Deemed Decrees Under The Code Of Civil Procedure

There are several kinds of decrees under the Code of Civil Procedure (hereinafter referred to as CPC). As per Section 2(2) of CPC, a decree is the formal expression of the trial as expressed by the Court. It contains the interpretation of the Court on the rights of the parties with reference to the suit at hand. It suggests the positions of the parties with respect to any question of fact and/or law and restitution of parties as given by Section 144 of the CPC.

There are a few kinds of decrees in civil law:

• Preliminary: Such a decree is where rights of parties are decided by the Court, but the suit has not been completely disposed of yet. The Code in Orders XX and XXXIV provides for when a preliminary decree can be issued, for example in administration suits, suits for possession and mesne profits, sale of mortgaged property and about six more scenarios. Interestingly, one can appeal against the preliminary decree, but it must be done before the final decree is passed. In the case of Phool Chand v. Gopal Lal[1], it was held that there is no limit on the Court, and it can pass any number of preliminary decrees.
   
• Final: A final decree is very clearly one which the Court passes after disposing of the suit completely. It settles all questions of law and/or fact and establishes the rights of parties with respect to the suit. A final decree is in support of the preliminary decrees.
   
• Partly Preliminary and Partly Final Decree: This is where parts of the decree have preliminary value and other parts have the value of a final decree. Generally, such a decree establishes the answer to certain questions raised but leaves the rest open for further discussion. Parts of such a decree that incorporate the final decree will be executable, but the preliminary decrees will only be executed once it is finally decided by the court.

It must be clarified that a judgment is separate from a decree or order. As per Section 2(9) a judgment is the decision of the judge on the question that is presented and unlike the decree, it also provides the legal reasons behind the decision of the judge, along with appropriate citations, a summary of the arguments by the counsels and then the final conclusions. Alternatively, defined by Section 2(14), an order is a formal decision by the Court on procedural matters like applications. It is not an answer to the questions of fact or law in the suit but encompasses the interlocutory decisions.

Another kind of decree is a deemed decree. While it is not expressly defined in Section 2(2) of CPC, a deemed decree is one that is considered a decree even if it falls outside the definition. Something is 'deemed' as a particular type if it is considered or interpreted to be part of that type, although by definition it is not entirely that type. This was defined in the case of CIT v. Bombay Trust Corporation[2].

Generally, such deemed decrees are passed in cases of claims to attachment to property (Order XXI Rule 58), orders after adjudication (Order XXI Rule 98) and order upon application complaining of dispossession (Order XXI Rule 100). As it is clear, the cases in these provisions warrant orders and not final decrees. Accordingly, a hybrid form of order and decree is created, called deemed decrees. As per the case of SM Deshmukh v. Ganesh Krishnaji Khare[3], the Bombay High Court held that matters under Section 144 of CPC require deemed decrees. Section 144 provides for the court to pass any orders for the restitution of parties, such as payment of damages, compensation, mesne profits, and modification of the decree. As even Section 144 warrants an order, a deemed decree suffices for its purpose.

Therefore, a deemed decree is basically one where an order is treated like a decree in certain cases. Since such decrees do not fall under the definition as given by Section 2(2), such decrees cannot proceed according to Section 96 of CPC. This section provides for appeal from original decree in another Court competent to hear appeals. However, since Section 96 only talks about appeal on decrees, and deemed decrees are not by definition decrees, they cannot be appealed against under Section 96. Therefore, to appeal against such decrees only miscellaneous appeals (as given under Section 104 read with Order XLIII Rule 1) can be filed, and not regular appeals.

Deemed decrees are an interesting example of how the law continues to evolve for easy procedure in changing times. The intermix of orders and decrees has proven useful in enforcing directions of the Court along with establishing the position of the Court in the suit between the parties. Since deemed decrees are not explicitly defined, its idea continues to change and becomes more fortified with a plethora of new precedents and discussions.

References:

• https://www.mondaq.com/india/arbitration-dispute-resolution/1235190/preliminary-decree-and-final-decree-in-cpc
• https://thefactfactor.com/facts/law/civil_law/civil-procedure-code/deemed-decree/13971/

End Notes:

1. Phoolchand and Anr vs Gopal Lal, 1967 AIR 1470
2. Commissioner Of Income Tax, Bombay vs Bombay Trust Corporation, AIR 1939 BOMBAY 43
3. S.M. Deshmukh vs Ganesh Krishnaji Khare, 1973 AIR 1975 BOM 82

Award Winning Article Is Written By: Mr.Aaryaman Dhawan

Authentication No: NV468260742169-11-1124

Also Read:

• Deemed Decree: A Comprehensive Analysis Under The Code Of Civil Procedure, 1908