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Bai Dahi Vs. Hargovandas Kuberdas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 98 of 1904
Judge
Reported in(1906)8BOMLR229
AppellantBai Dahi
RespondentHargovandas Kuberdas
Excerpt:
.....disapprove of any failure to observe the provision of section 198 of the civil procedure code : and i desire to express my disapproval because it has been represented to us that it is not an uncommon practice in the mofussil courts to omit to pronounce judgment in open court.... if the practice exists i trust it will cease and that judgments will always be pronounced, as the law requires, in open court; and that pleaders will attend when judgment is pronounced and assist the court by pointing out any error that may occur.' - - 7. we strongly disapprove of any failure to observe the provisions of section 198 of the code; 10. the question now arises, how are we to deal with the failure of the judge in this case to observe the provisions of section 198? we do not think that we can..........be given to the parties or their pleaders.'6. it is said that the judgment in this case was not pronounced in open court, and this is confirmed by the report for which we have called.7. we strongly disapprove of any failure to observe the provisions of section 198 of the code; and we desire to express our disapproval, because it has been represented to us that it is not an uncommon practice in the mofussil courts to omit to pronounce judgment in open court.8. apart from the fact that it is in direct opposition to an express provision of the law, the practice is highly inconvenient, and deprives the court and the litigants of a valuable safeguard against error.9. it must often happen that some slip or error occurs in the course of a judgment avhich the advocate or pleader engaged in.....
Judgment:

Lawrence Jenkins, K.C.I.E., C.J.

1. This appeal arises out of an application for Letters of Administration made by the appellant Bai Dahi, widow of Tribhowandas, to the estate of her husband.

2. The application has been dismissed by the District Court.

3. It is from that decree of dismissal that this appeal has been presented.

4. The first objection taken to the decree is that it follows on a judgment which was not pronounced as required by the law.

5. Section 198 of the Code of Civil Procedure provides that 'the Court, after the evidence has been duly taken, and the parties have been heard either in person or by their respective pleaders or recognized agents, shall pronounce judgment in open Court either at once or on some future day, of which due notice shall be given to the parties or their pleaders.'

6. It is said that the judgment in this case was not pronounced in open Court, and this is confirmed by the report for which we have called.

7. We strongly disapprove of any failure to observe the provisions of Section 198 of the Code; and we desire to express our disapproval, because it has been represented to us that it is not an uncommon practice in the mofussil Courts to omit to pronounce judgment in open Court.

8. Apart from the fact that it is in direct opposition to an express provision of the law, the practice is highly inconvenient, and deprives the Court and the litigants of a valuable safeguard against error.

9. It must often happen that some slip or error occurs in the course of a judgment Avhich the advocate or pleader engaged in the case is able to point out to the Judge with the result that it can be rectified at once and the parties thus saved the expense, trouble and delay which would be involved in seeking a rectification by review or appeal. If the practice exists, we trust it will cease and that a judgment will always be pronounced, as the law requires, in open Court, and that pleaders will attend when judgment is pronounced, and assist the Court by pointing out any error that may occur.

10. The question now arises, how are we to deal with the failure of the Judge in this case to observe the provisions of Section 198? We do not think that we can reverse the decree having regard to the provisions of Section 578 of the Code of Civil Procedure.

11. The appellant's complaint is that the advantage of the compromise into which she entered has been lost to her by reason of the Judge's irregular procedure.

12. This compromise was made between Bai Dahi, the appellant, and Hargovandas, the respondent, and thereby the respondent (who opposed the grant to the appellant of Letters of Administration on the ground of a will of Tribhowandas under which he claimed to be the executor) withdrew his opposition.

13. But as the respondent was only an executor and there were beneficiaries named in the will, it was not within the respondent's power to enter into a compromise to the prejudice of the beneficiaries; and the Court would not give effect to such a compromise in the absence of the beneficiaries.

14. Under the circumstances we will, as the appellant so desires, direct that the beneficiaries under the will of Tribhowandas be 'added as respondents, so as to ascertain their attitude towards the compromise.

15. It has been suggested by Mr. Hiralal on behalf of the appellant that the compromise, though made in the name of Hargovandas alone, was in fact concluded by him on behalf of and in the presence of the beneficiaries, and that they must be treated as bound thereby. That is a point with which we can only deal when the beneficiaries are parties.

16. This appeal must now stand over for afortnight to enable the beneficiaries to be added as party-respondents, and we direct that they be added at once.

17. On the 16th February 1906, the Court passed the following

18. Order: By consent the Court confirms the order of the lower Court subject to the provision that the amount of Rs. 75. allowed to the appellant for her maintenance, will be increased to Rs. 120.

19. Costs of all the parties here and in the Court below will come out of the estate.


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