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Kamala Mining Corporation Vs. Daulatram Rameshwaralal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 307 of 1964 and A.A.O. No. 366 of 1964
Judge
Reported inAIR1968AP138
ActsAndhra Pradesh Court-Fees and Suits Valuation Act, 1956 - Sections 32, 32(1) and 32(2); Code of Civil Procedure (CPC), 1908 - Sections 2(9), 33, 47(2) and 151 - Order 20, Rule 7 - Order 21, Rule 2 - Order 23, Rule 3
AppellantKamala Mining Corporation
RespondentDaulatram Rameshwaralal
Appellant AdvocateK. Narasimham, Adv. for ;P. Ramachandra Rao, Adv. in C.R.P. No. 307 of 64 and ;K. Narasimham, Adv. in A.A.O. No. 366 of 1964
Respondent AdvocateD. Narasaraju and ;A.V. Krishna Rao, Advs.
Excerpt:
.....and suits valuation act, 1956 - judgment passed with condition that decree will be passed after payment of deficit court fee - deficit fee not paid by plaintiff - plaintiff contended that final judgment still pending and passed only after deficit court fee paid - sought declaration that defendant liable to pay deficit fee - direction to pass decree after payment of deficit fee does not amount to 'judgment' - final judgment passed - only decree remains to be passed after payment of requisite court fee. - - the judgment in question clearly comes under this definition next, reference has to be made to section 33 cpc. the decree shall bear date the day on which the judgment was pronounced and, when the judge has satisfied himself that the decree has been drawn up in accordance with..........to the effect that the judgment dated 28-2-1963 is not a final judgment to be followed up by the final decree and that the subordinate judge held that a final decree would be passed only after payment of the deficit court-fee on the court passing a further order to pass a final decree under section 32(2) of the andhra pradesh court fees and suits valuation act. 1956. there can be no doubt that the cma is not maintainable. but mr. narasimham suggested that i might interfere in the exercise of my revisional jurisdiction by treating the cma as revision.4. the crp. 307/64 is filed against i.a. 3007/63 which was filed by the 1st, defendant firm in the lower court praying to defer pronouncing of the final judgment or the passing of a final decree in the suit pending disposal of i.a. 1698/63.....
Judgment:
ORDER

1. This Revision Petition and the Civil Miscellaneous Appeal are filed by the plaintiff in O.S. 108/56 on the file of the Subordinate Judge's Court, Vijayawada under the following circumstances.

2. The plaintiff in the suit in Kamala Mining Corporation a mercantile firm doing mining business at Vijayawada represented by his managing partner Yarlagadda Venkateswarlu. The 1st defendant is Doulatram Rameshwaralal, also a mercantile firm. The 2nd defendant was added as a party in the year, 1957 as he claimed to have become a partner of the plaintiff firm. The suit itself was for an account of agency pertaining to the sale of the plaintiff's 9,000 and odd tons of iron ore and for a decree on settlement of accounts for the amount found due. There was a preliminary decree on 20th December, 1956. Then the accounts were gone into and the matter came up again before the Subordinate Judge's Court, Vijayawada and a judgment was given on 28th day 'of February, 1963 wherein the Court considered what was the amount due to the plaintiff from the 1st, defendant The following paragraphs i.e.. paragraphs 37 and 38 of the said judgment may be quoted as the main argument in the case related to the scope of this judgment viz., whether this judgment is a final judgment or is only an interlocutory judgment to be followed up by a final order directing the passing of a decree on payment of court-fee.

'37. A copy of the balance sheet or statement of account prepared by the Commissioner is appended in the annexure. It gives Rs. 1,42,733-4-2 as the amount due to the plaintff from the 1st, defendant. The four items which were disallowed are not included in the same. It was found under issue 10 that the 1st, defendant is entitled to get commission at 10 per cent on the gross sales. The amounts realised by sales are Rs. 37,500 and Rs. 4,01,266-8-5. Ten per cent commission thereon conies to Rs. 42,876-65. Deduction has to be made to that extent and consequently the amount due by the 1st, defendant to the plaintiff is RE. 98,856-50, As found under issues 1 and 2 the 1st, defendant is liable to pay interest thereon at 6 per cent p.a. from 16-10-1956.

38 In the result, decree will be passed with costs in favour of the plaintiff firm against the 1st defendant for Rs. 98,856-50 along with interest thereon at 6 per cent p.a. from 16-10-56 As the relief was valued only at Rs. 11,000 and court-fee paid thereon the decree shall be passed on payment of the deficit court-fee as laid down under Section 32(2) of the Andhra Court Fees Act. Call on 7-3-63 for payment of deficit court-fee.'

