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Preliminary Decree

Decree is defined in Section 2(2) of the Code of Civil Procedure 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. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144, but 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

A major point that is up for discussion herein is that if the code describes only the term ‘decree’, then what is the concept of a ‘preliminary decree’ or a ‘final decree’? Are these two terms that have two different set of meanings when it comes to the ground reality or are they just two different terms for theory purposes but in the practical world mean the exact same? This question can be answered by anyone affiliated to law, along the lines that the terms ‘preliminary decree’ and ‘final decree’ are two different terms that have different meanings not just theoretically but also on the ground. The question that now arises is that how can we figure out the difference?

Can there be more than one preliminary decrees? A ‘final decree’ as the name suggests is the last decree that will be drafted after a Court’s order, so a decree that is not the last one can be called a preliminary decree. So, to find out whether there exists any difference between the last decree and the first decree, we need to figure out whether there can be more than one preliminary decrees?

The Hon’ble Apex Court in the case of Phoolchand v. Gopal Lal, [AIR 1967 SC 1470] resolved this dispute/ conflict between ‘preliminary decree’ and ‘final decree’ by stating as follows:

‘We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so’.

The Court herein was dealing with a partition suit and thus clearly stated that there can be multiple decrees, especially in partition suits, as circumstances may arise, before the execution of the decree, that may demand in the interest of justice that a fresh decree be framed. The court stated as follows:

“It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal.”

The Hon’ble Apex Court also thereafter reiterated an already established rule of interpretation of statute as follows:

“There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility.”

The law laid down in regard to ‘preliminary decree’ by the Apex Court in the above mentioned judgment has time and again been reiterated by the Apex Court.

In the year 2011, the Apex Court in the case of Ganduri Koteshwaramma v. Chakiri Yanadi [(2011) 9 SCC 788] reiterated the principle laid down in Phoolchand v. Gopal Lal and stated as follows:

“In Phoolchand [AIR 1967 SC 1470] , this Court has stated the legal position that CPC creates no impediment for even more than one preliminary decree if after passing of the preliminary decree events have taken place necessitating the readjustment of shares as declared in the preliminary decree. The court has always power to revise the preliminary decree or pass another preliminary decree if the situation in the changed circumstances so demand. A suit for partition continues after the passing of the preliminary decree and the proceedings in the suit get extinguished only on passing of the final decree. It is not correct statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis that the rights of the parties in a partition suit should be settled once for all in that suit alone and no other proceedings.”

Thus, having analysed the two main judgements on this concept it can be concluded that, there can be more than one preliminary decrees and that there is a substantial difference between preliminary and final decree.

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Law Wire Team
Law Wire Teamhttps://lawwire.in/
Law Wire Team attempts to delve into pertinent (and sometimes not immediately pertinent) questions regarding socio-politics, Law and their interesting matrix.
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