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Johuran Bibi and ors. Vs. Howrah Jute Mills Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Reported inAIR1948Cal134
AppellantJohuran Bibi and ors.
RespondentHowrah Jute Mills Co. Ltd.
Cases ReferredKausilla Kuer v. Mt. Bukh Dei
Excerpt:
- .....mis. j. case.a copy of this order-sheet, as appears from the endorsement on the certified copy filed, was applied for on 18-11-1946. on 19-11-1946 the judgment-debtor was asked to supply the requisite number of stamps and folios. on 21-11-1946 the judgment-debtor put in requisite stamps and folios. the copy was ready for delivery on 21-11-1946, and it was delivered to the judgment-debtor on 27-11-1946. along with the memorandum of appeal, the judgment-debtor filed a petition praying exemption from filing a certified copy of the judgment passed by the subordinate judge dismissing her objection case on the ground that the certified copy of the said judgment had been filed in misc. appeal no. 173 of 1946 of the said court by another judgment-debtor. on the memorandum being filed,.....
Judgment:

Gopendra Nath Das, J.

1. These appeals are on behalf of the judgment-debtors. The respondent, the Howrah Jute Mills Company Limited, obtained decrees for rent against different judgment-debtors and put those decrees into execution. The different judgment-debtors filed objections to the execution of the decrees under Section 47, Civil P.C. On an application filed by the judgment-debtors on 25-5-1946, the judgment-debtors limited their objections to the following grounds: (1) that the judgment-debtors had made certain payments which were not credited in the execution petition; (2) that the decrees for mesne profits were without jurisdiction; (3) that the application for execution was barred by time.

2. On the application of the judgment-debtors dated 29-5-1946, which was not opposed by the decree-holders, the Court directed that all the objections should be heard together. These petitions of objections were accordingly treated analogously. By an order of the Court dated 21-9-1946, except in some cases the objections were disallowed. The judgment which was passed was directed to be kept with the records of Misc. Case No. 17 of 1946.

3. The judgment-debtors preferred appeals to the Court of the District Judge. These appeals were rejected on the ground that certified copies of the judgment had not been filed in every one of these cases. Against the order of the District Judge, rejecting the memorandum of appeals, the judgment-debtors have come up to this Court. The appeals in this Court are numbered as S.M.A. Nos. 61 to 115 of 1947.

4. The facts in S.M.A. No. 61 of 1947 and S.M.A. Nos. 72 to 115 of 1947 are similar. I shall deal with the facts in S.M.A. No. 61 of 1947. This Second Miscellaneous Appeal arises out of Misc. Appeal No. 190 of 1946 of the Court of the District Judge, Howrah, which in its turn arises out of Misc. Case No. 15 of 1946 of the Court of the Subordinate 'Judge, 3rd Court, Howrah.

5. It appears from the order sheet in Misc. Case No. 15 of 1946 that the learned Subordinate Judge dismissed the objections filed by the judgment-debtor by an order dated 21-9-1946. The entry in the order sheet was as follows:

Order No. 26 dated 21-9-46. Judgment delivered. The case is dismissed with costs as per judgment kept with the record of Misc. Case No. 17 of 1946.

The next order is order No. 27 dated 8-11-46, recorded in the order sheet of the corresponding execution case, namely, Title Excn. Case No. 27 of 1946. This order runs as follows:

Order No. 27 dated 8-11-46. The Misc. Case having been disposed of the execution case is put up to-day. Decree-holder to take steps by 22-11-46.

The next order in the order sheet is order No. 28 dated 18-11-46.

6. The judgment-debtor filed the appeal in the Court of the District Judge on 10-12-1946. In the memorandum of appeal the judgment-debtor stated that the appeal was being filed against the order dated 21-9-1946, and the decree dated 18-11-1946. Along with the memorandum of appeal, she filed a certified copy of order No. 28 dated 18-11-1946. This order runs as follows:

Order No. 28 dated 18-11-46. Decree in Misc. Case No. 16 of 1946. The applicant Sin. Jahuran, wife of late Haji Pir Buksh of Chew's Garden, Police Station Sibpur, District Howrah to pay Re. 1-0-6 to the decree-holder Howrah Mills Co. Ltd., of 4, Olive Street Calcutta as costs of the aforesaid Mis. J. Case.

