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Dalpatbhai Bhagubhai Vs. Amarsang Khemabhai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom553
AppellantDalpatbhai Bhagubhai
RespondentAmarsang Khemabhai and anr.
Excerpt:
the code of civil procedure (act x of 1877), sections 2, 244, 540, and 588 - appeal--execution of a decree--judicial proceeding. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law declared by..........be made 'in the same way as in an ordinary suit' (sections 522, 526, 531). these may be the 'other judicial proceedings' to which the code refers in the definition of 'decree'; although, as such proceedings are to be numbered and registered as suits, the insertion of the words 'other judicial proceedings' was perhaps, hardly necessary, as the word 'suit' would have included these. but, however this may be, we feel compelled to the conclusion that orders made in execution, of the nature of that now under consideration, cannot be included in those formal orders in which the decision of the suit or other judicial proceeding is embodied, to which reference is made in the definition of the term 'decree.'7. it may appear that we have entered at unnecessary length into our reasons for refusing.....
Judgment:

Melvill, J.

1. This is an application of appeal against an order of the First Class Subordinate Judge of Kheda made subsequently to the date on which the new Code of Civil Procedure came into force, by which the Subordinate Judge determined two questions arising between the parties to a suit, viz., first, the amount of mesne profits which the plaintiff had recovered from certain mortgaged property subsequently to decree, and, secondly, the amount payable on account of the costs of execution. The final order of the Subordinate Judge was that, out of a sum of money deposited by the defendant, Rs. 8,476 should be paid to the plaintiff in full satisfaction of his decree, and the balance restored to the defendant.

2. Against this order the plaintiff wishes to appeal, and the appeal was admitted provisionally, subject to any objection which the defendant might take to its admissibility under the provisions of the new Code.

3. After hearing arguments on both sides, we have come to the conclusion that no appeal lies in this matter. The Subordinate Judge's order is an order, under Section 244, as to questions relating to execution of a decree, and, therefore, under Section 588, Clause (j), is appealable, if it be of the same nature with appealable orders made in the course of a suit. The 'appealable orders made in the course of a suit' must be taken to be the orders mentioned in other clauses of Section 588 as appealable. They are generally interlocutory orders, not going to the merits of any question arising in the suit. The present order is not of such a nature, and, therefore, no right of appeal can be derived from the provisions of Section 588.

4. But it has been argued that under Section 540 an appeal lies from all decrees, and that the definition of the term 'decree' in Section 2 of the Code is sufficiently wide to include the order of the Subordinate Judge in this case. That definition is as follows:

5. 'Decree' means the formal order of the Court in which the result of the decision of the suit or other judicial proceeding is embodied.

6. The term 'judicial proceeding' is not defined, and it is, no doubt, susceptible of very wide extension. If the definition contained in the Code of Criminal Procedure were adopted, it would mean 'any proceeding in the course of which evidence. is or may be taken, or in which any judgment, sentence, or final order, is passed on recorded evidence.' Under such a definition most orders made by a civil Court, including many of those specified in Section 588, would be decrees, and appealable as such, and, therefore, if such a definition had been intended, no such orders would have been mentioned in Section 588, which forms part of a chapter which was evidently intended to deal with orders which are not decrees. We think that, in the definition of the term 'decree' the expression, 'suit or other judicial proceeding,' must, according to a common rule of, construction, be understood as meaning a suit or other judicial proceeding of the same nature as a suit. Moreover, the definition limits the term 'decree' to a formal order in which the result of the decision is embodied and this indicates that it applies only to those orders which the law requires to be drawn up after a decision has been recorded in a particular formal manner, i.e., to those orders, or their like, which are described as decrees, and of which the form is given in Section 206 of the Code. The law requires that such formal orders shall be drawn up, not only in ordinary suits but also in certain other proceedings which are not instituted as suits, and are not, strictly speaking, suits, though they are numbered and registered as if they were suits, and are investigated in the same manner and with the like power as if they were suits. Such are proceedings in reference to resistance to execution; in regard to which the Code prescribes (section 333) that the order passed shall be in the nature of, and shall have the same force as, a decree in a suit. Similarly, in the case of agreements to refer to arbitration otherwise than in a suit, in the case of references to arbitration without the intervention of a Court (chapter XXXVII), and in the case of proceedings on agreement of parties (chapter XXXVIII), the proceedings are not, strictly speaking, suits; but the law requires that a decree shall be made 'in the same way as in an ordinary suit' (sections 522, 526, 531). These may be the 'other judicial proceedings' to which the Code refers in the definition of 'decree'; although, as such proceedings are to be numbered and registered as suits, the insertion of the words 'other judicial proceedings' was perhaps, hardly necessary, as the word 'suit' would have included these. But, however this may be, we feel compelled to the conclusion that orders made in execution, of the nature of that now under consideration, cannot be included in those formal orders in which the decision of the suit or other judicial proceeding is embodied, to which reference is made in the definition of the term 'decree.'

7. It may appear that we have entered at unnecessary length into our reasons for refusing to put an obviously forced construction upon a term which has such a well-established meaning as the word 'decree.' The truth is, that we have been unwilling to reject that construction, except on the strongest ground of necessity, because it affords the only possible means of holding that, the Legislature did not intend to deprive parties of the right to appeal against the orders ordinarily made in regard to the execution of decrees. Such orders are of the highest importance, quite as important, in many instances, as the decree itself. A Subordinate Judge may, for example, decide that an application for execution is barred by lapse of time. His reasons may be quite erroneous; yet the decree-holder cannot appeal, and he is thus deprived of the whole fruits of his litigation. But such seems to have been the deliberate intention of the Legislature. In the draft Bill published in the Gazette of India of the 14th October 1876, Section 588 gave a right of appeal against all orders under Section 244 as to questions relating to the execution of decrees, and the Select Committee reported (page 1209) that this provision had been advisedly introduced. The words of limitation, viz., 'of the same nature with appealable orders made in the course of a suit, 'were subsequently inserted and apparently without any republication of the section in its altered form. In the draft Bill, referred to this Court for its opinion, the words above quoted found no place. Considering the great importance of these words, and the havoc which they make of previously existing rights of appeal, we cannot help thinking that, if an opportunity of discussing them had been afforded to the public and the Courts, such arguments might have been advanced as would have induced the Legislature to reconsider them. As it is, we have no choice but to give effect to the declared intention of the Legislature; and we accordingly dismiss this appeal with costs.


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