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.
2. 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.
3. In so doing the Subordinate Judge wrote a judgment which was delivered on September 23rd, 1916. He also drew up a formal order nr rather a decree, i.e., a formal expression of his decision of the question.
4. The present appellant took no further step in the matter until December 9th, 1916, when he applied for a copy of the judgment only and this was ready for him on December 14th, 1916.
5. The period of ninety days allowed by law for an appeal expired on December 23rd, but allowing six days spent in obtaining; the copy of the judgment the period expired during the Christmas vacation. On January 2nd, 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 judgment 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 February 2nd, 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 judgment on which it is founded (unless the Court dispenses with the latter).
6. 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 September 1916, which I have described above as the judgment. 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 judgment, that that was filed with the memorandum of appeal on January 2nd, 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 Kherode Sundari Debi v. Jnanendra Nath Pal 6 C. W. N. 283. In this case the judgment 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 judgment 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 judgment) 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 judgment gives merely grounds for the decision. In the case of 'orders' also the Code clearly distinguishes between the judgment, i.e., the grounds of the order and the 'order' itself, which is the formal expression of the decision. An Indian 'judgment' is not to be confused with an English judgment. 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.'
7. 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.
8. 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 judgment. 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 1, record No. 14 is the judgment and No, 15 is the 'decree including decree under Section 47' (Vide page 40, Chapter V of the General Rules, Civil, for Subordinate Courts).
9. The Court below prepared both documents, i.e., it wrote its judgment 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 judgment 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 January 2nd, 1917, with a copy of the judgment only, he at once sent him off to get a copy of the decree which was also 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.
10. 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 judgment 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.
11. An execution proceeding is a proceeding in the suit and the formal decision of a point under 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.
12. There, therefore, was no appeal before this Court until February 2nd, 1917. 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 counter-plea 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.
13. 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 reasons 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.
By the Court.
14. The appeal is dismissed with costs, including fees on the higher scale.