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Decree, Order Judgment and Mense Profit

Decisions given by court of law are either decree or orders or Judgments. A Judgment is given in consequence of a decree and is pronounced by the court after hearing the case and can either be declaratory or executory. There are differences between order, decree and Judgment.

Relevant Provisions:
Following are the relevant provisions of Civil Procedure Code regarding the topic of decree, order and Judgment.
Sec 2(2) for decree
Sec 2(14) for order
Sec 2(9) for Judgment
Order 20 Rule 1 to 6 for Decree and Judgment

Definition of Decree u/s 2(2) of C.P.C:
Decree means the formal expression of adjudication which so far as court expressing it, conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit, and may be either preliminary or final.

Essentials of Decree:
Following are the essentials of a decree.
  • Given in Suit:
    The decree must have been expressed in a suit. Every suit is commenced by a plaint and where there is no civil suit there is no decree. Some proceedings commenced by an application are statutory suits that the decision is a decree.
     
  • Rights of Parties as to Matters in Controversy:
    The decision must have been expressed on the rights of the parties with regard to all or any of the matters in controversy in the suit.
     
  • Determination of Rights of Parties:
    The decision must be one which conclusively determines rights of the parties. Parties refer to persons, who are on the record as plaintiff and defendant.
     
  • Regarding all or any of The Matter in Controversy:
    The adjudication determines the rights of parties must be with regard to all or any of the matter in controversy. It reference to the subject matter of the suit in dispute and the decision of the court may be with regard to even one matter in controversy.

Conclusively Determines:

The expression implies that the decision must be one which is complete and final as regards the court which passed it. The decree may conclusively determine the rights of parties although it does not completely dispose of the suit.

Formal Expression:
There must be formal expression of the suit adjudication. It should be precise and specify the relief granted or other determination of the suit and names and description of the parties.

Kinds of Decree:
Decree may be classified into two kinds.
  • Declaratory Decree:
    It is not capable of execution. It merely declares the rights of the parties.
     
  • Executory Decree:
    Such decree is executed and enforceable by the court of Law.

Classes of Decree:
Following are the different classes of decree as contemplated by Sec 2(2) of C.P.C.
  • Preliminary Decree:
    A preliminary decree declares rights and obligations of the parties leaving further matters to be determined in subsequent proceedings and it is conclusive in nature.
     
  • Final Decree:
    A final decree is one which completely disposes of the suit so far as the court passing it is concerned.
     
  • Partly Preliminary and Partly Final Decree:
    A decree may be of such a kind which is final in part and partly preliminary.
    Example: In a suit for recovery of possession of immovable property and rent the part of the decree, which directs delivery of possession of property is final, but the part directing an inquiry as to rent or profit is preliminary.
     
  • Order Rejecting a Plaint:
    Section 2(2) declares that order rejecting a plaint is a decree, though there is no adjudication of the rights of the parties but by fiction of law, it is classed as decree.
     
  • Determination of Questions under Certain Provisions of C.P.C:
    By virtue of Sec 2(2) all orders made u/s 144 and u/r 60, 98, 99, 101 and 103 of order 21 are decrees.

Decrees not include the Following:
By virtue of Sec2 (2), decree shall not include the following:
  • Appellate Orders:
    An adjudication, from which an appeal lies, as an appeal from an order, is not a decree.
    Example: Questions to be determined by the executing courts u/s 47 are orders.
     
  • Dismissal in Default:
    Order of dismissal of suit in default of appearance of non-prosecution is not decree. I.e. orders passed under order 9 or 17 of C.P.C.

Definition of Order u/s 2(14) of C.P.C:
Order means the formal expression of any decision of a Civil Courts which is not a decree. Essentials of Order:
  • Decision: the expression, “decision” refers to judicial determination of facts in accordance with evidence.
  • By Civil Court: Decision must be one of Civil Court and not of the administrative tribunal.
  • Formal Expression: Decision given by court must be formally expressed i.e. it must be in writing, precise and the language must be deliberate, so that the execution would be possible.
  • Not a Decree: The definition of order specifically excludes the decree from its ambit and as such any adjudication of court which is decree, cannot be an order at the same time.

Classes of Order:
Following are the two Kinds of order.
  • Final Order
  • Interlocutory Order

Judgement

Definition u/s 2(a):
Judgment means the statement given by the judge on the grounds of a decree or order.

Essentials of Judgment:
Following are the essentials of a Judgment.
  • Statement Given by a Judge: A Judgment means the judicial decision of the court or Judge.
  • Need to be in Writing: It is only after the judge has reduced his decision into writing that a Judgment comes into existence. An oral pronouncement is not a Judgment.
  • Grounds of Decree or Order: Every statement of judge will not be a Judgment but will be o only if such decisions can result in a decree or an order. Findings recorded by trial court without referring to any evidence of the parties and without discussing its legal effect after conscious application of mind would not withstand test of the word judgment as defined in section 2(a) of C.P.C.

