V.R. Shah, J.
1. The appellant in this appeal is the judgment-creditor and she filed an execution application to execute the decree. It has been dismissed by the executing Court on the ground that it is barred by limitation. It is against this order that this appeal has been brought by the judgment-creditor.
2. At the time when this appeal was taken up for hearing, Mr. Zaveri, learned Advocate for the respondent raised a preliminary objection that an appeal from order cannot lie. but it should have been filed as a First Appeal. The learned advocate for the appellant, Mr. Shelat, agrees to this and both Advocates have no objection to this appeal being treated as First Appeal. I, therefore, direct that this appeal may be registered as First Appeal and I proceed to dispose it of on that basis.
3. The appellant filed the suit for maintenance both past and future, as well as for a declaration of her rights to a share in the property. A compromise purshis was put by the parties before the Court on 20th March 1958. By this compromise the defendant was to pay Rs. 1100/- on account of mesne profits for the period 1st April 1954 to 20th March 1958 within three months from the date of the compromise. The compromise also entitled the plaintiff-appellant to recover that amount with six per cent interest thereon if the same were not paid within three months. In this appeal I am not concerned with the other terms of the compromise except that by the last clause it was agreed that each of the parties shall pay to Government an amount of Rs. 381-4 As. for court-fees.
4. On this compromise purshis, the Court endorsed the following order on the same day.
'The plaintiff and the defendant are present. The compromise is read over and explained to them and they admitted the same. Hence decree be drawn up in terms of it on payment of Court-fees of Rs. 381-4-0 by each party,'
No amount of court-fees was paid by either party and no decree was drawn up. On 6th January 1960, the appellant gave an application to draw up the decree without payment of court-fees as directed earlier. On that application, after hearing the parties the court passed the following order on 8th April, 1961.
'I therefore, order that the office should draw up a decree and send its copy to the Collector for recovery of the deficit court-fees from parties shown in the compromise decree.'
Thereupon the office prepared the decree and it was signed by the learned Civil Judge on 26th April 1961. The decree bears the date of 20-3-1958.
5. The judgment-creditor appellant filed an application for execution on 28th September 1961. It is filed after more than 3 years from the date of the decree, that is from 20-3-1958. The payment was ordered to be made within three months of that date that is, the last date on which the amount of Rs. 1100/- should be paid by the respondent to the appellant was 20th June 1958. The execution application was more than 3 years from that date also. Naturally, therefore, an objection about the execution application being barred by limitation was taken by the respondent. In order to meet this objection, the learned advocate for the appellant advanced two arguments, namely (1) that by the order dated 8th April 1961, the trial Court amended the decree that was made on 20th March 1958 and that limitation of three years, therefore began to run from the date of the amendment, and (2) that the order made by the learned trial Judge on 20th March 1958 was a provisional judgment and that a final judgment was delivered by the learned trial Judge on 8th April 1961 and therefore the decree is really made on 8th April 1961 and that the application for execution is within the period of 3 years from that date. The learned trial Judge negatived both these contentions. In the appeal before me the first ground, namely, that the order dated 8th April 1961 amounted to an amendment of the decree, was not pressed. It is obvious that the order dated 8th April 1961 does not amend anything. It only removes the impediment which was set by the original order against the drawing up of the decree itself.
6. In support of his argument, that order of the Court made on 20th March 1958 was a provisional judgment and that a final judgment was delivered by the Court on 8th April 1961, Mr. Shelat,learned advocate for the appellant relied upon a decision in the case of Khudadad v. Moriokhan. AIR 1916 Sind 2. He also raised another argument, namely, that the decree was passed on condition and that so long as the condition was not fulfilled no decree came into existence and therefore the decree came into existence only when the condition was removed by the trial Judge on 8th April 1961. He relied for this purpose on a decision in the case of Babu Bam v. Gopal Sahai : AIR1938All539 .
