In the context of civil litigation in Pakistan, understanding the difference between a Preliminary Decree and a Final Decree is crucial. Both terms are widely used under the Code of Civil Procedure, 1908 (CPC) and play a significant role in the progress and conclusion of civil suits.
This article explains their legal definitions, purposes, and key differences, including relevant laws in Pakistan.
What is a Decree? (Section 2(2) CPC)
Under Section 2(2) of the Code of Civil Procedure, 1908, a decree is defined as:
“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…”
There are three types of decrees:
- Preliminary Decree
- Final Decree
- Partly Preliminary and Partly Final
Preliminary Decree
A preliminary decree is passed when further proceedings are required to completely dispose of the suit (The Code of Civil Procedure, 1908, Section 2(2) Explanation). It determines the rights and liabilities of the parties but does not conclude the case.
Final Decree
A final decree is passed when the adjudication completely disposes of the suit. It occurs after all necessary proceedings have been taken to execute the preliminary decree (The Code of Civil Procedure, 1908, Section 2(2) Explanation).
Key Differences
- A preliminary decree only determines the rights, while a final decree completely disposes of the case.
- Further proceedings are required to implement a preliminary decree, whereas a final decree concludes the litigation.
Legal Provisions Under Pakistani Law
Relevant Laws
- The Code of Civil Procedure, 1908, Section 2(2) defines decrees and distinguishes between preliminary and final decrees.
- The Partition Act, 1893 Section 8 states that any order for sale made by the Court under section 2, 3 or 4 shall be deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure, 1908 (Act V of 1908).
- The Parsi Marriage and Divorce Act, 1936 Section 45 states that the provisions of the Code of Civil Procedure, 1908 (V of 1908), shall, so far as the same may be applicable, apply to proceedings in suits instituted under this Act including proceedings in execution and orders subsequent to decree.
- THE PUNJAB DEFAMATION ACT 2024 Section 15 says that In case of failure of the Defendant to obtain leave to defend, the Tribunal shall forthwith pass the preliminary decree for General Damages.
- THE PUNJAB DEFAMATION ACT 2024 Section 16 says that upon pronouncement of preliminary decree, the claim to that extent shall automatically stand converted into execution proceedings without the need to file a separate application for execution and no fresh notice need be issued to the Defendant/judgment-debtor in this regard.
Important Considerations
- Appeal: An appeal can be filed against both preliminary and final decrees. Section 96 of The Code of Civil Procedure, 1908 allows appeals from original decrees, including those passed ex parte.
- Non-Appeal of Preliminary Decree: Section 97 of The Code of Civil Procedure, 1908 states that if a party is aggrieved by a preliminary decree but does not appeal it, they are precluded from disputing its correctness in any appeal against the final decree.
- Execution: Once a final decree is passed, it is executed as per the provisions of the Civil Procedure Code (The Code of Civil Procedure, 1908, Section 45).
Illustration
In a mortgage suit, the court may first pass a preliminary decree determining the amount due to the mortgagee. After this, a final decree is passed, ordering the sale of the property if the mortgagor fails to pay the amount due.
Judgments
- In Yad Ali Sheikh minor and another versus Hazrat Ali Fakir and others, PLD 1956 Dacca 111, the court clarified the procedure for foreclosure decrees, emphasizing adherence to the preliminary decree and the mortgagor’s right to redeem the mortgage until a valid final decree is passed.
Decree in mortgage suits
According to section 14 of The Financial Institutions (Recovery of Finances) Ordinance, 2001 Where the suit filed by a financial institution before the Banking Court is for the enforcement of a mortgage of immovable property the Banking Court will not be required to pass a preliminary decree as provided in Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908), but shall directly pass an interim or final decree for foreclosure or sale. Section 17 of The Financial Institutions (Recovery of Finances) Ordinance, 2001 states that the final decree passed by a Banking Court shall provide for payment from the date of default of the amounts found to be payable on account of the default in fulfillment of the obligation, and for costs including, in the case of a suit filed by a financial institution cost of funds determined under section 3.
Conclusion
A Preliminary Decree defines rights; a Final Decree grants relief. Both are crucial steps in civil cases under Pakistani Civil Procedure Law. Litigants and lawyers must recognize the type of decree to take timely and effective legal action.
If you’re facing a situation involving partition, inheritance, or any other civil matter, it’s important to consult a legal expert to understand your rights and remedies at every stage of the case.