Preliminary Decree

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Preliminary Decree

What is a preliminary decree?

The word ‘Preliminary’ essentially means something done in the preparatory stage to assist the final action. Preliminary decree is an important concept under the Civil Procedure Code. The Code doesn’t define a preliminary decree per se but it defines what a decree is. From the definition and explanation, we can find out what is preliminary decree.

Section 2 (2) of the code provides that:

“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 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.”

Hence, a decree is a formal expression of adjudication which conclusively determines the rights of the parties in a suit. It may either be preliminary or final. The explanation to the section says that 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. Hence a preliminary decree is a decree passed in a suit but doesn’t dispose off the suit whereas a final decree disposes off the suit. A preliminary decree only comes out as a consequence of determination of substantive rights. Note that an appeal always lies against a decree and not a judgement.

Difference between Preliminary Decree and Interim Order

An order is defined under Section 2(14) of the Civil Procedure Code as formal expression of any decision of a Civil Court which is not a decree.” Hence, a decree and an order are exclusive to each other. Whereas, the interim order in general sense means “for the time being”, it is to be understood that the need for the interim order is realised as some suits’ proceedings are expedient and takes a while before a judgement could finally come, therefore, interim orders provides a relief to any pleader to the suit before the judgement. Whereas in a suit, a preliminary decree concludes certain controversies between the parties but does not entirely dispose off the suit. The parties are interested in obtaining an interim order for relief prior to final judgement; a preliminary decree adjudicates a controversy to some extent.

A deeper understanding which is derived is in terms of the subject matter. It has as already been observed that some suits may take longer to be completely disposed off, therefore to protect subject matter to be affected, such issues are dealt with, temporarily then it would be an interim order. Whereas if those issues, provided dealing with the substantive subject-matter are being dealt with permanently, while the suits is not completely disposed off, since other issues are left to be dealt with, would amount to a preliminary decree.[i]

It is apparent prima facie that interim orders cannot be treated as a preliminary decree because the stages in which they arise though cannot be segregated.[ii] A preliminary decree on the other hand is a decree wherein the substantive legal rights have been determined by the court but the final determination is yet to come. Such a decree will be called a preliminary decree and when final calculations are done, it becomes a final decree.

Instances of Suits when the Preliminary Decree can be granted

There are certain suits in which the court cannot straight away dispose off the suit. In such suits, the court primarily decides upon the rights that each of the parties have and then goes upon deciding the suit finally. In such cases, the court can grant preliminary decree. The code itself provides for passing of preliminary decrees in certain suits which are:

  1. Suits for possessions and mesne profits[iii]
  2. Administrative suits[iv]
  3. Suits for pre-emption[v]
  4. Dissolution of partnership[vi]
  5. Accounts between principal and agent[vii]
  6. Partition and Separate possession[viii]
  7. Foreclosure of mortgage[ix]
  8. Sale of mortgaged property[x]
  9. Redemption of a mortgage.[xi]

Can there be more than one preliminary decree in a suit?

The provisions of the Civil Procedure Code nowhere bars that a court cannot pass more than one preliminary decree in a suit. It merely provides that a court can pass a preliminary decree in a suit. But this interesting question came up for consideration before the court in the case of Phool Chand v. Gopal Lal.[xii] The court looked that a court can pass more than one preliminary decree in a suit but limited it only to the cases of partition suits since that was the suit the court was adjudicating. But the positions with respect to other suits are not clear in the light of absence of judicial decisions on this point.

Appeal from a Preliminary Decree

The Civil Procedure Code provides for instances when an appeal from final decree is filed but no appeal from a preliminary decree was filed. In such cases, where there was no appeal from preliminary decree, a person shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.[xiii]

Section 97 of the code basically talks about the waiver. When a party doesn’t appeal from preliminary decree, then in an appeal against the final decree, he shall be deemed to waive off the right to appeal from preliminary decree and hence he cannot question the correctness of the preliminary decree in the appeal. In those cases, wherein the preliminary decree is appealed against and is set aside wherein in the lower court, the suit is adjudicated by final decree, then due to the principle that two conflicting decisions cannot be there, the final decree fails.

Illustration: Mr. A files a partition suit against Mr. B. In that, the Court passes a preliminary decree on the share of Mr. A and Mr. B. Later on, the court passes a final decree adjudicating upon the partition. If Mr. A is dissatisfied with the final decree and files an appeal against it, he thereby cannot question the correctness of the share allocation in the preliminary decree. He had to appeal against the preliminary decree when it was passed and not wait for the final decree.

Conclusion

The term preliminary decree has not been defined in the code but it says that a decree can be preliminary, final or partly preliminary and partly final. In a preliminary decree, the suit is not disposed off. One must appeal against the preliminary decree at the earliest stage. The code lays down certain instances wherein the court can pass a preliminary decree. There is no bar on as to how many preliminary decrees can there be in a suit.

Frequently Asked Questions

  1. Can there be more than one preliminary decree in a suit?

Yes. There can be more than one preliminary decree in a suit.

  1. How is a preliminary decree different from the final decree?

A final decree disposes off the suit whereas a preliminary decree doesn’t dispose off the suit.

  1. Can a preliminary decree be appealed?

Yes. But a preliminary decree should be appealed at the earliest stage.

  1. What happens if a preliminary decree is not appealed against?

 If a preliminary decree is not appealed against, then in an appeal against the final decree, one cannot challenge the preliminary decree.

  1. What is a preliminary decree?

A preliminary decree determines rights off the parties wherein the suit has not been finally disposed off.


[References]

[i]Hasham Abbas v. Usman Abbas [2007] 2 SCC 355.

[ii]‘All India Bar Council Examination’ (SpicyLaw) <http://spicylaw.com/all-india-bar-examination-december-2017-part-2-of-4-previous-question-papers-with-answers/> accessed 13 September 2018.

[iii]Phool Chand v. Gopal Lal[1967] 3 SCR 153.

[iv] The Code of Civil Procedure 1908, O. 20 R. 12.

[v] The Code of Civil Procedure 1908, O. 20 R. 13.

[vi] The Code of Civil Procedure 1908, O. 20 R. 14.

[vii] The Code of Civil Procedure 1908, O. 20 R. 15.

[viii] The Code of Civil Procedure 1908, O. 20 R. 16.

[ix] The Code of Civil Procedure 1908, O. 20 R. 18.

[x] The Code of Civil Procedure 1908, O. 34 R. 2-3.

[xi] The Code of Civil Procedure 1908, O. 34 R. 4-5.

[xii] The Code of Civil Procedure 1908, O. 34 R. 7-8.

[xiii]The Code of Civil Procedure 1908, S. 97.