Definitions and Important Concepts (Section 2)

Section 2 of the Code of Civil Procedure, 1908 is the dictionary every other section presupposes. Twenty defined terms — "Code", "decree", "decree-holder", "district", "foreign Court", "foreign judgment", "Government Pleader", "High Court", "India", "Judge", "judgment", "judgment-debtor", "legal representative", "mesne profits", "movable property", "order", "pleader", "prescribed", "public officer", "rules", "share in a corporation" and "signed" — set the meaning of the words that the rest of the Code repeats hundreds of times. Of these, three are pivotal: decree, order and judgment. The right of appeal, the path of execution and the writ of revision all depend on the threshold question whether a court's pronouncement is a decree, an order or merely a judgment.

This chapter unpacks the defined terms in the order they sit in Section 2, with the largest weight on the trio that drives appealability and execution. Once those are clear, the remaining definitions — on parties, profits, pleaders and territorial reach — follow without difficulty.

Section 2(1) — "Code"

"Code" includes rules. The body of the Code is divided into Sections (the substantive procedural framework) and Rules (the working machinery in the First Schedule). The word "Code" embraces both. The body of the Code creates jurisdiction; the rules indicate the mode in which that jurisdiction is to be exercised (Ghuznavi v Allahabad Bank Ltd, (1917)). Where the two conflict, the Section prevails (Karan v Kanwar, AIR 1942). The architectural distinction is set up in the introduction and scheme of the Code; the consequence — that a Rule cannot enlarge or curtail what a Section confers — recurs through every later chapter.

Section 2(2) — "Decree"

"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 any adjudication from which an appeal lies as an appeal from an order, or any order of dismissal for default. The Explanation appended to the clause classifies decrees as preliminary, final, or partly preliminary and partly final.

Essentials of a decree

For a decision to constitute a decree, five conditions must coexist: there must be a suit; there must be an adjudication; the adjudication must be on the rights of the parties with regard to all or any matters in controversy; the determination must be conclusive so far as regards the court expressing it; and the decision must be given formal expression (S Satnam Singh v Surender Kaur, AIR 2009). If even one of those is missing, the pronouncement is an order or a finding on an issue, not a decree.

The form of the writ does not govern. If a pronouncement satisfies the conditions in Section 2(2), it is a decree even though it is captioned an order; conversely, an order drawn up in the form of a decree is still an order if the substance does not satisfy the definition (Adinarayan v Narasimha, AIR 1931; Chelaram v Manak, AIR 1997). A reasoned order rejecting a plaint, for example, is a decree appealable under Section 96 — the remedy is appeal, not a petition under Article 227 (S Manoharan v Mayakkannan, 2008; Meera Sinha v Girija Sinha, AIR 2009).

Preliminary and final decrees

A preliminary decree finally decides the rights of the parties but does not completely dispose of the suit (Venkata Reddy v Pethi Reddy, AIR 1963). It declares rights and liabilities, leaving the actual result to be worked out in further proceedings. Once unchallenged, the rights it determines become final and cannot be reopened in the final-decree proceedings (Parvathmma v A Muniyappa, AIR 1997). The final decree applies the preliminary decree's determination with precision; it does not redecide what the preliminary decree has settled (S Bhavan Lokhande v Chandrakant Shankar Lokhande, (1995)). A preliminary decree is not capable of execution until the final decree is passed (A Akkukamma v G Papi Reddy, AIR 1995); auction sale of suit property cannot proceed without final-decree proceedings being initiated (Hasham Abbas Sayyad v Usman Abbas Sayyad, AIR 2007).

Whether more than one preliminary decree may be passed in one suit was once contested. The Supreme Court has resolved the controversy in favour of plurality: nothing in the Code forbids more than one preliminary decree, and in partition suits a second preliminary decree may even be necessary where parties die after the first one and shares need to be re-collected (Phool Chand v Gopal Lal, AIR 1967). On final decrees, the law is fairly settled — there can be only one final decree, but the court may pass more than one interim decree on its way there (Nallasinam v Avudayammal, 1958).

Rejection of plaint as deemed decree

The closing words of Section 2(2) deem the rejection of a plaint to be a decree, even though the plaint never matured into a trial. The consequence is that the rejection is appealable as a decree under Section 96 and not revisable under Section 115 (Meera Sinha v Girija Sinha, AIR 2009). The mechanics of plaint rejection — the Order VII Rule 11 grounds, the discretion to permit fresh institution, and the consequences for limitation — are taken up in the chapter on plaint drafting and rejection.

