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Bhagabat Sit Vs. Balaram Sit - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 154 of 1961
Judge
Reported inAIR1963Ori61; 28(1962)CLT635
ActsHigh Court Rules; High Court Order; Code of Civil Procedure (CPC) , 1908 - Sections 2(2), 2(9) and 96 - Order 34, Rules 7(1), 8 and 8(3) - Order 43, Rule 1; Limitation Act, 1908 - Sections 5 - Schedule - Article 181
AppellantBhagabat Sit
RespondentBalaram Sit
Appellant AdvocateB. Mohapatra and ;R.K. Mohapatra, Advs.
Respondent AdvocateP.C. Chatterjee, ;A.B. Roy and ;P. Roy, Advs.
DispositionRevision allowed
Cases ReferredSubramaniam v. Muthiah
Excerpt:
.....satisfied after judgment but before the decree is drawn up. in other words, the rule would apply to a case where the plaintiff sues for recovery of mortgage dues though he may ask further relief for sale or foreclosure on the failure of the payment; the position of law is also well settled that under order 34, rule 8 the plaintiff can make payment into court of all amounts due from him under sub-rule (r) of rule 7 before a final decree debarring the plaintiff from all rights to redeem the mortgaged property has been passed or before the confirmation of the sale held in pursuance of a final decree passed under sub-rule (3) of rule 8. the period of limitation for the mortgagee to file an application for granting a final decree is three years from the date of the deposit under article 181..........munsif holding that section 5 of the limitation act had application and that the application for final decree was not barred by limitation.without passing a final decree himself he passed the following decretal order :'............... the plaintiff's petition to makethe decree final is allowed and the final decree proceedings shall proceed thereafter from the stage where the learned lower court rejected the plaintiff's application.'against this order dated 8th march 1961 the civil revision has been filed.2. 'mr. r. k. mohapatra for the petitioner raises the following contentions: (i) the order of the learned munsif dated 2oth january 1959 is not a decree but is an order under order 34, rule 8, civil procedure code and is not appealable under order 43, c. p. c, accordingly no appeal lay.....
Judgment:
ORDER

G.K. Misra, J.

1. Defendant is the petitioner. The facts leading to the Civil Revision are as follows:

Plaintiff-Opposite Party filed Original suit No. 278 of 1944 in the Court of the Munsif, Balasore for redemption of the mortgage by conditional sale D/- 27th July 1934 and the suit was decreed on 25th August 1946. The mortgage dues, payable by the mortgagor to the mortgagee, were deposited on 22nd September 1945. The decree of the learned Munsif was ultimately confirmed by the High Court in second appeal No. 342 of 1947 on 30th July 1951, and the High Court allowed six months' time for redemption from the date of the judgment. Plaintiff filed an application for making the decree final on 14th March 1957. The learned Munsif dismissed this application on 20th January 1959 holding that the application was barred by limitation under Article 181 of the Limitation Act as the decree-holder-mortgagor failed to apply within three years of the deposit and that Section 5 of the Limitation Act had no application to this case. On appeal the learned Additional Subordinate Judge, Balasore, reversed the judgment of the learned Munsif holding that Section 5 of the Limitation Act had application and that the application for final decree was not barred by limitation.

Without passing a final decree himself he passed the following decretal order :

'............... The plaintiff's petition to makethe decree final is allowed and the final decree proceedings shall proceed thereafter from the stage where the learned lower Court rejected the plaintiff's application.'

Against this order dated 8th March 1961 the Civil Revision has been filed.

2. 'Mr. R. K. Mohapatra for the petitioner raises the following contentions: (i) the order of the learned Munsif dated 2Oth January 1959 is not a decree but is an order under Order 34, Rule 8, Civil Procedure Code and is not appealable under Order 43, C. P. C, Accordingly no appeal lay and the lower appellate Court illegally exercised jurisdiction not vested in it by law; and (ii) the view that Section 5 of the Limitation Act applies to an application for making the decree final is contrary to law and the application for final decree not having been filed within three years of the date of deposit is barred by limitation under Article 181 Limitation Act,

3. Mr, A. B. Roy for the Opposite Party takes a preliminary objection that a Civil Revision does not lie as the decree of the lower appellate Court D/- 8-3-1961 is appealable and that a second appeal lies.

