 another in which he explains the civil procedure law as well as limitation act keeping you his immense popularity. We have requested him to take things forward already as we have surprised everyone that we are taking sessions on limitation act and civil procedure code on the alternative weeks. But every week we have one session with justice Katie circle and his sessions have gained in your ship immensely because the way he explains in a lucid manner is an art to be learned not only for the purposes of learning but also for the one whose perspective of explaining someone further who wants to learn from another person who has learned this nuances from him. And before we request justice Katie Sankaran on behalf of beyond law CLC and Daksha legal we welcome him and as we are also writing on the post keep maintaining the social distance and also do your vaccination as in when your term comes and be safe and stay at home. That's the best thing to move forward and today's session on decree decree holder judgment and judgment data are the important perspectives under the law and especially when we understand because normally we don't a common man would feel that the judgment at a decree probably is the same. And in these regards what are the way forwards and to understand the same things. We have called for one of the best persons best of best resource person who can make us things self explanatory in his own lucid manner and we are thankful that he has been kind enough. I know that signs are testing but the way he explained things is always a treat to the years as well as to the mind to understand the things. Over to you sir. Thank you. Thank you Mr. Vikas and also the viewers. And today our topic is decree decree holder judgment judgment data. These are expressions which you will find in section 2 of the CPC. Section 2 2 defines decree. Decree definition if possible you have by heart. So that whenever it becomes necessary it will occur to you in your mind. Decree means the formal expression of an adjudication. Which so far as regards the court expressing it conclusively determines the rights of others. With regard to all or any of the matters of controversy. In the suit and maybe either preliminary or final. Shall be deemed to include the rejection of a plaint and determination of any questions. Section 144 but shall not include any adjudication from which an appeal lies as an appeal from an order. Or any order for dismissal for the order. So what does it contain? What are the ingredients of section 2 2? It is a formal expression. Court must express it. What is that is being grand? An formal expression of an adjudication. Adjudication takes place in every suit. Where do you get the result of adjudication? It is in the judgment. Detailed judgment will be there. And on the basis of the judgment the decree will be drafted. Decree will be signed by the judge but it will be drafted not on the date of the judgment. But subsequently by the decree clerk in the office of the court. The sum and substance of the reliefs granted. What are the reliefs spread for? What are the reliefs granted? The suit number and other cost items details and all those things will be there. And even if the judgment contains 100 pages. The decree may constitute the decree itself will run to only 3 or 4 pages. So it is that decree which will be looked into at the time of execution. That is the end product. Some of the judgments towards the last portion the decretal portion. It is called the decretal portion of the judgment. It will contain what is granted by the court. What is not granted by the court. Some of the judges are in the habit of saying various issues will be discussed. And their conclusion will be available there. And there will be no summing up. The suit is decreed or dismissed as above. It will be there. There will be very difficult for the ordinary man to find out what are all the matters which are allowed. What are the matters which are disallowed. It will be very difficult. So on the other hand, if you have a decree with you. Which will be you will obtain from the court thereafter. It will contain only 2 or 3 pages. The sum and substance of what has been granted, what has been refused, what has been rejected. Everything will be clear from the decree. It should be clear from the decree. The decree should conform to the judgment. Now let us see what is a judgment. Now the decree is seen. Let us see what is judgment. Judgment 2.14 is order. 2.9 judgment. Judgment means the statement given by the judge on the grounds of a decree or order. Statement given by the judge on the grounds of a decree or order. What is order? Order is defined. In section 2.14, order means the formal expression of any decision of a civil court, which is not a decree. So by reading the definition of decree, judgment and order. It is clear that judgment contains the reasons for the decision. And the decree contains the decision, the crux of the matter. And what is order is any formal expression of an adjudication, which is not a decree. So these are the decree and order we use interchangeably. And particularly the media people use interchangeably, decree, order. They do not use the expression decree. Everything is ordered for them. And there is no difference between suit, appeal, application and all those things for them. Everything is a petition. Whether it is a SLP, whether it is a petition, whether it is a suit or whether it is an ordinal petition, everything is for a petition. So people are misled by this. But we lawmen, lawyers, when we use the expression decree, it has got a specific name. When we use the expression judgment or order, it has got a specific name. The consequences are also different. Now we will come back to the decree. Decree means the formal expression of an adjudication, which so far as the court expressing it, conclusively determines the rights of others. That is conclusive determination of the rights of others. That is the ingredient. In respect of all or any of the matters in controversy. So matters are in controversy, issues are civil. And those issues will be answered in the judgment and the conclusion. And what is concluded by the judgment is reflected in the decree. It is the formal expression of an adjudication with regard to all or any of the matters in controversy. And it says it can be either preliminary or final. What is preliminary and final? See the explanation. A decree is preliminary. When further proceedings have to be taken before the suit can be completely disposed of. And it is final when such adjudication completely disposed of. It may be partly preliminary and partly final. So in a suit for partition, there are several funds, several items for properties. Several contentions are. Plaintiff says that he is entitled to a one-tenth share or one-fifteenth share. Some other defendants say that the property is not part of it. Some others say that the property belong to the common ancestor, but he has got a will or gifted in his favor, therefore certain items are not part of it. So all these contentions will be considered by the court and a final judgment will be passed on the basis of which the decree will be dropped. So it is in a suit for partition. We are talking about the preliminary decree and the final decree. In a suit for partition, unless the parties agree or otherwise all the details are available before court so that a final adjudication is possible. The court will declare the rights of parties and leave it for working out at the final decree states. That is called the preliminary decree. See in almost 99% of the parties