Deemed decree – Meaning

The dictionary meaning of the word “deem” is “to have a particular opinion about something/somebody”. The literal interpretation of the word “deemed” is “to consider”. In general, the term “deemed” is used to create a statutory fiction for the purpose of extending the meaning which it does not expressly cover.

Under the Code of Civil Procedure, 1908, a deemed decree refers to “an order passed by the Court of law, which is treated as decree, although it is not a decree in the conventional sense, but id treated as one due to specific provisions for the purpose of appeal.”

In the case of CIT v. Bombay Trust Corpn.¹(1929-30) 57 IA 49., it was stated, “(W)hen a person is deemed to be something, the only meaning possible is that whereas he is not in reality that something, the Act of Parliament or the Legislature requires him to be treated as if he were.”

Metaphor:

Imagine you completed all your coursework, submitted all your projects, passed all the exams, and receives email from the university saying:

“You have officially fulfilled all requirements. Your degree certificate is being processed.”

For some reason, the formal convocation also called “graduation ceremony” has not happened yet and you have not received the physical degree, but you can now apply for jobs, claim alumni benefits, and can be treated as a graduate.

In simple words, even though you do not have the physical document in your hand still, you are legally and socially treated as a graduate because all substantive requirements are complete.

Similarly, in law:

A “deemed decree” is not formally pronounced in any statute as a decree, but the Code of Civil Procedure, 1908 treats it as one because it decides important rights of the parties, just like you are being treated as a graduate.

Legislature and the term “deemed”

Whenever the legislature uses the word “deemed” in any statute, in relation to a particular person or a thing, it signifies that the legislature, after due consideration, conferred a particular status on a particular person or thing²Lucy Kochuvareed v. P. Mariappa Gounder, (1979) 3 SCC 150; see also, K. Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687; M. Venugopal v. LIC, (1994) 2 SCC 323; State of Maharashtra v. Laljit Rajshi, (2000) 2 SCC 699; CCT v. Swarn Rekha Cokes and Coals (P) Ltd., (2004) 6 SCC 689., and such statutory fiction cannot be ignored.

Deemed decree under Code of Civil Procedure, 1908

The Code of Civil Procedure, 1908 does not expressly talks about deemed decree, but in general, the Code recognizes it in many ways. Following are the instances of deemed decree under Code of Civil Procedure, 1908:

1. Order rejecting a plaint (Order VII Rule 11): Order VII Rule 11 of the Code of Civil Procedure, 1908 provides “the grounds on which a plaint can be rejected.” It assures that “the rejection of a plaint is appealable as a decree under Code of Civil Procedure, 1908”.

Why rejection of a plaint is considered as deemed decree under the Code of Civil Procedure, 1908?

Section 2(2) of the Code of Civil Procedure, 1908 clearly mentions that the decree “deemed to be include”:

i. Rejection of a plaint; and

ii. Determination of any question under Section 144 of the Code of Civil Procedure, 1908.

The section further provides, for a decision of a court to be a decree:

i. There must be an adjudication;

ii. The adjudication must be done in a suit;

iii. It must determine the rights and liabilities of the parties to the suit;

iv. The determination must be of a conclusive nature;

v. The adjudication of such judicial determination must be formally done in a suit.

If all the above requirements are fulfilled, the decision of a court can be said to be a decree. but, if a plaint is rejected by a court of law, then it signifies that no adjudication has been taken place (first requirement). Therefore, the rejection of a plaint by the court cannot be considered as a decree under Section 2(2) of the Code of Civil Procedure, 1908. Instead, it is considered as deemed decree.

Metaphor:

Imagine you apply for a job at TATA Consultancy Services (TCS). You submit your curriculum vitae, but the HR department checks and says:

“Your job application does not meet our basic criteria therefore, we are rejecting it. You were not called for an interview.”

In this case, you never get a chance to appear for the job interview in TCS. Therefore, TCS never actually assessed your qualifications or compare you with other candidates.

Still, the rejection affects your rights. You cannot be considered for that job anymore.

Similarly, in law:

When a plaint is rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908, the court does not adjudicate on the merit of the case. There is no trial happened, no determination of rights taken place, and no formal decision is given in the suit, yet, the rejection of the plaint ends the proceedings for that suit and prevents the plaintiff from further continuation.

Therefore, though it is not a decree in the true sense, the law treats it as a deemed decree, just like the job rejection without an interview is treated as final by the applicant.

Relevant case law(s): Shiv Shakti Coop. Housing Society v. Swaraj Developers, (2003) 6 SCC 659.