7. Mr. Zaveri, learned advocate for the respondent urged that what was ordered to be postponed by the trial Judge's order on 20th March. 1958 was not the passing of the decree, but the drawing up of the decree, that is the preparation of the decree in accordance with the provisions of Order 20, Rule 6 of the Code of Civil Procedure. He urged that in view of the provisions of Order 23, Rule 3 of the Civil Procedure Code, the decree came into existence as soon as the order was made by the learned trial Judge on 20th March 1958. He pointed out that under Order 20. Rule 7 of the Civil Procedure Code, the decree should bear the date on which the judgment was pronounced and since the trial Court made the order on 20th March 1958. the decree rightly bears that date and therefore limitation begins to run from that date. It was further urged by him that the order of the Court on 20th March 1958 directed the appellant and respondent to pay an amount of Rs. 381-4-0 each by way of Court-fees before the decree was drawn up. He urged that it was open to the plaintiff-appellant to pay up this amount immediately after the order was made by the Court on 20th March 1958 and she could have paid the amount on behalf of the defendant also and thus facilitated the drawing up of the decree in order to enable her to execute the same. If she had paid the amount on behalf of the defendant also, the said amount could have been adjusted in the execution application. It was, therefore, urged that the condition that was imposed by 'the order of the learned trial Judge on 20th March 1958 was a condition which it was open for the appellant to fulfil immediately after the order was made. It was also urged that merely because the appellant neglected to pay up that amount and moved the Court afterwards to remove that condition, the appellant cannot now be heard to say that the decree was not passed on 20th March 1958.
8. In the alternative Mr. Zaveri argued that even if the decree were really made on 8th April 1961, still the decree bears the date of 20th March 1958 and that date is a part of the decree itselfand the executing Court cannot go behind that fact and try to substitute the same by putting some other date instead of the date which really appears on it on the ground that it was a wrong data. Mr. Zaveri also argued that the decree directs the appellant to pay the amount within three months, which would mean that the decree directs the payment to be made at least on 20th June 1958 if not earlier and under Article 182, Clause (vii) of the Limitation Act of 1908, the application for execution of the decree should have been made within three years from 20th June 1958, that is on or before 20th, June 1961. Since this execution application is made after 20th June 1961, the same is barred by limitation.
9. In order to appreciate the relevant contentions involved in this appeal, it is necessary to refer to certain provisions of the Civil Procedure Code. The word 'judgment' is defined in Section 2(9) as being a statement given by the Judge of the grounds of a decree or order. Section 33 of the Code provides that after the case has been heard, the Court shall pronounce judgment, and on such judgment a decree shall follow. Order 20, Rule 6 provides the manner in which a decree passed by the Court shall be drawn up. Order 20, Rule 7 then provides that the decree shall bear date of the judgment. Order 21, Rule 11 enables the judgment-creditor to make an oral application at the time of passing of the decree for immediate execution thereof by the arrest of the judgment-debtor. This rule, therefore, provides that a decree for payment of money can be executed even if it is not drawn up according to the provisions of Order 20, Rule 6 of the Code, A decree is denned in Section 2, Sub-section (2) as meaning a 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 to 'the suit
10. Order 23, Rule 3 of the Civil Procedure Code deals with a compromise or agreement adjusting the suit between the parties to a litigation. Under that provision if the Court is satisfied that a suit has been adjusted by any lawful agreement or compromise, the Court shall order the agreement or compromise to be recorded and shall pass a decree In accordance therewith so far as it relates to the suit.