suits a preliminary decree will be passed. What is that preliminary decree? Plaintiff is entitled to this much share. The difference are entitled to this much share. So-and-so is not entitled to any share. And the share claim is excessive. Part is entitled to this much. This item of property is not part of it. The other is part of it. Some other item which is excluded is also part of it. And therefore that is a direction to include it, etc. All those things can be contained in the preliminary decree. And in the final decree, either a commissioner or a revenue officer has provided. That is difference in different states. In our state, when a preliminary decree is passed the final decree will be for preparing the final decree. Before that, a commissioner will be appointed. An adjudicated commissioner will be appointed. He will visit the property. He will look into the different items of properties, measure it out and find out what are all the improvements, what is the value, what are the trees. All those things will be valued. And a final report will be prepared, taking into account all these things. What is the share due to each party? Suppose one-tenth share is provided to the plaintiff and defendant's one-to-nine. What is the value of one share? And allotment will be made by the commissioner in the report. So, such-and-such plot. Plot one allotted to the plaintiff. Plot five allotted to the commissioner. And then that particular plot is to be measured. That measurement shows value of the land, value of the buildings or other improvements, value of the trees. All those things will be separately computed, calculated. And according to the total valuation, see what is a share due to one-tenth share? What is the value of the share allotted to that party? And then equalization of shares. Ovalty amount. Ovalty amount is... Suppose I am entitled to one-tenth share and my share value is five lakhs, going by the total value of the property. Total value of the property, buildings, improvements and all those things. I am entitled to... property is worth five lakhs. But the property allotted to me is short of 50,000. Four lakhs, 50,000 is the value of the property allotted to me. So, I have to get 50,000. This 50,000 will be given by the person who gets it more or persons who get it more. Then that will be all submitted to the court. Court will look into it. Here are the parties, here are the objections. And either confirm, vary or alter. That you will get in order 26, rule 14. Let us see what is rule 14 of order 26. Order 26, rule 14. Order 26 relates to commissions. That even if a revenue officer is appointed, that applies. He is also a commissioner. Order 26, rule 14. Which says, the commission shall after such enquiry as may be necessary divide the property to as many shares as may be directed by the order under which the commission was issued. And shall allot such shares to the parties. And may furtherize that to by the send order what sums to be paid for the purpose of utilizing the value of shares. And then commission shall prepare site, et cetera, et cetera. And the court shall confirm, vary or set aside. If the court finds that it is satisfactory, shall confirm. Or if the court finds that some alteration is required. The plaintiff or a sister is entitled to get the house. But the commission has not allotted the court can change the plot which is allotted to the plaintiff and interchanging or add to it, subtract it and change the valuation. Whatever it is, alter it. Or if the court finds that it is absolutely unsatisfactory set aside. All these things are possible when the finance increases. So I sent about the preliminary decree and finance in partitions. In a suit for dissolution of partnership and account also usually a preliminary decree will be passed and the final thing will be adjudicated in the final proceedings by appointing value or auditor of all those people. For the purpose of mortgage under order 34 contemplates a preliminary decree and finance. But in a suit for partition it is not mandatory that always there should be a preliminary decree and finance. It is sufficient if the parties agree. They file a compromise. These are the items which are particle and the plaintiff is entitled to this much. This schedule is there. Plan is there. Everything is there. And the parties agree. The court can straight away pass a final decree. That no harm. No harm. Otherwise it is preliminary decree. And see section 97. 96 says that every decree is appealed. Whether it is preliminary decree or finally 96. The expression decree defines party. 96 provides for an appeal from every decree. Save as otherwise expressly provided the body of this order warranted for the typing body of this court or binding law for the typing court. An appeal shall lie from every decree passed by any court exercising original jurisdiction. To the court authorized. 97 says where any party agree by a preliminary decree passed after the commencement of this court does not appeal from such final decree. Such a decree. He shall be precluded from disputing its correctness in any appeal which he may be preferred which may be preferred from the final decree. So preliminary decree is appealed. Final decree is also appealed. So take it that A and B and others several others are parties to a partition too. The suit is decided one way or other. The agreeable party files an appeal. Preliminary decree. It can be varied, set aside, modified, remanded, all these things are possible. All the powers of the appropriate court can be exercised. Suppose nobody takes matter in appeal against the preliminary decree and thereafter a final decree is passed. And final decree is challenged. And in the appeal file against the final decree a party cannot challenge the correctness or otherwise of the preliminary decree unless it is already challenged. So that is 97. 96 is there. Now it is preliminary or final. It shall be deemed to include the rejection of a plane. It shall be deemed to include the rejection of a plane. Rejection of a plane is under order 7, rule 11. Order 7, rule 11. See what is order 7, rule 11. The plane shall be rejected in the following cases where it does not disclose a cause of action. B, where the relief claimed is undervalued. Plained if, on requesting it does not correct. Where the relief claimed is properly valued but the plane is insufficiently staffed. B, where the suit appears from the statement and the plane to be barred by the law. Where it is not filed and duplicated. Where the plane fails to comply with the proofs of rule 9 etc. These are the grounds. Clause E and F added by the CPC amendment of 99. Rest of it was there, were there. And what is the effect of rejection of a plane? Rejection of a plane is not a decree. It is an order. That order shall be deemed to be a decree in view of the expression, in view of the definition in section 2. It shall be deemed to be a decree. And therefore an appeal lies against the rejection of plane. It shall be deemed to include the rejection of a plane. And the determination of any question between section 144. What is 144? Restitution. See I will give an example what is restitution. In short, it is a big section. See, I filed a suit against you for recovery of possession on the basis of my title. Suit is decreed in my favor. You filed an appeal. You did not get a stay. Or stay was granted on condition. You did not comply with the condition. In effect, there is no stay. So there is no bar for me to execute the decree. I filed an application for execution. Or granted it. Decree was executed and possession was recovered from you and it was given to me. That means on the basis of the decree granted in my favor I got back possession of the property. Or declared that I am the title holder. Therefore I am entitled to get it back from you. You are a trespasser. The appellate court, your appeal was later allowed and it was held that the plaintiff let me I am not entitled to a decree. My decree was set aside. And what will happen to the property? Property must come back to you. See, saying that the property belongs to me and you are a trespasser. I filed a suit for recovery of possession that was decreed and pending appeal since there was no stay. I got it executed. I got delivery of the property. Property came to me. Later the appeal was allowed and you succeeded. You have to get back the property. How should you file a suit? It is not necessary. You can make an application in the same proceeding. That is under 144. And what is 144? Restitute. It is putting back the parties in the same position which they would have occupied but for the appeal or revision or the order bill. That is 140. See, 144. Just a look at it. Not detailed. 