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B. Surendra NaraIn Singh Vs. Raja Lal Bahadur Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All762; 147Ind.Cas.865
AppellantB. Surendra NaraIn Singh
RespondentRaja Lal Bahadur Singh and ors.
Cases ReferredBhairon Ghulam v. Ram Autar Singh
Excerpt:
- - order 43, rule 3, as amended by this court provides that in every appeal under rule 1, order 43, in every miscellaneous ease, and in every suit dismissed for default, a formal order should be drawn up stating clearly the determination of the appeal or case, the costs incurred, and the parties, if any, by whom such costs are to be paid. but in a case like this, in which the only order on the record of proceedings contains not only the grounds on which the decision is based but contains also 'the formal expression',and the decision itself, it should be taken to be of a dual character, being both the 'judgment' and the 'order',as defined in the civil procedure code. accordingly we hold that in this case the appeal was validly presented on 5th april 1933. 8. even if we had held..........as defined in section 2 (14), civil p.c.4. order 41, rule 1, civil p.c., requires that a copy of decree appealed from should accompany the memorandum of appeal. order 43, rule 3, as amended by this court provides thatin every appeal under rule 1, order 43, in every miscellaneous ease, and in every suit dismissed for default, a formal order should be drawn up stating clearly the determination of the appeal or case, the costs incurred, and the parties, if any, by whom such costs are to be paid.5. it should be noticed that this rule does not cover many orders of an interlocutory character from which law allows an appeal. following this prevision, the subordinate courts prepare a formal order only when they dispose of (1) an appeal from order, (2) a miscellaneous case which is separately.....
Judgment:

Niamatullah, J.

1. This case has been referred by a learned Single Judge of this Court to a Division Bench in view of the importance of the question involved. The appellant filed his appeal, on 5th April 1933, from the order of an Assistant Collector at Jaunpore passed in execution proceedings under the Tenancy Act. The last day of limitation was 12th April 1933. With the memorandum of appeal he filed the order giving reasons for the decision of the case. No formal order was, however, filed. On the office report a learned Judge of this Court directed the appellant on 11th April 1933, to file within one week a copy of the formal order. The appellant applied for a copy of the formal order, but his application was returned with the remark that no formal order existed. On the case coming up before another learned Judge of this Court a direction was sent down to the Assistant Collector that a formal order be prepared. A formal order was prepared on 19th May 1933. The appellant made a fresh application on 20th May 1933 for a copy of the formal order, which was delivered on 30th May 1933, during the long vacation. The copy was filed in this Court on 18th July 1933, that is, next day after the Court reopened.

2. Two questions emerge from the above facts: (1) Whether the appeal can be said t6 have been presented on 5th April 1933, in spite of the fact that copy of the formal order was filed after the expiry of limitation; if this question is answered in the affirmative, no question of limitation can arise; and (2) assuming that the appeal cannot be considered to have been presented till 18th July 1933, when copy of the formal order was filed, whether the delay should be condoned in the circumstances of the case.

3. To clear the ground, it may be stated at the outset that, though the proceedings in which the order in question was passed were under the Agra Tenancy Act, yet all the relevant provisions of the Civil Procedure Code apply in the matter of preparation of a formal order and the presentation of the appeal. This is clear from Section 264, Agra Tenancy Act, read with list 1, Schedule 2 of that Act. Judgment is defined in Section 2(9), Civil P.C., as meaning a statement given by the Judge of the grounds of a decree or order.' Section 2(14), Civil P.C., defines 'order' as meaning 'the formal expression of any decision of a Civil Court which is not a decree.' It is clear that 'order,' as defined in the code, is analogous to 'decree' and does not imply what is popularly understood namely, the views expressed by a Judge on the merits of the case before him and his decision thereon. What is ordinarily called an 'order' is, in fact, a 'Judgment,' as defined in the code, though a document may be so drawn up as to contain not only the reasons for the decision so as to fulfil the requirements of a 'Judgment' but also the 'formal expression' of the decision of the Court, so as to fulfil most of the requirements of an 'order' as defined in Section 2 (14), Civil P.C.

