The word ‘Preliminary’ essentially means something done in the preparatory stage to assist the final action. Preliminary decree is an important concept under the Civil Procedure Code. The Code doesn’t define a preliminary decree per se but it defines what a decree is. From the definition and explanation, we can find out what is preliminary decree.
Section 2 (2) of the Civil Procedure Code provides that:
“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—
(a) Any adjudication from which an appeal lies as an appeal from an order, or
(b) Any order of dismissal for default.
Explanation – a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.”
Hence, a decree is a formal expression of adjudication which conclusively determines the rights of the parties in a suit. It may either be preliminary or final. The explanation to the section says that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit.
It may be partly preliminary and partly final. Hence a preliminary decree is a decree passed in a suit but doesn’t dispose off the suit whereas a final decree disposes off the suit. A preliminary decree only comes out as a consequence of determination of substantive rights. An adjudication that finally decides the right of parties but does not completely dispose of the suit is a preliminary decree[1].
So, in preliminary decree, certain rights are conclusively determined and unless the preliminary decree is challenged in appeal, the rights so determined become final and conclusive and cannot be questioned in the final decree[2]. Suit for possession and mesne profits, suits for pre-emption, suit for dissolution of partnership between principal and agent, for foreclosure of mortgage, etc., are examples where courts can pass preliminary decree. There has been complicating opinion as to whether there can be more than one preliminary decree in a same suit.
However, as regard to partition suits, the Supreme Court in Phoolchand v. Gopal Lal[3] concluded that there is nothing in the civil code which prohibits passing of more than one preliminary decree, if circumstances justify the same and it may be necessary to do so, but what we are saying must be confined to partition suits. The question whether a decision amounts to preliminary decree or not is of great significance in view of provisions of section 97 of the Civil Procedure Code, 1908:
“Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.”
The object of section 97 is to prevent preliminary questions being raised in the form of appeal after a case has been decided on merits. Since the passing of a preliminary decree is only a stage prior to passing of a final decree, if an appeal preferred against a preliminary decree succeeds, the final decree automatically falls to the grounds for there is no preliminary decree in support of it.
[1] Venkata Reddy v. Pethi Reddy, AIR 1963 SC 993.
[2] Parvathamma v. A. Muniyappa AIR 1997 Kant 370.
[3] AIR 1967 SC 1470: (1967) 3 SCR 153.
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