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Pratap Kishore Mohanty and anr. Vs. Gyanendranath Mohanty - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberSupreme Court Appeal No. 10 of 1951
Judge
Reported inAIR1953Ori298; 19(1953)CLT442
ActsBengal, Agra and Assam Civil Courts Act, 1887 - Sections 38(2); Constitution of India - Article 133; Code of Civil Procedure (CPC), 1908 - Sections 109 and 110 - Order 20, Rule 2
AppellantPratap Kishore Mohanty and anr.
RespondentGyanendranath Mohanty
Appellant AdvocateM. Mohanty and ;D. Mohanty, Advs.
Respondent AdvocateM.S. Rao, Adv.
DispositionApplication dismissed
Cases ReferredHargulal v. Abdul
Excerpt:
.....india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - this position, that the judge who is responsible for the judgment is really the judge who passes the decree, is made clear by reference to order 20, rule 7, which provides as follows :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......1947 confirming the decision of sri c. c. coari, district judge of cuttack, dated 10-3-47 in sub-judge appeal no. 196 of 1940. 2. the facts are fully and elaborately stated in the judgments of the second appeaj, which has been reported in -- 'pratap kishore v. gyanendra-nath', a. i. rule 1951 orissa 313 (a). the facts, necessary to appreciate the points, raised in this petition for leave, are, in short, as follows : the original suit was tried by sri g. c. de, addl. subordinate judge of cuttack; after the arguments, were closed, sri de fell ill and took leave preparatory to retirement, and, therefore, could not write out the judgment; thereafter the records were sent back to sri de for writing out the judgment, and, in fact, he wrote out and signed the judgment at a time when he had.....
Judgment:

Mohapatra, J.

1. This is an application for leave to appeal to the supreme Court against the judgments dated 26-1-51 in Second Appeal No. 208 of 1947 confirming the decision of Sri C. C. Coari, District Judge of Cuttack, dated 10-3-47 in Sub-Judge Appeal No. 196 of 1940.

2. The facts are fully and elaborately stated in the judgments of the Second AppeaJ, which has been reported in -- 'Pratap Kishore v. Gyanendra-nath', A. I. Rule 1951 Orissa 313 (A). The facts, necessary to appreciate the points, raised in this petition for leave, are, in short, as follows :

The Original Suit was tried by Sri G. C. De, Addl. Subordinate Judge of Cuttack; after the arguments, were closed, Sri De fell ill and took leave preparatory to retirement, and, therefore, could not write out the judgment; thereafter the records were sent back to Sri De for writing out the judgment, and, in fact, he wrote out and signed the judgment at a time when he had already retired; the ordering portion of the judgment is :

'Hence it is ordered that the suit be dismissed with costs and future interest at 6 p. c. p. a.; pleader's fee 5 p. c. Sd/- G. C. De, Addl. Subordinate Judge, 9-8-40,'

But as Sri De had retired before 9-8-40, the judgment had to be pronounced by Sri c. C. Coari Subordinate Judge of Cuttack, under the provisions of Order 20, Rule 2; while delivering the judg- ment, Sri Coari made an endorsement below the ordering portion to effect :

'Delivered by me. Sd/- C. C. Coari,

Subordinate Judge, 9-8-40.'

The decree was eventually signed later on 22-8-40 by Sri Coari; it has to be mentioned here that Sri Coari heard the Sub-judge Appeal arising out of the present suit against the aforesaid judgment dated 9-8-40 while he was the District Judge of Cuttack.

3. The contention of Mr. Mohanty, appearing-on behalf of the petitioners, is that Sri Coari had no jurisdiction to hear the appeal inasmuch as he had pronounced the judgment in the trial Court and also he had signed the decree. Mr. Mohanty relies upon the provisions of Section 38, Sub-section (2), Bengal, Agra and Assam Civil Courts Act, 1887 (Act 12 of 1887), which runs as follows :

'The presiding officer of an appellate Civil Court under this Act shall not try an appeal against a decree or order passed by himself in another capacity.'

Sub-section (3) runs as follows :

'When any such suit, porceeding or appeal as is referred to in Sub-section (1) or Sub-section (2) comes before any such officer, the officer shall forthwith transmit the record of the case to the Court to which he is immediately subordinate, with a report of the circumstances attending the reference.'

Mr. Mohanty's contention is that the provisions of Sub-section (2) are mandatory and the duties of such a Judge are also fully prescribed in Subsection (3). He, therefore, attacks the judgment of the first appellate Court, i. e. of Sri C. C. Coari, as being without jurisdiction and takes up a point that it is a substantial question of law involved in the case on account of which leave ought to be granted for appeal to the Supreme Court.

