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Vamanacharya Ramacharya Vs. Govind Madhavacharya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberLetters Patent Appeal No. 21 of 1922
Judge
Reported inAIR1924Bom33; (1923)25BOMLR826; 76Ind.Cas.1014
AppellantVamanacharya Ramacharya
RespondentGovind Madhavacharya
DispositionAppeal dismissed
Excerpt:
.....2 and 97 - appeal-preliminary decree-finding as to status of agriculturists-formal decree not drawn up-appeal not necessary.;where, in a suit for redemption, the plaintiff is found to be an agriculturist, and the court orders accounts to be taken of the mortgage, but no preliminary decree is actually drawn up, there is no obligation on the unsuccessful party to appeal at that stage.;the drawing up of a decree or the omission to do so is conclusive on the question whether the court has in fact pasted or not passed a preliminary decree. - - a second appeal was made to this court, in which, among other things, the same objection is taken to the cross-objection of the respondents as had been unsuccessfully urged in the first appeal court. 92 are also conclusive on the point that no..........for it seems clear from the reported facts of that case that there had been a formal preliminary decree drawn up from which an appeal could properly be made, and the point in dispute in that case was really quite a different one, namely, whether section 97 did not apply because the decretal part of the adjudication was based on a matter not contested, and the reference objected to might have been made separately as an order. it seems to me that the present question is really determined by the rulings of this court in sakharam vishram v. sadashiv balshet i.l.r. (1913) 37 bom. 480 : 15 bom. l.r. 382 and kaluram v. gangaram (1913) 16 bom. l.r. 67. those cases definitely decided that the right of appeal under section 97 of the civil procedure code only arises when a preliminary decree is.....
Judgment:

Fawcett, J.

1. The plaintiffs-appellants sued as agriculturists for redemption of two mortgages after taking accounts under the Dekkhan Agriculturists' Relief Act. The first two issues were : (1) are the plaintiffs agriculturists? and (2) is any of the plaintiffs an agriculturist? On August 26, 1919, the Subordinate Judge gave findings on these two issues with the reasons. He held that the plaintiffs were not agriculturists at that time, but plaintiff No. 1 and his deceased brother were agriculturists when the mortgages in suit were passed and when the mortgage debt was incurred. On the same day he appointed two Karkuns as Commissioners to take accounts under the Dekkhan Agriculturists' Relief Act, and added that findings on the remaining issues would be recorded after the return of the commission. His findings on those issues are given in a judgment of April 8, 1920, when he passed orders for redemption in favour of the plaintiffs, fixing the amount payable, etc. The plaintiffs made an appeal from his decree, objecting that the amount found due on taking the account was excessive, that the terms of redemption should be lighter, and that the lower Court should have held the plaintiffs to be agriculturists at the date of suit, The respondents filed a cross-objection that the plaintiffs were not agriculturists and were therefore not entitled to accounts at all under the Dekkhan Agriculturists' Relief Act. On this cross-objection the Assistant Judge, who heard the appeal, decided that the plaintiffs were not agriculturists even at the time of the mortgage transactions. At the hearing before him it was argued that the respondents' cross-objection in respect of the finding of the lower Court on the question of status was time-barred as not having been filed within the statutory period from the date of the finding on the preliminary issue as to status. But the Assistant Judge held that, as no preliminary decree for the taking of an account had been drawn up after the finding about the plaintiffs being agriculturists, there was no obligation on the respondents to appeal. A second appeal was made to this Court, in which, among other things, the same objection is taken to the cross-objection of the respondents as had been unsuccessfully urged in the first appeal Court. The appeal was, how. ever, summarily dismissed by the learned Chief Justice. The present appeal comes before us under the Letters Patent

