DECREE AND ITS TYPES

What is a decree?

Simply put, a decree is the final decision given by the court after determining the rights of the parties in a dispute. However, in certain situations, the court cannot give its final decision without conclusively determining the rights of the parties on a particular issue. The rights so determined form the preliminary decree which are conclusive in nature. In that limited sense, a preliminary decree is final, so far as the rights are concerned. The court then makes a further inquiry to settle all the issues and gives its final decision known as final decree

To understand this better, let’s take an example of a family consisting of four members – A, B, C and D who jointly own four properties. They go to the court asking for partition. In this case, it is impossible for the court to divide the property without first determining the shares of each member. Therefore, the court must pass a preliminary decree that conclusively decides the shares, i.e., the rights of the parties in the property. After this decree is passed, the court further inquires and passes the final decree affecting the actual partition or division of the properties in accordance with the preliminary decree. As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until division takes place by passing a final decree.

Controlling Law

Decree has been defined by law as follows:

“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.

Preliminary decree only declares the rights of the parties leaving room for some further inquiry to be carried on[4]. Until the final decree is passed, there is “no formal expression” of the court that conclusively settles all the issues in the case. Therefore, we can say that the preliminary decree merges into the final decree to completely dispose of the matter, and such a final decree is always required to be in conformity with the preliminary decree[6].

 

Distinctive Features

This section will talk about 3 main features of a preliminary decree which differentiates it from a final one. Each point is supported by one illustration for better understanding.

 

  1. Appealability –

As per the law, if you are not happy with the decision of a court, you may approach the higher court asking it to reconsider the decision of the lower court (this is called an appeal)[7]. However, the law provides for a specific provision for going to the higher court in case of a preliminary decree[8]. But the catch here is that you only have time till the court passes the final decree. Therefore, your right to go to the higher court ends once the final decree is passed.

 

Illustration:

In a dispute regarding the partition of a property, the court passed a preliminary decree determining the shares of the parties. On the basis of this preliminary decree, a final decree was passed. One of the parties filed an appeal from the final decree stating that, no share was allotted to the party in the preliminary decree. This appeal was not allowed by the court because the appeal against a preliminary decree cannot be filed after the final decree had been passed.

 

  1. Preliminary decree cannot be executed

Execution means, quite simply, the process for enforcing or giving effect to the judgment of the court. It is worth noting that what is executable is a final decree and not preliminary unless the latter becomes a part of the final decree.

 

Illustration:

A filed a suit for partition against B, and a preliminary decree was passed declaring the shares of A and B in the suit property. Before, the court passed the final decree, B filed for execution of the preliminary decree. Here, the Supreme Court held that since no final decree had been passed, there is no executable decree. It is only after the final decree is passed that the decree becomes executable.

  • When decree is partly preliminary and partly final

Till now, we have been looking at situations where the court passes a preliminary decree and then proceeds to pass a final decree. However, there can also be circumstances where a decree can be partly preliminary and partly final[12]. This situation arises when the court gives its final decision on some issues, but is yet to carry out an inquiry with regard to the others. What is executable is a final decree and not a preliminary decree, unless it merges with the final one

 

Illustration:

A filed a case for recovery of possession of suit property from B. The court passed a partly preliminary and partly final decree – it was final in so far as it granted possession to A; and it was preliminary as even though mesne profits were awarded, an inquiry with regard to the assessment of the amount due was yet to be determined. In this case, only the granting of possession of property to A (final decree) will be executable; however, preliminary decree will be executable once the amount due is determined (i.e., when decree becomes final).

 

  1. Passing of a second preliminary decree:
    • Change in circumstances – As mentioned above, the final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree cannot be altered by the court, before the final decree is passed. Such an alteration is justified in the event of changed circumstances

 

Illustration:

A filed a suit for partition against four people. A preliminary decree was passed by the lower court specifying the shares of all the parties. However, before the final decree could be passed, two parties died, and there arose a dispute with respect to the shares of these two persons. The court had to decide the dispute, redistributing the shares indicated in the initial preliminary decree. It was held that there is nothing in the law which prohibits the passing of more than one preliminary decree, if the circumstances justify the same. Therefore, it was held that a second preliminary decree must be passed.

 

  • Change in law – a preliminary decree can be varied if the law affecting the parties is changed before the passing of the final decree. The court must take into consideration the amended law and pass a second preliminary decree accordingly

 

Illustration:

Members of a joint family filed a suit for partition in the State of Andhra Pradesh. At the time when preliminary decree was passed, daughters were not allowed to claim shares in the joint family property. However, the State, prior to the passing of the final decree, amended the law as a result of which unmarried daughters became entitled to claim a share. The Court held that unless the division of property is effected (i.e., final decree is passed), the daughters cannot be deprived of the benefit of this amended law. Hence, a second preliminary decree must be passed accordingly.

 

Aberration

It is now clear that an appeal against a preliminary decree can only be filed before the passing of a final decree. However, there has been an instance where the Allahabad High Court was of the opinion that passing of the final decree shall not be a bar to the initiation of an appeal against the preliminary decree

As of date, this decision of the Allahabad High Court has not been overruled by a Supreme Court decision and hence various other High Courts in the country might choose to follow the same approach. Also, since this is a decision by the High Court of Allahabad, all the lower courts in the state of Uttar Pradesh are bound to follow the same. Such an interpretation leads to a deviation from the general rule, diluting the law that provides for this rule.

 

Conclusion

In view of the above points, it can be seen that between the passing of the preliminary and final decree, there is a lot of scope for the preliminary decree to be changed – either through an appeal, or change in circumstances or change in law. Hence, there can be a lot of delay in passing of final decree. How? Let’s say, a situation where a preliminary decree has been passed and then there is a change in circumstances (e.g., death of one of the parties). This would lead to the modification of the initial preliminary decree and passing of a second one. Now, let’s say there is a change in law after the passing of the second preliminary decree. Can a third preliminary decree be passed? There is no provision in law that provides or prohibits this, just as there is no provision for passing a second preliminary decree. Therefore, assuming that a third preliminary decree may be passed, this leads to delaying the passing of final decree.

 

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