Introduction to Decree:
A decision given by a competent court of law has jurisdiction on a concerning matter or issue, which is either decree or order, or judgment. A decree always follows the judgment, which is pronounced by the court, after hearing the case. It can either be declaratory or executory.
Section 2(2) for decree, Section 2(9) for judgment, Section 2(14) for order, and Order 20 Rules 1 to 6 for Decree and Judgment of Code of Civil Procedure 1908.
According to Section 2(2) of C.P.C.;
“Decree means the formal expression of an adjudication which, so far as court expressing it, conclusively determines the rights of the parties, with regard to all or any of this matter in controversy in the suit, and maybe either preliminary or final. It shall be deemed to include the rejection of a plaint within section 144”.
Essentials Elements of Decree:
The following are the essentials elements of the decree:
1). Adjudication: The word adjudication refers to a judicial determination of the matter in controversy, and includes an ex-parte determination. For an adjudication to come into the scope of a decree, it must be made by a court.
2). Determination of Rights of parties: The adjudication must determine the rights of parties referring to persons, who are on the record as plaintiff and defendant and the right have to have reference to substantive right.
3). Regarding all or any of the matters in controversy: The adjudication determining the right of parties must be with regard to all or any of the matters in controversy. It references the subject matter of the suit in dispute, and the decision of the court may be with regard to even one matter in controversy.
4). Conclusive: The decision should be conclusive, so far as the court expressing it is concerned, and it may be conclusive even if the suit is still not disposed of i.e. preliminary decree.
5). Formally Expressed: There must be a formal expression of the adjudication. It should be precise and specify the relief granted or other determination of the suit and the names and descriptions of the parties.
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Kinds of Decree:
A decree may be classified into two kinds:
1). Declaratory decree which is not capable of execution.
2). Executory decree which can be executed and enforced by the court.
Classes of Decree:
A decree can be either a preliminary decree, a final decree, or a partly preliminary and partly final decree.
- Preliminary Decree: A preliminary decree declares the rights and obligations of the parties leaving further matters to be determined in subsequent proceedings and it is conclusive in nature.
- Final Decree: A final decree is one that completely disposes of the suit so far as the court passing it is concerned.
- Partly Preliminary and partly Final decree: A decree may be of such a kind, which is final, in part and partly preliminary.
- Order Rejecting a Plaint: Section 2(2) declares that an order rejecting a plaint is a decree, though there is no adjudication of the rights of the parties by the fiction of law, it is classed as a decree.
Introduction to Judgment:
Judgment is a reasoning of a judge which leads him to his decision. Before issuing an order or decree, the court describes the facts, evidence, and reasons on which the decree or order is based on separate pages is called judgment.
Literally, judgment means a judicial decision. Generally, judgment means judicial determination or a decision of a court.
Definition of Judgment:
According to section 2(9) of C.P.C;
“Judgment means the statement given by the judge of the grounds of a decree or order”.
Ingredients of Judgment:
The following are the ingredients of a judgment:
- Statement given by Judge: A judgment means the judicial decision of the Court or judge. It must be given by the judge i.e. presiding officer of the civil court.
- Need to be in writing: It is only after the judge has reduced his decision to writing that a judgment comes into existence. An oral pronouncement is not a judgment. Judgment must be in writing.
- Grounds of decree or order: Every statement of grounds will not be a judgment but will be so only if such decisions can result in a decree or an order.
- Pronounced in Open Court: It should be pronounced in open court, after the completion of evidence.
- Purpose of Interpretation: For the purpose of interpretation the judgment must be read as a whole.
- Language of Judgment: The language of the judgment must be English or the language of the court.
- Given in the presence of Both parties: It must be read over to the parties and must be given in the presence of both parties to the suit.
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Kinds of Judgment:
C.P.C 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 Government.
Introduction to Order:
A decision of a court short of a decree is called an order. In other words, every decision of a court that is not a decree is an “order”.
Legally, order means “a decision of a court or judge made in writing”.
Definition of Order Section 2(14) of CPC:
“Order means the formal expression of any decision of a Civil court which is not a decree”.
Scope of Order:
The order covers commands or directions that something is done, discontinued, or suffered, but it does not include “sentence and finding”.
Ingredients of Order:
Judicial order must contain the following:
- Discussion of the question at issue and reasons thereof.
- Order must be precise, logical, clear and without creating confusion in the minds of the parties.
- Order written by a clerk and signed by a judge is not proper order.
Essential Elements of Order:
The following are the essential elements of order:
- Decision: The expression decision refers to the judicial decimation of facts in accordance with the evidence.
- By Civil Court: Decisions must be made by the judge of the Civil Court and not of the administrative tribunals.
- Formal expression: The decision given by Court must be formally expressed i.e. it must be in writing, precise and the language must be deliberate so that the execution would be possible.
- Not a decree: The definition of order, specifically excludes the decree from its ambit, and as such any adjudication of court which is a decree, cannot be an order at the same time.
- Must be in writing: The order of the court must be in writing.
- Capable of execution: The order of the court must be capable of execution.
- Nature: The order of the court need not be conclusive in nature.
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Classes of Order:
The following are the two kinds of order:
- Final order
- Interlocutory order.
Difference Between Judgment and Decree:
|Judgment is logical and substantive in nature because it is based on grounds or reasons.||A decree is procedural and technical in nature because it is a formal expression of the judgment|
|Determination of rights:|
|Judgment determines the rights of the parties to a matter in controversy||Whereas decree gives conclusiveness to such determination|
|Judgment is effective at the moment it is pronounced||It is not effective when it is passed, it has to go through the process of execution|
|Decree is executed||Judgment is not executed; however, the decree shall be in accordance with a judgment|
|Right of appeal|
|No appeal lies against a judgment||An appeal lies from the decree.|
Difference Between Decree and Order:
|Every decree is an order||But every order is not a decree|
|Determination of rights|
|A decree must conclusively determine the rights of the parties and thus be conclusive in nature||it is not essential for an order to conclusively determine the rights of the parties|
|Right of appeal|
|An ordinary appeal lies from every decree||Order is only appealable if so provided|
|Right of the second appeal|
|The second appeal may lie against a decree||no second appeal should lie against an order passed in the appeal|
|Nature of suit|
|The decree is only restricted to civil suits||There is no such restriction|
|There must be a final adjudication of the disputes||There is no final adjudication of the disputes|
|Decree may be final or preliminary||There is no such division|
|Decree is of 5 classes provided under section 2(2)||While the order may be final or interlocutory.|
Difference Between Judgment and Order:
|It is substantial and logical in nature||It is the formal expression of the judgment and is procedural in nature|
|No appeal lies from a judgment||It is appealable in accordance with the provisions of section 104 read with order 43 CPC|
|Judgment once pronounced became final and conclusive and the judge has become functus officio||An order is not conclusive and the court may look into the order once again|
|Judgment is effective at the moment it is pronounced||An order is effective in its execution through the process laid down in order 21 CPC|
|It is executed||It is not executed|