3. After passing of this judgment complications seem to have arisen. Petitions were being filed by different parties for various reliefs. But, the plaintiff who was found entitled to more than Rs. 98,000 from the 1st, defendant by this judgment did not pay the deficit court-fee as per the direction in paragraph 38 of the judgment. Instead, I.A. 2284/63 was filed by the 2nd. defendant under Section 151 and Section 47(2) C.P.C. praying to direct the 1st, defendant to pay the required court-fee on the amount found due by the judgment dated 28th. February, 1963. That application was dismissed by the Subordinate Judge, Vijayawada. Plaintiff filed CMA. 366/64 against the order dismissing the said application. The 2nd defendant himself did not seek to revise that order. An objection is taken on behalf of the respondent's counsel before me that the CMA would not lie. When I asked Mr. K. Narasimham as to why he filed the CMA., he answered that the CMA had to be filed by the plaintiff for the reason that there are certain observations in that order appealed against to the effect that the judgment dated 28-2-1963 is not a final judgment to be followed up by the final decree and that the Subordinate Judge held that a final decree would be passed only after payment of the deficit court-fee on the Court passing a further order to pass a final decree under Section 32(2) of the Andhra Pradesh Court Fees and Suits Valuation Act. 1956. There can be no doubt that the CMA is not maintainable. But Mr. Narasimham suggested that I might interfere in the exercise of my revisional jurisdiction by treating the CMA as revision.

4. The CRP. 307/64 is filed against I.A. 3007/63 which was filed by the 1st, defendant firm in the lower court praying to defer pronouncing of the final judgment or the passing of a final decree in the suit pending disposal of I.A. 1698/63 also filed by the 1st defendant. I.A. 1698/63 was filed praying to record satisfaction or adjustment of the decree. That petition was filed under Sections 47, 151. Order XXI Rule 2 and Order 23 Rule 3, C.P.C. It is pleaded by the appellant that the 1st, defendant's advisers were not quite clear whether the petition was filed in execution of a final decree or during the pendency of a suit before the passing of a final decree. That was why apparently Section 47 and Order 21 Rule 2 on the one hand and Order 23 Rule 3 on the other, are clubbed together. The lower Court in its order in this I.A. 3007/63 referred to its prior view expressed in I.A. 2284/63 to the effect that the judgment dated 28th. February, 1963 in this suit determining the amount due at Rs. 98,856-50 is not a final judgment and that a further final judgment has to be given before a final decree could be passed and then ordered postponement of such final judgment and the passing of the final decree The Civil Revision Petition is filed by the plaintiff again aggrieved by the view taken by the learned Subordinate Judge that the judgment dated 28-2-1963 of not a final judgment and that a final decree could not automatically follow on the payment of the deficit court-fee.

5. The main question that arises for consideration in these two cases is whether the judgment dated 38-2-1963 in the suit O.S. 108/56 is a final judgment and whether a final decree should automatically follow if and when the plaintiff paid the deficit court-fee as per the direction in paragraph 38 of the judgment.

6. The said paragraph directed that a decree will be passed with costs in favour of the plaintiff-firm against the 1st, defendant for Rs. 98,856-50 along with interest thereon at 6 per cent per annum from 16-10-56 and that as the relief was valued only at Rs. 11,000 and the court-fee paid thereon, the decree shall be passed on payment of the deficit court fee as laid down under Section 32(2) of the Andhra Pradesh Court Fees and Suits Valuation Act, and the suit was directed to be called again on 7th March, 1963 for payment of deficit court-fee. The contention of Mr. Narasimham is that the judgment is a final judgment and the decree should automatically follow without a further direction on payment of the deficit court-fee', while the contention of Sri Narasaraju the counsel for the respondent is that in view of Section 32(2) of the A.P. Court Fees and Suits Valuation Act, a further final judgment is necessary after the deficit court-fee is paid before a final decree is passed.

7. By the judgment dated 28-2-1963 the lower Court considered and decided the amount due by the 1st, defendant to the plaintiff and also directed that a decree will be passed on payment of the deficit court-fee. Section 2(9) C.P.C. defines a judgment as the statement given by the Judge of the grounds of a decree or order. The judgment in question clearly comes under this definition Next, reference has to be made to Section 33 CPC. which provides:

'The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow'.

The word used is 'shall follow'. The decree thus might follow the judgment that very day or the next day or some appreciable time later. What is more important is that Order 20 Rule 7 C.P.C. provides:

'The decree shall bear date the day on which the judgment was pronounced and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree'.