4. I will first examine whether the order dated 2oth January 1959 of the learned Munsif is a decree and as such appealable. Section 2(9) C. P. C. defines 'judgment' which means the statement given by the judge of the grounds of a decree or order. Section 2(2) C. P. C. defines 'decree' which means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. The rest of the definition is not quoted as not being relevant for the purpose of this case. By the order D/- 2Oth January 1959 the learned Munsif came to the conclusion that the petition for making the decree final was not maintainable as being barred by limitation. The effect of such order is that the plaintiff is not entitled to a final decree for the redemption which, ia essence, amounts to dismissal of plaintiff's suit for redemption. There can be absolutely no doubt that this order conclusively determines the right of the plaintiff in negativing his relief for redemption. Therefore, the order comes directly within the meaning of 'decree.'

5. In order to be a 'decree' two essential legal requirements must exist. Firstly, there must be an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit; and secondly, such adjudication must receive a formal expression by way of drawal of the decree. Different forms have been prescribed in the Civil Procedure Code for drawing such decrees. The judgment itself gives the statement given by the Judge of the grounds of a decree which means the reasons and the grounds of adjudication. But the judgment itself is not a decree unless it further gets formal expression in the shape of a decree.

In this case the first requirement has been satisfied. The learned Munsif's Order conclusively determines the rights of the parties by holding that a final decree for redemption could not be passed. But the second requirement of a formal expression has not been complied with. It is clear therefore, that though a judgment was passed in the case by the learned Munsif, a decree was not drawn up to give the judgment a formal expression.

6. The next question is 'Does an appeal lie against the judgment or the decree?' Section 96 C. P. C. makes it clear that save where otherwise expressly provided in the body of this Code or by any law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. There can be absolutely no doubt that an appeal lies only from a decree and not from a judgment. Until a decree is formally drawn up in terms of the judgment there can be neither appeal nor execution.

7. Section 33 C. P. C. lays down that the Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow. Order 20, Rule 6 gives the contents of the decree and lays down that the decree shall agree with the judgment. The view taken by me is fully supported by the decisions reported in AIR 1924 Bom 33, Vamanacharya v. Govinda and AIR 1943 Nag 204, Baliram v. Manohar. The conclusion therefore, is that in this case the judgment of the learned Munsif comes within the definition of 'decree' Under Section 2(2), C. P. C. and that a formal decree should have been drawn up in accordance with the judgment and that only against a decree an appeal lies.

8. My attention has been drawn to Rule. 12 in Chapter V, Part I at page 25 of the General Rules and Circular Orders of the High Court, Vol. I (Civil). It runs 'as follows :

'In suits for money including suits upon mortgage, in suits for specific movables, in suitsfor accounts and in suits for arrears of rent no decrees need be drawn up if:

(i) neither party has to recover anything unless the Judges otherwise direct;

(ii) the claim is satisfied after judgment but before the decree is drawn up.'

It is contended by Mr. Roy that suits for moneyupon mortgage would refer to all mortgage suitswhile it is contended by Mr. Mohapatra that they would only refer to mortgage suits in which the relief sought is for recovery of money. In other words, the Rule would apply to a case where the plaintiff sues for recovery of mortgage dues though he may ask further relief for sale or foreclosure on the failure of the payment; but the rule would not include suits for redemption by the mortgagor which is not at all a suit for money. I am inclined to accept the contention of Mr. Mohapatra and of the opinion that the order of the learned Munsif in which the prayer for redemption was refused cannot be characterised as a suit for money upon a mortgage.

9. Mr. Roy places reliance on three decisions in support of his contention that even if a formal decree is not drawn up, a judgment which comes within the definition of 'decree' Under Section 2(2), C. P. C. can be appealed against. These decisions only lay down that no revision can He against a judgment which itself is appealable either as a. decree or an order. There is no categorical and clear pronouncement that a Judgment having the force of a decree can be appealed against without a formaldecree being drawn up. There are some observations in support of Mr. Roy's contention in AIR 1917 Mad 285, Suppu Nayakan v. Perumal Chetty. Their Lordships observed at page 286 :

'Thus the abatement of the suit and the passing of an order which has the force of a decree, dismissing 1he suit are treated as closely connected, if not identical, proceedings. I might however, suggest that the Rule Committee might make it clear by the enactment of a rule that in cases where suits have abated without the necessity of a formal order, a decree dismissing the suit should be drawn up as on the date of the abatement, unless of course the abatement is set aside by appropriate proceedings.'

