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Umamaheshwar Cotton Ginning and Pressing Factory and ors. Vs. Rama Rao Shroff and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 45 of 1970
Judge
Reported inAIR1971Kant347; AIR1971Mys347; (1971)1MysLJ397
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2), 96 and 115 - Order 20, Rule 15
AppellantUmamaheshwar Cotton Ginning and Pressing Factory and ors.
RespondentRama Rao Shroff and ors.
Appellant AdvocateB. Ramachandra Rao, Adv.
Respondent AdvocateV. Krishna Murthy and ;Murlidhar Rao, Advs.
DispositionRevision dismissed
Excerpt:
.....their lordships of the supreme court would apply even to cases like the present one where after a preliminary decree has been passed, the question is raised and the rights of the parties are conclusively determined, such determination would amount to drawing up of another decree and in that event, the party has a right under section 96 of the code to file an appeal. --where in a suit for the taking of partnership accounts the court had adjudicated on the substantive rights of the parties with regard to the several matters in a controversy in the suit and the determination of those matters is clearly intended to be final and conclusive so far as that court is concerned, the decision operates as a preliminary decree and is appealable. ' the observations particularly at page 525 fully..........case, their lordships of the supreme court were considering two matters, one was whether without a formal decree being drawn a party is entitled to file an appeal and secondly whether there can be more than one preliminary decrees. in paragraph (5) of the judgment, their lordships dealt with the first question as to whether an appeal could be preferred even if a formal decree being not drawn up by the court, and held that a person preferring an appeal has to file a decree along with it and the provisions of order 41 rule 1 c. p. c. are mandatory. still, as pointed out in : [1961]2scr918 , there may be cases where it is competent, for the court to entertain an appeal even without formal decree being produced before the court. this is what their lordships in paragraph (5) of the judgment.....
Judgment:
ORDER

H.B. Datar, J.

1. The short question that arises in this revision petition is as to whether a revision is maintainable before this court against the order of the Court below?

2. The few facts which are relevant for purposes of deciding this question are these. The plaintiffs filed original suit No. 51/1 of 1959-60 in the court of the Subordinate Judge at Raichur, and the court declared the shares of the plaintiffs and passed a preliminary decree under Order 20 Rule 15 C. P. C. on 29-2-1964. As against the said judgment and decree, an appeal was filed before the District Judge at Raichur, being Civil Appeal No. 34/4 of 1955 and cross-objections were also filed by the respondents.

The learned appellate Judge considered three points that he framed for decision and modified the order of the trial court by his judgment dated 21-7-1966. Thereafter, a commissioner was appointed and on the report of the commissioner being given, the question arose as to whether the plaintiffs have a right regarding the assets of the partnership. The learned District Judge by the order dated 5-1-1970 determined that having regard to the principles governing the partnership, the plaintiffs have an interest in the assets, and after determining such a question, he ordered that it was necessary to appoint a commissioner for winding up of the firm by arranging sale of the assets by public auction or by private arrangement, if both parties agree to it and for that purpose the commissioner shall give facility to the defendants to withdraw work on hand, if any. It is this order that is challenged before this court.

3. Sri V. Krishna Murthy, learned counsel for the respondents, contended that by the present order there has been first a determination of the right of the plaintiffs to claim a share in the assets of the partnership, and when there is such determination of the right of the plaintiffs to the assets of the partnership, it amounts to a decree and the defendants are not entitled to file the revision petition before this court. It was also submitted that the further order passed by the lower appellate court appointing a commissioner and giving direction to him to sell the property, are only consequential upon the determination of the first question, viz., determination of the rights of the parties to the assets of the partnership.

4. In support of his submission, the learned counsel for the respondents, submitted that in the present case the determination is a determination of the rights of the parties with regard to some of the matters in controversy in the suit, and, therefore, it comes within the provisions of Section 2(2) of the Act, (definition of decree). It was also submitted that, the principles which apply with regard to decrees in suits filed for partition apply also to the suits relating to partnership. As long as the suit was not finally disposed of and the court is asked to determine any one of the matters and dispose of the rights of the parties conclusively, the remedy of the party is only to challenge such final determination by means of an appeal and not by filing a revision petition before this court.

In support of his submission, reliance is placed on the judgment of the Supreme Court in Phoolchand v. Gopal Lal, : [1967]3SCR153 . In that case, their Lordships of the Supreme Court were considering two matters, one was whether without a formal decree being drawn a party is entitled to file an appeal and secondly whether there can be more than one preliminary decrees. In paragraph (5) of the judgment, their Lordships dealt with the first question as to whether an appeal could be preferred even if a formal decree being not drawn up by the court, and held that a person preferring an appeal has to file a decree along with it and the provisions of Order 41 Rule 1 C. P. C. are mandatory. Still, as pointed out in : [1961]2SCR918 , there may be cases where it is competent, for the court to entertain an appeal even without formal decree being produced before the court. This is what Their Lordships in paragraph (5) of the judgment observed:

'(5).........learned counsel for Phoolchand, appellant has attacked the findings of the High Court on all the three points. He first contends that as a copy of the decree was not filed along with the memorandum of appeal, the appeal was incompetent and relies In this connection on the decision of this Court In Jagat Dhish Bhargava v. Jawaharlal Bharvaga, : [1961]2SCR918 . In that case it was observed, that every memorandum of appeal has to be accompanied by a copy of the decree appealed from, that this requirement of Order 41. Rule 1 C. P. C. Is mandatory and in the absence of a copy of the decree, the filing of the appeal would be incomplete, defective and incompetent. That no doubt is the correct position in law but as was pointed out in that case, there may be circumstances where an appeal may be competent even though a copy of the decree may not have been filed along with the memorandum of appeal. One such exceptional case was dealt with in Jagat Dhish Bhargava's case, : [1961]2SCR918 . We consider that the present case is another exceptional case where in the absence of the copy of the decree the appeal could be maintained. We have already indicated that the trial court did not frame a formal decree when it varied the shares and naturally Gopal Lal was not in a position to file a copy of the decree when he presented the memorandum of appeal to the High Court. Even when time was granted by the High Court and Gopal Lal moved the trial court for framing a formal decree, the trial court refused to do so. In those circumstances, it was impossible for Gopal Lal to file a copy of the formal decree. It is unfortunate that when the matter was brought to the knowledge of the High Court, it did not order the trial court to frame a formal decree; if it had done so, the appellant could have obtained a copy of the formal decree and filed it and the defect would have been cured. We do not think it was necessary for Gopal Lal to file a revision against the order of the trial court refusing to frame a formal decree, for Gopal Lal's appeal was pending in the High Court and the High Court should and could have directed the trial Court in that appeal to frame a decree to enable Gopal Lal to file it and cure the defect. In such circumstances, we fail to see what more Gopal Lal could have done in the matter of filing a copy of the decree. The fact that the trial Court refused to frame; a formal decree cannot in law deprive Gopal Lal of his right to appeal. The defect in the filing of the appeal, in the circumstances, was not due to any fault of Gopal Lal and it cannot be held that he should be deprived of the right to appeal, if he had it, simply because the court did not do its duty. We therefore agree with the High Court that in the circumstances, the absence of the copy of decree would not deprive Gopal Lal of his right to appeal.'

Then in paragraph (7) of the judgment Their Lordships laid down as under:

'(7) We are of opinion that there is nothing, in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented........'

5. In my view, the principles laid down by Their Lordships of the Supreme Court would apply even to cases like the present one where after a preliminary decree has been passed, the question is raised and the rights of the parties are conclusively determined, such determination would amount to drawing up of another decree and in that event, the party has a right under Section 96 of the Code to file an appeal. As stated by the Bombay High Court in Parashuram Rajaram Tiwari v. Hirabai Rajaram Tiwari, : AIR1957Bom59 , until there is final decree, a suit is pending and if the court determines the rights of the parties, then such determination would amount to a decree and the party has a right of appeal. I am of the view that in the present case, after the preliminary decree was passed, a question arose, as to whether the plaintiffs were entitled to assets of the partnership and the learned Judge has by his order dated 5-1-1970 determined that the plaintiffs have got a right in the assets of the partnership. If such a determination is made; I am of the view that the party has a right of appeal.

6. The view that I am taking in this case finds considerable support from a judgment of the High Court of Madras in a case reported in (1947) 2 Mad. LJ 523 (Kasi Alias Alagappa Chettiar v. Rm. A. Km. V. Ramanathan Chettiar alias Srinivasan Chettiar) wherein it is held as follows:--

'Where in a suit for the taking of partnership accounts the court had adjudicated on the substantive rights of the parties with regard to the several matters in a controversy in the suit and the determination of those matters is clearly intended to be final and conclusive so far as that court is concerned, the decision operates as a preliminary decree and is appealable. The mere fact that the court which passed the decree took the view that only findings and directions had been given and that no final disposal was made will not affect the question of appealability. The question whether an adjudication is a decree or not must be determined with reference to Section 2(2) of the Code of Civil Procedure and not with reference to implications, true or supposed, arising from the general provisions relating to judgments and decrees or to disposals of suits. Nor call any considerations of policy as to the expeditious administration of justice or the avoidance of expense and delay be imported into the determination of the question.

There is nothing In the Code which can be construed as a prohibition against the Court in a proper case passing more than one preliminary decree. On the other hand, there are indications that the Code contemplates more than one preliminary decree and one final executable decree in a suit.'

The observations particularly at page 525 fully support the view that I have taken

'If an occasion arises, as it has arisen in the present case, for taking such an order after preliminary decree has been passed, we fail to see why it should not fall under Order 20. Rule 15 itself as a supplementary preliminary decree unless there is clear indication in the provisions of the Code that no more than one preliminary decree can be passed in a suit in which such a decree is provided for.'

In the Present case the Court has adjudicated upon the substantive right of the parties with regard to one of the matters in the controversy and the determination in so far as that question is concerned is intended to be final. That it has not been expressed by any formal order, will not make it non-appealable, as it is the substance and not the form that determines the appealability. If occasion arises for making an order after the preliminary decree has been passed, I do not see as to why it should not itself be called as supplementary preliminary decree, as stated by the High Court of Madras.

7. As pointed out by their Lordships of the Supreme Court in a case reported in : [1967]3SCR153 referred to earlier, when there is a determination of rights of parties, it is the duty of the court to formally draw up a decree and even if it is not drawn up, it is the duty of the party to point out such omission and request the court for drawing up the formal decree. I am sure that the party will take appropriate steps to make such prayer and get formal decree drawn up.

8. Having regard to the view that I have taken it is clear that the present revision application is not maintainable and the only remedy available to the party Is to prefer an appeal before the appropriate court and if such an appeal preferred and the condonation of delay is asked for under Section 14 of the Limitation Act, I have no doubt that the appropriate Court will consider the question and dispose of the same in accordance with law.

9. For these reasons, this revision application is dismissed. No costs.


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