144. Wherein so far as a decree or order is varied or reversed in the appeal, revision or other proceeding or is set aside or modified in a suit it is tutored for all of others. The court which passed the decree order shall on application, et cetera, et cetera and I will do the benefit by the restitution, et cetera. For such restitution to be made as will so far as may be placed the parties in the position which they would have occupied but for such decree or order or such part the rock as I speak vary towards the process. So putting back the party in the original position for which a separate suit is not required it can be done in the same procedure. That restitution order shall be deemed to be a decree. That means from which an appeal lies under section 96. It is not an appeal from an order. There is a distinction dear friends probably you may be you are aware of it but new entrants are there I am saying for them not for seniors or semi-seniors or experienced people. So please bear with me when I repeat these fundamentals it is intended for the beginners. Now I said section 96 every decree is appealable. 97 says that when a preliminary decree is not appealable when you file a final decree when you file an appeal against the final decree you cannot challenge the correctness of the preliminary decree. Now what is an order? We have seen that. What is the difference so far as an appeal is concerned with respect to orders and decrees? Every decree is appealable under 96. Every order is not appealable and order is appealable only as provided in section 104 or order 43 rule 1 or otherwise specifically provided elsewhere in the court. For example order 31 rule 50 order 21 rule 90 rule 103 all those things are examples. So in some places garnishing proceedings and appeal is provided. So except where it is not specifically provided an order is appealable only under section 104 read with order 43 rule 1 104 provides the list of orders which are appealable. Order 43 still contains a larger list. If an order comes there with an order 43 rule 1 you can file an appeal against that order no second appeal but a decree an appeal and a second appeal. Second appeal comes under section 100 but so far as order is concerned once an appeal if it is appealable either under section 104 or order 43 rule 1 you can file an appeal no appeal against that order no further appeal. That is contained in section 105 number correct 105 yes 105 no appeal shall lie from any order made by a court at the exercise of its original or appellate jurisdiction but where the decree is appealable so that is the difference between decrees and orders decree every decree is appealable preliminary decree is appealable final decree is appealable only bar under 97 that is about when no appeal is filed against it. Orders are appealable as an appeal from an order not as an appeal from a decree appeal from an order it is different that an order is appealable either under section 104 or order 43 rule 1 or otherwise specifically provided elsewhere in the body of the court so this must be certain no doubt about it so when we lawyers use the expression decree or order an order passed by the court generally it is said court order so we cannot use that expression of course when we talk to ordinary persons we may say court order and all those things but when we speak in court when you see when you say that it is an order it is an order not a decree when you say that it is a decree it is a decree not an order so that difference must be there so it shall be deemed to include the rejection of a plaint order 7 rule 11 and determination of any question under section 144 that is a restitution but shall not include any adjudication from which an appeal lies from an order that is section 104 and order 43 rule 1 so it is not a decree order is not a decree order is a formal expression of an adjudication which is not a decree but if there is any doubt it is made clear shall be deemed to include but shall not be include an adjudication from which an appeal lies is appealed from an order any order for dismissal for default I filed a suit when the suit is called for hearing I am not present I absent myself court dismisses the suit for default what is my remedy I can make an application for restoration under order 9 rule 9 CPC within 30 days as provided in the limitation act if I am not able to do it within 30 days some delay is there section 5 of the limitation act will apply and I can get the delay condoned if there are reasons for the same so court has power to condone the deal in filing the application for restoration and the dismissal for default is not a decree the remedy is to file an application for restoration see order 9 rule 9 order 9 rule 9 setting aside the dismissal on such terms etc plaintiff shall be precluded from bringing a fresh suit in respect to the same cost so the only remedy available in respect of a dismissal of a suit for default is not by filing a fresh suit in respect of the same cost of action but he may apply for an order to set the dismissal aside and if he satisfies the court that there was sufficient cost for non-appearance etc court may censor no order shall be made the provision for section 5 of the limitation act will apply if there is delay delay likewise a person is ex parte a defendant is ex parte an ex parte decree can be passed ex parte decree is also a decree it is exhibited what is their ex parte decree two remedies are open one is to make an application to set aside the ex parte decree that comes under order 9 rule 9 since ex parte decree is also a decree an appeal can be filed but not both when you have already filed an appeal and got a dismissal then you cannot make an application under order 9 rule 13 to set aside the ex parte these are all the remedies which are available so we must be aware of what is a what is a provision with respect to this what are the connected provisions what are the remedies available how it should be interpreted and all those that is why I am saying all these then explanation I have already now decree holder 2 3 2 subsection 2 means any person in whose favor a decree has been passed or an order capable of execution has been made in whose favor a decree has been passed or an order capable of execution has been made now judgment term 2 10 means any person against whom a decree has been passed or an order capable of execution has been made a classic example is a final suit against the for a permanent private rejection