A copy of this order-sheet, as appears from the endorsement on the certified copy filed, was applied for on 18-11-1946. On 19-11-1946 the judgment-debtor was asked to supply the requisite number of stamps and folios. On 21-11-1946 the judgment-debtor put in requisite stamps and folios. The copy was ready for delivery on 21-11-1946, and it was delivered to the judgment-debtor on 27-11-1946. Along with the memorandum of appeal, the judgment-debtor filed a petition praying exemption from filing a certified copy of the judgment passed by the Subordinate Judge dismissing her objection case on the ground that the certified copy of the said judgment had been filed in Misc. Appeal No. 173 of 1946 of the said Court by another judgment-debtor. On the memorandum being filed, the Sheristadar made a note dated 11-12-1946 stating that the copy of the judgment had not been filed and he referred to the petition filed by the judgment-debtor praying for exemption as aforesaid; he further remarked that the appeal seemed to have been filed beyond the period of limitation. On 18-12-1946 that District Judge passed the following order:

Order No. 2 dated 13-12-46. Read office note. Copy of judgment (,of the Lower Court is to be filed by 18-12-46 and other defects to be removed by then. The appellant do explain by 18-12-46 why the memo of appeal should not be rejected as time barred.

The next order is Order No. 8 dated 18-12-1946.

Appellant filed a petition under Section 5, Limitation Act. Issue notice fixing 6-1-47 for hearing on Limitation. Defects removed. Written notice to be filed at once. Copy of judgment is to be filed positively by 6-1-47. The reasons recorded as per Court's order 3 of date in Misc. Appeal No. 185 of 1946.

On 6-1-1947 the Court directed that the memorandum of appeal would be rejected unless a copy of the judgment was-filed by 24-1-47. On 13-1-1947, the judgment-debtor applied for a copy of order No. 26 dated 21-9-1946 passed in Misc. Case No. 15 of 1946 and obtained a copy of the said order on 22-1-1946. That order is to the following effect:

Judgment delivered. The case is dismissed with costs as per judgment kept with the record of Misc. Case No. 17 of 1946.

The appellant filed a copy of this order on 24-1-1947. On that date the District Judge re-corded the following order:

Notice served Respondent has already entered appearance. Copy of judgment not filed but only copy of order sheet filed. The memo of appeal is rejected, O.P. will get costs of appearance only.

7. Against this order and similar orders passed in the different cases the judgment-debtors have preferred the appeals now before me. It appears that the appeals were filed in this Court on 4-3-1947. They were admitted under Order 41, Rule 11, Civil P.C., by R.C. Mitter and A. Ahmad JJ. on the same day and it was further ordered:

Let the appeals be heard together. We dispense with the filing of the separate copies of the judgment for the appeals as prayed for in the application.

8. Mr. Jana appearing for the appellants has contended that the lower appellate Court was not right in rejecting the memorandum of appeals for a failure on the part of his clients to put in separate copies of the judgment in the different appeals. Mr. Sen appearing for the decree-holder respondent has raised a preliminary objection that no appeal lies to this Court against the order of the District Judge rejecting the memorandum of appeal. The question whether an appeal lies or not has come up before the different High Courts in several cases. In Ayyanna v. Nagabhushanam ('93) 16 Mad. 285, Zamindar of Tuni v. Benayya ('99) 22 Mad. 155 and Rup Singh v. Mukhraj Singh ('85) 7 ALL. 887, the view has been taken that the appeal was competent. The view so taken by the Madras and Allahabad High Courts has not found favour with this Court. In Jnanada Sundari v. Madhub Chunder : AIR1932Cal482 this Court expressly dissented from the view taken in Rup Singh v. Mukhraj Singh ('85) 7 ALL. 887. To the same effect is a later decision of this Court in Charusila Dasi v. Abilash Bauri : AIR1936Cal804 . The view taken by this Court is supported by the plain words of Section 2, Clause (2) read with the opening words of Section 104 (1), Civil P.C. The appeals are there fore incompetent. Having regard to the nature of the question now before me, I have decided to treat the memorandum of appeals filed in the different cases as petitions under Section 115, Civil P.C., invoking the revisional powers of this Court.