4. Indeed, the provisions of Sub-section (2) are mandatory, but the language is clear to indicate that the presiding officer, 'who had passed a decree or order', shall not try the appeal. It is manifestly clear that mere signing of the decree does not amount, in law, to passing the decree. The Judge, who is responsible for the judgment, is alone res-ponsible for the passing of the decree inasmuch as the judgment is the statement of the reasons of the decree. Mere, signing of the decree is not a judicial act but is merely on administrative act, and the Judge, who merely signs the decree, is simply to see if the decree is in accordance with the judgment or not, but he is in no sense responsible for the judgment or the statement of the reasons of the decree. This position, that the Judge who is responsible for the Judgment is really the Judge who passes the decree, is made clear by reference to Order 20, Rule 7, which provides as follows :

'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.'

Therefore, it cannot be suggested for a moment that simply because Sri Coari had signed the decree, he was disabled, under the aforesaid Act, to hear the appeal. On the contrary, we shall have to examine the further position whether he was responsible for the judgment itself. Indeed, under the provisions of Order 20, Rule 2, Sri Coari had delivered the judgment which was already written out and signed by Sri De, Additional Subordinate Judge. To me, as it appears, it can never be suggested that by mere delivering the judgment Sri Coari can be said to have adopted the Judgment of Sri De as his own. How can a Judge, who has not taken evidence or heard arguments in an original suit, give a statement of the grounds of the decree, that is, be responsible for the judgment in the case. To me, as it appears, under no provision of law, the Judge, who merely pronounces the judgment under Order 20, Rule 2, written out and signed by his predecessor-in-omce, is bound to apply his judicial mind to the facts, circumstances and position of law arising in the case and to accept the judgment as his own before pronouncing the Judgment. More pronouncing the judgment prepared by the predecessor-in-office is a mere mechanical act.

5. Indeed, the position of law Is clear, by series of authorities, beyond all possible doubts that a judgment, written out by a Judge who has gone on leave or even who has retired, is a valid judgment even though he has ceased to have jurisdiction at the time when he writes out the Judgment and the point has been fully discussed in the judgments of the Second Appeal and also has not been contested before us. Mr. Mohanty strongly relies upon a Pull Bench decision of the Rangoon High Court, reported in -- 'Hargulal v. Abdul uany Hajee Ishaq', AIR 1936 Rang. 147 (P. B.) (B). He very much relies upon the last paragraph in the Judgment of Page C. J. which runs as follows : 'It has to be borne in mind, of course, that under Order 20, Rule 2, it is not necessarily incumbent upon the successor of the Judge of the Court in which the trial was held to pronounce the judgment that had been written by his predecessor. He has a discretion in the matter, and if he is in doubt as to the correctness of the judgment that has been written by his predecessor he ought either to act in accordance with the provisions of Order 18, Rule 15 or to hear the case 'de novo.'' Mr. Mohanty contends, if the pronouncing Judge has a discretion in the matter and if he is in doubt about the correctness of the judgment, he has an option to hear the case 'de novo'. That goes to suggest that in pronouncing the Judgment the Judge accepts the judgment as his own. To my mind, this passage appears merely as an 'obiter dictum' which is not necessary for the purpose of determining the real question before their Lord-Ships which was only to determine whether a judgment, written by an ex-Judge after he ceased to be a Judge, was a valid judgment which should be pronounced by his successor-in-office under Order 20, Rule 2. Their Lordships, after reviewing several decisions, agreed with the consensus of judicial authorities of the view that even after a Judge ceases to have Jurisdiction in Court on account of retirement or leave or transfer, the judgment written by him is a valid Judgment if it is pronounced by his successor. That was the only question to be determined by their Lordships in the case and the passage, relied upon by Mr. Mohanty, appears merely as an 'obiter' : but nevertheless the passage can never be understood to mean that the pronouncing Judge would be deemed to have accepted the judgment as his own even though he had not taken evidence and heard arguments in the case. In this view of the matter, therefore, we do not think that Sri C. C. Coari passed the decree on 9-8-40 ss contemplated under Section 38(2), Bengal, Agra and Assam Civil Courts Act. We would also refer to another position which appears from the judgments of the Second Appeal that their Lordships, who heard the Second Appeal, allowed the counsel of both sides to argue on facts and evidence, both oral and documentary, at length for several days. Their Lordships even after carefully considering the evidence and the facts of the case and having practically treated the Second Appeal as a First Appeal, agreed with the findings of facts of the lower appellate Court.

6. In conclusion, therefore, as there does not seem to be any doubt over the point of law raised by Mr. Mohanty, and further Inasmuch as the point raised does not affect the merits of the case, and as the learned Judges who heard the Second Appeal have confirmed the findings of facts after carefully examining the evidence on record, there is no substantial point of law involved jn the case which could Justify us to order for leave to appeal to Supreme Court. The application for leave is, therefore, rejected with costs. Hearing fee is assessed at rupees one hundred (Rs. 100/-).

Panigrahi, C.J.

7. I agree.


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