Difference between Decree and Order
Following are the differences between Decree and Order.
  • As to Nature: Every decree is and order, but every order is not a decree.
  • Appeal: Ordinarily appeal lies from every decree, but order are appealable only, if provided by sec 104 read with order 43.
  • As to Second Appeal: A second appeal may lie against decree, but a second appeal shall not lie against an order passed in appeal.
  • Determination of Rights: Decree conclusively determines the rights of the parties, but order does not necessarily conclusively determine the rights of the parties.
  • Classes: Decree is of five classes as provided u/s 2(2), while order may be of final or interlocutory.
  • Emergence: Decree cannot be emerged into an order, but every order in a case can be merge into a decree.

Difference between Decree, Order and Judgment
  • As to Execution: It is the decree or order which is capable of execution and not the Judgment.
    Form: Decree and order always follow the Judgment while the Judgment contains the grounds of both decree and order.
    Superiority: Judgment is superior in form and if decree or order is not in accordance with it, they may be altered.
  • Appeal: It is the decree or orders which is appealable and not the judgment.
  • Kinds: Decree and order has different kinds but that is not a case with the judgment.

Conclusion:
In the conclusion I can say that decision given by the judge is called judgment which contains the grounds of the decree and order. Decree and order are analogous to each other. They are defined under section 2(2, 9, and 14). The importance of decree lies in fact that they are appealable and conclusively determine the rights of the parties. There is difference between order, decree and Judgment.

Mesne Profit

Mesne profits are profits to which a person is entitled but from, which he has been kept out by the defendant. The profit lost to the owner of the land by reason of his having been wrongfully dispossessed of his land. A claim for mesne profit is usually joined with the action for recovery of the possession of the land.

Relevant Provision Of Law

Relevant provision of law regarding to concerned topic are:
  1. Section 2(12) of C.P.C.
  2. Order 2, Rule 4 and order 20 Rule 12 of C.P.C.

Literal Manning Of Mesne Profits

"Mesne" means, intermediate, intervening, the middle between two extremes and especially of ranks of time as envisaged under section 2(12).

Definition Of Mesne Profit

  1. According to Section 2(12) of the C.P.C:
    Mesne profits of property means "those profits which the person is wrongful possession of such property actually received or might with ordinary diligence have received there from together with interest on such profits but shall not include profits due to improvements made by the person in wrongful possession".
     
  2. Simple Definition
    It denotes damages and compensation recoverable from a person who has been wrongful possession, it means that profit which the plaintiff has lost by reason of the wrongful act of defendant.
    Example:
    Mesne profit can be claimed only regarding immovable property and not for movable property.

Explanation Of Mesne Profit

  1. Calculation of Mesne Profit:
    It should be awarded on the basis of actual profits which the wrong doer received or which he might have been received with ordinary diligence.
     
  2. Wrongful Possession
    It means that the person who has no right to possession as against the party claiming it is in wrongful possession as against that Party for a certain purposes including mesne profits but not wrongful for all purposes.
     
  3. Interest on mesne profit
    It includes the right to interest on the profits that proceeds on the theory that the person . in wrongful possession appropriating income from the property himself gets the benefits of the interest of such income.
    Example: The decree holder is entitled to interest up to the date of realization of the mesne profits.
     
  4. Rate of interest
    To be allowed on the mesne profit in discretionary as there is no questions of any contractual rate or any particular rate fixed by statute.
     
  5. Suit for recovery of mesne profit
    Plaint clearly showing that plaintiff not only prayed for mesne profits for period up to the decision of case. Court below was justified in allowing mesne profits up to date of decision of case with order to plaintiff to pay court Fee in respect of compensation awarded to him beyond period of three years contention that court could not award mesne profits beyond period of 3 years was repelled in circumstances.
     
  6. Mesne Profits do not effect pecuniary jurisdiction
    The value of a suit for the recovery of possession and mesne profits is the value of the immovable property plus mesne profit up to date of suit mesne profit after suit do not from rent of the cause of action even there be a prayer in the plaint for mesne profits after suit.
     

Proof Of Mesne Profit

In order to get the mesne profit of property the plaintiff will have to show
  1. that the defendant was in possession during the whole of his period for which the mesne profit are demanded.
  2. that the possession of the defendant was wrongful (b) that the possession of the defendant was wrongful and was not under the color of any right.
Case Law: Granish vs. Soshi Skildar:
In this case, the court held that the mesne profits are due from the moment possession is wrongfully held by the defendant an interest on such mesne profit is due from the day on which each instilments becomes due. A decree which is salient as to interest must, be taken to mean that mesne profit shall carry interest on them.

Case Law Muhammad Amin vs. Vakil Ahmad:
Held: In this case held that a claim for mesne profit cannot be allowed unless there is a demand of it. The claim would not be included within the expression awarding possession, occupation of the property aforesaid together with all the rights appearing thereto.

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