A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. Such a decree determines the rights of the parties with regard to some or one of the matters in controversy in the suit but does not completely dispose of the suit.
Such decrees are passed in suit for possession and men’s profits, in administration suits, in pre-emption suits, in suites for dissolution of , in partnership accounts between the principal and agent, in partition suits, in mortgage suits, in suits for foreclosure in redemption suits, in suits for sale, etc.
The function of the final decree is merely to restate and apply with precision what the preliminary decree has ordained. The decrees are in the same suit and if the preliminary decree is set aside the final decree is automatically superseded.
Image Source: financialjuneteenth.com
ADVERTISEMENTS:
Thus, in a suit between the principal and agent or between the partners for accounts and recovery of such amount as may be found due on taking account, the court first finds that the relationship of principal and agent or that of partners existed between the parties and the plaintiff is entitled to accounts.
This is a preliminary decree, for a substantive right is determined thereby between the parties. Now when the actual amount due as been determined, the court passes a decree ordering the defendant to pay the amount to the plaintiff. This is the final decree.
In a suit for foreclosure if the plaintiff succeeds, the court passes a preliminary decree ordering that an account be taken of what was due to the plaintiff at the date of such decree for principal and interest on the mortgage, the costs of the suit, declaring the amount so due at that date and directing that within the specified period the plaintiff shall deliver up to the defendant all the documents and re-transfer the property.
ADVERTISEMENTS:
But if the payment is not so made within the specified period the plaintiff shall be entitled to apply for a final decree debarring the defendant from all right to redeem the property.
Thus, in a suit for foreclosure the final decree is passed on the application of the defendant when he has made the payment into court of all amounts due ordering the plaintiff to deliver up documents referred to in the preliminary decree and to re-transfer the mortgaged property to the defendant.
Similarly, when payment has not been made by the defendant, the court, on the application of the plaintiff, passes a final decree declaring that the defendants is debarred from all right to redeem the mortgaged property. The same is the procedure for passing the preliminary and final decree in a redemption suit.
Decree Partly Preliminary and Partly Final:
A decree may be partly preliminary and partly final. In a suit for possession of land and profits the court orders possession of the land in suit in favour of the plaintiff, and directs an enquiry into profits. The first part is final decree, while the second part is preliminary decree.