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Satyendra Nath Bose Vs. Bibhuti Bhusan Bhar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 165 of 1961
Judge
Reported inAIR1963Cal104
ActsCode of Civil Procedure (CPC) , 1908 - Section 73, 73(1) and 73(2) - Order 21, Rules 10, 11(3) and 17
AppellantSatyendra Nath Bose
RespondentBibhuti Bhusan Bhar and ors.
DispositionAppeal dismissed
Cases ReferredBai Divali v. Shah Vishay Manordas
Excerpt:
- debabrata mookerjee, j.1. this appeal is from an order of g.k. mitter, j., dated march 27, 1961, refusing the appellant's prayer to participate under section 73 of the code of civil procedure in rateable distribution of certain assets held by the court.2. the short facts required to be stated for the purpose of this appeal are that one profuila lal guin (respondent no. 6) was heavily indebted to several persons including respondents bibhuti bhusan bhar and aminulla khan. profulla was in the employ of the national aim grindlay's bank limited, and he had his provident fund account with the bank. in may, 1955, respondent aminulla khan obtained a decree against him for the sum at rs. 7431 and odd. he applied for execution of the decree in august of that year. in september 1955 respon-dent.....
Judgment:

Debabrata Mookerjee, J.

1. This appeal is from an order of G.K. Mitter, J., dated March 27, 1961, refusing the appellant's prayer to participate under Section 73 of the Code of Civil Procedure in rateable distribution of certain assets held by the Court.

2. The short facts required to be stated for the purpose of this appeal are that one ProfuIla Lal Guin (respondent No. 6) was heavily indebted to several persons including respondents Bibhuti Bhusan Bhar and Aminulla Khan. Profulla was in the employ of the National aim Grindlay's Bank Limited, and he had his Provident Fund Account with the Bank. In May, 1955, respondent Aminulla Khan obtained a decree against him for the sum at Rs. 7431 and odd. He applied for execution of the decree in August of that year. In September 1955 respon-dent Bibhuti Bhusan Bhar obtained a decree against Profulla for Rs. 8376 and odd. It was a consent decree which provided for payment of the decretal dues by annual instalments. Default having occurred in payment of the instalments, attachment of the money lying to the judgment-debtor's credit with the Bank was granted. Later on, however, upon Profulla's application the attachment was vacated, and he personally undertook to Court to pay the decretal amount in monthly instalments. There was a further undertaking not to withdraw or deal with or disclose of any amount from the Provident Fund except for the purpose of payment of the decretal dues of the decree-bolder Bibhuti. There was default again and there was fresh attachment. Similarly there were other attachments at the instance of other decree-holders including the said Aminulla.

3. On February 1, 1959, Profulla retired from service and the Provident Fund money became payable to aim. Within a few days of his retirement the Bank asked for directions of the Court for disposal of the attached money. A Garnishes notice was served upon the Bank at the instance of respondent Bibhuti, and the Bank was rdered by the Court to pay to the Sheriff a sum of Rupees 15801-85 nP. On March 23, 1950, the Accountant General certified that the sum had been received and it stood to the credit of the suit which respondent Bibhuti had brought against the judgment-debtor (Suit No. 3007 of 1952). Meanwhile appellant Satyendra Nath Bose had instituted a suit (Suit No. 166 of 1959) in the Original Side of this Court on February 10, 1959. The hearing of the suit appears to have been expedited with amazing speed and a consent decree for Rs. 15000 and odd was made on February 16, 1959. It thus appears that the appellant obtained his decree with considerable speed and alacrity. He lost no time and applied on February 17, 1959, for execution of the decree and asked for attachment. Upon his application the money lying to the credit of the judgment-debtor Profulla with the Bank was attached. It was at this stage that respondent Bibhuti applied to the Court for an order of payment in the execution proceedings he had commenced, and in the alternative, prayed for an order of rateable distribution of the assets of the judgment-debtor which were then held by the Court. In accordance with the Rules of this Court, all the judgment-creditors of Profulla were notified of respondent Bibhuti's summons application.