11. A consideration of these provisions of the Code of Civil Procedure, brings out clearly certain conclusions. An order of the Court expressing its satisfaction about the existence of a lawful compromise or agreement adjusting the suit between the parties to it is the basis of an order made by it to record thesame. Such an order recording the compromise or agreement is appealable under the provisions of Order 43 of the Code of Civil Procedure. The Court's statement expressing its satisfaction that there is an agreement or compromise adjusting the suit, therefore, amounts to a judgment, because it provides the ground to the Judge for making an order to record the compromise. Upon such judgment, as directed by the provisions of Order 23, Rule 3, a decree has to be passed by the Court. Section 33 would then come into play and the decree that is ultimately passed under the provisions of Order 23, Rule 3 should bear the same date as the judgment upon which it is based, that is the same date as the date under the endorsement of the Judge about his satisfaction that the compromise or lawful agreement adjusting the suit is proved before him. It is also clear from the provisions of Section 33 that as soon as the judgment is pronounced, a decree is bound to follow it. The decree being a formal expression of the adjudication by the Court, must follow immediately after the judgment of the Court is pronounced. When, therefore, the Judge after pronouncing his judgment proceeds to pass an order in which he incorporates the result of his decision and gives a final adjudication about the rights of the parties in controversy before him, he passes a decree. The final order in the judgment, therefore, amounts to the passing of a decree by the Judge. The drawing up of the decree under Order 20, Rule 6 is a separate and independent act which is subsequent to the passing of the decree. It follows from this that a decree is passed by the Court even If, for the time being, there is no decree drawn up in the form provided under Order 20, Rule 6 of the Code. The passing of the decree, is, therefore, independent and earlier to the drawing up of a decree. The decree is bound to bear the date on which the judgment was pronounced. It does not matter that the decree was drawn up a long time after the judgment was pronounced. This position is clear from the various provisions of the Civil Procedure Code referred to above.
12. In the case of Rajeshwar Rai v. Shankar Rai : AIR1962Pat398 , the Court considered the various provisions referred by me above and has held as follows:
'Reading Sections 2(2), 2(9), 33 and Order 20, Rules 1, 6 and 7 together it must be held that the 'decree' as defined in Section 2(2) comes into existence as soon as the judgment is pronounced. It does not necessarily mean the formal decree which is prepared in accordance with Section 33 and Order 20 Rule 6. The definition of the word 'decree-holder' in Section 2(3) makes it further clear that the decree-holder means a person in whose favour a decree has beenpassed as soon as the judgment has been pronounced, and not necessarily a person in whose favour a decree has been formally prepared, as required by Section 33.'
13. The main question, therefore, which falls to be considered in this appeal is as to when was the judgment upon which this decree is based was pronounced. If the judgment was pronounced on 20th March, 1958, then the decree rightly bears the date of 20th March 1958. If, as urged by Mr. Shelat, the final judgment was pronounced on 8th April, 1961, then the decree should bear the date 8th April 1961' and not '20th March 1958'. In order to understand this position, it is necessary to analyse the provisions of Order 23, Rule 3 of the Code of Civil Procedure and then to interpret the order passed by the Court on 20th March 1958 in the light of this analysis. The provisions of Order 23, Rule 3 require the Court to take three steps each one after the other. The first step that is taken by the Court is to give a finding about its satisfaction that a suit has been compromised or adjusted by an agreement between the parties; if such satisfaction is arrived at, then the next step to be taken by the Court is to make an order recording the compromise or agreement; and it is only after such an order is made, that the Court shall proceed to the third step of passing a decree in accordance with the terms of the compromise. The drawing up of the decree has nothing to do with the provisions of Order 23, Rule 3 and therefore, there need not be any express order of the Judge that the decree should be drawn up. If a decree is passed unconditionally, it is the duty of the office to draw up the decree and place it before the Judge for his signature. That is what is required by the provisions of Order 20, Rule 6 of the Code. In the instant case, the trial Judge has recorded his satisfaction about the existence of a compromise or lawful agreement whereby the suit has been adjusted. The second requisite requirement is wanting because there is no express order made by the learned trial Judge that the compromise is recorded. The third requirement is also absent in so far as specific words are concerned