2. The main contention of Mr. Koyajee for the appellants is that, though no preliminary decree was actually drawn up, yet the case falls within the ruling in Municipal Committee of Nasik City v. Collector of Nasik I.L.R. (1915) 39 Bom. 422 : 17 Bom. L.R. 324 that a finding on a preliminary issue as to status under the Dekkhan Agriculturists' Relief Act should be regarded as a preliminary decree, when that finding at once necessarily involves the result that accounts should be taken under the Dekkhan Agriculturists' Relief Act He contends that the actual drawing up of a preliminary decree in such a case is a mere formal and ministerial act, not affecting the provisions of Section 97 of the Civil Procedure Code, which only speaks of a decree being 'passed' and not of its being 'drawn up'. He also relies upon Ahmed Musaji v. Hashim Ebrahim . In my opinion, the latter case does not lend any real support to Mr. Koyajee's contention, for it seems clear from the reported facts of that case that there had been a formal preliminary decree drawn up from which an appeal could properly be made, and the point in dispute in that case was really quite a different one, namely, whether Section 97 did not apply because the decretal part of the adjudication was based on a matter not contested, and the reference objected to might have been made separately as an order. It seems to me that the present question is really determined by the rulings of this Court in Sakharam Vishram v. Sadashiv Balshet I.L.R. (1913) 37 Bom. 480 : 15 Bom. L.R. 382 and Kaluram v. Gangaram (1913) 16 Bom. L.R. 67. Those cases definitely decided that the right of appeal under Section 97 of the Civil Procedure Code only arises when a preliminary decree is drawn up. It is also there pointed out that it is the duty of the Court, and not of the parties, to see that a decree is actually drawn up in the suit, when this should properly be done.

3. These decisions virtually dissent from the view as to waiver of the right of appeal taken in Govind v. Vithal I.L.R. (1912) 36 Bom. 536 : 14 Bom. L.R. 560 which is the only substantial authority for Mr. Koyajee's contention. It seems to me that the drawing up of a decree, or the omission to do so, must be taken as conclusive on the question whether the Court has in fact passed, or not passed, a preliminary decree, and that this is the only proper test to apply in considering whether the provisions of Section 97 are, or are not, applicable. Reference may also be made to Sidhanath Dhonddev v. Ganesh Govind I.L.R. (1912) 37 Bom. 60 : 14 Bom. L.R. 916 and Bai Divali v. Shah Vishnav Manordas I.L.R. (1909) 34 Bom. 182 : 11 Bom. L.R. 1326 where this test was so applied. The Full Bench ruling in Chanmalswami v. Gangadharappa I.L.R. (1914) 39 Bom..339 : 16 Bom. L.R. 954 only overrules the former case, in so far as it held that decisions as to misjoinder, limitation and jurisdiction (though not disposing of the suit) were adjudications, in respect of which a preliminary decree ought to be passed. The Full Bench decision leaves the other point entirely untouched. And it is clear from the remarks of the learned Judges in Municipal Committee of Nasik City v. Collector of Nasik I.L.R. (1915) 39 Bom. 422 : 17 Bom. L.R. 324, that they would not have admitted the Appeal No. 293 of 1912, if the adjudication that the plaintiff was an agriculturist had not been formally expressed in a decree. There is, therefore, the clearest authority against our accepting the contention of Mr. Koyajee.

4. The decisions in the last mentioned case and Dattatraya Purshottam v. Radhabai I.L.R. (1920) Bom. 627 : 23 Bom. L.R. 92 are also conclusive on the point that no preliminary decree should be drawn up in a suit like the present, unless the Court considers that there is a proper case for passing a preliminary decree directing an account to be taken under Order XX, Rule 16, of the Civil Procedure Code. I have already in the latter case expressed my opinion that this should seldom be necessary in a suit where the accounts are to be taken under Section 13 of the Dekkhan Agriculturists' Relief Act. And I doubt whether Order XX, Rule 16, can ever be properly applied to the case of a redemption suit. The provision of the Civil Procedure Code which regulates the granting of a preliminary decree in such a case is Order XXXIV, Rule 7, which clearly contemplates there being only one preliminary decree, (a) directing an account to be taken (if the amount due cannot be at once declared), and (b) giving directions as to payment of the sum certified on that account to be due in respect of the mortgage debt, &c.; The same applies to other mortgage suits under Rules 2 and 4. Otherwise there would be two preliminary decrees, a thing which is clearly not contemplated by the provisions of the Civil Procedure Code.