2. Determination of question under Section 144 of the Code: Section 144 of the Code of Civil Procedure, 1908 deals with “application/doctrine for restitution”. It provides that “when a court determines any question under Section 144 of the Code of Civil Procedure, 1908, such determination of court is “deemed to be a decree under CPC”.”

A restitution order by the court under Section 144 of the Code restores the parties to the suit to their original position.

Further, Section 2(2) of the Code of Civil Procedure, 1908, expressly provided that the determination of any question under Section 144 of the Code is also deemed to be a decree.

Metaphor: 

Imagine you ordered an iPhone and paid ₹1,50,000. Later, the company cancels your order due to pricing error:

Because of cancellation of your order, you file a complaint in customer care and customer care team investigates and reached to a conclusion that:

“Yes, you are right. Since the order was cancelled, we will refund your money.”

Now, in the present scenario, you did not go through a full course case. But, this decision returns you to your original position, undoing the effect of a cancelled deals.

Similarly, in court:

Suppose you win a case and gets possession of a property. Later, on appeal, the judgement is reversed by the court. The other party files an application for restitution under Section 144 of the Code of Civil Procedure, 1908 and the court orders you to return the property or compensate.

This order of restitution is not a decree in a suit, but the law treats it as a “deemed decree” because it affects substantial rights of the parties.

A restitution order by the court under Section 144 of the Code restores the parties to the suit to their original position just like a refund returns your money when your order gets cancelled.

Relevant case law(s): Merla Ramanna v. Nallaparaju, AIR 1956 SC 87.

3. Order under Section 47 of the Code of Civil Procedure, 1908: Section 47 of the Code of Civil Procedure, 1908 deals with the “question to be determined by the court executing decree”. An order passed under this section is deemed to be a decree which ensures that it is appealable and subject to the same legal scrutiny as a formal decree.

Metaphor:

Imagine you placed an order from online grocery store (Blinkit). When the delivery arrives, there is a wrong order:

“You say you ordered 10kg wheat flour; but, the delivery boy insists the receipt says 5kg wheat flour.”

You call customer service of Blinkit. They rechecked the order and informed:

“Yes you were right. The receipt was wrong. You will get the remaining 5kg wheat flour.”

No new order was placed by you and you did not even contacted/go to the store again. But, the company (Blinkit) resolves the issue arising from your original purchase, and now the decision is final and binding.

Similarly,

Under Section 47 of the Code of Civil Procedure, 1908, a court decides questions arising between parties in the execution decree. These decisions are not new suit, but they affect substantial rights of the parties and are binding on them.

Therefore, the law treats orders under Section 47 of the Code of Civil Procedure, 1908 as “deemed decree” because, they finally resolve important disputes about how a judgement is carried out.

Relevant case law(s): Banwari Lal v. Chando Devi, (1993) 1 SCC 581.

Comparative note on Orders under Section 47 of the Code (deemed decrees) v. Orders not falling under Section 47 of the Code.

Orders under Section 47 of the Code (Deemed decrees)

Rule:

Section 47 of the Code of Civil Procedure, 1908 states that “all questions arising between the parties to the suit relating to execution, discharge or satisfaction of the decree shall be determined by the executing court and not by a separate suit.”

Such orders are deemed decrees under Section 2(2) of the Code of Civil Procedure, 1908, hence appealable.

Orders not falling under Section 47 of the Code (Not deemed decrees)

Rule:

If an order does not relate to execution, discharge, or satisfaction of the decree, then Section 47 of the Code does not apply. Such orders are not deemed decrees and are not appealable as decree.

4. Order dismissing suit under Order IX Rule 8 of the Code of Civil Procedure, 1908: Order IX Rule 8 of the Code of Civil Procedure, 1908 refers to the “procedure where only defendant appears”. Rule 8 of Order 9 provides that, “where the defendant appears and the plaintiff does not appear on the date when the suit is called for hearing, the Court shall make an order that the suit be dismissed…”

This order is considered as deemed decree for the purpose of appeal.

Metaphor:

Imagine you book a flight for London and reach the airport late.

The airlines calls your name multiple times at the gate, but you did not show up. The plane is ready to take off and the other passengers are seated. When you did not show up, the airlines marks your ticket as “No show” and cancels your journey.

You never boarded the plane, and the airlines did not evaluate your situation or listen to your side. But, still, your right to travel on that particular flight is lost because you were not present when required.