4. Order 41, Rule 1, Civil P.C., requires that a copy of decree appealed from should accompany the memorandum of appeal. Order 43, Rule 3, as amended by this Court provides that

in every appeal under Rule 1, Order 43, in every miscellaneous ease, and in every suit dismissed for default, a formal order should be drawn up stating clearly the determination of the appeal or case, the costs incurred, and the parties, if any, by whom such costs are to be paid.

5. It should be noticed that this rule does not cover many orders of an interlocutory character from which law allows an appeal. Following this prevision, the Subordinate Courts prepare a formal order only when they dispose of (1) an appeal from order, (2) a miscellaneous case which is separately registered, e. g., a case under the Guardians and Wards Act, or (3) a suit by dismissing it for default. No formal order need be prepared under this rule after every interlocutory order is passed, and it will be obviously undesirable to make it necessary; but its absence creates a difficulty in administering Rule 2 of Ch. 3 of the Rules of this Court which lays down that no memorandum of appeal from an order shall be presented, unless accompanied by a copy of the 'decree or order' appealed against, besides a copy of the judgment upon which such order is founded. The word 'order' in this rule implies order as defined in Civil Procedure Code, i. e. formal order. This rule presupposes that a formal order is prepared and exists after every appealable order is pronounced. As pointed out, this is by no means the case. This anomaly can be removed by bringing Order 43, Rule 3, and Ch. 3, Rule 2, of the rules of this Court in a line with each other.

6. There is now no room for contention that disregard of the provision of Order 41, Rule 1, or Ch. 3, Rule 2 of the Rules of this Court is an irregularity and does not affect the validity of the presentation of the appeal. The matter is concluded by two cases of this Court, one of which is a Full Bench decision. It was held in Qasim Ali Khan v. Bhagwanta Kunwer AIR 1918 All 394, that presentation of a memorandum of appeal from a decree which is accompanied by the judgment, but not by the decree is no appeal in law. Similarly it was held in Bhairon Ghulam v. Ram Autar Singh AIR 1921 All 23, that presentation of a memorandum of appeal not accompanied by a copy of the first Courts' judgment, as required by Ch. 3, Rule 2, is no presentation of appeal. It should however be borne in mind that in both those cases the document which the appellant should have filed with his memorandum of appeal existed and he omitted to obtain a copy thereof and file it with the memorandum of appeal.

7. In the case before us the Court did not have a separate formal order drawn at all till long after the presentation of the appeal and after it had been ordered by this Court. The order was of an interlocutory character to which Order 43, Rule 3, did not apply, and the preparation of a formal order was not imperative. The question is whether the appeal presented on 5th April 1933, when admittedly there was only one document called 'order' of which a copy was annexed to the memorandum of appeal, should be considered to be no appeal at all. When a separate formal order has been drawn up and is in existence when the appeal was filed but the appellant omitted to obtain a a copy and file it with the memorandum of appeal, there is justification for holding that there was no valid presentation of the appeal; but in a case like this, in which the only order on the record of proceedings contains not only the grounds on which the decision is based but contains also 'the formal expression', and the decision itself, it should be taken to be of a dual character, being both the 'judgment' and the 'order', as defined in the Civil Procedure Code. The appellant having filed a copy of such an order with Ms memorandum of appeal should be considered to have substantially complied with Rule 2, Ch. 3, of the Rules, of this Court. In general it will be found that the operative part of the judgment of the Court contains everything which the formal order, if it is drawn up, should contain, except the memo of costs. It should however, be observed that the memorandum of costs incurred in the Court below is sometimes a necessary document for the purposes of the appeal, as the decree or the formal order of this Court has to take account of the costs incurred in the first Court. But in case of interlocutory orders, for which no separate and ascertainable costs arc incurred, a memorandum of costs cannot be prepared. As indicated above, amendment of either Order 43, Rule 3, or of Ch. 3, Rule 2, of the Rules of this Court, is necessary. Before this is done, the only reasonable view that can be taken is that, where no formal order was prepared and the appellant filed with his memorandum of appeal a copy of the only order which existed on the record of the lower Court, he should be deemed to have substantially complied with the requirements of Rule 2, Ch. 3, of the Rules of this Court. Such order should be taken to be both the judgment and the formal order. Accordingly we hold that in this case the appeal was validly presented on 5th April 1933.

8. Even if we had held otherwise, the circumstances of the case are clearly such as to justify the application of Section 5, Limitation Act. The result is that we declare the appeal to have been filed within limitation.


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