because there is no direction or order passing a decree in accordance with the terms of the compromise. There is, however, an order that the decree shall be drawn up in accordance with the terms of the compromise on payment of an amount of Rs. 381-4-0 by each party Though, therefore, there is absence of any express statement recording the compromise or passing a decree, still the above direction to the office necessarily implies the recording of compromise and passing of a decree. Once the Court has expressed its satisfaction about the existence of a compromise or lawfulagreement adjusting the suit, an order recording that compromise is mandatory on the Court; and though there are no express words to that effect in the endorsement of the learned Judge, the fact that he ordered drawing up of a decree would necessarily imply that he made an order recording the compromise, because it is that order itself which is the foundation and basis of the decree, which is ordered to be drawn up. Equally the order to draw up the decree necessarily implies that the Judge has passed a decree. Therefore, even though the second and third steps are not to be found in express language in the judgment of the learned trial Judge, still, in the circumstances of the case, there is no doubt that they are implied in the order itself. I would, therefore, proceed on the basis that there is an order recording the compromise. The expression of satisfaction by the learned trial Judge along with the order to record the compromise will be the judgment on the basis of which the decree is passed. This order is dated 20th March 1958 and therefore the decree that is passed will also bear that date. It should be noted that what is postponed is not the 'passing' of the decree, but the 'drawing up' of the decree. As I stated above, the passing of the decree and the drawing up of the decree are two separate and independent acts. The passing of the decree is earlier in time and follows as a matter of course as soon as a judgment is pronounced. It is by the force of the statute itself, namely, the provisions of Section 33 of the Code that a decree comes into existence immediately when a judgment is pronounced. Therefore, since the learned trial Judge has postponed the drawing up of the decree it follows that he has not postponed the passing of the decree. The decree, therefore, in terms of the compromise has been passed as soon as the judgment was pronounced on 20th March 1958 and since the decree has been passed on that date, it must bear that date. The drawing up of the decree would not invest the decree-holder with any new right which he did not possess at the time of passing of the decree. Even if there was no decree drawn up by the office, it was open to her (plaintiff-appellant) to ask for execution of the decree. It was also open to her to immediately comply with the requirement imposed by the Court, namely, the payment of Rs. 381-4-0 as Court fees on her behalf as well as an equal amount on behalf of the defendant in order that the decree should be drawn up. If she paid the amount on behalf of the defendant, it would be open to her to ask for the recovery of that amount in execution. Therefore, if the drawing up of the decree is postponed until the plaintiff doesa certain act and it is competent to the plaintiff to do that act immediately, the law will fill, presume that the plaintiff has done that act immediately and therefore, even if the plaintiff delays the doing of that act still the decree, when drawn up, will bear the date on which the judgment was pronounced on the basis that the plaintiff has removed the impediment immediately after the pronouncement of the judgment.
14. The order dated 8th April 1661 has no more effect than removing the impediment which postponed the drawing up of the decree. This impediment could have been removed by the plaintiff paying the amount of Court fees. In this case, however, on her application, the Court itself removed the impediment which it has put on the drawing up of the decree. The order dated 8th April 1361, therefore, does not introduce any new factor in the consideration of this case. Whether the impediment was removed by the Court of its own motion or on the application of the plaintiff or whether the impediment was removed by the plaintiff by paying the amount herself, the legal effect will be the same, namely, that the way is open to draw up the decree. But since the decree has been passed on the date on which the judgment has been pronounced the decree whenever drawn up will bear the date of the judgment. There is no amendment of the decree by the order dated 8th April 1961. The amendment of the decree will arise provided the terms or contents of the decree are in any way changed. The decree that came into existence on 20th March 1958 was in terms of the compromise purshis and by the order dated 8th April 1961, there is no change or alteration in any of the terms of the compromise purshis. Therefore, there is no amendment of any part of the decree. In my opinion, on a consideration of the relevant provisions of the Civil Procedure Code, it appears that the decree that is drawn up rightly bears the date 20th March 1958.