restraining B from entering into the plane schedule property an interim injunction was granted so the defendant could not enter into the property at that time on the basis of the interim order or at the foot on the foot of the interim order or by the strength of the interim order the plaintiff does some mischief he pulled down certain structures a compound ward a compound ward not at the correct place but at a different did so many things and ultimately a suit is dismissed what about the destruction caused by the plaintiff is the court powerless court can grant an order appropriate reliefs can be grant and suppose the court has passed an order will be liable for the costs for reconstruction of the compound ward and that is the expenses is assessed to this point and plaintiff shall pay that to the defendant so the suit is dismissed so what is the decree in the suit dismissed at that time what is the further order order is to pay a certain sum of money to the defendant towards this compensation for doing some mischief with respect to that order what is the position of the defendant he has got an order in his paper it is capable of execution so for the purpose of that order he is decree holder and who is the judgment it has with respect to that order the plaintiff so that order can be executed by the defendant against the plaintiff so a decree is different decree we know a person who got the decree is the decree holder not we cannot stop it there or any person whose favor a decree has been passed or an order capable of execution has been made that also is there likewise the definition of judgment it is there that is the definition then one more definition order which we have seen now these are the things so with this this session should be over but it is not over it is only 35 years why there are several gray ages whether a decree is valid and valid what is the effect of a decree obtained by far what is misrepresentation other wishes in circumstances what are the remedies and suppose a suit is filed against a person as if he is a major nothing is said defendant but defendant was really a minor at that time and he was not represented by a guardian what is the value of the decree decree is a nullity decree is a nullity a suit is filed which was really barred by litigation but nevertheless without noticing it the court decreed what is the effect of that decree is it void not void it is appealable can be corrected in appeal if a barred suit is decreed decree is executable or a court which has no jurisdiction to deal with a matter not I am not speaking about the territorial jurisdiction or pecuniary jurisdiction I am talking about a jurisdiction over the subject matter court is lacking jurisdiction court is not having jurisdiction but nevertheless court passed the idea when it is sought to be executed the execution petition says that the decree is null and void it is incapable of being executed what is the law on that the law is this where the court passes a decree without jurisdiction absolute lack of jurisdiction it is null and void and the nullity or invalidity can be challenged whenever and wherever it is sought to be executed and even in collateral positions this is settled law right from 1950s up to date there is no change in that so invalidity of a decree can be challenged at any point of time even in execution and even in collateral positions it is null and void so a decree is passed a decree for dissolution of marriage is passed by Muncie's court as the Muncie's court jurisdiction to do it no only family court can be but nevertheless since the defendant did not appear the court passed a decree when it is put in execution the respondent the AP defendant the soup says that the decree is void then it is not an answer you are a party you could have pointed out that invalidity etc at that time and having not done so you are barred you cannot say the defendant need not say that the defendant need not come to the court he can believe in the court when the court does not have jurisdiction to decide that particular case and nevertheless it decides it is an absolute lack of jurisdiction over the subject matter then it is void and its invalidity can be challenged at any point of time then decree is passed against an invalid it is a genetic insane person without appointing a judge it is void there are several other things where invalidity can be a decree where there is a bar a special statute says that the civil court will have no jurisdiction nevertheless a suit was filed for the civil court suit was decreed in execution the respondent in the EP says that the court had lack of jurisdiction because of the special statute the civil court has no jurisdiction decree is void it goes to the root of the matter so these are all the areas not the definition of decree judgment and all those things will trouble you but there are several other areas where it is only decisions which you can rely you will not get any specific provision where is the provision the CPC which says that the validity of a decree voidness of a decree can be challenged at any point of time no provision but then how did you come to that gentlemen decisions principles set not only CPC there are several other cases yes now therefore I propose to cite a bare minimum number of cases so that that will throw light on your mind with respect to the various situations now some of the decisions are Kerala decisions I am sorry I will only 405 but just to say what it is what is the difference between an an expatriate decree and a compromise an expatriate decree is a decree it is capable of execution it is valid unless it is set aside so that there is no invalidity several persons including lawyers say in the court after all it is an expatriate decree what of it what of it expatriate decree is also a decree it is only valid then what is the difference between an a decree passed after compromise take for instance there are there are 2 or 3 plaintiffs and 5 or 6 defendants a decree is passed expatriate no defendants are indidant there a decree is passed expatriate it is binding on the plaintiffs it is binding on all the defendants on the other hand the suit is compromised some of the parties did not appear before the rest of the parties ended into any compromise compromise was signed only by a few of the parties others did not object court passed a compromise decree then it is binding only on the persons who signed the compromise though the compromise decree is passed in the suit whether it can be passed or not whether it is valid or not whether the other parties can object that is a different situation other parties can say that it is not binding on us that is a difference you please see Gangadhar Nair Pappanathan and another 2019 4 Kerala High Court cases 3, 7, 6 now another Kerala case AER 2007 Kerala that is the example which I kept suit for permanent private re-injection it was dismissed and directed the plaintiff to remove the unauthorized construction that is an order in favour of the defendant that order is capable of execution it amounts to an executable order in favour of the defendant and therefore the defendant qualifies as degree holder I have already given so though he is a defendant he is not the plaintiff but he is a degree holder so far as a direction to remove the illegal unauthorized construction and it can be executed now 2017 2 SCC 2017 2 SCC 797 Harjass Rai Makhicha degree may be set aside on the ground that it was obtained by fraud a decree passed A and B contested a suit A decree was obtained in favour of passed in favour of A B says later that the decree was obtained