Distinction between Preliminary Decree and Final Decree

Distinction between Preliminary Decree and Final Decree are as follows:

Section 2(2) of the Code defines “Decree” as follows:

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“Decree” means the formal expression of an adjudication which, so far as regards the Courts 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 plaint and the determination of any question within Section 144 (Restitution) but shall not include-

(a) Any adjudication from which an appeal lies as an appeal from an order,

(b) Any order of dismissal for default.

Classes of decrees:

The Code recognize the following classes of decrees:

1. Preliminary decree;

2. Final decree;

3. Decree partly preliminary and partly final;

4. Order rejecting plaint; and

5. Determination of a question within (Sec. 47).

Preliminary decree:

Where on an adjudication the court decides the rights of the parties with regard to all or any of them in controversy in a suit but does not completely dispose of the suit, is called a preliminary decree – a decree before final decree is passed.

The Code of Civil Procedure provides for the passing of preliminary decree in the following cases:

1. Suite for possession and for rent or mesne profits.

2. Suits for pre-emption.

3. Suits for dissolution of partnership.

4. Suits for accounts between Principal and agent.

5. Suits for partition and separate possession.

The above list is not exhaustive; but illustrative. In the above suits before a final decree is passed preliminary decree passed in order to ensure what is to be done finally is done by preliminary decree. In the absence of any objection to the preliminary decree or after the lapse of time for appeal this preliminary decree takes the shape of final decree.

Example:

A suit is brought by X against Y for a dissolution of partnership after taking account; here the Court may pass a preliminary decree declaring the shares of the parties, and the accounts to be taken and after the accounts are taken, may pass a final decree directing payment of debts due by the partnership firm.

Final Decree:

A decree may become final in two ways-

1. When the time for appeal has expired without appeal being filed or the matter has been decided by a decree of the highest Court.

2. When the decree, so far as regards the Court passing it, completely disposes of the suit.

Decree partly preliminary and partly final is passed in a suit for possession of immovable property with means profits by the Court.