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Banwari Lal Varma Vs. Amrit Sagar Gupta and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H400
AppellantBanwari Lal Varma
RespondentAmrit Sagar Gupta and ors.
Excerpt:
.....be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a..........as such. it is, however, quite clear from the code of civil procedure that in the case of a civil suit it is contemplated that the judgment and decree should be quite distinct. section 33 of the code lays down that the court after a case has been heard shall pronounce judgment and on such judgment the decree shall follow. again, order 20, rule 4(2), civil p.c., provides:judgments of other courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.rule 6 of order 20 reads:(1) the decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties and particulars, of the claim, and shall specify dearly the relief granted or other determination of the.....
Judgment:

Harnam Singh, J.

1. This appeal arises out of a suit for dissolution of partnership and for rendition of accounts brought against Banwari Lal defendant by Jowala Parshad who died during the pendency of the suit. The suit was continued by Amrit Sagar, Roshan Lal and Jitendra Nath sons of Jowala Parshad. The suit proceeded on the allegation that Jowala Parshad, father of the plaintiffs and Banwari Lal defendant were partners in the business of building contracts and had equal shares in it. Jowala Parshad contributed capital for the partnership and the partnership was carried on and accounts kept by the defendant.

2. Banwari Lal defendant resisted the suit and denied that there was any partnership between him and Jowala Parshad, the father of the plaintiffs. He pleaded that it was in respect of two ventures only, that Jowala Parshad had become his partner and was entitled to th share. He added that the accounts of those two ventures had been settled and partnership dissolved. Limitation was also set up as a bar to the suit. The trial Court found that the suit was barred by time and dismissed it. Against the decree of the trial Court the plaintiffs preferred an appeal in the Court of the Senior Subordinate Judge Delhi.

3. The Court of appeal found that the suit had been instituted within limitation and on that finding allowed the appeal and setting aside the decree of the trial Court granted the plaintiffs a preliminary decree against the defendant for dissolution of partnership and for rendition of accounts. Banwari Lal defendant has come up in further appeal to this Court.

4. Mr. D.N. Aggarwal on behalf of the plaintiffs raises a preliminary objection that inasmuch as a copy of the decree passed in appeal has not been filed along with the memorandum of appeal in this Court the appeal ought to be dismissed. He cites Order 42, Rule 1, Civil P.C. Now, Order 42, Rule 1 provides:

The Rules of Order 41 shall apply, so far as may be to appeals from appellate decrees.

Order 41, Rule 1 reads:

Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the appellate Court dispenses therewith) of the judgment on which it is founded.

5. On the record there is a memo of costs signed by the Court in which the amount of costs incurred by each party is specified but otherwise the memo of cost does not contain the particulars specified in Order 20, Rule 6, Civil P.C. The form of decree in suits for dissolution of partnership and rendition of accounts is set out in Appendix D form 21 and it is common ground that no decree sheet has been prepared within the meaning of Order 20, Rule 6 read with Appendix D Form 21, Civil P.C.

6. Mr. Bishen Narain on behalf of the appellant urges that the concluding paragraph of the judgment of the Court of appeal is a decree and appealable as such. It is, however, quite clear from the Code of Civil Procedure that in the case of a civil suit it is contemplated that the judgment and decree should be quite distinct. Section 33 of the Code lays down that the Court after a case has been heard shall pronounce judgment and on such judgment the decree shall follow. Again, Order 20, Rule 4(2), Civil P.C., provides:

Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.

Rule 6 of Order 20 reads:

(1) The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties and particulars, of the claim, and shall specify dearly the relief granted or other determination of the suit.

(2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid.

7. Order 20 Rules 1 to 5, Civil P.C., deal with judgments in original civil suits and Rule 6 gives particulars which are to be entered in the decree. Form 21 in Appendix D of sch. 1 of the Code is the form to be used in drawing up decree in a suit for dissolution of partnership and rendition of accounts. It is, therefore, quite clear that in the case of an original suit the decree should be quite distinct from the judgment. The memo of costs annexed with the memorandum of appeal in this case does hot satisfy the requirements of Order 20, Rule 6 of the Code and cannot be treated as a decree.

8. A similar point arose in Gela Ram ` Ganga Ram A.I.R.1920 Lab.395. The facts in that case were identical with the facts of the present case and on those facts Scott Smith and LeRossignol, JJ. observed:

We agree with this view and have no hesitation in holding that there is no decree in the present case within the meaning of the portions of the Civil Procedure Code above referred to, and therefore no appeal lies.

8. For the foregoing reasons the appeal fails] and is dismissed. Bat regard being had to the fact that the plaintiffs are to blame for not moving the Court to draw up a formal decree, the parties are left to bear their own costs in the High Court. Mr. D.N. Aggarwal says that he will advise his clients to move the lower Court to draw up a proper decree.


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