by fraud and he filed a suit for that one that suit can be a suit can be decreed in the ground that the decree obtained by a party was negotiated by fraud what is fraud is different it is not fraud as used in the usual parlance you will say he is a fraud that is not the meaning fraud in the legal connotation it is a different thing what is fraud etc you will get discussion decree may be set aside on the ground that it was obtained by fraud and in paragraph 19 during the course of submissions it was conducted on beyond so and so it is a settled proposition of law that a decree obtained by playing fraud on the court is an early team and that such a decree could be challenged at any time in any proceeding and court relied on a decision AV Papaya Shastri Government of AP please note that decision 2007 4 HCC 2021 now another decision I am citing these decisions because it deals with various various various aspects ILR 2016 3 Kerala 291 Bina KG 21. Plain was rejected for non-payment of court fee under the Kerala court fees when a suit is filed the plaintiff need pay only one tenth of the court fee and the barons nine tenth of the court fee can be paid within 15 days from the date of sexual issues barons court fee was not paid so that will attract orders when moving at 11 Plain is rejected it is a deemed decree two courses are open when the plaintiff is rejected for non-payment of barons court plaintiff can either file a regular first appeal or apply for review review always can be filed so it is a deemed decree a review can be filed or a regular appeal can be filed and there is a division by the decision of the Kerala court in such cases it shall be deemed to be an order not a decree and therefore I am not citing that decision because we all follow in which case only 10 rupees need be paid but if it is a decree but that was a help to the lawyers and litigants therefore all of us make use of it next A year 2016 Supriko 2143 2143 Chandra Jay and another versus Ganesh Chandra Jay rejection of a plaintiff is deemed to be a decree order dismissing a suit on the ground of rastudicata does not cease to be a decree on account of procedural irregularity of non-payment on issue it is only appealable under sectional license no issue was raised but the court held that the suit was dismissed on the ground that it is barred by rastudicata it is really rejection of plaintiff no issue was raised procedural regularity was there but the Supriko held that it is only appealable under section 96 read with order 41 of the court next is 233 Kerala decision it is not necessary under section 967 Supriko and one one not a Kerala decision it is 2011 4 Kerala High Court cases 2011 4 Kerala High Court cases 4 Surasara Purushottam and P versus P, Sarojini and others whether a supplementary preliminary decree can be passed in a suit for partition a preliminary decree was passed then next is final decree whether a supplementary preliminary decree can be passed court held it can be passed it is within the power of the court to pass any number of supplementary preliminary decree before passing a final decree the court relied on a Supriko judgment in AR 1967 Supriko AR 1967 Supriko 1470 next is that decision please note AR 1967 Supriko 1470 Fulcand versus Gopalan Supriko said in paragraph 7 we are opinion that there is nothing in the court of sue procedure which prohibits the passing of more than 1.3 degree if circumstances justify the same and then may be necessary so to do particularly in partition suits when after the preliminary decree some parties die and shares of other parties are there by argument say for example there is a suit for partition there are total 10 parties and a preliminary decree was passed nobody applied for final decree it is not right nobody has thought of it meanwhile somebody died the persons deceased persons shares devolved on some others therefore is it necessary to pass a final decree as originally in the preliminary decree then they get the shares separated like that then file another suit for partition for getting their shares of the deceased man not necessary a supplementary preliminary decree can be passed that is the Supriko judgment now another judgment 2009 SCC 2009 SCC 689 Shubh Karan Shubh Karan Bubra BUBNA alias Shubh Karan Prasad Bubra versus Sita Saran Bubra and others for passing the final decree in a suit for partition what is the period of decree very often arises there is no period of decree this is what is held passing of the preliminary decree unless there is an agreement between the parties as to the manner of division it is a duty of the court to ensure that the matter is referred to a collector or a commissioner for consequential division by means and bounds which would be the subject matter of the final decree etc application for final decree in a party suit is an application in a pending suit seeking the court to do its duty it seeks no fresh or new leave hence it does not attract the provisions of the limitation what is that a preliminary decree is passed further steps have to be taken and a party applies later it is an invitation to the court to do its duty do pass a final decree what is the period of limitation no new rights are involved no specific provision the limitation act the procedure clause under article 113 for a suit for article 137 for an application may not apply because no fresh right is involved that is what this decree says it seeks no fresh or new relief hence it does not attract the provisions of the limitation act now 2009 to SEC 2009 to SEC 562 parallel citation AER 2009 Supreme Court 1089 Satnam Singh and others versus Suryandar Kaur and another paragraph 15 and 20 there are other paragraphs also Justice S. P. Sinha says for determining the question as to whether an order passed by the court is a decree or not it must satisfy the following test there must be an adjudication such adjudication must have been given in a suit it must have determined the rights of parties to regard to all or any of the matters controversy in the suit such determination must be of a conclusive nature there must be a formal expression of such adjudication these are the things indisputably section 97 of the court of sue procedure provides for an appeal against a preliminary decree but the set provision in our opinion would not be a bar to fire an application for amendment of the decree amendment of the decree it is possible section 152, 153, 151 all those areas it can be correction of errors next AER2008 Kerala 132 AER2008 Kerala 132 Manoj versus Manoj Pondarak Kalathil Manoj Pondarak Kalathil versus Manoj Pondarak Kalathil Kalathil house name the other is also house name there what happened is there this happens in many cases this is a decision rendered by me in 2008 say what is the facts a cable TV operator against him a petition was filed in a consumer book consumer dispute for deficiency in service district forum passed an order granting some profit and that order was challenged in the appeal before they dispute the state commission no interim order was grant the party went to the high court high court dismissed it with the cause at the interlocked stage consumer operator forum the party approached the high court for a small amount court dismissed it with cause and an execution petition was filed before the muncie's court by the respondent to execute that order for payment of reports it was condemned that an order passed in a repetition does not amount to a decree and therefore decree or order capable of execution before a civil court that contention was applied revision came in that revision it was held