Similarly,

Under Order IX Rule 8 of the Code of Civil Procedure, 1908, if the plaintiff fails to appear, and only defendant is present on the fixed date, the court can dismiss the suit without examining the merits of the case like the airlines marks you as no show without hearing your excuse.

However, no proper hearing took place in the court, this dismissal ends the suit and impacts rights of the parties to the suit. Therefore, the law treats it as a deemed decree for the purpose of appeal, just like the airline’s cancellation is final for that flight.

Relevant case law(s): Rameshwar Lal v. Municipal Council, Tonk, AIR 1996 Raj 69.

5. Order granting or refusing a temporary injunction: Order XXXIX of the Code of Civil Procedure, 1908 deals with “cases in which temporary injunction and interlocutory orders may be granted.” An order granting or refusing a temporary injunction under Order XXXIX Rule 1 or 2 is deemed to be a decree for the purpose of appeal.

Metaphor: 

Imagine you are playing an online game competition. You are leading, but your opponent hits the pause button and says:

“Wait! I need to fix mouse/joystick before the final round continues.”

The arbitrator/referee hears both sides and decides:

• • Either: “Okay, pause granted.”
  • Or: “No, continue the game.”

Even though the game has not ended yet, this decision can change the momentum or outcome of the game.

Similarly, in court case:

• • A party to the suit may request a temporary injunction to stop the other party from taking action (for e.g., selling a property or publishing something) while the case is still pending.
  • The court’s decision to grant or deny this request deeply affects the party’s immediate rights.

Therefore, even though the decision of the court is not final decree, the law treats such orders as “deemed decrees” because they have a significant impact just like the referee’s decision to pause or not to pause the online game.

Relevant case law(s): A. Venkatasubbiah Naidu v. S. Chellappan, (2000) 7 SCC 695.

6. Adjudication under Order XXI Rule 58: Order XXI Rule 58 of the Code of Civil Procedure, 1908 provides provisions for “adjudication of claims to, or objections to attachment of, property.” This rule of CPC discuss about the adjudication which results from the claim made on the attachment of a property along with the execution of decree on the basis that such property is not liable to such an attachment.

Clause 4 of this rule invokes the concept of deemed decree under the Code of Civil Procedure, 1908.

Clause 4:

“Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.”

A bare reading of this clause disclose that the adjudication which takes place under this rule will not be resulting in a decree under Section 2(2) of the Code of Civil Procedure, 1908. Instead, it will be a “deemed decree” as this clause expressly mentions.

Metaphor: 

Imagine you are standing in the VIP line at an elite club and someone from your side says:

“Wait! That person is standing in the VIP line, but that’s my invitation!”

The bouncer stops the entry for sometime to check everything. After checking the list, investigating the claim and concluding every formality, he finally announces:

“After checking the invitation actually belongs to the original person. They can enter.”

Now, the bouncer is not a judge and this was not a formal court case. There was no hearing, no judgement and no trial at all, still, the decision of bounder determines who has the right to enter in the club. It affects the rights of both people involved.

Similarly,

Under Order XXI Rule 58 of the Code of Civil Procedure, 1908 when a third party objects to the attachment of property in an execution proceedings (saying it is his property, not the judgement debtor’s), the court investigates the claim of third party.

Even though there is no proper civil suit or formal decree, the court’s ruling affects property rights and is thus treated as a deemed decree just like the decision of bouncer, who can go in even without a formal trial.

Relevant case law(s): Silverline Forum Pvt. Ltd. v. Rajiv Trust, (1998) 3 SCC 723.

7. Order XXI Rule 98: Order XXI Rule 98 discuss about “Orders after adjudication”. According to legislative intent, this rule falls within the ambit of deemed decree.

Metaphor:

Imagine you legally buy a flat and get full ownership documents. But, when you go to move in, someone else is living there and claims the flat as theirs.

You go to the housing authority and they investigate your concern and then they concluded:

“We have verified everything. You are the rightful owner of the flat and the person inside the flat must vacate immediately.”

Now, the housing authority’s decision/order is not a decree from the court, still, it effectively settles the dispute and restores your possession. You did not go through a new case, but your rights were decided and the illegal owner was removed from the flat.

Similarly,

In the court, in execution of decree (like for possession), if someone resists delivery, the court investigates everything under Order XXI Rule 97 of the Code of Civil Procedure, 1908 and after hearing both the sides and by looking all the evidences, it passes an order under Order XXI Rule 98 of the Code of Civil Procedure, 1908 by saying:

“This resistance is unlawful. Remove the objector: Delivery possession.”

