Judgment, Decree & Order [CPC 01]

Judgement decree and order are some most important and useful terms of civil procedure, these terms are very related to each other but at the same time carry their own separate significance.

Correlation of these three must be understood to get an overall idea first. 

When a case is presented before a court the court may take some action regarding the case at the beginning or at any stage of the case.  Then after the trial and consideration of all documents and witnesses, the court comes to a decision which conclusively determines the rights of partie/s than the court declares it’s decision with details. Now, these orders which do not finally conclude the suit are called order, the final decision of the court is given via decree and judgment is the explanation and details of the suit that is given after the decision of the court.

Decree

A decree is a formal expression of an adjudication which conclusively determines the right of the party regarding all or any of the matters in controversy in the suit. This definition of decree is given under section 2 (2) of the code of civil procedure, 1908

Classification

Decree can be classified into two categories. 

  • Preliminary decree 
  • Final decree. 

A decree is a preliminary decree when any further procedure is needed to completely dispose of the suit, on the other hand, when a decree completely dispose of and no farther procedure is required is called a final decree.

Decree shall deem to have include:

  • Rejection of plaint Under order 7 rule 11 of The Code of Civil Procedure, 1908 and
  • Application of restitution against any decree or order under section 144 of the Code.


But it shall not include (exception):

  • Any adjudication by an order from which an appeal can lie. [Case: Borhanuddin miah vs N.K. Bhomik. 1954 6 DLR, 410]
  • Any order of disposal against any party for their default. [Case: Madbar Khan vs province of East Pakistan, 1965 17 DLR 963]
  • Where there is no civil suit. i.e. remedy via an application.
  • Where an application of proper suit is rejected

 Essentials for a decree

  • There must be a civil suit, (as opposed to an application)
  • There must be an adjudication of the suit.
  • Tight of the parties must have been determined by that adjudication.
  • The adjudication must be conclusive in nature.
  • The adjudication must be formally expressed.
Judgment-decree-Order

Judgment, Decree & Order

Order

According to Section 2(14) of The Code of Civil Procedure, 1908 order means the formal expression of any decision of a Civil Court which is not a decree. So, It can be articulated, an order is a decision or instruction of a court which is binding on the parties but is not a formal expression of adjudication of a civil suit and which does not conclusively determine the right of parties.

For example, a temporary injunction under Order 39 of the code of civil procedure is an order, any decision which is made against any application is an order.

Classification

Orders are of two kinds;

  • Not appealable; generally orders are not appealable but there are some special provisions where Appeal can be lied for the ends of justice.
  • Appealable;  according to Section 104 and Rule 1 of order 43 of the code of civil procedure there are 25 orders that are appealable 

Judgement

In the definition given under section 2(9) of the code of civil procedure, 1908. judgement means that statement given by the judge on the grounds of a decree or order. therefore, it can be said,  judgement is the explanation or reason for decree or order, it itself does not impose any new determination

The court shall provide his judgement in an open court after completion of the final hearing or at any time after the final hearing but within 7 working days, as mentioned under order 20 Rule 1 and the court shall pronounce the judgement at first and then the court shall provide the decree and order. as referred in section 33 of The Code of Civil Procedure, 1908

A judgment can have two parts:

Ratio Decidendi

This is the main and must-have part of a judgment where the judge explains what decision is given and why. It links the relation of law, evidence and other matters that are considered to conclude to the decision. It put the factual perspective on the given legal ratio. This part shall be followed mandatorily. 

Obiter Dictum

This part of judgment may or may not be present in every judgment. These are observations or comments of the judgement which are not mandatory to follow but generally are considered and applied where required.

The Difference among Decree, Order & Judgement

This chart shows the core differences among decree, order & judgment. read details difference here; Difference among Decree, Order and Judgment

Judgment Decree Order
Meaning Statement given by the judge on the grounds of decree or order Formal Expression of adjudication of conclusive determination Formal decision or instruction that is not a decree
Defined In Section 2 (9) of the Code of Civil Procedure, 1908 Section 2 (2) of the Code of Civil Procedure, 1908 Section 2 (14) of the Code of Civil Procedure, 1908
Initiated by Given after final hearing Initiated by a plaint Initiated by a plaint, application or petition
Governing Rules Order 20, Rule 1 to 5 enumerate the contents of judgment Order 20, Rule 5A provides preparation of decree & rule 6 provides for the contents of decree
As to Execution Judgment is not executable  Decree is executed according to Order 21  Execution is not applicable for an order
Appeal Generally appealable  Generally not appealable
Kinds Two Kinds Two Kinds (Mainly)
Nature Formal expression ascertains the rights of the party/s Direction or guideline or announcement that must be followed
Number One judgment at the end of the suit Generally one decree Multiple order can be given in a suit

 

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This article can answer the following questions:

  1. Define decree. [2003]
  2. Distinguish between judgment and decree [2011]
  3. Distinguish between Decree and Order.

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Rayhanul Islam

Rayhanul Islam

Rayhanul Islam is a lawyer by profession, he is also a researcher. Critical thinking is his main focus. He is the founder and Editor in Chief of Law Help BD. He is on a quest to bring positive change to the legal sector of Bangladesh. He promotes legal knowledge and human right concept to the root level. e-mail: rayhan@lawhelpbd.com

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