4. In this application filed by Bibhuti a claim was made that he had priority over the other attaching creditors. This claim was founded upon the undertaking given by the judgment-debtor upon which at a certain stage, the attachment on his Provident Fund Money was lifted. Bibhuti's contention was that in consequence of the undertaking the Provident Fund money stood charged with the payment of his decretal dues and costs. It was thus a preferential claim which Bibhuti put forward; in the alternative a prayer was made that there might be rateable distribution of the money lying to the credit of his suit, being Suit No. 3007 of 1952.

5. Of the other attaching creditors, respondent Aminulla seems to have prosecuted his claim tor payment of his decretal dues, and appellant Satyendra also put forward his claim to rateable distribution of the assets of the judgment-debtor. The preferential claim made by Bibhuti was contested by these two attaching creditors, and the learned Judge upon a consideration of the affidavits of the parties appearing before him, held that no charge had been created on the Provident Fund money of the judgment-debtor by the decree or order made in favour of respondent Bibhuti. Accordingly his claim of prior payment was negatived, and this finding was based on the conclusion the learned Judge had reached as to the effect of the undertaking given by the judgment-debtor whereby he bound himself not to withdraw or deal with his Provident Fund money with the Bank. The other question decided by the learned Judge was that of the attaching creditors Aminulla and Bibhuti were alone entitled to participate in rateable distribution of the assets of the judgment-debtor held in Court The learned Judge negatived the claim of the appellant to share in the distribution of assets on the ground that his application for execution was not a proper application inasmuch as it had not been accompanied by a certified copy of the decree. Reference was made to the relevant rule in the Original Side Rules of this Court, and the learned Judge held that failure to attach a certified copy of the decree to the application for execution disentitled the appellant to participate in the assets under Section 73 of the Code of Civil Procedure.

6. Appellant Satyendra Nath Bose being dissatisfied with this decision has preferred this appeal against the order of the learned Judge refusing his prayer to be permitted to participate in the judgment-debtor's assets; There is, however, no cross-objection preferred by Bibhuti against whom the learned Judge has held that his preferential claim to be paid before the other Judgment-debtors could not succeed. We are accordingly not concerned with the question as to whether the claim of priority made by Bibhuti was rightly negatived. The only question which requires decision in the appeal is whether the learned Judge was right in thinking that there was no application for execution properly so-called made by appellant Satyendra inasmuch as it had not been accompanied by a certified copy of the decree.

7. In order to be able to appreciate the arguments raised, it will be useful to notice Rule 10 of Chapter XVII of the Original Side Rules. It reads as follows:

'The application for execution, whether the provisions of Order 21, Rule 22 of the Code, apply or not, shall be in Form No. 1, and shall be on a sheet of durable paper of good quality foolscap size, and shall, in addition to the particulars mentioned in Order XXI, Rule 11(2) of the Code contain the following:

(a) (Under column 6) -- The date and nature of any writ issued before or after judgment,

(b) (By way of schedule) -- The description of the property and the interest of the judgment-debtor thereto as required by Order XXI, Rule 13 of the Code.

(c) A statement of the estimated value of the property sought to be attached, or, if such property is incumbered, the value thereof after providing for the satisfaction of the incumbrances.

In all cases, the application shall be accompanied by a duly certified copy of the decree.'

8. It will be seen that this Rule requires certain additional information to be incorporated in the application for execution besides those mentioned in Order XXI,. Rule 11[2) of the Code of Civil Procedure. There is besides, a marked departure from Sub-rule (3) of Rule 11 of Order 21 which gives an option to the Court in which an application is made for execution, either to require the applicant to produce a certified copy of the decree or not to. require him to do so. Arguments before us have largely centred upon this divergence between Order 21, Rule 11(3) of the Code and the corresponding provision in the Original Side Rules set out above making production of a certified copy of the decree compulsory.