15. Mr. Shelat relied on a decision In the case of AIR 1916 Sind 2. There what happened was that the learned Judge decreed the suit subject to certain conditions about payment of the balance of purchase money and damages of Rs. 150/~ to the defendant. The Judge however ordered that the decree should not be drawn up until the plaintiff paid penalty in respect of deficit stamp on a sale-deed. The period for paying the penalty was extended by various orders from time to time and ultimately the penalty was paid by the plaintiff on 21st November 1913. The defendant filed an appeal which was time barred from the date ofthe judgment, but it was within time from the date on which the decree was prepared. On an interpretation of the order passed by the Court as regards the drawing up of the decree, the Sind Court came to the conclusion that what was pronounced by the Court at the earlier time was a provisional judgment to the effect that the Court was prepared to decide the suit in accordance with that judgment, but the Court would not do so until the plaintiff paid the penalty under the Stamp Act. It is obvious that if the penalty under the Stamp Act were not paid, the document would remain inadmissible in the evidence and the judgment which was pronounced on that day would not be a correct judgment. The Court, therefore, considered that it was a provisional judgment which the Court was prepared to pronounce provided the plaintiff paid the penalty. When the plaintiff paid the penalty, the Court made a final judgment ordering the preparation of the decree. That is not the position here. There is no question of a provisional judgment, because nothing has remained to be decided after the Court made the order on the compromise pur-shis. All that the Court did was to postpone the drawing up of the decree itself, In my opinion, this decision does not apply to the facts of the present case, I may note that this decision was referred to in a decision in the case of Md. Sadique Mian v. Mahabir Sao AIR 1942 Pat 410 and there also that Court has distinguished this case on the ground that the effect of that order was to pronounce a provisional judgment which did not become operative until the decree was prepared. The Patna High Court has also held that in the Sind case there was no complete adjudication until the condition was satisfied.
16. Mr. Zaveri mainly relied upon two decisions. The first is in the case of AIR 1942 Pat 410 (supra). In that case a preliminary decree for mesne profits had been passed and a Commissioner was appointed by the Court to ascertain the amount of mesne profits. The Commissioner submitted his report which was accepted by the Court on 6th of January 1936 and the Court passed the following order on that day:
'Let final decree be prepared in terms of the Commissioner's Report. No decree shall be prepared unless deficit court fees are paid.'
On a consideration of the provisions of the Civil Procedure Code as well as certain other cases, the Patna High Court came to the conclusion that the judgment was pronounced on 6th January 1936 and that the condition for the preparing of the decree did not alter the date of the decree. It also held that the moment the plaintiff paid the deficit court fee in accordance with the order, the decree would have been automatically drawn up. It was held that though the Court fee were paid on 1st December 1938, the decree that was ultimately drawn up rightly bore the date 6th January 1936.
17. The second decision on which Mr. Zaveri relied is to be found in the case of Kishori Mohan Pal v. Provash Chandra : AIR1924Cal351 . In that case there was a final partition decree and under the Stamp Act of 1899 a decree for partition is chargeable with duty to the amount prescribed by Article 45 of Schedule I of the Act and the expense of providing the proper stamp is to be borne by the parties to the decree in such proportions as the Court directs. The result is that a decree for partition is not formally drawn up until paper bearing the proper stamp is supplied to the Court. The decree is then engrossed on the stamp paper and signed by the Judge. In the above case the decree was signed by the Judge on 2nd January 1920, as the stamp paper was furnished only a short time before that day. The question arose whether the limitation should run from the date on which the decree was passed, namely, from 25th March 1914 or it should run from the date on which the decree was drawn up, that is from 2nd January, 1920. The Court, while considering this question, held as follows:
'The delay in signing the decree was due not to any fault of the Court or to any cause beyond the control of the parties, but solely to the delay of the parties in supplying the requisite stamp paper. Any party desiring to have the decree executed might have furnished the stamp paper at any time leaving the expense of providing it to be adjusted by the Court in connection with the costs of the execution.'
In this case also it was held that the mere fact that the decree is not drawn up because the plaintiff or some other party to the suit has failed to provide the stamp paper, it would not alter the date of the decree which is the date on which the judgment is pronounced. In my opinion, haying regard to the facts of this case, it is clear that the decree that is drawn up bears the date 20-3-1958 and the same is the correct date as it is a date on which the judgment was pronounced and therefore, the period of limitation should run on the basis that the decree is dated 20th March 1958. If Clause I of Article 182 of the Indian Limitation Act applies, then the execution application being more than three years from the date of the decree is barred by limitation. If however Clause VII of Article 182 applies, even then, the last date on which the payment was requir-fed to be made being 20th June 1958, the execution application is more than three years after that date and therefore also, it is barred by limitation.