Obviously the framers of the Code of Civil Procedure were conscious of the fact that sometimes an appreciable time might elapse before the judgment was delivered and the decree was drawn up and signed by the Presiding Judicial Officer. But Order 20 Rule 7. C.PC. provides that whenever the decree is drawn up it shall bear the date on which the judgment was pronounced, so that, the mere fact that a decree would be drawn up and signed by the Judge a long time after the judgment was pronounced does not affect the question at all as to what date the decree should bear. It should bear, in view of Order 20 Rule 7, C.P.C.. the date on which the judgment was pronounced.

8. But it is contended that Clause 2 of Section 32 of the Andhra Pradesh Court-Fees and Suits Valuation Act makes a difference and that a further judgment directing the decree to be drawn up after the deficit court-fee is paid is necessary and a decree drawn up after such a direction shall bear the date on which it is actually drawn up or the date on which such an order that the decree should be drawn up is passed. It will be convenient to refer to the entire Section 32 of the Andhra Pradesh Court Fees and Suits Valuation Act which reads:

'Section 32(1). In a suit for accounts fee shall be computed on the amount estimated in the plaint.

(2) Where the amount payable to the plaintiff as ascertained in the suit is in excess of the amount as estimated in the plaint, no decree directing payment of the amount as so ascertained shall be passed until the difference between the fee actually paid and the fee that would have been payable had the suit comprised the whole of the amount so ascertained is paid.

(3) Where in any such suit it is found that any amount is payable to the defendant no decree shall be passed in his favour until he pays the fee due on the amount.

(4) Whether or not a decree is passed under Sub-section (2) or Sub-section (3), the fee payable under either of the said subsections shall be recoverable as if it were an arrear of land revenue.'

Strong reliance is placed upon the following phrase: 'No decree directing payment of the amount as so ascertained shall be passed until' & it is contended that the Court is precluded from passing a decree until the deficit court-fee is paid while under Section 11 of the Madras Court-Fees Act only execution of the decree is prohibited until the court-fee is paid but not the passing of the final decree itself. I am unable to accept this argument for the reason that Clause 2 of Section 32 merely prohibits the passing of a decree and does not envisage the passing of another judgment after the deficit court-fee is paid directing the passing of a final decree. The final judgment was already given in the present case on 28-2-1963. What remains to be done is that the plaintiff should pay the deficit court-fee and on such payment, the Subordinate Judge's Court will draft the decree and sign and thus pass the final decree I cannot assume that the Andhra Court Fees Act intended to provide a different date for the final decree from that of the final judgment. A mere direction to pass a final decree noting that the deficit court-fee is paid is not a final judgment at all because such a direction to pass a final decree will not be a judgment within the meaning of Section 2(9) C.P.C.

9. In this connection. I may refer to the catena of cases relating to decrees for partition of immovable properties which require to be engrossed on stamps and registered. The parties may considerably delay in furnishing the requisite stamp on which the' final decree has to be engrossed; some times it might take months or a year or two before the stamps are deposited, still when finally the decree is engrossed on stamps paper, the decree shall bear the date of the judgment. The mere fact that the payment of the stamp duty or the deficit court fee and the drafting and signing of the decree is delayed does not empower the Court to give a date to the decree different from that on which the judgment was pronounced. In my view, the view of the lower Court in I.A. Nos. 2284/63 and 3007/63 to the effect that the judgment dated 28-2-1963 in the suit is not the final judgment is clearly erroneous. As and when the necessary court-fee is deposited the lower Court has to automatically draw up and sign the decree which will be the final decree without the necessity for any further judgment. The order in I.A. No. 3007/63 ordering stay of the passing of the final decree and judgment till I.A. No 1698/63 is disposed of is illegal and has to be set aside and therefore the C.R.P. No 307/1964 is allowed and I make it clear that as and when the deficit court-fee is paid by the plaintiff, the final decree as per the operative portion in the final judgment dated 28-2-1963 shall be passed by the lower Court.

10. Since the legal position is clarified by me in my judgment in the C. R. P. 307/64 no further orders are necessary in the C.M.A. 366/64 and the said C.M.A is dismissed. The parties will bear their own costs both hi the C.R.P and in the C.M.A.

11. It is surprising that T.A. 1698/63 to record satisfaction or adjustment of the decree pursuant to an alleged compromise is still kept pending after the lapse of three years without its being disposed of. The learned counsel who appeared in these cases are not able to explain as to why that I.A. is still kept pending. The lower Court shall Immediately take up that I.A. and dispose of it without any further delay. I make it clear that it is open to the 1st, defendant to apply to the lower court if and when the plaintiff pays the deficit court-fee and the final decree is drafted and signed by the Presiding Judge, for stay of execution of the decree pending disposal of I.A. No. 1698/ 1963.


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