9. It now remains for me to consider the propriety of the order of the District Judge rejecting the memorandum of appeal. Order 43, Rule 2, Civil P.C., says that the rules of Order 41 shall apply, so far as may be, to appeals from orders. It is well settled that the effect of Rule 2 of Order 43 is to attract the operation of Order 41, Rule 1, Civil P.C. See Kamala Devi v. Tarapada Mukherji ('12) 15 C.L.J. 498, Qasim All Khan v. Mt. Bhagwanta Kuar 5 A.I.R. 1918 All 394 and Durgaprosanna v. Rampal ('42) 29 A.I.R. 1942 Oudh 349. It follows therefore that the memorandum of appeal, which may be filed against an order, must be accompanied by a' certified copy of the decree and a certified copy of the judgment, unless the Court exempts the appellant from the necessity of filing a certified copy of the judgment. A question naturally arises as to whether in case of orders passed under Section 4Y, Civil P.C., the judgment pronounced by the Court may be regarded as a decree or whether a separate formal order, which may be drawn up, providing for costs may be taken as a decree in the case. In order to answer this question, I shall refer to the provisions of the Code and to the Rules and Circular Orders framed by this Court and the cases bearing on the point The word 'decree' is defined in Section 2, Clause (2) of the Code to mean.

the 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 in the suit and may ha either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 47 or Section 114, but shall not include: (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.

10. The word 'judgment' is defined in Section 2, Clause (9) of the Code to mean 'the statement given by the Judge of the grounds of a decree or orders.'

11. The word 'order' is defined in Section 2, Clause (14) of the Code to mean 'the formal expression of any decision of a civil Court which is not a decree.'

12. Order 20, Rule 6 of the Code states what the contents of a decree should be. Order 20, Rule 6 (1) states that:

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 clearly the relief granted or other determination of the suit.

Rub-rule (2) then says:

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

It would, therefore, follow that the Code draws clear distinction between judgments and formal orders even in oases under Section 47, Civil P.C.

13. In Civil Rules and Orders framed by this Court, Vol. 1, (1935 Edn.) provision has been made in Rule 187 for the drawing up of formal orders in certain clauses of orders passed under the Code. That rule, however, does not expressly refer to orders under Section 47, Civil P.C., although B. 186 expressly states that a decree should be drawn up on cases of rejection of a plaint, which has the force of a decree. Orders under Section 47 also have the effect of the decree under Section 2, Clause (2), Civil P.C., but no express rule has been framed in case of orders under Section 47. It would seem that the Civil Rules and Orders did not contemplate the drawing up of a formal decree except in cases where costs are awarded in disposing of objection under Section 47, Civil P.C.

14. I shall now refer to the cases bearing on this point. In Khirode Sundari Devi v. Jnanendra Nath Pal ('02) 6 C.W.N. 283 Maclean C.J. at p. 284, column 2 observes as follows:

This is an appeal from an order under Section 244 of the Code and under Section 2 of the Code, the order itself is the decree.

Banerjee J. concurred in that decision. The decision was that in an appeal from an order under Section 244 (corresponding to Section 47 of the present Code) it was sufficient to attach to the memorandum of appeal a certified copy of the judgment and that it was not necessary to file a certified copy of the decree, even though one was drawn up incorporating the operative part of the judgment.

15. Mr. Sen appearing on behalf of the respondent has relied on the observations made by Maclean C.J. and has argued that as in the present case a certified copy of the judgment which is the decree in the case, was not filed, there was in law no appeal before the District Judge. See Hem Chandra v. Jadubchandra ('12) 16 C.L.J. 116 and Binapani Devi v. Sashi Bhusan ('12) 16 C.L.J. 133. The view taken in Khirode Sundari Devi v. Jnanender Nath Pal ('02) 6 C.W.N. 283 has been dissented from by this Court in Kamala Devi v. Tarapada Mukherji ('12) 15 C.L.J. 498. Mukherji J, delivering the judgment of the Court observed as follows:

In the case of an order quite as much as in the case of a decree there may be a judgment which gives a statement of the ground upon which the decree o* order is based. It is obvious, therefore, whether an appeal is presented against a decree or an order, the memorandum ought to be accompanied by a copy of the judgment as also by a copy of the decree or order as the case may be. Now it frequently happens that in cases of execution proceedings, though there is a judgment, an order, that is, the formal expression of the decision is not drawn up. In such cases the concluding portion of the judgment which embodies the order may be treated as the order agairifet which the appeal is preferred. In such a contingency, it would be sufficient for the appellant to attach to his memorandum of appeal a copy of the judgment alone, and time should run from the date of the judgment. Where, however, as in the case before us, there is a judgment stating the grounds of the decision and a separate order is also drawn up esubodying the formal expression of the decision, copies of both the documents must be attached to the memorandum, and the appellant is en-pitied to a deduction of the time taken up in obtaining copies thereof.

Referring to the case in Khirode Sundari Devi v. Jnanender Nath Pal ('02) 6 C.W.N. 283 his Lordship (Mukherji J.) proceeded to observe that in that case it was not necessary to set out separately the operative part of the judgment and no formal order appeared to have been drawn up. *Where, however, an order for costs is made, it is incumbent to draw up a formal order stating the amount of costs to be paid by one party to the other. In the case referred to, i.e., Kamala Devi v. Tarapada Mukherji ('12) 15 C.L.J. 498, the appellant had attached to the memorandum of appeal a copy of the formal order. The appeal as filed was in time if the period of limitation for the filing of the appeal was calculated from date of such a formal order. It was held in that case, that time would run from the date of the formal order, and the appeal as filed was in time. His Lordship (Mukherji J.) then proceeded to say that even assuming that time ran from the date of the judgment there were sufficient grounds for condoning the delay in filing the appeal. Whatever my own views may be, I am bound by the decision in Kamala Devi v. Tarapada Mukherji ('12) 15 C.L.J. 498, which is on all fours with the present case. The view taken in the case last cited has found favour with the Allahabad High Court in 40 ALL. 12. The same view has also been adopted in Mangrey v. Sunder . In the former case the decision in Khirode Sundari Devi v. Jnanendra Nath Pal 6 C.W.N. 283 was distinguished on the ground that in that case no separate formal order was drawn up. It is true that the High Court at Allahabad has a rule of its own, which requires the drawing up of a formal order in cases under Section 47, Civil P.C. In the latter case the Chief Court of Oudh rejected an appeal against an order under Section 47 which was not accompanied by a certified copy of the formal order, as being barred by limitation, the certified copy hot having been put in within the period prescribed by law for the filing of the appeal.

16. I am not unaware that the decision in Kamala Devi v. Tarapada Mukherji ('12) 15 C.L.J. 498 has been commented upon by Suhrawardy J. in Debendra Nath v. Nagendra Nath 13 A.I.R. 1926 Cal. 688. At page 481 Suhrawardy J. observes as follows:

I am conscious that in the Courts below formal decrees are drawn up in order to show the result of litigation. But I am unable to hold that such decrees must be filed along with the memorandum of appeal and that time for presentation of appeals should be calculated from the date of such decrees.

That case however did not relate to an appeal from an' order under Section 47 of the Code, but to an appeal from an order under Section 158, Bengal Tenancy Act. That case therefore is not on all fours with the facts of the present case.

17. In view of the above discussion the decree in the present case must be taken to be 'order No. 26, dated 21-9-1946, taken along with order No. 28 dated 18-11-1946. Order No. 28 dated 18-11-1946 is expressed to be the decree in the miscellaneous case. As I have said I am bound by the decision in 15 C.L.J. 498. 6 Following that decision I hold that time would run in the present case from the date of order No. 28 viz. 18-11-1946. The appeal was therefore filed within time.

