DECREE
INTRODUCTION:
A decree is an operative part of a judgment in a civil suit for civil appeal. A decree can be passed on the basis of the existing rights of parties and not on the basis of future rights, which they might not acquire.
DEFINITION OF DECREE:
Decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of 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 the plaint.
MEANING:
A formal and authoritative order especially one having the force of law.
An official order issued by a legal authority.
EXCEPTION:
The decree 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 disposes of the suit. It may be partly preliminary and partly final.
WHAT IS THE DECREE OF THE COURT?
A decree is an order handed down by a judge that resolves the issues in a court case.
Though a decree is similar to a judgment, it differs in a few key ways.
Historically, courts of equity, admiralty, divorce, or probate could make decrees while a court of law renders judgments.
1. POINTS TO BE BORN IN MIND:
The decree should be framed by the judge with the most careful attention. It must agree with the judgment, and be not only complete in itself but also precise and definite in its terms. It should specify clearly and distinctly the nature and extent of the relief granted, and what each party, affected by it, is ordered to do or to forbear from doing. Every declaration of right made by it must be concise, yet accurate: every injunction, simple and plain.
2. DIRECTIONS:
The following directions relate to the preparation of decrees:.
i. DATE FOR DELIVERY OF POSSESSION OF LAND:
In decree for possession of agricultural land, it should be stated whether possession is to be given at once, or after the removal of any crop that may be standing on the land at the time, when the decree is executed, or on or after any specified date.
ii. APPELLATE DECREES:
In Appellate Court the language used in a filing in the decretal order shall conform to the action recognized by the law and shall direct that the decree of the lower Courts be either "affirmed", "varied", "set aside" or "reversed". In each case in which a decree is affirmed, the terms thereof shall be recited, so as to make the appellate decretal order complete in itself. In varying a decree, the relief granted in lieu of that originally granted shall be fully and accurately set out. Where a decree is revised on appeal, the consequential relief granted to the successful party shall similarly be stated.
Every decretal order shall be so worded as to be capable of execution without reference to any other document, and so as to create no difficulty of interpretation.
MESNE PROFITS:
In the case where mesne profits are asked for in the plaint, the question as to the amount thereof (if any) which should be paid to the plaintiff, in respect to the period of dispossession before and up to the date of filing the plaint, must be determined at the hearing of the suit, and the decree must specify clearly the portion of this amount with each defendant is to pay, either severally or monthly with others, to the plaintiffs.
TYPES OF DECREE:
1. PRELIMINARY
2. FINAL
3. PARTLY PRELIMINARY AND FINAL DECREE
4. DEEMED DECREE
5. CONSENT
6. EX-PARTE
7. DECREE PASSED IN APPEAL
8. DECREE ON COMPROMISE PETITION
DECREE IN CASE OF COMPROMISE:
When a decree is to be passed on the basis of a compromise, the Court should order the terms of the compromise to be recorded in accordance with the provision of order XXIII, rule 3, Civil Procedure Code, and then pass a decree in accordance with the terms. When, however, the compromise goes beyond the subject matter of the suit, a decree can be passed only in so far as it relates to the suit.
DECREE IN PRE-EMPTION CASES:
SHOULD BE PREPARED IMMEDIATELY AND SPECIFY THE DATE OF PAYMENT:
Decree sheets in pre-emption suits should be prepared on the date on which the decree is passed. The decree should specify the date ( it should not be a date on which the court would be closed) day or on which the payment of pre-emption money is to be made.
It is the duty of the decree-holder to secure a copy of the decree and comply with procedure, relating to the contents of the decree a pre-emption is a suit, which should be carefully studied.
PROCEDURE WHERE JUDGE HAS VACATED OFFICE BEFORE SIGNING DECREE:
Where a judge has vacated office after pronouncing judgment but without signing the decree, a decree drawn up in accordance with such judgment may be signed by his successor or, if the court has ceased to exist, by the judge of any court to which such court was subordinate.
WHAT IS THE DECREE OF THE COURT?
A decree is an order handed down by a judge that resolves the issues in a court case.
Though a decree is similar to a judgment, it differs in a few key ways.
Historically, courts of equity, admiralty, divorce, or probate could make decrees while a court of law renders judgments.
WHY IS THE DECREE IMPORTANT?
It must have determined the rights of the parties concerning all or any of the matters in controversy in the suit.
An order rejecting the application of a poor plaintiff to waive the court costs is not a decree because it does not determine the right of the party in regards to the matters alleged in the suit
ORIGINAL DECREE:
Original decree or order passed in any proceeding under the act, such decree or order is certainly a decree, appeal, the decree or order is a decree or order made in the original proceeding.
WHAT COMES FIRST JUDGMENT OR DECREE?
A decree always follows judgment and is based upon a judgment.
It is divided into five types, unlike judgment which is final in itself.
HOW YOU DO MAKE A DECREE?
Steps of execution:
1. Decree Holder has to file a written application seeking execution of the decree with the court which has passed the decree or the court to which it is transferred.
2. Upon the application being accepted, a notice is issued on the judgment debtor in terms of R. 22 of the CPC, 1908.
WHO CAN EXECUTE A DECREE?
Sec.38 of the code states that a decree can be executed either by the court of the first instance or by the to which it has been sent for execution.
WHO IS THE TRANSFEREE OF A DECREE?
Every transfer of a decree shall hold the same subject to the equities (if any) which the judgment debtor might have enforced against the original decree-holder.
WHICH COURT SHALL EXECUTE A DECREE?
A decree may be executed by the court which passed it, or by the court to which it is sent for execution.
TRANSFER OF DECREE:
If the court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other court.
CAN DECREE BE CHALLENGED?
Though there is no limitation to challenging a decree on the basis of fraud, however, the same needs to be challenged within a period of 3 years from the date of knowledge of the fraud in light of the provisions Article 58 and 59 of the limitation Act.
WHAT IS THE ATTACHMENT OF DECREE?
In the process of attachment, the court at the request of the decree-holder designates specific property owned by the debtor to be transferred to the creditor or sold for the benefit of the executor.
EXCEPTIONS:
NULLITY OR UNEXECUTABLE DECREE:
It does not apply to cases where the decree sought to be executed in either a nullity or declaratory in character.
A decree is a nullity when it has been passed by a court having no jurisdiction against a dead person.
CAN EXECUTION OF DECREE BE CHALLENGED?
Execution of decree pending appeal:
The filing of an appeal from a decree is, by itself, no bar to its execution, and execution may proceed unless it is stayed by an order of the appellate court or the court which passed and executed the decree. XLI, R.
CAN THE DECREE BE AMENDED?
Once the decree of the first court merges with the decree in appeal the amendment, even has to be the decree in appeal and not of the decree of the first court.
WHICH COURT the EXECUTE THE CAN NOTDECREE?
Once a court cannot which has passed a decree and transferred it to be another court of competent jurisdiction, it would cease to have jurisdiction over that decree and it cannot execute the decree.
Then, only the transferee court can entertain an application for execution.