9. Before we notice the rival contentions. It would be convenient to dispose of a preliminary objection raised on behalf of respondent Bibhuti as to the competency of this appeal. It has been argued that no appeal can be brought from the order in question in view of the specific provisions contained in Sub-section (2) of Section 73 of the Code. The contention is that the order disallowing a prayer for sharing in the assets is not a judgment within the meaning of Clause 15 of the Letters Patent, and at any rate, there can be no appeal in view of Sub-section 12) of Section 73. It has been said that an order made under Sub-section (1) of Section 73 is, by the very nature of things, of a tentative character in the sense that it is liable to be set aside by a suit contemplated in Sub-section (2). It will be recalled that Sub-section (2) provides that where all or any of the assets liable to be rateably distributed under Section 73 are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel hire to refund the assets. The argument is founded upon the words of Sub-section (2), and it has been said that a right of suit having been given to the party aggrieved by an order made under Sub-section (1), it could never have been intended that such order was liable to be brought under appeal. This argument has been sought to be reinforced by the possibility of conflict between one decision being made in the appeal, if an appeal lay, and a contrary decision being reached in the suit

10. There is, in our view, a short answer to this argument. It is not unknown that when a decree is challenged, whatever be the grounds of challenge, in an independent suit, it is open to the party concerned to plead and to prove circumstances which will take away from the validity of the decree already made. It Is, we think, not sound reasoning that a right of appeal was intended to be denied to a party dissatisfied with a decision given under Section 73(1), simply because a right of suit was given by Sub-section (2).

11. The other branch of the argument is that, in any event, an order, either allowing or refusing a prayer for rateable distribution Is not a judgment within the meaning of Clause 15 of the Letters Patent. Some decisions were cited before us in aid of this contention, but we are not pursuaded that any of them is a direct authority for the proposition that an order made under Section 73(1) is not appealable under Clause 15 of the Letters Patent.

12. An observation of the Judicial Committee in Shankar Samp v. Mejo Hal, 28 Ind App 203 (PC), was relied upon for the purpose of inducing us to hold that a decision rendered under Section 73(1) is more or less of an 'administrative' nature. Reading the report of the case we are far from satisfied that it was ever intended to be said that an order of the kind contemplated under Section 73(1) of the Code was not appealable on the ground that it was merely 'administrative.' The question in that case related to an order for distribution of certain sate proceeds, and it was held that an order under Section 295 of the Code of 1882 (corresponding to Section 73 of the present Code) for distribution of the price of property said in execution amongst the decree-holders was a step in an execution proceeding and did not import a conclusive adjudication as to rights of priority. The following observation was seized upon in aid of the contention that an order under Section 73(1) being of a tentative nature, was not a judgment within the meaning of Clause 15 of the Letters Patent:

The scheme of Section 295 is rather to enable the Judge as Matter of administration to distribute the price according to what seem at the time to be the rights of the parties, without this distribution importing a conclusive adjudication on those rights, which may subsequently be readjusted by a suit such as the present.' We, however, do not read this passage in the way read by Counsel for the respondent Bibhuti; and we are not prepared to say that the Judicial Committee ever intended to lay down that an order under Section 73(1) was not appealable on the ground that it was liable to be superseded or replaced by a decree made in a suit contemplated under Section 73(2).

13. A further argument upon this topic does not, in our view, merit detailed examination. It was sought to be said that Section 73(2) was enacted in implied derogation of the right of appeal which Clause 15 of the Let ers Patent gave. If an order made under Section 73(1) is a 'judgment' within the meaning laid down in the well Known case of Justices of the Peace, Calcutta v. Oriental Gas Co., 17 Suth WR 364, then It must be held that an order under that section is subject to appeal. It would be, in our view, sufficient to recall the words of Couch, C.J. in that case:--

'Judgment means a decision which affects the merits of the question between the parties by determining some right or liability.'

That test is one of finality in relation to the Court passing the order. Finality must mean finality in relation to the proceeding in question. Applying that test we are inclined to hold that an order refusing a judgment-creditor's prayer to participate in the assets under Section 73 of the Code has upon it that stamp of finality which will make it appealable under Clause 15 of the Letters Patent. We accordingly overrule the preliminary objection raised on behalf of respondent Bibhuti.