5. As laid down by the Privy Council in Rangoon Botatoung Co. Ltd. v. The Collector, Rangoon I.L.R. (1912) Cal. 21 : 14 Bom. L.R. 883 a party has no right of appeal unless it is specifically given by Statute. In my opinion, Sections 2 and 96 of the Civil Procedure Code, upon which alone the right of appeal in a case like the present can be based, must be construed with reference to Section 33, which distinguishes between a judgment and a decree, and Order XX, Rule 6, which prescribes the contents of a decree. If no such formal document has been drawn up, then, in my opinion, no decree has been 'passed,' from which an appeal can be brought under Section 96 or Section 87. For these reasons, I hold that Mr. Koyajee's contention is not correct and that the Assistant Judge was justified in treating the respondents' cross-objection as one that could properly be made.

6. The only other point is whether the Assistant Judge was justified in his finding that the appellants were not 'agriculturists,' as defined in the Dekkhan Agriculturists' Belief Act. The Subordinate Judge has treated the plaintiffs' income from lands in Kolhapur State as income from agricultural sources, which can be taken into account in favour of the plaintiffs, but it is clear that the Assistant Judge correctly held that no income from lands not in a district, to which the Dekkhan Agriculturists' Belief Act applies, can properly be so treated, for to constitute a person an 'agriculturist' for the purposes of the Act he must earn his livelihood principally by agriculture carried on within the limits of a district to which the Act applies. Also it follows that the income from the Kolhapur lands must be treated as income on the other side of the account, i.e., as non-agricultural income. It was contended that the lower Court was wrong in deducting the assessment of the lands from their gross income, but obviously the Court must take into account only the net income, just as it does in the case of any other source of income.

7. In my opinion, therefore, the appeal must be dismissed with costs.

Pratt, J.

8. I concur and have only a few words to add on the point raised by Mr. Koyajee under Section 97.

9. A decree follows on the judgment but a decree is totally distinct from the judgment. Sections 96 and 97 give an appeal from the decree; but there is no appeal from the judgment. For instance, the decree may be in favour of a party in spite of findings against the party in the judgment as in Anusuyabai v. Sakharam Pandurang I.L.R. (1833) 7 Bom. 464, and, as there held, there would be no right of appeal from the judgment, It is idle, therefore, to contend that a decree is implied in the judgment. Unless a decree is drawn up there is no appeal. This is made further clear by the provision in the definition of the decree for formal expression. The necessity for formality was emphasized in Khadem Hossein v. Emdad Hossein (1901) I.L.R. 29. 758 760 the case which led to the insertion in the Code of the section dealing with preliminary decree. On this ground alone the objection under Section 97 fails.

10. Again, the finding on the issues as to status and the order of reference to the Commissioner are not a judgment which could be the basis of a decree. A decree involves a conclusive deter-ruination of the rights of parties, but it is preliminary when in spite of that conclusive determination the suit is not completely disposed of. This distinction was clearly made in counsel's argument adopted by the Court in Dulhin Golab Koer v. Radha Dulari Koer I.L.R. (1892) Cal. 463. It occurs when after deciding the suit the Court has to stay its hand in order to work out the consequences of the decree on which the complete disposal of the suit depends. There may be arithmetic as in a suit for account-Rahimbhoy Habibhoy v. C.A. Turner I.L.R. (1890) 15 Bom. 155-or execution as in a suit for partition-Khadem Hossein's case. In each of these cases the rights of the parties as to accountability and severalty have been conclusively determined.

11. But here the suit was for redemption and the taking of an account would be ancillary to a decree for redemption. The Court, however, ordered an account to be taken without making an order for redemption. It seems clear, therefore, that there was no determination of the rights of the parties and no judgment which could be the basis of a preliminary decree.


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