that that order cannot be executed by the civil court but I also mentioned the matter does not enter the high court act or rules the high court rules does not provide for how the costs awarded in a repetition should be realized there should be specific rules till the rules are made the matter will be referred to the rule committee and till for the purpose of this particular piece exercised the power under article 227 and passed an order directing the registrar to issue a certificate that this amount has been awarded and it has not been executed and realized with this certificate the party can approach the muncie's court and get the order executed and it was done and later that rule was changed a rule was made and empowering the registrar to give a certificate which shall be deemed to be an order capable of execution yes later 2007 2007 1077 Hasham Abbas Sahib Hasham Abbas Sahib versus Usman Abbas Sahib what is that a preliminary decree only when final allotments were made or determination is made that the property should be put in auction sale a final decree in respect thereof should not be bought only after imprinting is over finally then final decree proceedings may be initiated at any point of time several points are decided what can be executed is the final decree not the court unless and until final decree is a part of the court then there can be more than one final final decree some of the supreme court decisions say we do not express any opinion whether there can be more than one final decree they said that any number of preliminary decrees can be passed in a suit of partition but at the same time they said we say no opinion whether more than one final decree can be passed in this decision by justice Markandeya Kanju and justice S.P. Sindhar judgment by justice S.P. Sindhar it was held where can be more than one final decree a decree may be partly preliminary and partly final and there is a decision referred to there 2003-7 SCC-45 2003-7 SCC-45 a final decree proceedings may be initiated at any point of time no limitation is provided though however what can be executed is the final decree not the court then next AER 2007 supreme court 1575 Kandampala Kandampala nada Kandampala nada K A N B A B A S、、 move and others versus Chitra garia mall civil suit for title court order allowing withdrawal without any re driver lipAwab will constitute a decree Withdrawal and adjustment of claims it is contained in order 23. Order 23 rule 1 provides for abandonment of suit and withdrawal of suit. Abandonment what is that? I am the plaintiff, I abandoned my suit, I am not conducting this, it can be done no permission of the court is sent but for certain reasons I think that I would be, I may be permitted to withdraw the suit with liberty to file a request, it can be done there are various reasons order 21 rule, order 23 rule 1 sub rule 3 provides under what circumstances a withdrawal with permission can be granted, withdrawal of a suit can be with permission or without permission to institute a fresh suit, if no permission is sought for or granted there is a bar of instituting a fresh suit, but permission is granted a fresh suit can be instituted, subject of course to the limitation but there is an exception to that in the limitation and also that is regarding jurisdiction that we need not go to that difficult area. Now whether it is a decree is the question cannot constitute a decree, therefore the party withdrawing the suit is not foreclosure from raising defence pleaded in the earlier suit dismissed as withdrawn, so A file a suit against B, A withdraw the suit, it is not a decree Supreme Court says, A has taken a certain stand, later B file a suit against A in respect of the same something final, then A takes up the same condition as a matter of defence, then B says you file a suit for that but you withdraw the suit, withdraw the suit, therefore you are precluded from raising it, Supreme Court says no he is not precluded by taking that defence even though his suit was earlier suit was withdrawn without permission to file a first suit because it is not a decree, this I will read two sentences, it cannot debar the petitioners here and from taking the defence in the second round of litigation as held in the individual, the above judgments indicate that the plaintiff withdraws the suit, the order of the court allowing such withdrawal does not constitute a decree under section 2-2 on the court, next is 2006-03 SCC 605 N Khosla versus Rajalakshmi and others, N Khosla versus Rajalakshmi and others, fraud avoids paragraph 34, fraud avoids all judicial acts, a decree obtained by playing fraud is a nullity and it can be challenged in any court even in collateral positions and the Supreme Court judgment was relied on under SP Changal Vareya Naildu versus Jagannath 1994-01 SCC page 1, next is 2003-10 SCC 200, Parallel Citation, AIR 2003, Supreme Court 1608, Rehanu Devi versus Mahendra Singh, distinction between preliminary decree and final decree, detailed discussions there, order 20 rule 18 is also referred to which says that if a matters cannot be decided with the preliminary decree, it can be decided with the final decree, if there are certain details to be worked out in the court, next is another Kerala decision, 1988-01 KLT 680 by Justice Kettikomas, Justice Kettikomas was later elevated as a judge to Supreme Court and returned as a Supreme Court judge, Abdul Khadir versus Abdul Rahman, the court said that it is not necessary to consider whether the decision was put to consequent or non-payment of the court piece a decree or not. It is provided in section 2, but the remedy of appeal is therefore implicit in, that is a point decided, non-payment of deficit court fee, plaint is rejected, whether an appeal lies, yes, because it is a decree, deal decree, deal decree is also a decree, section 22 and therefore section 96 is the factor, even if the court uses the word dismiss and purports to dismiss the suit itself, the same would in fact only amount to rejection of court. Whatever may be the nomenclature used, what was in substance, payment of court fee, there was default, barren school, that will end up in rejection of plaint maximum. It is a deal decree, therefore appealable, but the court cannot dismiss it, dismiss the suit for non-payment of court. We can file another suit with the payment of court fee, if there is subject to litigation. But if a suit is dismissed, it will be visited with several other unnecessary consequences. Yes, next, AER 1986 Kerala 49, compromise decree, that is also by Justice Kritikov. In a compromise decree, whether there is any adjudication and therefore it satisfies the definition of a decree, formal expression of an adjudication, that was supposed to Justice Kritikov say that yes, there is adjudication. Order 23, rule 3 provides for compromise decree, if that rule itself provides that a decree cannot be, a suit cannot be compromised if the compromise is illegal, unlawful, purpose is unlawful and therefore it is for that court, if a condensation is raised. Order 23, rule 3, compromise of suit. I will just refer to that provision because that is yes, provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived. The court shall decide that question. Suppose a party says, no, no, I have not put my signature in the compromise petition or this is not what the compromise I sign. Something is added, interpolated, something is rubbed off. Then who is to decide that question? So there is an adjudication, but no adjudication, etc. No agreement or compromise which is void or voidable under the ticket contractor shall not