14. On behalf of the appellant it has been argued that for the purpose 6f an application under Section 73, meticulous care need not be taken as to the correctness of the details mentioned in the application for execution or as to the requisites of such application. We agree that for the purpose of participating in the assets held by the Court, it is not necessary that there should be an independent application under that section; but it seems to us essential that there must be a proper application for execution. The requirements of such application depend upon the rules of the Court before which it is made: It the application is made before a Court other than the High Court, the application has to conform to the provisions contained in Order 21, Rule 11 and the subsequent rules; but if the application is made before the High Court, it is imperative that the requirements of Rule 10 of Chapter 17 of the Original Side Rules must be followed. We have said that there is a marked departure in the Rule of this Court from Sub-rule (3) of Rule 11 of Order 21 of the Code. On the Original Side of this Court an application for execution must be accompanied by a certified copy of the decree. That rule appears to us upon a plain reading, to be imperative; whereas Sub-rule (3) of Rule 11 gives a discretion to the Court, either to call upon the applicant to produce a certified copy of the decree or not to call upon him to do so.

15. The contention is raised on behalf of the appellant that whatever be the difference between Rule 10 of Chapter 17 of the Original Side Rules and Sub-rule (3) of Rule 11 of Order 21 of the Code, it is a mere matter of procedure and not a matter of substance. The argument has been that once an application has been made for execution on the Original Side which substantially compiles with the requirements of the Rule governing 'execution proceedings before that Court, any defect in such application should be allowed to be remedied in terms of Order 21, Rule 17 of the Code. It is not disputed that 0, 21, Rule 17 applies to proceedings before the High Court. Indeed that rule is mentioned in Chapter 38 of the Original Side Rules which deals with miscellaneous matters. It is Rule 35 which is one of the rules relating to the amendment of pleadings etc. That Rule says that the attestation of any amendment under Order 6, Rules 16 and 17, Order 21, Rule 17, or Order 41, Rule 3 of the Code shall, unless otherwise ordered by the Court, be done by the Registrar or the Master. It is certainly arguable that the Rule which I have just read means and implies that Order 21, Rule 17 is not intended to be kept out of execution proceedings which are had on the Original Side; but the question that arises here is somewhat different. Rule 10 of Chapter 17 which we have noticed makes it obligatory on an applicant making an application for execution of his decree to file a certified copy of the decree which he seeks to execute; but Sub-rule (3) of Rule 11 of Order 21 or the Code gives a discretion to the Court, either to require production of a certified copy or not to require its production. It is true that Order 21, Rule 17 casts a duty upon the Court concerned to ascertain whether the requirements of certain stated rules, viz., Rules 11 to 14 of Order 21 have or have not been complied with; and if the Court finds that there has not been proper compliance with them 'the Court shall allow the defect to be remedied then and there or within a time to be fixed by It. it the defect is not remedied within the time to be fixed, the Court may reject the application.'

16. It has been contended on behalf of the appellant that even though Rule 10 of Chapter 17 of the Original Side Rules requires a certified copy of the decree to be filed in every case before its execution can be asked for, still it is the duty of the Court to scrutinise the application and give, in the event of non-compliance with any of the Rules, opportunity to the applicant so that the defect may be remedied. The argument that Rule 17 is not abrogated by the Rules of this Court on the original. Side may be accepted as a correct proposition; but if one scrutinises the rules on the Original Side, it becomes plain that the opportunity to remedy the defect of not attaching a certified copy of the decree along with the application for execution was not intended to be covered by Rule 17. Indeed, for Sub-rule (3) of Rule 11 of Order 21 of the Code, the Rules on the Original Side provide a distinct Rule which does not seem to be relaxable. To every application for execution must be attached a certified copy of the decree sought to be executed, other defects in the application for execution when noticed, --and such defects could conceivably be many -- it becomes the duty of this Court on the Original Side to give opportunity to the defaulting party to remedy the defects in terms of Rule 17. Therefore, while it is true that Rule 17 is not abrogated as a whole, it cannot be said that failure to comply with the mandatory provision requiring a certified copy of the decree to be attached to the application for execution can be remedied in terms of Rule 17.

17. it is well known that Section 129 of the Code of Civil Procedure gives power to the High Court to make rules as to its original civil procedura. It gives power to regulate its own proceeding in the exercise of its original civil jurisdiction. Thus there can be no question that the Court possesses the power to frame a rule like the one requiring production of a certified ccpy of the decree in every case as contained in Rule 10 of Chapter 17, and if there is any conflict between this rule or any part of it with any rule in the corresponding part of the Code, the rule on the Original Side must prevail.