This observation itself suggests that a decree is to be formally drawn up and as there was no such rule in the Madras High Court Rules, even the framing of a rule was suggested. In AIR 1919 Mad 709, Subbalakshmi v. Ramalinga, actually a decree was drawn up. I do not read in any of these decisions a pronouncement that an appeal would lie against a judgment and not against a decree. If, however, the decisions have laid down anything to the contrary, I am not inclined to follow them. 5 Pat LJ 342, Ganganand Singh v. Pirthi Chand also does not lay down such a proposition. I do not find much force in the contention of Mr. Roy.

10. I would next examine the preliminary objection raised by Mr. Roy that no revision lies against the judgment and decree of the learned Additional Subordinate Judge. This contention if developed in the way that a decree had been formally drawn up by the learned Additional Subordinate Judge, and as the judgment of the learned Munsif itself amounts to a decree, a second appeal lies. On the principle enunciated above I find no substance in this contention. So far as the judgment of the learned Additional Subordinate Judge is concerned, it satisfies the second test, namely, that a formal decree has been drawn up, but it does not satisfy the first test, namely, that the decree of the learned Additional Subordinate Judge does not finally and conclusively determine the rights of the parties. A suit for redemption does not come to an end until a final decree is passed. The lis remains pending till then. The learned Addl. Subordinate Judge could have passed a final decree after holding that the application of the mortgagor for the passing of a final decree was not barred by limitation. Without passing such a final decree he remanded the suit to the trial Court giving a direction that the final decree proceedings should proceed thereafter from the stage where the learned lower Court rejected the plaintiff's application. This does not amount to a decree within the meaning of Section 2(2) C. P. C. As this does not amount either to a decree or an appealable Order, no appeal lies against the judgment of the learned Addl. Subordinate Judge though a formal decree was in fact drawn up. I would accordingly hold that the Civil Revision is maintainable -- See also AIR 1934 Pat 97 (2), Dhup Pandey v. Narbadeshwar Prasad and AIR 1942 Mad 73, Panthanam v. Abdul Rahiman. Mr. Roy concedes that the Addl. Subordinate Judge could have passed the final decree in the appal.

11. Mr. Mohapatra contends that an order under Order 34, Rule 8 is not appealable under Order 43. The dismissal of the application under Order 34, Rule 8 to make the decree final amounts to refusal to pass final decree and to dismissal of the suit itself. Though the application was started under Order 34, Rule 8, the ultimate result was the dismissal of the suit which amounts to a decree.

12. I will now examine if the application for final decree is barred by limitation. Section 5 of the Limitation Act has no application to such cases. Section 5 runs as follows : ' 'Any appeal or application for a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.' It is undisputed that Section 5 has not been made applicable to an application under Order 34. There can be therefore no controversy that Section 5 has no application to this case. The learned Munsif took the correct view and the learned Additional Subordinate Judge was wholly confused and used ornamental and flowery language without understanding the legal significance thereof. The position of law is also well settled that under Order 34, Rule 8 the plaintiff can make payment into Court of all amounts due from him under Sub-rule (r) of Rule 7 before a final decree debarring the plaintiff from all rights to redeem the mortgaged property has been passed or before the confirmation of the sale held in pursuance of a final decree passed under Sub-rule (3) of Rule 8. The period of limitation for the mortgagee to file an application for granting a final decree is three years from the date of the deposit under Article 181 of the Limitation Act, The mortgagor can make the deposit at any time before the passing of a final decree for foreclosure or sale on good cause shown and upon the terms to be fixed by. the Court from time to time. For an application for passing a final decree . by a mortgagor the period of limitation is three years from the date he makes payment into Court. AIR 1946 Mad 38, Angammal v. Muhammad Sulaiman and AIR 1957 Mad 189, Subramaniam v. Muthiah, are directly in point. In this case the deposit was made on 22nd September 1945. Applying the aforesaid principle the application for passing the final decree is barred by time. In view of the fact that the application for final decree is barred by limitation, no useful purpose will be served by directing the learned Munsif to prepare a decree so as to give a chance to the plaintiff to file an appeal against that decree.

13. My views are summarised as follows :

(i) That the appeal before the lower appellate Court was not competent as no formal decree had been drawn up in accordance with the order of the learned Munsif :

(ii) That the Civil Revision is competent; and

(iii) That the application for final decree is barred by limitation and that no useful purpose will be served by, sending back the case to the learned Munsif for preparing a decree.

14. In the result I would allow the Civil Revision, set aside the judgment and decree of the learned Additional Subordinate Judge and restore the judgment of the learned Munsif. The question regarding the competency of the appeal before the lower appellate Court had not been raised on behalf of the defendant. In the circumstances, parties are to bear their own costs throughout.


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