be deemed to be lawful within the meaning of this rule. So if a party says that this agreement is not lawful, who will decide that? Who will adjudicate it? That court before whom the compromise petition is. So there is an adjudication and therefore even a compromise decree is a decree within the meaning of section 22. Executability is one of the main incidents of the decree. Whether it is a compromise decree or otherwise, unless the right to execute a decree is restricted either expressly or by necessary implication, either by the terms of the decree or by the provisions of any supervising legislative enactments. The executable character of the decree is not lost. When a condensation was reached, when a compromise was accepted and the decree was passed, unless it is mentioned that it is executable, it cannot be executed. That condensation was rejected. Absence of such a clause in it does not strip the decree of its executability which inheres in every decree. Then AER 1983, Supreme Court 676, Madan Naik and others, versus Kansu Bala Devi. What will happen if a party dies and legal representatives are not included in the decree as provided in the limitation act? So it will await. Whether any specific order is required? Not required. Automatic. Whether it amounts to a decree? No. Therefore, when an appeal awaited, when there was no decree disposing of the first appeal, only court's open is to move the court for setting aside the wait-man. It is not a decree. An order under Order 22, Rule 9, appealable as an order would not be a decree. And therefore, no second appeal will be made. It is an order. Not an appeal. Next, AER 1978, Supreme Court 537, a specific performance suit. Contract of a sale of emerald property. Calling upon the purchaser to deposit the balance conservation within the time stipulated by the court. In case of default, suit will stand dismissed. Whether it is a preliminary decree or a decree. A final decree. It was held. The trial court did call upon the defendant to execute the conveyance on receipt of conservation. Such a decree could never be said to be preliminary decree. Present respondent, if he wanted to question the decree, directly he could have done it. Next is 2005 1 SCC, 436, AER 2005, Supreme Court 226. Shyam Sundar Sharma versus Pannalal Jayeswar. Pannalal Jayeswar. Order 9, Rule 13 was constrained. Petitioner order would not lie in view of the filing of a appeal against a decree by the affluent. And dismissal of the appeal, though for default, since a dismissal for default on the ground of being barred by the petition, cannot be equated with a withdrawal of office. So that is a different position is there. So if an application is dismissal for default is there, an application can be filed for setting aside that default. No appeal can be filed. See, an expatriate decree, it is appealable. Appeal can be filed. An application for setting aside the expatriate decree also is possible. But as I said, we cannot have more. Having filed an appeal unless that appeal is withdrawn, we cannot maintain an application after order 9, Rule 13. But suppose that appeal is dismissal for default. Dismissal for default is not dedicated to barred and not for default. Barred by limitation. It was contended that if it is barred by limitation, it amounts to a dismissal for default. No, it is confirmation of the decree. That is Shyam Sundar's case taking a different view. Prejudges are there. Please note. Justice Arsila Hote changes. Justice Mathur. Justice Parishma. Decree holder, please note a few decisions. 2015-3 AR 2015 Kerala, 286. Then ILR 2015-4 Kerala, 861. I am not explaining it because just read it. With that, we close. Time is over. Mr. Vikas, any question? I will venture to answer to the rest of my ability. Yes, sir. As usually, what you normally do is explaining in a very subtle manner. And this is by Rajesh Kumar Sahu. Can a substantive suit be filed to set aside a decree passed by a court on an objection as to the place of swing? No. It cannot be done. Section 21, answer. 21, objection as to jurisdiction. No objection as to the place of swing shall be allowed by an operating or revision court unless such objection was taken to the court of the first instance at the earliest possible opportunity. And in all cases where issues are settled, that would be for such settlement. And unless there has been a consequent failure in the court of the first instance, even in an appeal or revision, it cannot be done. Where is the question of filing a fresh suit? I mean Kumar, a clarification, please. If a suit is dismissed by an order of dismissal for default, can a fresh suit be filed on the same call of action? That you have already said, otherwise. Already said. You may make an application. Fresh suit can be filed. See, Order 9, Rule 9. Order 9, Rule 9. Decree passed by against plaintiff by default for a fresh suit. Whereas suit is wholly or partly dismissed under Rule 8. Rule 8 is dismissal for default. The plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. Different cause of action a fresh suit can be filed. But he may apply for an order to send a dismissal aside. And if he satisfies the court that there was some incurs for his non-appearance, etc., the court may not. Yes. Can a dismissal order for non-prosecution when the defendant submits the compromise agreement be considered as a decree? What is that a question I did not understand? Can a dismissal order for non-prosecution when the defendant has already submitted a compromise decree? Be considered as a decree? So what is that ultimately thing court dismissed? For non-prosecution. That is for default. If it is a dismissal for default, it is not a decree. This is by Chandrasekhar. In respect of my property, some third parties have filed a partition suit before the court having no jurisdiction and have obtained a compromise decree. Immediately said decree is registered and now such a... He is not audible, fully audible. He is not fully audible. Now it's better? Now it is better. In respect of my property, some third parties have filed a partition suit before the court having no jurisdiction and have obtained a compromise decree. Immediately said decree is registered and now such a... and now such a... decree reflects in in-hand conference. What is my legal remedy? He is not a party to the suit. He is not binding on him. He can file a suit to set aside that decree. He can say that at the time of execution, he can obstruct. He is not binding on him. He can file a suit also. He can file a suit for a declaration that this... that the decree obtained by fraud and all those things. In a court which has no jurisdiction, he is referring to the place of sui. That also can be. If it is obtained by fraud, fraud initiates everything. Everything, even solemn acts, even judgment, even decree, nor a suricada, nothing. Ninety-five Supreme Court Justice Yeah, everything goes. Very soon. I am saying that Justice Kulip Singh's judgment of the Supreme Court, Ninety-five Supreme Court. Yes. Rajkumar Sahu... Yes, I refer to that. Yeah. It's one of the basic judgments which normally one speaks of that fraud initiates everything. Everything. Difference between an order and a deemed decree. Order and a deemed decree. Order is what is said in the definition which is not a decree. Deemed decree is what is said which can be deemed to include the rejection of a complaint and determination of a question under 144 but shall not include a dismissal for default or an appeal or an order from which an appeal lies is an appeal from an order. These are the proofs. Deemed to include the rejection