18. Reliance was placed upon Virjiban Dass Moolji V. Biseswar Lal, ILR 48 Cal 69: AIR 1921 Cat 169), where it was held that Order 21, Rule 89 applied to proceedings on the Original Side. Upon an examination of tne relevant clause in the Letters Patent it was held that in order to be able to say that a particular rule in the Code had no application to the Original Side it must be established that there was some Specific provision in the rules framed by this Court which justified such an inference. The provisions of Clause 37 of the Letters Patent as Well as of Order 49, Rule 3 were recalled, and it was held that in the absence of specific provisions, the rules of the Code must be held to apply to proceedings on the Original Side. We are bound by this decision, but we think there is nothing in it which will justify us in thinking that an application for execution on the Original Side of this Court is a proper application even though it is not accompanied by a certified copy of the decree.

19. As we have said the provision relating to the production of a certified copy of the decree is an essential requirement of an application for execution. This 13 an express Rule. It is not easy to imagine a more precise Rule or a Rule of a more imperative character. Such Rule must, therefore, be in supersession of the corresponding Rule in the Code contained in Sub-rule (3) of Rule 11 of Order 21; and if in one case production of a certified copy is a matter of option, and in another a compulsory requirement, we are bound to hold that the express provision in the Original Side Rules requiring production of a: certified copy of the decree must prevail over Sub-rule (3) of Rule 11 of Order 21 of the Code.

20. The argument on behalf of the appellant took 3 slightly different turn at the close of the case, and we were asked to consider whether Sub-rule (3) of Rule 11 of Order 21 of the Code was to be deemed to have been substituted by the corresponding provision in Rule 10 of Chapter 17 of the Original Side Rules, it was said that if the requirement of compulsory production of a certified copy of the decree sought to be executed be substituted in place of optional requirement in Sub-rule (3), then the former provision comes to take the place of the latter, and once it becomes part of Rule 11, it becomes amenable to Rule 17 of Order 21. In other words, failure to comply with the essential requisite relating to the production of a certified copy might be condoned in terms of Rule 17, since the Court would be required in terms of the latter rule to give the defaulting applicant an opportunity to remedy the defect; only when such defect was not remedied in spite of opportunity that the Court would be entitled to reject the application.

21. This argument proceeds on the basis that it is free to the Court to substitute one rule for another and to produce by such process of substitution and transposition a composite Code. What the Court is required to do in a case of this kind is to see what rule is to fie applied. When there is a specific rule for the Original Side that rule must prevail over the corresponding rule in the Code. It is not right to think that the Court is empowered to read into the Code a rule provided elsewhere as a rule embodied in the Code. We do not read the Rules on the Original Side in the way suggested. On a consideration of the relevant rule and the provisions in the Code, embodied in Rules 11 to 14 of Order 21 we think that in addition to certain requirements in an application for execution before this Court, the application has to conform strictly to the procedure prescribed in Rule 10 of Chapter 17 of the Original Side Rules. The integrity of that rule cannot be broken up, nor can the rules contained in the Code be interfered with by substitution. What the Court is called upon to do is to adhere to the rules prescribed in each case and not allow its procedure to be warped by patched up rules picked up from the Code and the rules prescribed for the Original Side. Such intermingling is bound to produce confusion, resulting in a hybrid procedure, unknown both to the Code and the Original Side Rules. We cannot, therefore accept the argument that a part of the provision in Rule 10 of Chapter 17 of the Original Side Rules can be substituted for the corresponding part of the rule in the Code contained in Sub-rule (3) of Rule 11 of Order 21.