18. Mr. Shelat on behalf of the appellant urged that this was a decree which was passed on condition and therefore, until the condition was fulfilled, no decree came into existence. A mere perusal of the order made by the learned Civil Judge on the compromise purshis clearly indicates that Mr. Shelat's argument is not correct. What the learned Civil Judge has directed is that the decree should be drawn up after the requisite court fees are paid. The learned Judge's order does not deal with the passing of the decree. As I stated above, as soon as the judgment is delivered, a decree is bound to be passed Immediately thereafter. Therefore, there is a distinction between the passing of a decree and drawing up of a decree and what is postponed by the learned Judge's order in the instant case is drawing up of the decree and not the passing of the decree. Again, it is no doubt true that the learned Judge has ordered that the decree is to be drawn up only after the court fees are paid. But this was a condition which the plaintiff could have Immediately fulfilled. If she had done what she was directed to do by the Court immediately, the decree could have been drawn up at once. If she commits delay in supplying the court fees and thus allows tune to pass away, without there being drawn up a decree in her favour, it cannot be stated that the decree did not come into existence until after she paid the Court fees or the Court passed the order removing that condition. Mr. Shelat relied upon a decision in the case of AIR 1938 All 639. In that case the Court passed a decree for money on condition that the decree-holder deposited the necessary court fees In Court, That was a case, therefore, where the passing of the decree was made conditional on the fulfilment of the direction of the Court to deposit the Court fees. If the passing of the decree is made conditional on a certain act being done by the plaintiff then it can be urged that no decree has come into existence until the condition is fulfilled. This is not a case however, where the drawing up of the decree was postponed. This case, therefore can be distinguished on its facts and it does not apply to the order passed by the learned Judge.
19. Mr. Shelat then relied upon a decision in the case of Mahomed Hasnain v. Yusuf Husain : AIR1956All121 . On the basis of this authority Mr. Shelat urged before me that the Court bad no authority to make any order for payment of Court fees. He referred to Order 23,Rule 3 of the Code of Civil Procedure and stated that as soon as the Court is satisfied about the existence of the compromise or agreement adjusting the suit it is the duty of the Court to pass a decree. He stated that in the instant case, the learned Civil Judge of his own motion postponed the drawing up of the decree by imposing a condition for payment of Court fees. He stated that the Court itself has failed in performing its own duty and for the failure of the court, the appellant could not be penalised. As I stated above, since the passing of the decree has not been postponed the question whether the appellant has been penalised by the Court's order or not is not a question which is relevant for consideration at this stage. As I stated above, the compromise purshis Itself makes provision for payment of that amount of court fees by the appellant-plaintiff to the Government The Court thought that the payment of court fees to the Government should be made by paying the same into the Court. The Court, therefore, seems to have passed that order on its own Interpretation of what the consent terms provided. It cannot, therefore, be said that the plaintiff has been penalised by the Court's order. It was open to the plaintiff, even in the absence of a formal drawn up decree to make an application for execution of the decree and if necessary to insist that the Court should draw up the decree without any payment of court fees by her in Court In my opinion, this argument of Mr. Shelat does not appear to be correct No other point was pressed on behalf of the appellant by Mr. Shelat.
20. Mr. Zaveri, on behalf of the respondent also raised an alternative argument that even if the date of the judgment be taken as 8-4-1901 still the execution application is barred by limitation. He argued that the payment is to be made within three months from the date of the compromise purshis and therefore the payment should be made on 20th June 1958 at the latest He relied upon the provisions of Clause VII of Article 182 of the Limitation Act and stated that the application for execution should have been made on or before 20th June, 1961. He also argued that the decree In fact bears date '20-3-58.' He argued that the date is an integral part of the decree itself and the executing Court has no jurisdiction to go behind the decree and find out whether the date '20-3-1958' is the correct date or whether that date should be substituted. For this purpose he relied upon a decision in the case of Anant Ram v. Basdeo Sahai : AIR1957All114 . However, in view of the fact that I have accepted, the first ground advanced by Mr. Zaveri, I do not think that it will be necessary for me to go into any detailed examination of the questions raised in these two alternative arguments.
21. The result, therefore, is that the trial Court's order holding the execution application to be barred by limitation is correct. This appeal, therefore, fails and is dismissed with costs.