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Chandra Nath Ghosh and ors. Vs. Rajani Kanta Ghosh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 206 of 1958
Judge
Reported inAIR1960Cal85
ActsBengal Agra and Assam Civil Courts Act, 1887 - Section 21; ;Bengal Agra and Assam (West Bengal Amendment) Act, 1957 - Section 4; ;Code of Civil Procedure (CPC) , 1908 - Order 20, Rule 7
AppellantChandra Nath Ghosh and ors.
RespondentRajani Kanta Ghosh and anr.
Appellant AdvocateChandidas Roy Choudhury, Adv.
Respondent AdvocateSomendra Chandra Basu, Adv.
Cases Referred and Giribala Dasi v. Biswambhar Haldar
Excerpt:
- .....november 29, 1957, the decree being actually signed on january 9, 1958. on april 3, 1958, the present appeal was filed in this court by the defendants for relief to the extent of rs. 800/-only and the appeal was valued at that figure, namely, rs. 800/-.2. the plaintiff respondent, after entering appearance, took a preliminary objection to the maintainability of the appeal in this court under and in view of west bengal act xvi of 1957 (which had come into force on january 1, 1958), whereupon it was directed to be heard on that point and it was actually so heard by us on may 13, 1959. several other appeals also came up for hearing on the same preliminary point, of which the last one was heard in the early part of this month. in the light of the arguments in the different appeals, we.....
Judgment:

P.N. Mookerjee, J.

1. This is the defendants' appeal arising out of a suit on mortgage which was valued at Rupees 9,287-11 as. The suit was filed sometime in the year 1956 and it was registered as Title Suit No. 129 of 1956 of the Court of the 9th Subordinate Judge at Alipore, 24-Parganas. The suit was decreed in part by the trial court by its judgment, dated November 29, 1957, the decree being actually signed on January 9, 1958. On April 3, 1958, the present appeal was filed in this Court by the defendants for relief to the extent of Rs. 800/-only and the appeal was valued at that figure, namely, Rs. 800/-.

2. The plaintiff respondent, after entering appearance, took a preliminary objection to the maintainability of the appeal in this Court under and in view of West Bengal Act XVI of 1957 (which had come into force on January 1, 1958), whereupon it was directed to be heard on that point and it was actually so heard by us on May 13, 1959. Several other appeals also came up for hearing on the same preliminary point, of which the last one was heard in the early part of this month. In the light of the arguments in the different appeals, we have considered the whole matter, but, so far as this appeal is concerned, the point appears to be somewhat simple and concluded against the objecting respondent by the express terms of Section 4 of the very Act itself, upon which he relies for his above preliminary objection, and, accordingly, it needs no elaborate discussion.

3. The respondents' preliminary objection is founded on the broad ground that, the suit being valued at less than Rs. 10,000/- and the decree having been made (signed) on January 9, 1958, that is, after the coming into operation of the new Amending Act, West Bengal Act XVI of 1957 (which has been referred to hereinbefore and which is styled in Bengal, Agra and Assam Civil Courts (West Bengal Amendment) Act, 1957, and whereby Section 21 of the old Bengal, Agra and Assam Civil Courts Act of 1887, determining the forum of appeals from decisions of Subordinate Judges, was amended), the present appeal would not lie in this Court but would lie to the District Judge under the terms of the said amending statute.

4. To the above contention of the plaintiff-respondent, the appellants' rejoinder is that the trial court's decree' in the present case must be taken to have been made or passed on 29-11-1957, on which date the judgment was delivered by the learned Subordinate Judge, as, under Order XXI, Rule 7 of the Code of Civil Procedure, the decree must bear the date of the judgment and the fact that the decree was drawn up later and/or was actually signed some time after 1-1-1958, when the above amending statute came into operation, -- or, to return to the facts of this case, was actually signed on 9-1-1958, -- would not affect that position and, in that view, the present case would be directly covered by the saving section, Section 4, of the said amending statute and the present appeal would lie in this Court under the old law, namely, the Bengal Agra and Assam Civil Courts Act 1887 (Section 21) (as it stood before the present amendment by the above amending statute, West Bengal Act XVI of 1957) which, in its said unamended form, will clearly apply to it in view of the saving provision of the said Section 4 of the above amending statute, West Bengal Act XVI of 1957, providing that 'nothing in the Act shall apply to or affect any appeal from any decree or order passed before the commencement of the Act.'

5. In our opinion, the appellants' contention is sound and the respondents' preliminary objection must fail. The judgment in this case was delivered on 29-11-1957, that is, before the commencement of the new amending Act. Under Order XX, Rule 7 of the Code of Civil Procedure, the decree shall bear the date, 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 will sign the decree. That obviously means that the decree also must be taken to have been passed or made on the same day as the judgment was pronounced, although it may be actually drawn up and signed on some later date. This, indeed, is plain and perfectly intelligible and quite in keeping also with the definition of 'judgment' in Section 2(9) of the Code of Civil Procedure as 'the statement given by the Judge of the grounds of a decree or order.' If support be necessary for the above view and any authority be needed in that behalf, reference may -- but need only -- be made to the decision in the Full Bench case of this Court in Bani Madhab Mitter v. Matungini Dassi, ILR 13 Cal 104 at p. 106; see also Jotindra Mohan Tagore v. Bejoy Chand Mahatap, ILR 32 Cal 483 at p. 491, under the old Code (Section 205) and Giribala Dasi v. Biswambhar Haldar : AIR1924Cal1064 , under the present Code (Order XX, Rule 7). The fact, therefore, that the formal decree was drawn up later, or that it was signed on 9-1-1958, would not be at all material and would not affect or change the above legal position and the date of the decree would be the date on which the judgment was pronounced, or, in other words, the decree in the present case must be taken to have been passed on 29-11-1957. As a matter of fact, the said decree under appeal in the present case itself shows, -- and that, indeed, is what Order XX, Rule 7 of the Code enjoins and specifically provides or prescribes-, -- that it was made or passed on 29-11-1957, (Vide the concluding words in the decree before the Judge's signature, namely, 'Given under my hand and the seal of this court this 29th day of November, 1957'). The decree under appeal, therefore, so far as the instant case is concerned, must be taken to have been passed or made on 29-11-1957, or, in other words, prior to the commencement of the amending statute on 1-1-1958. It is thus clearly a case which falls within the express terms of the saving Section 4 of the new amending statute (West Bengal Act XVI of 1957), and, as such, it is not affected by any provision of the said amending Act. The old law, accordingly, will govern the jurisdiction of this Court in the matter of this particular appeal and the forum of thereof and, under that law (The Bengal, Agra and Assam Civil Courts Act of 1887), that is, as it stood before the above new amendment, in view of the above valuation of the instant suit, namely, Rs. 9,287-11 as, this Court and not the District Judge, would be the proper forum of the present appeal.

6. The appeal, therefore, was properly filed in this Court and this Court alone has jurisdiction to entertain and decide the same. The respondent's preliminary objection must, therefore, fail and it is overruled. The appeal will proceed in this Court according to law.

7. There will be no order as to costs, so far as the present hearing is concerned.

Law, J.

8. I agree.


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