21a. Principle apart, it has been said that there is authority for the view that applications in execution may be amended as and when such amendment is required. Such amendments have, it is said, been liberally allowed in the spirit of the provision embodied in Rule 17 of Order 21. Reference is made to the decision of the Supreme Court in Jugal Kishore Saraf v. Raw Cotton Co. Ltd., (S) AIR 1955 SC 376, in which that Court had occasion to refer to Order 21, Rule 11(2). That was a case in which the question directly in issue was the effect of the operation of Order 21, Rule 16 on equitable assignment. In the course of discussion Order 21, Rule 11 was referred to and the contention of the appellant's Counsel that there was failure to comply with the requirements of that rule was noticed. Das, J. (as his Lordship then was) observed that since the application for execution did not specify any of the several modes in which the assistance of the Court was required the application was defective; but the objection. was not given effect to on the ground that it had not been taken earlier and in view of the fact that there was another tabular statement for execution specifying the mode in which the assistance of the Court was required. It was sought to be argued on the basis of this observation that non-compliance with the provisions of Order 21, Rule 11 was not viewed seriously by the Supreme Court; consequently failure to file a certified copy of the decree in the present case should not have entailed the consequence of refusal of the appellant's prayer to participate in the assets held by the Court. We are not prepared to read the observations of the Supreme Court in the way suggested by counsel on behalf of the appellant. It was not the subject matter of direct decision of the Supreme Court that non-compliance with the provisions of Order 21, Rule 11 was venial. The learned Judge while noticing the objection observed that there were circumstances which might be considered sufficient to condone the failure in that case. We are, therefore, unable to regard these observations as implying that non-compliance with a mandatory rule relating to the production of a certified copy of the decree would not disentitle the appellant to participate in the distribution of the assets.

21b. The decision in K. Abdul Salam Sahib v. Batcha Veerabhadra Raju, ILR 52 Mad 760: (AIR 1929 Mad 703) (FB), was cited in aid of the contention that the failure which had occurred in the present case ought not to have been seriously regarded. In this case what happened was that the decree-holder had applied to the Court which passed the decree for the attachment of a fund which had been paid into Court to the credit of a suit filed by the defendant in the same Court against the same judgment-debtors, but the petition was defective in not containing some of the particulars required for an execution petition by Order 21, Rule 11 of the Code, and yet the Court ordered the attachment of the fund. It was held that such an application, though defective in form, was sufficient for the purpose of Section 73 and the decree-holder was entitled to rateable distribution under the section. It is to be observed that the question arose in a suit, and the learned Judges held on the facts before them that the more correct view to take was that the petition, though defective in form, was in substance sufficient for the purpose of an application under Section 73. There was no question in this case of failure to comply with a mandatory provision of the kind contained in the relevant part of Rule 10 of Chapter XVII of the Original Side Rules.

21c. The decision in Kanmal Meghraj v. Govind Prosad, AIR 1946 Nag 365, was also relied upon on behalf of the appellant. It is true that in that case the learned Judges held that failure to comply with Order XXI, Rule 11(2) was not such a serious matter as to merit dismissal of the application. It was held that the defect did not go to the root of the matter, and the learned Judges proposed to themselves the test, 'Could the Court have proceeded with the case notwithstanding the defect?' They held on the facts before them that the Court could proceed; consequently the defect was not such as to merit a dismissal of the application.

21d. The Full Bench case of Janki Sahu Trust v. Ram Palat : AIR1950All580 , relied upon on behalf of the appellant does not, in our view, advance his case. The question before the learned Judges was disposed of largely by appeal to the Court's power to exercise its inherent jurisdiction. It was held that in exercising such jurisdiction, the Court is required to notice the justice ot the case in favour of the party who invokes its assistance. Where the party has been guilty of laches or has been negligent in prosecuting his remedy, a Court of law would be most reluctant to exercise its inherent powers in his favour. This decision does not appear to support the contention that failure to comply with a mandatory provision will not attract the consequences from which the appellant has suffered. This decision, in our view, is of little assistance to the appellant.

22. A few cases were cited to us in which the main consideration related to the question of limitation under Article 182(5) of the Limitation Act. The expression 'in accordance with law' appearing therein fell to be decided in connection with applications for execution which were originally defective. The question was whether limitation would be saved if the defects were allowed to be remedied by computing time from the moment when the defective application was made. Collaterally, the question agitated in this appeal as to the consequence of failure to comply with the requirements of the rule was considered but we have not been shown any authority to induce us to hold that failure to comply with a provision, expressly made mandatory, would still avoid the consequence of dismissal of an application defective in such material particular.

