter which is important for the decision of the case and without which the court cannot decide
the case is called a matter substantially in issue.

II) The previously instituted sui must be pending in the same court or any other court having
jurisdiction to grant the relies in that suit.
 This is the second condition of section 10 Pendency of suit means a suit which is undergoing
adjudication and has not been finally disposed of.
III) THE COURT TRYING THE PREVIOUSLY INSTITUTED SUIT, MUST HAVE JURISDICTION TO GRANT
RELIEF CLAIMED IN THE SUBSEQUENT SUIT.

For the application of section 10, It is essential that the court trying the former suit should be
competent to grant relief not only in the former suit but also in the subsequent suit.
It does no refer to territorial jurisdiction and it is not necessary that the Court trying the former suit
should have territorial jurisdiction over the subject matter of the subsequent
suit.

IV) BOTH SUITS MUST BE BETWEEN THE SAME PARTIES OR THEIR REPRESENTATIVES.

The parties to the suits are persons whose names appear on the record as a plaintiffs or defendants at
the time of decision of the suit.
.
V) PARTIES MUST BE LITIGATING IN BOTH SUITS UNDER THE SAME TITLE.

The term "title" refers to the legal capacity or interest of a party or the legal personality of a party e.g.,
former suit against firm and subsequent suit against partner thereof, would come within the same
title and covers under section 10

VI) THE PENDENCY OF SUIT IN FOREIGN COURTS, DOES NOT PRECLUDE THE COURTS IN PAKISTAN

FROM TRYING A SUIT FOUND ON SAME CAUSE OF ACTION.

According to explanation to section 10 of the code, 1908, the Pendency of suits in foreign Courts, does
not affect the jurisdiction of the Courts in Pakistan from trying of suit founded on the same cause.
The reason is that every country has its own judicial system which is independent from any foreign
interference so, any decision of foreign Courts is not binding on the Courts of Pakistan. But the High
court stay the pending a foreign court and no other subordinate court has an authority.
VII) WHEN CONDITIONS NOT FULFILED

When the conditions not fulfilled there are two options.

1. STAY OF SUIT UNDER SECTION 151 OF CPC

2. CONSOLIDATION OF TWO SUITS

1: STAY OF SUITS UNDER SECTION 151 OF CPC

Section 151 are inherent power of the court. So, the suit may for the ends of justice be stayed under
section 151.

2: CONSOLIDATION OF TWO SUITS

According to section 151 read with Order 43 rule 4, court can consolidate the two suits in one suit instead of
stay of proceeding in one suit.

VIII) APPLICATION OF SECTION I0

Section 10 of CPC applies all proceedings in Pakistan including Supreme court and suits and as
well as Appeals.
IX) APPLICATION OF SECTION 10 NO APPLY
Section 10 Of CPC not apply on following proceedings
1. Criminal proceedings
2. Execution proceeding
 3. Foreign proceedings

X) MANDATORY IN NATURE OF SECTIO 10

The provision of section 10 is clear, definite and mandatory in nature. If the condition of section
10 is fulfilled, the court has no discretion in staying in proceedings till the decision of pending suit
and after its decision it will operate as RES JUDICATA.

XI) PLEA OF RES SUBJUDICE UNDER SECTION 10

Plea of RES SUBJUDICE is raised through the application made in prescribe manner before the court of first
instance in which the subsequent suit is instituted and before the judgment pronounced.

XII) BAR OF RES SUBJUDICE

It is express bar on the jurisdiction of civil court. It only bars the stay proceedings and not bars the institution
of suit.

XIII) WAIVER OF RES SUBJUDICE

The doctrine of RES SUBJUDICE is enunciated in section 10 of CPC, is only a procedural law and
can be waived by express or implied the consent of the parties in the suit.

XIV) RMEDY AGAINST ORDER OF STAY UNDER SECTION 10.

Any order of staying proceedings passed under section 10 is not appealable under the CPC.
But revision petition under section 115 of CPC would lie to higher court.

XV) CONCLUSION
Pendency of suit, stay of proceedings in the suit in subsequent suit, if the conditions of section 10
fulfilled but it does not bar the institution of suits. The object of this section is to avoid the
possibility of contradictory of decisions, multiplicity of suits, prevent the of concurrent jurisdiction
from simultaneously entertaining and adjudication upon two parallel litigations in respect of same
cause of action between the same parties, and give judicial respect and sanctity decisions by
ratifying judgments.

Q3: RESJUDICADA

1 INTRODUCTION