1. The facts of this case are as follows:--The respondent's predecessor in title obtained a decree for sale against the appellant and others in the year 1897. Execution of the decree was obtained on many occasions, but the decree has not yet been satisfied. Another application for execution has now been made. The present appellant and one other objected that the execution of the decree was barred under Section 48 of the Code of Civil Procedure. The court below, relying on a ruling of this Court that the rule laid down in Section 48 did not govern the case of mortgage decrees passed prior to the coming into force of the present Code of Civil Procedure, disallowed the objection. In so doing the Subordinate Judge wrote a judgement, which was delivered on the 23rd of September, 1916. He also drew up a formal order, or rather a decree, i.e., a formal expression of his decision of the question. The present appellant took no further step in the matter until the 9th of December, 1916, when he applied for a copy of the judgement only, and this was ready for him on the 14th of December, 1916. The period of ninety days allowed by law for an appeal expired on the 23rd of December, but allowing six days spent in obtaining the copy of the judgement, the period expired during the Christmas vacation. On the 2nd of January, 1917, he came to Allahabad and his vakil directed him to obtain and file a copy of the decree. On that date a memorandum of appeal with the copy of the judgement only was filed in Court. The appellant applied for and obtained a copy of the decree in the second half of January, 1917, and he finally produced it in Court on the 2nd of February, 1917. A preliminary objection is taken that the appeal was not filed within time and is barred by limitation. It is urged that this is an appeal from a decree and that in accordance with the provisions of Order XLI, Rule 1, the memorandum of appeal must be accompanied by a copy of the decree appealed from, and also of the judgement on which it is founded (unless the Court dispenses with the latter). The copy of the decree in the present case was not filed until long after the period for appeal had passed. In fact no application for it was made within the period of limitation, and prima facie this objection seems well founded. On behalf of the appellant, however, it is urged that the decree in the present case is not the formal expression of the court's decision, but is the document of the 23rd of September, 1916, which I have described above as the judgement. It is urged that the definition of decree in Section 2, Clause (2), clearly lays it down that in a case like the present, arising under Section 47 of the Code of Civil Procedure, the decree is the determination of the 'question' i.e., the court's decision embodied in what I have designated the judgement, that that was filed with the memorandum of appeal on the 2nd of February, 1917, and the appeal is therefore within time. In support of this argument, reliance is placed upon a decision of a Bench of the Calcutta High Court in Khirode Sundari Debi v. Janendra Nath Pal Chaudhuri (1901) 6 C. W. N., 283 reported in the Calcutta Weekly Notes, Volume VI, page 283. In this case the judgement shows that no formal expression of the court's decision was drawn up. Whatever there was on record was in one document a copy of which was filed. It was held that 'the order itself is the decree and no other decree is necessary.' I find it impossible to agree that the order itself is the decree and no other decree, is necessary. The Code defines a judgement as the statement given by the Judge of the grounds of a decree or order. The 'decree' is the formal expression of an adjudication which conclusively determines the rights of the parties. It is this formal adjudication (and not the judgement) which determines the questions between the parties. The word 'decree' includes the 'determination of a question within Section 47.' To my mind it is quite clear that the determination of such questions is in the ' formal' expression of the court's adjudication on the points. The judgement gives merely the grounds for the decision. In the case of 'orders' also the Code clearly distinguishes between the judgement, i.e., the grounds of the order and the 'order' itself, which is the formal expression of the decision. An Indian 'judgement' is not to be confused with an English judgement. The latter corresponds to the formal decree or order passed in the case. The decision of a question within Section 47 would be an 'order' and not a decree were it not specially laid down (for the purposes of appeal) that it should be deemed to be a decree.
2. Order XLI contains the rules applying to appeals from decrees and Order XLIII contains those applying to appeals from orders, and Rule 2 shows that the rules of Order XLI are to be applied, as far as may be, to appeals from orders. Rule 1 of Order XLI clearly makes it an inflexible rule that in the case of appeals from decrees the memorandum of appeal shall be accompanied by a copy of the decree. The court cannot dispense with it.
3. In the case of appeals from orders, it makes it equally compulsory to file a copy of the 'order' and that word is defined clearly in Section 2 and is something apart from and different from the judgement. This Court has always insisted on subordinate courts drawing up a formal order. In the list of papers which go to form File A of part I of a record, No. 14 is the judgement and No. 15 is the 'decree, including decree under Section 47' [vide page 40, chapter V, of the General Rules (Civil,) for Subordinate Courts].
4. The court below prepared both documents, i.e., it wrote its judgement and drew up its decree, If in the present instance the appellant's objection to the execution of the decree had been allowed and his costs had been awarded to him, the judgement is not what he would have sought to execute in recovering his costs; he would take a copy of the decree, in which, alone would be set forth the costs awarded and recoverable. The practice of the courts is well known and in my opinion is in accordance with law. The learned vakil, who has argued the point ably and thoroughly, admits that when his client arrived on the 2nd of January, 1917, with a copy of the judgement only, he at once sent him off to get a copy of the decree which was absolutely necessary to enable the appeal to be filed. Moreover, when he filed the memorandum of appeal he asked for time to file the copy of the decree and an ex parte order was passed in his favour.
4. In the Calcutta case, apparently no decree had been prepared, and the omission of the court could not be allowed to prejudice the appellant, and that alone would have sufficed for a decision in his favour on the point. I cannot accept the position that where there is a judgement and a decree based thereon on a question within Section 47 of the Code of Civil Procedure, a valid appeal is filed by presenting a memorandum of appeal without a copy of the decree.
5. An execution proceeding is a proceeding in the suit and the formal decision of a point within Section 47 of the Code of Civil Procedure is a decree in that suit inter partes and the procedure in an appeal therefrom is that laid down in Order XLI. It is impossible to hold that the Legislature intentionally wished to place appeals like the present outside the pale of Order XLI and Order XLIII and intentionally refrained from laying down any procedure for them.
6. There therefore was no appeal before the Court until the 2nd of February 1917.
7. We have, however, been asked to admit this appeal out of time in exercise of the powers granted by Section 5 of the Limitation Act. An affidavit has been filed. I am not impressed with it. It does not carry any conviction to my mind as to the truth of the facts alleged therein. To my mind this is one of those cases of negligence and carelessness which so frequently occur. The appellant has no merits. It is not that he has paid off the debt he owed. He simply relies on a plea of limitation. It is admitted that the decision of the court below is in accordance with a decision of two Judges of this Court. He in turn is met with a counterplea of limitation in this appeal. This is not a hard case. What is sauce for the respondent is in this case sauce for the appellant. I therefore would not admit the appeal out of time.
8. I entirely agree. The Code is quite free from ambiguity upon the point. The Calcutta case may have been rightly decided upon the facts, but, for the reason given by my learned brother, I am unable to agree with its construction of the Code, which was unnecessary for the decision. I agree in dismissing the appeal.
9. Order of the Court.--The appeal is dismissed with costs.