This order of the court determines the parties’ rights, but it is not passed in a fresh suit. Therefore, it is not a real decree, but the Code of Civil Procedure, 1908 treats it as a deemed decree, just like the decision of housing authority restores your rightful possession.

Relevant case law(s): Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, (1997) 3 SCC 694.

8. Order XXI Rule 100: Order XXI Rule 100 of the Code of Civil Procedure, 1908 deals with “Orders to be passed upon application complaining of dispossession”. Rule 100 of Order XXI is also considered as deemed decree as it involves an adjudication which formally does not fit in the scope of Section 2(2) of the Code of Civil Procedure, 1908.

Metaphor: 

Imagine you rent a flat legally, and one day when you were not at home, the landlord changes the lock and throw all your belongings without any legal notice or court case.

You complain to the housing authority, and after proper inquiry, they provided that:

“Yes, this was wrongful dispossession. The landlord must give you back your rented flat.”

Now, as you can see, this decision was not taken through a full court trial. You did not file any lawsuit. But, the order restores your right to possession, which affects your substantial legal rights.

Similarly,

Under Rule 100 of Order XXI of the Code of Civil Procedure, 1908, if someone is wrongfully disposses during execution proceedings, they can apply to the court.

If the court without starting a fresh suit, adjudicates and passes an order restoring your possession that order is not a formal decree under Section 2(2) of the Code of Civil Procedure, 1908. But, it determines substantial rights. So, the law treats it as a “deemed decree”.

Relevant case law(s): Ashan Devi v. Phulwasi Devi, (2003) 12 SCC 219.

Conclusion

The concept of “deemed decree” under the Code of Civil Procedure, 1908 is a clear example of how legislature create fictions to ensure justice and procedural efficiency. While a decree under Section 2(2) of the Code of Civil Procedure, 1908 must fulfil certain essential conditions, there are still some situations where the order of court, though not a decree in strict sense, but determines the rights of the parties to the suit and follows the same legal consequence as a decree under the Code of Civil Procedure, 1908.

Table

Preliminary Examination Questions and Answers

1. The dictionary meaning of the word “deem” is:

(a) To declare something invalid

(b) To have a particular opinion about something

(c) To enforce something by law

(d) To treat something as non-existent

2. In legal interpretation, the term “deemed” is generally used to:

(a) Restrict the meaning of a statute

(b) Extend or create a statutory fiction

(c) Repeal an existing legal provision

(d) Define criminal liability

3. Which of the following best defines a “deemed decree” under the Code of Civil Procedure, 1908?

(a) A decree passed after full trial of a civil suit

(b) An order passed by the court that is expressly included in Section 2(2) of the Code of Civil Procedure, 1908

(c) An order which is not a decree in the strict sense but is treated as a decree for the purpose of appeal

(d) A preliminary decree that later becomes final

4. In CIT v. Bombay Trust Corporation (1930) PC 54, the Privy Council explained that when a person is “deemed” to be something:

(a) They are not that thing in reality but must be treated as such by law

(b) They automatically require that status in reality

(c) They are considered as such only for criminal liability

(d) They are considered as such only during trial, not appeal

5. Which of the following orders is expressly treated as a deemed decree under the Code of Civil Procedure, 1908?

(a) Order of dismissal for default under Order IX Rule 8

(b) Order granting or refusing temporary injunction under Order XXXIX Rule 1

(c) Adjudication of claim/objection under Order XXI Rule 58(4)

(d) Passing of a final decree

Mains Examination Questions

Question: Explain the meaning of the term “deemed decree” under the Code of Civil Procedure, 1908 and explain how does it differ from a decree under Section 2(2) of CPC.

Question: Discuss with illustrations the instances where orders are treated as “deemed decree” under the Code of Civil Procedure, 1908.

Question: Why is rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 is considered as deemed decree and not a decree under Section 2(2) of the Code?

Question: Critically analyse the rationale behind the legislative creation of deemed decrees under the Code of Civil Procedure, 1908.

Question: “Substance prevail over form”. Explain this principle in the context of deemed decrees with suitable case laws.

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• 1
  (1929-30) 57 IA 49.
• 2
  Lucy Kochuvareed v. P. Mariappa Gounder, (1979) 3 SCC 150; see also, K. Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687; M. Venugopal v. LIC, (1994) 2 SCC 323; State of Maharashtra v. Laljit Rajshi, (2000) 2 SCC 699; CCT v. Swarn Rekha Cokes and Coals (P) Ltd., (2004) 6 SCC 689.