23. On behalf of the respondent it has been argued that it is not open to the Court to disregard a mandatory provision relating to the manner of making an application in execution. It has been said that if an application for execution made on the Original Side of this Court is irregular in the sense that it is not accompanied by a certified copy of the decree in contravention of the express rule, such application is liable to be dismissed. This argument has proceeded largely on ths footing that in order that a certified copy of the decree might accompany an application for execution, there has first to be a decree drawn up, settled and filed. In the present case, on the day the application for execution was made by the appellant, the decree was not in existence. It will be recalled that the appellant filed his suit and obtained a consent decree within about a week's time. In fact, the suit was instituted on February 10, 1959, and the decree was madd on February 16, 1959; it was followed up by the application for execution which is new under consideration on the next day, i.e., February 1/, 1959. Upon this application an order for attachment was made.

24. It appears from the record that although the application for execution was made on February 17, 1959, the decree was not drawn up until March 9, 1959 and was not filed till March 11, 1959. That being so, there was no decree in existence on the date of the application of which a certified copy might have been obtained. If that was not possible, that would make compliance with Rule 10 of Chapter XVII of the Original Side Rules impossible. We think we cannot ignore these facts, and we are bound to hold that on the date of the application for execution, there was no formal decree in existence. Our attention was drawn to the definition of 'decree' in the Code, but we think It unnecessary to refer to it. It is well known that a decree is the formal expression of an adjudication made by the Court. There was no such formal expression, and consequently there could be no certified copy of a decree which had not been drawn up and filed until several days later.

25. This argument was sought to be countered on behalf of the appellant by the contention that a decree was bound to follow the Judgment. It was said that a judgment had been pronounced and that a decree was bound to be drawn up, provided, of course, an application was made for drawing It up. The fact that a decree has been draw up and eventually filed would show that an application had been made and steps taken for perfecting the decree. It was said that it was no more than a mere informality that at the time the application for execution was made it was not accompanied by a certified copy of the decree. We are not prepared to accept this argument. As is well known, under the Original Side Rules no order or decree is drawn up unless one or other of the parties interested makes the necessary application for the order or decree to be drawn up. Steps are then required to be taken for on draft decree to be circulated to the parties concerned and settled; thereafter the Registrar or the Master signs the decree, and then it is signed by the Judge. These are steps which cannot be avoided and which must precede the existence of a formal decree; and unless the decree is brought into existence, there can be no question of filing a certified copy of it along with the application for execution.

26. The view we take finds support in the Full Bench decision in Bani Madhub Hitter v. Matungini Dasi, ILR 13 Cal 104. It has been held that where a suitor TS unable to obtain a copy of a decree from which he desires to appeal by reason of the decree being unsigned, he is entitled under Section 12 of the Limitation Act to deduct the time between the delivery of judgment and that of the signing of the decree In computing the time taken In presenting the appeal. Petheram, C.J. observed in the course of the Judgment:--

'But in our opinion the fact that the decree was not in existence, that is signed by the particular Judge, and could not therefore be copied until 23rd July, that is, six days after the date that it bears, entitles the appellant to ask us to deduct those six days in addition to the eight days and thus to hold that under Section 12 the appeal has been presented within the prescribed period.'

Another Full Bench of this Court had occasion to consider again this question. That was the case of Secretary of State v. Parijat Debee : AIR1932Cal331 . The question of obtaining a copy of the decree arose, and upon a review of the earlier decisions of the Court and after taking due note of a decision of the Judicial Committee in Pramatha Math Roy v. Lee, 49 Ino App 307: (AIR 1922 PC 352) the Full Bench held that the time taken up in drawing up the decree was a relevant consideration in deciding the question of limitation. We are not concerned with the other question decided in that case; but we cannot but notice with due respect the View that the preparation of a decree which means its drawing up and settlement is an essential part of the process which precedes the obtaining of a certified copy.

27. In the case of Baijnath Prosad v. Nursingdas : AIR1958Cal1 , Chakravartti, C.J. while construing the phrase 'a present right to enforce the decree,' occurring in Article 183 of the Indian Limitation Act had occasion to refer to this aspect of the question which engages our attention at the moment He observed:

'Rule 11(3) of Order 21 of the Civil Procedure Code merely says that the Court to which an application tor execution is made, may require the applicant to produce a certified copy of the decree. No difficulty Is thus caused in the case of an Immediately executable decree of a civil Court, if the limitation for its execution Is computed from the date of the decree. On the other hand, whatever may be the position In the other Chartered High Courts, no application for the execution of a decree passed on the Original Side of this Court can be made, unless it is accompanied by a certified copy of the decree. The provision in that regard contained in Rule 10, Chapter XVII of the Original Side Rules is imperative.'