18. I shall now consider the question whether a separate copy of the judgment dated 21-9-1946, was required to be filed. As I have said already, the appeals were preferred by the different tenants in different execution cases started by the decree-holder respondent for recovery of decrees for rent. Claims in these cases were not heavy. I think the learned District Judge1 should have adopted the course, which commended itself to this Court while admitting the appeals under Order 41, Rule 11, Civil P.C., and should have dispensed with the filing of separate copies of judgment in the different cases. If that had been done, the parties would have been saved unnecessary costs. After all as observed by the Judicial Committee of the Privy Council in Indrajit Pratap v. Amar Singh 10 A.I.R. 1923 P.C. 128 at p. 191 'Rules of procedure are not made for the purpose of hindering justice.' There was a prayer made before the Court for the analogous hearing of the appeals; a certified copy of the judgment has been filed in one of them. I do not see any reason why an order for analogous trial, which was made in the trial Court without any objection on the part of the decree-holder, should not have been made. This was done by this Court, when the appeals were admitted. If that order had been made, the records would have been complete and the Court would have been in a position to dispose of all the appeals on reference to a certified copy of the judgment, which was filed in one of these cases. In this connection I would refer to the case in Bodh Narain v. Mahabir Prasad ('40) 27 A.I.R. 1940 Pat. 176 where Agarwalla J. of the Patna High Court disposed of an objection made in an office note that separate copies of judgment had not been filed in analogous appeals. His Lordship observed:

There seems to be no reason why the appellant should be obliged to file a copy of the judgment which is already on the record in the analogous appeal and which is available for use in both the appeals as Rule 1 does not expressly require that an order which has the force of a decree but which is not a decree shall be filed with the memorandum.

In a case reported in Kausilla Kuer v. Mt. Bukh Dei ('23) 10 A.I.R. 1923 All. 579 where the formal order under Section 47 of the Code, which was a verbatim copy of the operative part of the judgment had not been filed and the respondent raised a preliminary objection that the appeal was incompetent as the formal order was not put in Walsh J. overruled the contention so raised and observed as follows:

The failure mattered to nobody and the objection id one .of those futile and childish objections which bring the law into so much contempt in the minds of reasonable business people.

I In the facts of the present cases I think an order should be made dispensing with the filing of separate copies of the judgment in the appeals before the District Judge.

19. As I have already said the facts of this appeal are similar to those involved in S.M.A. Nos. 72 to 115 of 1947. In all these appeals, namely, S.M.A. No. 61 and S.M.A. Nos. 72 to 115 of 1947, the order of the District Judge rejecting the memoranda of appeals is set aside and the appeals remitted to him on the finding that the appeals filed before him were within time and that the separate copies of judgment in all these appeals are not necessary to be filed and should be dispensed with. The learned District Judge will now proceed to hear the corresponding miscellaneous appeals under Order 41, Rule 11, Civil P.R., and then dispose of those appeals according to law.

20. As I have held already that the miscellaneous appeals mentioned above are incompetent, the above orders are passed treating the memoranda of appeals in these cases as petitions under Section 115, Civil P.C. There will be no order for costs in these cases. The records of these appeals may be sent down as soon as practicable and the learned District Judge is requested to dispose of the corresponding appeals as early as convenient.

21. There remains a batch of 10 second miscellaneous appeals, namely S.M.A. Nos. 62 to 71 of 1947. In these appeals the facts are slightly different. In the lower appellate Court the judgment-debtors filed these appeals without any copy, either of the order-sheet or of the judgment dated 21st September 1946. A petition was filed on their behalf praying for exemption from filing a certified copy of the judgment. Later a petition was filed for an extension of time under Section 5, Limitation Act. A certified copy of the formal order had been filed later on. The learned District Judge will consider whether sufficient grounds had been made out for extending the time for filing the certified copies of the formal orders. In these cases the date of the filing of the appeal should be taken to be the date when the formal orders passed in the miscellaneous cases were filed in his Court. In these cases the appeals are incompetent as stated above, and the orders are passed in exercise of the revisional powers of this Court under Section 115, Civil P.C. The order of the learned District Judge under appeal is set aside. There will be no order for costs in these cases in this Court.

22. Eecords of these appeals may be sent down as soon as practicable and the learned District Judge is requested to dispose of the corresponding appeals as early as convenient.

23. The connected rules stand discharged without costs, as the appeals have now been disposed of.


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