of the complaint. And determination of any question under 144. That is restitution. Then there are certain other provisions in the CPC which provides for an appeal though it is an order. So for example, for execution an attachment is made that a third party objects to that attachment and that comes under order 21.58. The court will adjudicate regarding the right title of all persons concerned and an order will be passed which will have the effect of a decree for the purpose of appeal. So for the purpose of appeal it will have an effect of a decree but it is really an order likewise rule 103 of order which after adjudication under rule 97, 98, 99 to 97 to 104 one same group has provided rule 101 all questions regarding why title and interest will be adjudicated by the court executing the decree and not by a spreadsheet and that order will have the effect of a decree for the purpose of appeal. So it is though it is an order it has got the effect of a decree. So unless it is provided elsewhere in the court or in order 43 rule 1 or section 14104 of the CPC no appeal lies from an order unless otherwise provided yes. Do you explain why the word adjudication is not used in the definition of order? Adjudication need not be defined we all know what is adjudication we all know what is adjudication it is a dictionary many when a judgment data is kept in a civil prison for 3 months after release he didn't repay the debt what will be the remedy for repayment of debt again can we send him to prison again? No he cannot be sent to prison again but the decree can be executed against him in some other manner suppose a person is sent to jail for non-payment of the decree amount by a civil court sent him to jail maximum period is provided in section 58 or 59 and he suffered that for the liability to pay the decree amount the decree can be executed in some other manner by attachment of his property attachment of his salary attachment of any other amount which he is entitled to any thing but he cannot be sent to jail again VJ says why that word adjudication is written in the decree and not in the definition of order? Order is yes that is interesting question order is an adjudication let us see what is order which is not a decree there also adjudication is the order order means formal expression of any decision not adjudication a decision is only after adjudication a decision can be arrived at only after adjudication of a civil court which is not a decree word adjudicate formal expression of an adjudication adjudication that is 2-2 now separate intention is there this is a complete adjudication under decree that is also order is also adjudication to the extent that it is required FTP proceedings the purchaser had purchased the property after the decree of the suit filed the application for including the court has allowed his application subsequently he filed the application to recall let the facts be clear A file is suit against B no what is that question he is an auction let us assume it is an auction he buys the property in an auction and thereafter he files an application and then he files an application for including the court allows his application for including subsequently he files the application if he is an auction purchaser he need not be implanted because section 47 47 he is deemed to be a party no question of him bleeding an auction purchaser see section 47 47 says that all questions relating to execution discharge or satisfaction of the decree shall be decided by the court executing the decree and not by a separation where a question arises or a person if you have such question also shall be decided then a purchaser explanation to for the purpose of this section a purchaser of property at a sale and execution of a decree shall be deemed to be a party in the suit in which the decree is passed he need not be implanted he is deemed to be a party he will be heard in respect of all the future proceedings he says that he is not an auction purchaser purchased by a share of property that is different he purchased it that he can either keep quiet and that all the incidents which his seller had had to suffer or get he will get but he can be implanted if the suit is pending not after this yes not after disposal of the suit is there any limitation for filing or final decree in the partition suit no limitation two decisions I cited no limitation he says whether a stranger can file this is on youtube can challenge the loka dalat award under article 226 or 227 on grounds of fraud or misrepresentation fraud or misrepresentation loka dalat loka dalat I think it is it amounts to a decree I am not quite sure legal service authority we have to I am sorry section 22 of that legal services authority it says that you have to if it is submitted by fraud it is a nullity it can be set up wherever it is necessary and in that case also they say the primary scope is that you have to show that the cancellation proceedings were not conducted in terms of section 22 of the 87 act yes on that there is a judgment of honorable supreme court coupled with judgment of justice koli and justice alok singh who was out we will we will ask mr keshwara rao he is a former member he has joined for the first time in our webinar to share his insights they also run a webinar series by the name of ailu I will ask mr rao to unmute himself and come on the video keshwara rao for us we know that your sessions are immensely knowledgeable thank you yeah mr rao thank you sir can you come on the video because beyond kerala karnataka people want to look to you one minute he also takes the legal empowerment and legal knowledge to the hilt meanwhile mr rao when he comes tomorrow we will be having a session on proving, authenticating and misproving the electronic evidence under the Indian evidence act by yuvraj novrankar lawyer practicing in the bobby high court do stay connected with us and meanwhile you can share like and subscribe the channel of beyond law clc and justice keeti sankaran who have the insights of various prospective law and meanwhile mr rao has blocked it yes mr rao good evening everybody respected honorable high court judge were also conducted not now 2 months back we have stopped ours is the 500 members yuvam application and 500 it will be filled nearly 150 classes either in the criminal side or civil side we have conducted during the last lockdown period and now it is better to enhance the participation it is limited to only 100 100 members a subject is very good the honorable gg has given a very clear clarifications to everybody here one aspect i want to say is the question and answer the question must be put by the only the viewer most of them are the advocates or the law students they can very well put their questions directly if that is there the interaction will be more effective thank you so thank you sir and thank you mr rao for joining us and encouraging us for this endeavour and we would be we are indebted he is also a member from the karnataka karnataka state so his immense knowledge is always well appreciated i will connect to him after the session and thank you friends before we part for the day and thank you this is katie sankaran for all those who have been watching us live on the youtube video as well as on the facebook as well as on this platform we are all thank you to this is katie sankaran and mr rao thank you all meet us tomorrow for the next session on the electronic evidence and stay safe stay blessed and keep on wearing the mask and help the society at large by socially economically and physically in whatever you can help in the society namaskar