What is not a decree

An order of dismissal for default of appearance is not a decree; there is no determination of the rights of the parties (Gauhati Bank Ltd v Baliram, AIR 1950). Dismissal of a suit as withdrawn under Order XXIII Rule 1 is not a decree (Devassi v Anthoni, AIR 1969); but an order dismissing an appeal as withdrawn is a decree, because the appeal has been brought before the court and disposed of (Mubapatrao v Magatapatrao, AIR 1933). An order returning a plaint for presentation to the proper court is an order, not a decree (Chengal Reddi v Venkatasubba Reddi, (1967)); so is an order remanding a suit for fresh disposal (Zanab Bi v Wajahat Husen, AIR 1959). An adjudication in execution — once partly within the definition before the 1976 Amendment — is no longer a decree (Mohan Das v Kamala Devi, AIR 1978; Kuriakose v Narayanan Nair, AIR 1981); the related body of law on execution has its own home in the chapter on execution of decrees — general principles.

Awards and special-statute decisions

An award of the Motor Accident Claims Tribunal is not a decree, although it is enforceable as if it were one. An award of an arbitrator under the Arbitration and Conciliation Act, 1996 is enforceable under the Code in the same manner as a decree, but it is a decree only by legal fiction for the limited purpose of enforcement; the fiction is not extended to render it a decree for all statutes (Paramjeet Singh Patheja v ICDS Ltd, AIR 2007; Leela Hotels Ltd v HUDCO, AIR 2012). An award of the Lok Adalat is deemed to be the decree of a civil court and is executable as such (United India Insurance Co Ltd v Master Imran Khan, AIR 2008). An award made on a reference under the Land Acquisition Act, 1894 (now the Right to Fair Compensation and Transparency in Land Acquisition Act, 2013) is deemed a decree for the purpose of Section 2(9) by the parent statute itself.

Section 2(3) — "Decree-Holder"

"Decree-holder" means any person in whose favour a decree has been passed or an order capable of execution has been made. The decree-holder is the person whose name is inscribed on the decree and in whose favour it has been passed (Bajirao v Kashirao, AIR 1978). A transferee of the decree is not the decree-holder until recognised by the executing court. In a decree for specific performance of an agreement to sell immovable property, either party may execute the decree — depending on the facts, either may be the decree-holder (Heramba Chandra v Jyotish Chandra, AIR 1932).

Section 2(4) — "District"

"District" means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction, called a District Court, and includes the local limits of the ordinary original civil jurisdiction of a High Court. A High Court that does not possess ordinary original civil jurisdiction is therefore not a District Court within the meaning of the clause, even though it sits at the apex of the civil court hierarchy (Raja Soap Factory v Shantharaj, AIR 1965). The expression includes the court of an Additional District Judge (Bezparva v State of Assam, AIR 1954). A Family Court constituted under the Family Courts Act, 1984 is a District Court within Section 2(4) and its presiding officer is a Judge, though of limited jurisdiction (Kamal v M Altaudin Raja Shaikh, AIR 1990; S D Joshi v High Court of Judicature at Bombay, AIR 2011).

Sections 2(5) and 2(6) — "Foreign Court" and "Foreign Judgment"

A "foreign Court" is one situated outside India and not established or continued by the authority of the Central Government. A "foreign judgment" is the judgment of such a foreign court. The High Court of Justice in England, the Supreme Court of Mauritius and the Ceylon Court are all foreign courts within the clause; the Privy Council, once excluded, now falls within the definition. A judgment given by a foreign court does not cease to be one when, by political change, the territory in which the court was situated becomes part of India. The recognition and enforcement framework — including the conclusiveness presumption under Section 13 and direct execution under Section 44A for reciprocating territories — is developed in the chapter on foreign judgments and foreign courts.

Sections 2(7), 2(7A) and 2(7B) — "Government Pleader", "High Court" and "India"

"Government Pleader" includes any officer appointed by the State Government to perform any of the functions imposed by the Code on the Government Pleader, and any pleader acting under his directions. The definition is inclusive — there is no obligation to have only one Government Pleader, and the State may appoint as many as the volume of work demands (Mundrika Prasad Sinha v State of Bihar, AIR 1979). A special Government Pleader appointed under Order XXVII Rule 8B for a specific case does not, however, hold the office of the Government Pleader (Kanta Kathuria v Manak, AIR 1970).

"High Court", in relation to the Andaman and Nicobar Islands, means the High Court at Calcutta. "India", except in Sections 1, 29, 43, 44, 44A, 78, 79, 82, 83 and 87A, means the territory of India excluding the State of Jammu and Kashmir. After the Jammu and Kashmir Reorganisation Act, 2019, the carve-out is largely of historical interest in those Sections to which it still attaches; in the excepted Sections, "India" bears its ordinary meaning under Section 3(28) of the General Clauses Act, 1897.