28. Incidentally this question arose In the case of Saila Bala Dassi v. Nirmala Sundari Dassi : [1958]1SCR1287 . The point directly decided was one which related to the scope of Section 146 of the Code of Civil Procedure, and it was held that the provision of that section ought to be liberally construed. While reciting me salient facts from which this conclusion was drawn, Venkatarama Aiyar, J. observed:

'Under Rule 27 of Ch. 16 of the Original Side Rules of the Calcutta High Court, a person In whose favour a decree Is passed has to apply for drawing up of the decree within four days from the date thereof. The rule then provides that 'if such application for drawing up a decree or order is not made within the time aforesaid, me decree or order shall not be drawn up except under order of Court or a Judge to be obtained unless otherwise ordered, by a petition ex parte.' The Importance of this provision is that until a decree Is drawn up as mentioned therein, no certified copy thereof would be Issued to the party and without such a certified copy no execution proceedings could be taken.'

It Is true that this case Is no direct decision on the question before us; nevertheless the excerpt above appears to contain an expression of opinion that without a certified copy of the decree no execution proceedings can be taken. It is to be recalled that even If this observation is in the nature of an obiter as was suggested, that obiter is binding upon us.

29. More directly in point is the case of Sarojendra Kumar v. Purnachandra Sinha, AIR 1949 Cal 24. In that case the question arose, 'When do the proceedings in a suit terminate?' S.R. Das, J. (as he then was) held in that context as follows:

'On a consideration of the provisions of the Code and of our Rules and on general principles underlying the cases mentioned above I am bound to conclude that for the purpose of Art: 84 a suit terminates only when the decree finally determining the rights and liabilities of the parties to the suit is perfected, i.e., drawn up, signed, sealed and filed on record in the suit. It is only after the decree is so perfected that certified copies can be obtained for purposes of other or subsequent proceedings, namely, execution or appeal or review.'

It seems clear that before a decree is finally drawn up, a draft has to be circulated and approved by the parries concerned and then signed, sealed and filed on record in the suit. These are the essential steps which must precede the decree properly so called, and only when it is so perfected that its copy can be obtained.

30. Counsel on behalf of the respondents drew attention to another decision of the Bombay High Court in Bai Divali v. Shah Vishay Manordas, ILR 34 Bom 182. in that case which was an administration suit, the first Court recorded a finding on a substantial question of right between the parties and appointed Receivers: the plaintiff did not apply to have a formal decree drawn up, but appealed against the finding on the ground that it amounted to a decree. The learned Judge rejected the appeal holding that there was no decree which could be the subject of an appeal. It was reiterated that a decree was something different from judgment, and that it was a formal expression of an adjudication. The argument on behalf of the respondents has been that in view of the definition Itself of 'decree' contained in the Code, it is not possible to say that there can be compliance in any manner whatever with the mandatory requirements of Rule 10 of Chapter XVII of the Original Side Rules unless there was a decree in existence of which a copy could be taken. We think this a substantial contention and must prevail.

31. We think on the whole that the application for execution made by the appellant having been unaccompanied by a certified copy of the decree could not have been entertained in law. The application was not merely defective in form; the want of certified copy was a substantial defect which could not be remedied. We read the relevant part of Rule 10 of Chapter 17 of the Original Side Rules relating to the production of a certified copy of the decree as an essential requirement. The effect of this rule cannot be avoided by an appeal to Order 21, Rule 17 of the Civil Procedure Code for the reasons which we have indicated. There was, in fact, no decree In existence on the date of the application, and consequently there could be no compliance with the essential requirements of Rule 10 of Chapter 17 of the Original Side Rules which we hold mandatory. There was in this view no application in execution, and unless there was a proper application, the appellant could not participate in the assets under Section 73 of the Civil Procedure Code.

32. The appeal accordingly fails and is dismissed,

33. Each party will pay and bear its own costs.

Bose, C.J.

34. I agree.


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