Sections 2(8) and 2(9) — "Judge" and "Judgment"

"Judge" means the presiding officer of a Civil Court. The word "court" is the generic term and embraces a judge: the court is an agency created by the sovereign to administer justice judicially, presided over by a judge on whom certain judicial powers are conferred (Supreme Court Legal Aid Committee v Union of India, (1994)). The two terms are often used interchangeably, but they are not synonyms in the strict sense — a judge by himself is not a court; he is the essential constituent of one. An arbitrator is neither a judge nor a court (Anand Prakash v Asst Registrar Co-op Societies, AIR 1968).

"Judgment" means the statement given by the Judge on the grounds of a decree or order. A judgment, then, stands on a different footing from the decree and the order. A decree or order is the formal expression of the decision; the judgment supplies the reasoning. There can be only one judgment in a case — two contradictory decisions cannot have the effect of deciding any question or issue and are unenforceable (Shriram Industrial Enterprises v Union of India, AIR 1996). The court must record reasons even in cases that proceed ex parte or where no written statement is filed and the matter is decided under Order VIII Rule 10; abbreviations and code-words are to be avoided so that the litigant can read and understand it (Balraj Taneja v Sunil Madan, AIR 1999; Hina Singh v Satya Kumar Singh, AIR 2007). The drafting discipline is taken up further in the chapter on judgment and decree.

Section 2(10) — "Judgment-Debtor"

"Judgment-debtor" means any person against whom a decree has been passed or an order capable of execution has been made. The legal representatives of a deceased judgment-debtor are not themselves judgment-debtors; nor is a surety of the judgment-debtor a judgment-debtor (Jagat Raj, (1952)).

Section 2(11) — "Legal Representative"

"Legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and, where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued. The definition is inclusive, wide in scope, and is not confined to legal heirs (Vivishendramani v K Venugopal Rai, AIR 1995). A person on whom the estate of the deceased devolves is the legal representative even if he is not in actual possession (Javarimal v Mangilal, (1961)).

An intermeddler with the estate, even of a part, is a legal representative within the clause, and is liable to the extent of the property taken in possession (Andhra Bank Ltd v Srinivasan, AIR 1982). A universal legatee under a will is a legal representative; so is a universal donee. A mere trespasser, holding adversely to the deceased, is not a legal representative (Nagendranath v Hyat, AIR 1933); a transferee claiming an adverse title cannot be one. The Supreme Court has approved borrowing this definition into the Motor Vehicles Act framework, to bring intermeddlers within the scope of "legal representative" for compensation claims (Montford Brothers of St Gabriel v United India Insurance, AIR 2014). The substitution mechanics — when the right to sue survives, when the suit abates — fall under the chapter on death, marriage and insolvency of parties.

Section 2(12) — "Mesne Profits"

"Mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but does not include profits due to improvements made by the person in wrongful possession. The definition fixes both the measure and the floor — actual receipts or what could have been received with ordinary diligence, whichever is the higher figure — and excludes the value the wrongful possessor has himself added by his investment. Order XX Rule 12 supplies the procedural machinery for an enquiry into mesne profits where a decree for possession is passed; the substantive scope of the wrongful possessor's liability is settled by Section 2(12) read with the Section 51-and-Section-55 framework of the Transfer of Property Act.

Sections 2(13) to 2(20) — the remaining defined terms

1. "Movable property" — Section 2(13) — includes growing crops. The definition is inclusive; it brings within "movable property" what would otherwise have been treated as part of the land.
2. "Order" — Section 2(14) — means the formal expression of any decision of a Civil Court which is not a decree. The clause is residual: every formal expression of a decision is either a decree or an order. The right of appeal flows from this distinction. Every decree is appealable under Section 96 unless an Act expressly bars it; an order is appealable only if it is enumerated in Section 104 or in Order XLIII Rule 1.
3. "Pleader" — Section 2(15) — means any person entitled to appear and plead for another in court, and includes an advocate, a vakil and an attorney of a High Court. The definition feeds the Section 2(7) definition of Government Pleader and the body of rules in Order III on recognised agents and pleaders.
4. "Prescribed" — Section 2(16) — means prescribed by rules. Wherever the Code uses the word "prescribed", it directs the reader to the First Schedule and to the rules made by the High Court under Sections 122 to 125.
5. "Public officer" — Section 2(17) — has a long enumerative definition covering, among others, every Judge, every member of an All-India Service, every commissioned or gazetted officer in the military, naval or air forces, every officer of a court of justice charged with judicial or custodial duties, and every officer of the Government holding fiscal, custodial or law-enforcement duties. Section 80 (the two-month statutory notice rule) attaches to suits against any public officer in respect of any act purporting to be done in his official capacity; the reach of that rule is therefore co-extensive with Section 2(17).
6. "Rules" — Section 2(18) — means rules and forms contained in the First Schedule or made under Sections 122 or 125. Read with Section 2(1), the architecture of the Code as a body of Sections plus a First Schedule of Rules is closed.
7. "Share in a corporation" — Section 2(19) — is deemed to include stock, debenture stock, debentures or bonds. The definition is wider than the company-law expression, drawn so that the executing court can attach all forms of corporate paper as easily as it can attach equity shares.
8. "Signed" — Section 2(20) — save in the case of a judgment or decree, includes stamped. A judgment or decree must therefore be signed in ink; a plaint, a written statement, a vakalatnama or any other process drawn up under the Code is sufficiently signed if it bears the prescribed stamp.

The decree–order–judgment trio in summary

The three definitions cluster together because they together govern the path of every civil suit. The court hears, the court decides, the court records. The judgment is the recording — the statement of grounds. The decree or order is the deciding — the formal expression of the decision. A decree is the formal expression where the decision conclusively determines the rights of the parties on a matter in controversy in the suit; everything else is an order. Every decree is appealable as of right unless an Act says otherwise; an order is appealable only if listed. Every decree is executable as a decree under Sections 36 to 74 read with Order XXI; an order is executable only if it is itself capable of execution. The right of appeal, the mode of execution and the writ of revision under Section 115 all start from this triangulation. Every later chapter — on jurisdiction of civil courts, on res sub judice and res judicata, on first appeal from decree, and on revision under Section 115 — uses these terms in the meaning that Section 2 has fixed. A reader of the Code of Civil Procedure who has internalised the three definitions has the working vocabulary the rest of the Code presupposes.

The MCQ angle

Three propositions show up in nearly every prelims paper. First, a pronouncement is a decree only when all five essentials of Section 2(2) are present — suit, adjudication, rights of parties, conclusiveness, formal expression — and the form of the writ does not govern. Second, the rejection of a plaint is a deemed decree appealable under Section 96, not revisable under Section 115. Third, an adjudication in execution is no longer a decree after the 1976 Amendment, even where the decision determines a question between parties; the right of appeal that Section 47 once carried has been deliberately removed.

Frequently asked questions

What are the essentials of a decree under Section 2(2)?

Five conditions must coexist. There must be a suit, an adjudication on the rights of the parties, a determination on the matters in controversy in the suit, a conclusive decision so far as regards the court expressing it, and a formal expression of the adjudication (S Satnam Singh v Surender Kaur, AIR 2009). If even one is missing the pronouncement is an order or a finding on an issue, not a decree. The form of the writ does not govern — a pronouncement satisfying the substance is a decree even if captioned an order, and an order drawn up as a decree is still an order if the substance falls short.

What is the difference between a preliminary decree and a final decree?

A preliminary decree finally decides the rights of the parties but does not completely dispose of the suit (Venkata Reddy v Pethi Reddy, AIR 1963). A final decree applies the preliminary decree's determination with precision and completes the disposal. The two are passed in the same suit; if the preliminary decree is set aside, the final decree falls with it (Talebali v Abdul Aziz, (1930)). A preliminary decree is not capable of execution until the final decree is passed (A Akkukamma v G Papi Reddy, AIR 1995). There can be more than one preliminary decree in a single suit, but only one final decree (Phool Chand v Gopal Lal, AIR 1967).

Is the rejection of a plaint a decree or an order?

It is a deemed decree by the express terms of Section 2(2). The clause provides that the rejection of a plaint shall be deemed to be a decree. The consequence is that the rejection is appealable as a decree under Section 96 and not revisable under Section 115 (Meera Sinha v Girija Sinha, AIR 2009; S Manoharan v Mayakkannan, 2008). A reasoned order rejecting a plaint, even one passed at the threshold under Order VII Rule 11 without a trial, is therefore challengeable only by appeal — a writ petition under Article 227 will not lie.

Is an adjudication in execution a decree?

No. Before the Civil Procedure Code (Amendment) Act, 1976, the determination of a question within Section 47 was included in the definition of "decree" and was therefore appealable as a decree. The 1976 Amendment deleted that limb (Mohan Das v Kamala Devi, AIR 1978). The object was to exclude appeals from execution determinations, which were found to clog execution proceedings (Kuriakose v Narayanan Nair, AIR 1981). After the Amendment, even an order passed under Section 47 that finally determines a question between parties to the suit is not a decree and does not carry the right of appeal under Section 96.

Who is a "legal representative" under Section 2(11)?

A legal representative is a person who in law represents the estate of a deceased person; the definition expressly includes any person who intermeddles with the estate, and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of that party. The expression is inclusive, wide in scope, and not confined to legal heirs (Vivishendramani v K Venugopal Rai, AIR 1995). A person on whom the estate devolves is a legal representative even if not in actual possession (Javarimal v Mangilal, (1961)); an intermeddler with even part of the estate falls within the clause (Andhra Bank Ltd v Srinivasan, AIR 1982). A mere trespasser holding adversely is not a legal representative (Nagendranath v Hyat, AIR 1933).